         11-3194
         Blackmore v. Holder
                                                                                       BIA
                                                                                Sagerman, IJ
                                                                               A031 334 031
                                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 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 United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 1st day of October, two thousand thirteen.
 5
 6       PRESENT:
 7                JOHN M. WALKER, JR.,
 8                REENA RAGGI,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       ____________________________________
12
13       JAN FITZPATRICK BLACKMORE, AKA YAN
14       BLACKMORE,
15                Petitioner,
16
17                             v.                               11-3194
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       ______________________________________
23
24       FOR PETITIONER:                 Joshua Bardavid, New York, New York.
25
26       FOR RESPONDENT:                 Stuart F. Delery, Acting Assistant
27                                       Attorney General; Cindy S. Ferrier,
28                                       Assistant Director; Tracie N. Jones,
29                                       Trial Attorney, Office of
 1                           Immigration Litigation, United
 2                           States Department of Justice,
 3                           Washington, D.C.
 4
 5       UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9       Petitioner Jan Fitzpatrick Blackmore, a native and

10   citizen of Guyana, seeks review of a July 21, 2011, decision

11   of the BIA, affirming Immigration Judge (“IJ”) Roger F.

12   Sagerman’s March 23, 2011, denial of deferral of removal

13   under the Convention Against Torture (“CAT”).     In re Jan

14   Fitzpatrick Blackmore, No. A031 334 031 (B.I.A. July 21,

15   2011), aff’g No. A031 334 031 (Immig. Ct. Fishkill Mar. 23,

16   2011).   We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       Under the circumstances of this case, we have reviewed

19   both the IJ’s and BIA’s opinions “for the sake of

20   completeness.”   Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

21   2008)(internal citation and quotation omitted).     The

22   applicable standards of review are well-established.      See 8

23   U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510,

24   513 (2d Cir. 2009).

25

                                   2
 1       Assuming that we retain jurisdiction over Blackmore’s

 2   challenge to the agency’s denial of deferral of removal

 3   under the CAT, he has failed to identify reversible error in

 4   the agency’s decision.   Even if Blackmore is correct that

 5   the agency failed to articulate its basis for finding that

 6   Guyana’s law criminalizing homosexuality was a lawful

 7   sanction within the meaning of the CAT, we decline to remand

 8   because the agency’s finding that Blackmore failed to

 9   establish that he would likely be prosecuted under that law,

10   or otherwise tortured, was reasonable.   See In re M-B-A-, 23

11   I. & N. Dec. 474, 479-80 (B.I.A. 2002) (noting that a claim

12   “based on a chain of assumptions and a fear of what might

13   happen” is insufficient to demonstrate eligibility for

14   relief under the CAT); see also Cao He Lin v. U.S. Dep’t of

15   Justice, 428 F.3d 391, 401 (2d Cir. 2005) (holding that

16   remand is not required “where there is no realistic

17   possibility that, absent the errors, the IJ or BIA would

18   have reached a different conclusion”).

19       As the IJ determined, much of Blackmore’s evidence

20   describing the treatment of homosexuals in Guyana was out of

21   date at the time of his 2010 merits hearing and the more

22   recent reader submissions to the Stabroek News were entitled


                                   3
 1   to diminished evidentiary weight because they contained

 2   unsubstantiated assertions by unknown authors.     See Xiao Ji

 3   Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.

 4   2006) (noting that the weight afforded to an applicant’s

 5   evidence lies largely within the discretion of the agency).

 6       Further, the agency properly considered whether

 7   Blackmore would be prosecuted under Guyana’s law

 8   criminalizing homosexuality and did not err in finding that

 9   his credible testimony was insufficient to demonstrate his

10   eligibility for relief.   See In re M-B-A-, 23 I. & N. Dec.

11   at 479-80; see also Yan Juan Chen v. Holder, 658 F.3d 246,

12   252 (2d Cir. 2011) (“[w]here the trier of fact determines

13   that the applicant should provide evidence that corroborates

14   otherwise credible testimony, such evidence must be provided

15   unless the applicant does not have the evidence and cannot

16   reasonably obtain the evidence”); cf. Jian Hui Shao v.

17   Mukasey, 546 F.3d 138, 162 (2d Cir. 2008) (while “credible

18   testimony was sufficient to demonstrate a genuine subjective

19   fear of future persecution, more was needed to demonstrate

20   the objective reasonableness of that fear”).     Indeed, as the

21   IJ noted, neither Blackmore nor his mother had recently

22   returned to Guyana and lacked first hand knowledge of


                                   4
 1   current country conditions.     Moreover, as the government

 2   points out, the U.S. Department of State’s 2009 Human Rights

 3   Reports on Guyana did not identify any prosecutions under

 4   Guyana’s law criminalizing homosexuality, and the evidence

 5   in the record reflected only two incidents of individuals

 6   being prosecuted under the law, both of which involved

 7   minors.    These isolated reports involving

 8   non-similarly-situated individuals are insufficient to

 9   demonstrate eligibility for relief.     See Jian Hui Shao, 546

10   F.3d at 160-61, 170-71; see also id. at 155, 172 (finding no

11   error in the BIA’s determination that it could not infer a

12   reasonable possibility of forced sterilization from

13   occasional reports of forced sterilization that lacked

14   detail).    As a result, Blackmore has not shown that he would

15   more likely than not be subject to prosecution under the

16   law, or otherwise tortured, if removed to Guyana.     Id. & In

17   re M-B-A-, 23 I. & N. Dec. at 479-80.

18       In light of the foregoing and the IJ’s explicit finding

19   that Blackmore failed to show he would likely be arrested on

20   account of his sexual orientation, his argument that the

21   agency failed to consider whether he would be prosecuted

22   under Guyana’s law criminalizing homosexuality is without

23   merit.     See Xiao Ji Chen, 471 F.3d at 337 n.17 (presuming
                                     5
 1   that the agency “has taken into account all of the evidence

 2   before [it], unless the record compellingly suggests

 3   otherwise”).

 4       For the foregoing reasons, the petition for review is

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

 6   removal that the Court previously granted in this petition

 7   is VACATED, and any pending motion for a stay of removal in

 8   this petition is DISMISSED as moot.    Any pending request for

 9   oral argument in this petition is DENIED in accordance with

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

11   Circuit Local Rule 34.1(b).

12                                 FOR THE COURT:
13                                 Catherine O’Hagan Wolfe, Clerk
14
15
16




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