     15-2390(L),16-1817(Con)
     McCarthy v. Sessions
                                                                                    BIA
                                                                          Christensen, IJ
                                                                          A089 637 634

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals
 2   for the Second Circuit, held at the Thurgood Marshall
 3   United States Courthouse, 40 Foley Square, in the City of
 4   New York, on the 20th day of April, two thousand eighteen.
 5
 6   PRESENT:
 7            BARRINGTON D. PARKER,
 8            RAYMOND J. LOHIER, JR.,
 9            CHRISTOPHER F. DRONEY,
10                 Circuit Judges.
11   _____________________________________
12
13   BRYAN MCCARTHY,
14                 Petitioner,
15                                                               15-2390(L),
16                    v.                                         16-1817(Con)
17                                                               NAC
18
19   JEFFERSON B. SESSIONS, III,
20   UNITED STATES ATTORNEY GENERAL,
21                 Respondent.
22   _____________________________________
23
24   FOR PETITIONER:                  Millicent Y. Clarke, Freeport,
25                                                             NY.
26
27   FOR RESPONDENT:                  Benjamin C. Mizer, Principal
28                                    Deputy Assistant Attorney General;
1                                    Holly M. Smith, Senior Litigation
2                                    Counsel; John B. Holt, Trial
3                                    Attorney, Office of Immigration
4                                    Litigation, United States
5                                    Department of Justice, Washington,
6                                    DC.
7
8         UPON DUE CONSIDERATION of these petitions for review of

 9   Board of Immigration Appeals (“BIA”) decisions, it is hereby

10   ORDERED, ADJUDGED, AND DECREED that the petitions for review

11   are DENIED.

12        Petitioner    Bryan   McCarthy,       a   native      and   citizen    of

13   Jamaica, seeks review of (1) a May 20, 2016, decision of the

14   BIA denying his motion to reopen, In re Bryan McCarthy, No.

15   A089 637 634 (B.I.A. May 20, 2016), and (2) a June 30, 2015,

16   decision of the BIA affirming an August 11, 2014, decision of

17   an   Immigration   Judge   (“IJ”)       denying      his   application     for

18   asylum,   withholding      of   removal,       and     relief    under     the

19   Convention Against Torture (“CAT”), In re Bryan McCarthy, No.

20   A089 637 634 (B.I.A. June 30, 2015), aff’g No. A089 637 634

21   (Immig. Ct. N.Y.C. Aug. 11, 2014).             We assume the parties’

22   familiarity with the underlying facts and procedural history

23   in this case.



                                         2
 1     A. Docket 15-2390(L), Order of Removal

 2          We have reviewed the IJ’s decision as modified by the

 3   BIA.     See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

 4   520, 522 (2d Cir. 2005).       Because McCarthy does not challenge

 5   the     agency’s    removability         finding     or     the    agency’s

 6   determination that he is statutorily barred from asylum and

 7   withholding    of   removal    for   having    been       convicted   of    an

 8   aggravated felony and particularly serious crime, the only

 9   issue before us in this petition is the agency’s denial of

10   deferral of removal under the CAT.                 See Yueqing Zhang v.

11   Gonzales, 426 F.3d 540, 541 n.1, 545 n.7 (2d Cir. 2005).                   The

12   applicable     standards      of   review     are    well     established.

13   8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

14   510, 513 (2d Cir. 2009).

15          Deferral of removal under the CAT requires the applicant

16   to show that he would more likely than not be tortured if

17   removed.     8 C.F.R. §§ 1208.16(c)(2), 1208.17(a).               It further

18   requires a showing that the torture will be “inflicted by or

19   at the instigation of or with the consent or acquiescence of

20   a public official or other person acting in an official

21   capacity.”     8 C.F.R. § 1208.18(a)(1); Khouzam v. Ashcroft,
                                          3
 1   361 F.3d 161, 170-71 (2d Cir. 2004).              “[A]n alien will never

 2   be able to show that he faces a more likely than not chance

 3   of torture if one link in the chain cannot be shown to be

 4   more likely than not to occur.            It is the likelihood of all

 5   necessary events coming together that must more likely than

 6   not lead to torture, and a chain of events cannot be more

 7   likely than its least likely link.”          Savchuck v. Mukasey, 518

 8   F.3d 119, 123 (2d Cir. 2008) (quoting In re J-F-F-, 23 I. &

 9   N. Dec. 912, 918 n.4 (A.G. 2006)).            The agency did not err

10   in   concluding   that      McCarthy      failed     to    demonstrate    a

11   likelihood of torture with government acquiescence.

12        Contrary to McCarthy’s contention, the agency did not

13   ignore   testimony   that    gang       members    had    robbed   him   and

14   considered him a “snitch” for reporting the robbery because

15   McCarthy did not testify to any such facts.                And the agency

16   reasonably concluded that McCarthy failed to demonstrate a

17   likelihood of future torture.           McCarthy testified that he had

18   been beaten by gang members once in 2001, he had not returned

19   to Jamaica since his departure later that year, he had not

20   had any involvement with the business that he had run with

21   his uncle and cousin for more than two years, and he had not
                                         4
 1   presented any basis to conclude that any gang members remained

 2   interested in him or his past business.   Accordingly, despite

 3   the tragic murders of his uncle in 2008 and his cousin in

 4   2012, the agency did not err in concluding that he failed to

 5   establish the chain of events necessary to satisfy his burden

 6   that he would more likely than not be tortured or killed in

 7   Jamaica.    See In re J-F-F-, 23 I. & N. Dec. at 917-18, 918

 8   n.4.

 9          Alternatively, the agency did not err in concluding that

10   McCarthy failed to demonstrate that the Jamaican government

11   would acquiesce in his torture.      At his hearing, McCarthy

12   implied that the police acted uninterested when he reported

13   being beaten and did not adequately investigate his uncle’s

14   murder, but he admitted that police had cracked down on the

15   gang that he feared by arresting or killing gang leaders and

16   members.    Furthermore, McCarthy submitted evidence that the

17   gang he feared had become relatively inactive and that the

18   Jamaican government had arrested more than 500 members of

19   another gang and coordinated with the United States to arrest

20   the leader of that gang, which resulted in a 34% drop in the

21   country’s murder rate.     Based on this evidence, the agency
                                     5
1    did not err in determining that McCarthy failed to demonstrate

2    that    Jamaican    authorities   were    more   likely   than   not    to

3    acquiesce in his torture by gang members.            See Khouzam, 361

4    F.3d at 170-71.

5           Accordingly, because McCarthy failed to demonstrate a

6    likelihood     of   torture   with   government    acquiescence,       the

7    agency did not err in denying him deferral of removal under

8    the     CAT.        See   8 C.F.R.       §§ 1208.16(c),    1208.17(a),

9    1208.18(a)(1); Khouzam, 361 F.3d at 168.

10     B. Docket 16-1817(Con), Motion to Reopen

11          The applicable standards of review are well established.

12   See Jian Hui Shao v. Mukasey, 546 F.3d 138, 168-69 (2d Cir.

13   2008).    It is undisputed that McCarthy’s motion to reopen was

14   untimely filed because the agency’s order of removal became

15   final in June 2015 and McCarthy did not file his motion to

16   reopen until February 2016, well beyond the 90-day deadline.

17   See 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2).

18   The BIA may equitably toll the time for filing a motion to

19   reopen based on a claim of ineffective assistance of counsel.

20   See Iavorski v. U.S. INS, 232 F.3d 124, 134 (2d Cir. 2000).

21   In order to warrant equitable tolling, even assuming that a
                                          6
 1   movant demonstrated that his prior counsel’s actions were

 2   ineffective, the movant must show that those actions caused

 3   actual prejudice, i.e., McCarthy had to “make a prima facie

 4   showing that he would have been eligible for the relief and

 5   that he could have made a strong showing in support of his

 6   application.”     Rabiu v. INS, 41 F.3d 879, 882 (2d Cir. 1994).

 7        The BIA did not err in concluding that McCarthy failed

 8   to demonstrate that he was prejudiced by his former counsel’s

 9   assistance because he did not produce evidence that Jamaican

10   officials would acquiesce in his torture as required to

11   establish his prima facie eligibility for deferral of removal

12   under the CAT.     See 8 C.F.R. § 1208.18(a)(1); Rabiu, 41 F.3d

13   at   882.   The    country   conditions   evidence   that    McCarthy

14   presented with his motion to reopen demonstrated that the

15   murder rate fluctuates from year to year depending on gang

16   power struggles and truces (the rate increased by 20% in

17   2015), that gangs operate with some impunity, and that the

18   government had increased its efforts to combat gang violence

19   and government corruption with some success.                Given the

20   evidence of government successes in fighting the gangs, the

21   BIA was not compelled to conclude that these conditions were
                                      7
1    prima   facie   evidence    of   government      acquiescence   to   gang

2    violence.     See Jian Hui Shao, 546 F.3d at 171 (“We do not

3    ourselves attempt to resolve conflicts in record evidence, a

4    task largely within the discretion of the agency.”).

5          Because McCarthy failed to establish his prima facie

6    eligibility for deferral of removal, he did not establish

7    prejudice based on his counsel’s representation.            See Rabiu,

8    41 F.3d at 882-83.          Accordingly, the BIA did not err in

9    declining to toll the time for filing his motion to reopen

10   and   in   denying   that   motion       as   untimely.   See   8 U.S.C.

11   § 1229a(c)(7)(C)(i).

12         For the foregoing reasons, the petitions for review are

13   DENIED.     As we have completed our review, any stay of removal

14   that the Court previously granted in these petitions is

15   VACATED, and any pending motion for a stay of removal in these

16   petitions is DISMISSED as moot.           Any pending request for oral

17

18

19

20

21
                                          8
1   argument in these petitions is DENIED in accordance with

2   Federal   Rule   of   Appellate    Procedure   34(a)(2)   and   Second

3   Circuit Local Rule 34.1(b).

4                                     FOR THE COURT:
5                                     Catherine O’Hagan Wolfe, Clerk




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