16-940 Scarlett v. Barr In the United States Court of Appeals for the Second Circuit AUGUST TERM 2019 No. 16-940 LESTON AUGUSTUS SCARLETT, Petitioner-Appellant, v. WILLIAM P. BARR, United States Attorney General, Respondent-Appellee. On Appeal from the Board of Immigration Appeals ARGUED: OCTOBER 30, 2019 DECIDED: APRIL 28, 2020 _____ Before: CABRANES and RAGGI, Circuit Judges, and KORMAN, District Judge. * _____ *Judge Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation. On a petition for review of a Board of Immigration Appeals (“BIA”) decision upholding an order of removal, petitioner challenges the denials of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). As to asylum, petitioner faults the BIA for not allowing him to reopen proceedings to cure record deficiencies that he attributes to the ineffective assistance of counsel and that he maintains show extraordinary circumstances excusing the untimeliness of his asylum application. As to withholding, petitioner argues that the agency erred in finding that he failed to show a reasonable fear of persecution from (1) former supervisors in the Jamaican police force, and (2) criminal gang members. In particular, petitioner charges the agency with legal error in assessing whether Jamaican authorities were unwilling or unable to protect him from gang violence. Petitioner similarly challenges the denial of CAT relief. We identify no error in the agency’s rejection of petitioner’s untimely asylum claim. We also identify no error in its denial of withholding or CAT protection insofar as petitioner professes fear of persecution and torture from former police supervisors. Insofar as he seeks withholding and CAT protection based on feared persecution and torture from gangs, however, the record does not permit us to determine whether the agency considered all relevant evidence and applied the correct legal standard. Accordingly, we vacate the agency’s denials in this respect and remand for further proceedings consistent with this opinion and with the Attorney General’s decision in Matter of A-B-, 27 I. & N. Dec. 316 (Att’y Gen. 2018). PETITION GRANTED; BIA DECISIONS AFFIRMED IN PART AND VACATED AND REMANDED IN PART. ______________ 2 HANNAH MILLER (Vilia B. Hayes, on the brief) Hughes Hubbard & Reed LLP, New York, New York for Petitioner. LINDSAY M. MURPHY (Benjamin C. Mizer, Andrew N. O’Malley, on the brief) United States Department of Justice, Office of Immigration Litigation, Washington, District of Columbia for Respondent. REENA RAGGI, Circuit Judge: Leston Augustus Scarlett is a Jamaican national and former Jamaican police officer who petitions this court to review two decisions of the Board of Immigration Appeals (“BIA”) that, collectively, uphold Immigration Judge (“IJ”) orders directing Scarlett’s removal from the United States and denying his requests for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). See In re Leston Augustus Scarlett, No. A206 471 586 (B.I.A. June 11, 2015 & Mar. 8, 2016), aff’g No. A206 471 586 (Immig. Ct. Batavia Oct. 23, 2015 & Feb. 5, 2015). Insofar as ...
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