Watson v. Garland

19-3174 Watson v. Garland BIA Cortes, IJ A088 445 167 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 3 United States Courthouse, 40 Foley Square, in the City of 4 New York, on the 23rd day of June, two thousand twenty-two. [5] 6 PRESENT: 7 RAYMOND J. LOHIER, JR., 8 WILLIAM J. NARDINI, 9 STEVEN J. MENASHI, 10 Circuit Judges. 11 _____________________________________ [12] 13 CHARLES LETTS WATSON, 14 Petitioner, [15] 16 v. 19-3174 17 NAC 18 MERRICK B. GARLAND, UNITED 19 STATES ATTORNEY GENERAL, 20 Respondent. 21 _____________________________________ [22] 23 FOR PETITIONER: Craig Relles, White Plains, NY. [24] 25 FOR RESPONDENT: Ethan P. Davis, Acting Assistant 26 Attorney General; Derek C. Julius, 27 Assistant Director, Katherine A. 28 Smith, Trial Attorney, Office of 1 Immigration Litigation, United 2 States Department of Justice, 3 Washington, D.C. 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED that the petition for review 7 is DENIED. 8 Petitioner Charles Letts Watson, a native and citizen of 9 Jamaica, seeks review of a September 17, 2019 decision of the 10 BIA affirming an April 23, 2019 decision of an Immigration 11 Judge (“IJ”) denying his applications for cancellation of 12 removal, withholding of removal, and protection under the 13 Convention Against Torture (“CAT”). In re Charles Letts 14 Watson, No. A 088 445 167 (B.I.A. Sept. 17, 2019), aff’g No. 15 A 088 445 167 (Immig. Ct. N.Y. City Apr. 23, 2019). We assume 16 the parties’ familiarity with the underlying facts and 17 procedural history. 18 We “review the judgment of the IJ as modified by the 19 BIA’s decision — that is, minus the . . . argument[s] for 20 denying relief that w[ere] rejected by the BIA.” Xue Hong 21 Yang v. U.S. Dep’t of Just., 426 F.3d 520, 522 (2d Cir. 2005). 22 Because Watson does not raise his CAT claim in this Court, we 23 address only cancellation and withholding of removal. [2] 1 I. Cancellation of Removal 2 A nonpermanent resident such as Watson may have his 3 removal cancelled if, among other requirements, he has “been 4 a person of good moral character [for at least the 10 years 5 immediately preceding his application].” 8 U.S.C. 6 § 1229b(b)(1). The Immigration and Nationality Act provides 7 a list of reasons that an applicant will be precluded from 8 showing good moral character, including that he has committed 9 certain criminal offenses. 8 U.S.C. § 1101 (f). The statute 10 also includes the following catchall provision: “The fact 11 that any person is not within any of the foregoing classes 12 shall not preclude a finding that for other reasons such 13 person is or was not of good moral character.” Id. 14 Generally, under 8 U.S.C. § 1252 (a)(2)(B)(i) and (D), 15 our jurisdiction to review a denial of cancellation of removal 16 is limited to constitutional claims and question of law. See 17 Mendez v. Holder, 566 F.3d 316 , 318–19 (2d Cir. 2009). We 18 retain jurisdiction to review “nondiscretionary, or purely 19 legal, decisions regarding an alien’s eligibility for” 20 cancellation. Sepulveda v. Gonzales, 407 F.3d 59, 63 (2d 21 Cir. 2005). It is an open question in this Court whether a [3] 1 moral character determination pursuant to § 1101(f)’s 2 catchall provision is a purely discretionary decision that we 3 lack jurisdiction to review. See Sumbundu v. Holder, 602 4 F.3d 47 , 53–54 (2d Cir. 2010) (“[W]e have not had reason to 5 decide whether catchall moral character decisions are non- 6 discretionary and fully reviewable, or whether our 7 jurisdiction to review them is either more limited or non- 8 existent. Because we conclude that petitioners in the case 9 before us have raised plausible questions of law, we do not 10 need to consider whether we would have jurisdiction had they 11 not done so.”). As in Sumbundu, we decline to resolve the 12 question because Watson’s arguments on appeal do not 13 challenge the agency’s fact-finding or its exercise of 14 discretion. Instead, he contends that the BIA failed to 15 sufficiently address the moral character factor, and his 16 arguments implicate our scope of review and due process -- 17 i.e., whether the agency provided adequate analysis for 18 judicial review. We review constitutional claims and 19 questions of law de novo. Pierre v. Holder, 588 F.3d 767 , 20 772 (2d Cir. 2009). 21 The agency fully considered moral character. During his [4] 1 testimony, Watson admitted that he had been arrested multiple 2 times during the 10-year statutory period and also admitted 3 to driving while intoxicated in 2018; moreover, the record 4 contains evidence of multiple arrests as well as convictions 5 for disorderly conduct, unlawful possession of marijuana, 6 littering and dumping, and traffic violations. The agency 7 did not err in relying on Watson’s history of arrests and 8 convictions. See Wallace v. Gonzales, 463 F.3d 135, 139 (2d 9 Cir. 2006) (per curiam) (“[W]e see no reason to prevent an IJ 10 or the BIA from considering an applicant’s anti-social 11 conduct — whether leading to a conviction . . . or no legal 12 judgment whatsoever — as an adverse factor in evaluating an 13 application for discretionary relief.”). 14 Watson’s arguments that the BIA “failed to provide a 15 reasoned explanation for its decision,” that it is “devoid of 16 reasoning,” and that its decision was “arbitrary and 17 capricious,” Pet.’s Br. at 9, 13, are contradicted by the 18 record. The BIA’s decision outlines the legal standard for 19 the evaluation of good moral character, then considers 20 Watson’s arrest record, ultimately agreeing with the IJ’s 21 decision. We can also consider the IJ’s decision, see Xue [5] 1 Hong Yang, 426 F.3d at 522 , which contains two pages of 2 detailed analysis of Watson’s arrest history supporting the 3 IJ’s conclusion that he failed to establish good moral 4 character. 5 We do not consider Watson’s remaining challenges to the 6 denial of cancellation because he contests findings that the 7 BIA did not reach or rely on. See INS v. Bagamasbad, 429 8 U.S. 24 , 25 (1976) (“As a general rule courts and agencies 9 are not required to make findings on issues the decision of 10 which is unnecessary to the results they reach.”); see Xue 11 Hong Yang, 426 F.3d at 522 . 12 II. Withholding of Removal 13 An applicant for withholding of removal has the burden 14 to show past persecution or that he will more likely than not 15 be persecuted because of “race, religion, nationality, 16 membership in a particular social group, or political 17 opinion.” 8 U.S.C. § 1231 (b)(3); 8 C.F.R. § 1208.16 (b)(1); 18 Wei Sun v. Sessions, 883 F.3d 23 , 27–28 (2d Cir. 2018) 19 (“Eligibility for withholding of removal requires a clear 20 probability of persecution, i.e., it is more likely than not 21 that the alien would be subject to persecution.” (ellipsis [6] 1 and quotation marks omitted)). An applicant also must 2 demonstrate that the feared persecution is “attributable to 3 the government, whether directly because engaged in by 4 government officials, or indirectly because engaged in by 5 private persons whom the government is unable or unwilling to 6 control.” Scarlett v. Barr, 957 F.3d 316, 328 (2d Cir. 2020) 7 (quotation marks omitted). 8 Here, the BIA upheld the IJ’s denial of withholding of 9 removal on the grounds that Watson did not establish that he 10 suffered past persecution or fears future persecution on 11 account of a protected ground by the Jamaican government or 12 by entities the government is unwilling or unable to control. 13 Because Watson alleged persecution only by private actors — 14 possibly gang members who beat him and his brother after a 15 performance and took their earnings — he was required to show 16 that the Jamaican government would be unable or unwilling to 17 protect him. See Scarlett, 957 F.3d at 328 . Watson has 18 abandoned this dispositive basis for the agency’s denial of 19 withholding because his brief contains only a single general 20 sentence addressing the agency’s conclusion that the Jamaican 21 government would be unwilling or unable to protect him. See [7] 1 Yueqing Zhang v. Gonzales, 426 F.3d 540 , 545 n.7 (2d Cir. 2 2005) (deeming applicant’s “claim abandoned” where he raised 3 an issue in “only a single conclusory sentence”); Norton v. 4 Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not 5 sufficiently argued in the briefs are considered waived and 6 normally will not be addressed on appeal.”). 7 Because that finding is dispositive, we need not reach 8 Watson’s challenges to the other grounds for the agency’s 9 denial of withholding of removal. See Bagamasbad, 429 U.S. 10 at 25 . Even if we were to reach other grounds, we would 11 reject his withholding claim because he fails to show a nexus 12 to a protected ground. He testified that the attack in 2005 13 “was all about extortion,” Certified Admin. Rec. 140, which 14 is not a protected ground, see Melgar de Torres v. Reno, 191 15 F.3d 307, 314 (2d Cir. 1999) (“[G]eneral crime conditions are 16 not a stated ground [for asylum].”). The agency also 17 reasonably concluded that his proposed particular social 18 group of “musicians in Jamaica” was not cognizable because 19 his status as a professional musician was not an immutable 20 characteristic. See Paloka v. Holder, 762 F.3d 191, 195 (2d 21 Cir. 2014) (requiring that members of a cognizable particular [8] 1 social group “share a common, immutable characteristic . . . 2 that the members of the group either cannot change, or should 3 not be required to change because it is fundamental to their 4 individual identities or consciences.” (quotation marks 5 omitted)). And his claim that he would be persecuted because 6 of his political opinion as a musician fails because the 7 record contains no evidence that he was targeted because of 8 political speech. 9 For the foregoing reasons, the petition for review is 10 DENIED. All pending motions and applications are DENIED and 11 stays VACATED. 12 FOR THE COURT: 13 Catherine O’Hagan Wolfe, 14 Clerk of Court