                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-18-2004

Parker v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4265




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 03-4265


                            ONEIL ORLANDO PARKER,

                                               Petitioner

                                          v.

      JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES




            On Petition for Review from the Board of Immigration Appeals
                                  No. A95 521 657



                             Argued: November 12, 2004

                Before: McKEE and CHERTOFF, Circuit Judges, and
                      BUCKWALTER,* Senior District Judge.

                              (Filed November 18, 2004)

TIMOTHY R. BLOCK (Argued)
Legal Services of New Jersey
100 Metroplex Drive, Suite 402
Edison, NJ 08818



       * Honorable Ronald Buckwalter, Senior United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
                                           1
      Counsel for Appellant

PETER D. KEISLER, Assistant Attorney General, Civil Division
LINDA S. WENDTLAND, Assistant Director
EDWARD C. DURANT, Attorney
MATTHEW L. ZABEL, Attorney (Argued)
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

      Counsel for Appellee




                                       OPINION


Chertoff, Circuit Judge.


      Petitioner, Oneil Orlando Parker, seeks review of a decision of the Board of

Immigration Appeals rejecting his claim for asylum and withholding of removal on the

ground of well-founded fear of persecution.

      The relevant facts are these. Before the Immigration Judge (“IJ”), Parker

maintained that as a gay man in Kingston, Jamaica, he was subjected to widespread

hatred and some acts of violence by prejudiced individuals, and that the police were

unable to control the violence or afford protection. The IJ found Parker’s testimony to be

credible. In particular, the IJ noted that (1) Parker’s homosexual orientation was made

public in an inflammatory newspaper article in 1999; (2) Parker was later threatened and


                                              2
hit by members of a neighborhood gang; and (3) Parker’s efforts to relocate elsewhere in

the town of Kingston were unsatisfactory because he was recognized as a gay man. After

his last effort to relocate came to naught in 2001, Parker fled to the United States. The IJ

also observed, however, that some of the gang animus against Parker may stem from

family disputes between Parker and the gang leader, and from the belief by gang

members that Parker cooperated with police in a murder investigation.

       Based on these findings, the IJ concluded that Parker was a member of a distinct

social group – gay men – and that he was reasonably afraid of future threats and assaults.

Most significant, the IJ determined that this was a well-founded fear of persecution

because the police cannot control the gang that threatens him with violence, at least in

part, because of his sexual orientation.

       The Board of Immigration Appeals reversed. The Board did not take issue with

the IJ’s findings that Parker was credible; that he was a member of a social group that is

the subject of widespread social prejudice; and that he had a reasonable basis to fear

future harm as a result of this prejudice. Indeed, the Board agreed that there was a

“pervasive animus towards homosexuals in Jamaica,” and noted an Amensty

International Report stating that police have ill-treated homosexuals. (App. 2).

Nevertheless, the Board went on to hold that this does not “establish the government’s

inability to respond to persecutorial harm where motivated to do so” and, therefore, that

Parker’s application must fail because he did not “prove that the Jamaican government is


                                             3
unwilling or unable to protect him from harm.” (Id.).

       We review the Board’s decision under the substantial evidence test. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). The pivotal issue here is whether substantial

evidence on this record supports the determination that Parker did not prove that

Jamaican authorities are unwilling or unable to protect him.

       The Board’s assessment that the police can protect Parker was based on a letter

from police detective Michael Garrick that was supplied by Parker himself. The letter in

pertinent part states:

       This serves to inform you that I have known Oneil Parker of 18 Windward Road
       for the past six (6) months.

       Mr. Parker lives in a volatile area in which gun crimes are frequently committed.

       Sometime between May and June 2002, Parker’s cousin James Brown was shot
       at resulting in the arrest of three persons. Since then there have been threats
       against the life of Brown and his relatives.

       The fact that Parker is close to Brown [sic] he has been threatened several times.
       It has reached the extent that he reported to me that he is in fear of sleeping in his
       community.

       In addition, people from the community is [sic] accusing him of being a
       homosexual and expressed that they do not want him in the community.

       The police is [sic] offering protection and have tried to get on top of the situation
       but Parker does not feel comfortable.

       I was informed by his relatives that he is in the United States of America seeking
       political asylum.

       I therefore forward you this information which I hope will assist with your
       investigation, please.

                                              4
(App. 270).

       The Board’s reading of the letter is perhaps overly sanguine. In fact, the letter is a

mixed message. On the one hand, it suggests that a good deal of Parker’s problem stems

from his involvement in a police investigation, rather than his homosexuality. On the

other hand, against that background, the letter appears to demonstrate only that

individual police have tried unsuccessfully to help Parker, perhaps – as the Board

acknowledged (App. 2) – because of his assistance in their investigation. We do not see

the letter as strongly probative of the authorities willingness or ability to curb threats

against Parker.

       There is considerable evidence that virulent prejudice against homosexuals exists

in Jamaica. Reports of Amnesty International – on which the Board relied – note two

incidents of misbehavior against gays in police custody, one of which was a 1997 prison

riot. Amnesty International also described incidents in which police have failed to

respond to “incidents of homophobic violence” (App. 213-14, 231). An extensive news

article in the Jamaica Gleaner in 2001 recounts that leaders of both major political parties

found it advantageous to emphasize their strong personal distaste for homosexuals.

(App. 222-23). The record discloses a culture of anti-homosexual violence that is deeply

ingrained, and reflected in popular songs that urge violence against gay men. (App. 225-

26). And Parker himself related that he was involved in an altercation that police seemed

not to take very seriously.

                                               5
       On the other hand, students who engaged in gay violence have faced expulsion

(App. 233), and, as the 2002 Country Report indicates, the newly established Public

Defender’s office has “strongly criticized violence targeted against homosexuals.” (App.

203). Also, various government agencies have begun programs designed to educate

police to respect citizen’s rights. (Id).

       The question boils down to this: Was there substantial evidence that the

government is not unable or unwilling to control violence against gays? Gao, 299 F.3d

at 272. While the question is close, under our deferential standard of review we cannot

conclude that the Board’s conclusion was unreasonable. Although Jamaican society

evidently takes a harsh view of homosexuality, there is some evidence – including

Detective Garrick’s letter – that officials recognize that violence against gays is

unacceptable. We cannot say that the Board weighed this evidence unreasonably.

Accordingly, we will affirm the decision and deny the petition for review.
