Vukaj v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2023
• Docket: 21-688
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

VASIL VUKAJ, No. 21-688

Petitioner, Agency No. A070-449-869

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted March 10, 2023** San Francisco, California

Before: FRIEDLAND and R. NELSON, Circuit Judges, and CARDONE***, District Judge.

Vasil Vukaj, a citizen of Albania, petitions for review of an order of the

Board of Immigration Appeals (“BIA”) dismissing his appeal from the denial

by an Immigration Judge (“IJ”) of his application for deferral of removal under

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Kathleen Cardone, United States District Judge for the Western District of Texas, sitting by designation. the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252, and we deny the petition for review. See Pechenkov v. Holder, 705

F.3d 444, 448 (9th Cir. 2012).

Because the BIA adopted and affirmed the IJ’s decision under Matter of

Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), “we review the IJ’s order as if it

were the BIA’s.” Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011) (citing

Abebe v. Gonzales, 432 F.3d 1037, 1040–41 (9th Cir. 2005) (en banc)). We

review the agency’s legal conclusions de novo, and its factual findings for

substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir.

2022) (citing Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020)). “To prevail

under the substantial evidence standard, the petitioner ‘must show that the

evidence not only supports, but compels the conclusion that these findings and

decisions are erroneous.’” Id. (quoting Davila, 968 F.3d at 1141).

1. There is no indication that the agency failed to consider evidence

relevant to its acquiescence analysis. When assessing a CAT claim, the agency

must consider all relevant evidence. Flores Molina v. Garland, 37 F.4th 626,

639 (9th Cir. 2022) (citing 8 C.F.R. § 1208.16(c)(3)). Almost all of the

evidence that Vukaj argues the agency ignored was explicitly discussed in the

IJ’s decision, which the BIA adopted. And while neither the IJ nor the BIA

specifically mentioned evidence that the Albanian government may be

motivated to underreport blood feud murders, the agency indicated that it

considered competing evidence in the record regarding the prevalence of blood

2 21-688 feud murders in contemporary Albania. The agency need not “write an

exegesis” on every piece of probative evidence in the record. Vilchez v. Holder,

682 F.3d 1195, 1201 (9th Cir. 2012) (quoting Najmabadi v. Holder, 597 F.3d

983, 990 (9th Cir. 2010)).

2. Substantial evidence also supports the agency’s determination that

Vukaj did not show a likelihood that he would be tortured with the consent or

acquiescence of the Albanian government by the family of the victim of a crime

Vukaj committed decades ago. To demonstrate acquiescence, a petitioner must

show that a “public official, prior to the activity constituting torture, have

awareness of such activity and thereafter breach his or her legal responsibility to

intervene to prevent such activity.” Ornelas-Chavez v. Gonzales, 458 F.3d

1052, 1059 (9th Cir. 2006) (quoting 8 C.F.R. § 208.18(a)(7)).

Vukaj’s “generalized evidence” of widespread corruption in Albania “is

not particular to [him] and is insufficient” to compel an acquiescence finding.

See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010). So too is

Vukaj’s speculation that the wealthy family of his victim could suborn

government officials, without any evidence that they have ever engaged in

bribery or intend to do so. See Rodriguez-Jimenez v. Garland, 20 F.4th 434,

440 (9th Cir. 2021).

And while Vukaj asserted that the police were aware of his brother

Maraj’s 1995 shooting but did not apprehend the shooter, the failure to make an

arrest under such circumstances is not necessarily indicative of acquiescence.

3 21-688 See Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014) (“Evidence

that the police were aware of a particular crime, but failed to bring the

perpetrators to justice, is not in itself sufficient to establish acquiescence in the

crime.”). Vukaj also testified that he contacted the Albanian embassy on an

unspecified date and they were “not very helpful[].” But Vukaj provided

virtually no details regarding his communication with the embassy, and his

testimony falls well short of compelling the conclusion that the government

would acquiesce to his torture by his victim’s family.

The agency considered the foregoing in light of country conditions

evidence showing that the Albanian government has taken significant, recent

steps to staunch the proliferation of blood feuds, punish perpetrators, and

protect victims. Taken together, the evidence does not compel the conclusion

that the Albanian government would acquiesce to efforts by the victim’s family

to harm Vukaj. See B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022);

Andrade-Garcia v. Lynch, 828 F.3d 829, 836–37 (9th Cir. 2016).

Because the “failure to establish government acquiescence negates any

potential for CAT relief,” we do not address Petitioner’s arguments regarding

whether the victim’s family still intends to harm him or could do so if he

relocated to another part of Albania. See Rodriguez-Jimenez, 20 F.4th at 440

(citing Villalobos Sura v. Garland, 8 F.4th 1161, 1170 (9th Cir. 2021)).

3. The stay of removal remains in place until the mandate issues. The

supplemental motion to stay removal is otherwise denied.

4 21-688 PETITION FOR REVIEW DENIED.

5 21-688