ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS (Agency No. A099-232-461) Immigration Judge: Honorable Margaret R. Reichenberg
The opinion of the court was delivered by: Barry, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) July 10, 2012 ____________
Before: RENDELL, SMITH and BARRY, Circuit Judges
Fitzroy Green ("Green") petitions for review of the BIA‟s denial of his application for deferred removal under the United Nations Convention Against Torture ("CAT"). For the following reasons, the petition will be denied.
A. Removability Determination
Green, a native and citizen of Jamaica, entered the United States on a tourist visa in 2002. On September 16, 2006, his immigration status was adjusted to that of a lawful permanent resident. Less than a month later, on October 13, 2006, he was arrested on charges of possession of a controlled dangerous substance with intent to distribute. He pled guilty in New Jersey state court and was sentenced to one year of probation. In 2008, Green was arrested again on charges of possession and distribution of a controlled dangerous substance. He again pled guilty, and was sentenced to six months‟ imprisonment and two years‟ probation. On May 28, 2010, the Department of Homeland Security charged him with being removable from the United States under 8 U.S.C. § 1227(a)(2)(B)(i), as an alien who had been convicted of a controlled substance offense. Green admitted his prior convictions and raised no cognizable challenge to his removability, and the IJ found him removable as charged.
Following the IJ‟s determination that he was removable, Green filed an application for deferred removal under CAT. In a subsequent hearing on his application, Green testified that he feared that he would be tortured by the Shower Posse, a powerful Jamaican drug gang formerly headed by Christopher "Dudus" Coke, if he were deported to Jamaica. He explained that sometime in 1998 or 1999, while visiting his godmother at a Kingston-area hospital, he witnessed a group of gunmen burst into a nearby hospital room and shoot a suspected police informant and the police officer who had been assigned to guard him, killing both men. Green recognized three of the assailants as members of the Shower Posse, and despite initially refusing to discuss the killings with police, he eventually gave a statement in which he identified the shooters. One of the shooters was subsequently arrested and convicted of murder, although Green was not asked to testify at the trial. According to Green, Jamaican police also arrested at least one, and maybe both, of the other shooters.
Green testified that as a result of his cooperation in this investigation, he and his family became targets of the Shower Posse. His sister, Winsome, was killed in 2001 or 2002, and his brother, Cleon,*fn1 was killed in 2009. Green testified to his belief that both slayings were acts of retribution carried out by members of the Shower Posse. Additionally, in 2002, Green himself was attacked in downtown Kingston by four men wielding knives and machetes, men he believes were Shower Posse gang members. Green sustained multiple stab wounds and spent the night in a hospital, but he did not report the attack to police. Several months after this attack, in July of 2002, Green left Jamaica for the United States and has not returned since.
Although the IJ found Green‟s testimony to be credible, she ultimately denied his application for deferred removal under CAT. She reasoned that even assuming arguendo that the Shower Posse still sought revenge against Green for his cooperation with authorities thirteen years ago, he had "failed to meet his burden to establish that the Shower Posse would be acting on behalf of the government of Jamaica or that the government of Jamaica would acquiesce in the actions of the Shower Posse," as required under CAT. (A.R. at 40.) Green appealed this decision to the BIA, which affirmed the IJ‟s ruling on the same ground, stating that Green "ha[d] not met ...