Gaxherri v. Holder ( 2013 )

11-3288
Gaxherri v. Holder
BIA
Abrams, IJ
A088 378 135
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 5th day of September, two thousand thirteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 BARRINGTON D. PARKER,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 XHAVIT GAXHERRI,
14 Petitioner,
15
16 v. 11-3288
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Charles Christophe, Christophe Law
24 Group, P.C., New York, New York.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney General;
27 Keith I. McManus, Senior Litigation
28 Counsel; Timothy G. Hayes, Trial
29 Attorney, Office of Immigration
30 Litigation, United States Department of
31 Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Xhavit Gaxherri, a native of the former
6 Yugoslavia and a citizen of Kosovo, seeks review of a July 15,
7 2011, decision of the BIA affirming the May 22, 2009, decision
8 of Immigration Judge (“IJ”) Steven R. Abrams denying his
9 application for asylum, withholding of removal and relief
10 under the Convention Against Torture (“CAT”). In re Xhavit
11 Gaxherri, No. A088 378 135 (B.I.A. July 15, 2011), aff’g No.
12 A088 378 135 (Immig. Ct. N.Y. City May 22, 2009). We assume
13 the parties’ familiarity with the underlying facts and
14 procedural history of the case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established. See
19 8 U.S.C. § 1252(b)(4)(B); Aliyev v. Mukasey, 549 F.3d 111, 115
20 (2d Cir. 2008).
21 I. Asylum and Withholding of Removal
22 For applications, like Gaxherri’s, governed by the REAL
23 ID Act, in order to demonstrate eligibility for asylum and
2
1 withholding of removal, “the applicant must establish that
2 race, religion, nationality, membership in a particular social
3 group, or political opinion was or will be at least one
4 central reason for persecuting the applicant.” 8 U.S.C.
5 § 1158(b)(1)(B)(i); 8 U.S.C. § 1231(b)(3)(A); see also Matter
6 of J-B-N- and S-M-, 24 I. & N. Dec. 208 (BIA 2007); Matter of
7 C-T-L-, 25 I. & N. Dec. 341 (BIA 2010) (holding that the “one
8 central reason” standard for asylum also applies to
9 applications for withholding of removal).
10 As the agency concluded, Gaxherri was not entitled to
11 asylum or withholding of removal because he failed to
12 demonstrate that officials in Kosovo had been, or would be,
13 unwilling or unable to protect him from his assailants,
14 whether they were his political opponents or individuals
15 targeting him because of a blood feud. See Rizal v. Gonzales,
16 442 F.3d 84, 92 (2d Cir. 2006) (holding that an alien can
17 establish persecution by non-state actors if the government is
18 unwilling or unable to control them); Ivanishvili v. U.S.
19 Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006) (“[I]t is
20 well established that private acts may be persecution if the
21 government has proved unwilling to control such actions.”).
22 Gaxherri offered no evidence that he reported the attacks to
23 the police, or that the police would not have been willing or
3
1 able to protect him if he had, and did not submit evidence to
2 establish that the authorities would be unwilling or unable to
3 protect him if he was targeted in a blood feud. Absent
4 evidence that the government of Kosovo was unwilling to
5 protect him, the agency reasonably concluded that Gaxherri did
6 not establish past persecution or a well-founded fear of
7 persecution. See id., at 342; Jian Xing Huang v. U.S. INS, 421
8 F.3d 125, 129 (2d Cir. 2005) (absent “solid support” in the
9 record that a fear is objectively reasonable, a claim of
10 future persecution is “speculative at best.”).
11 Moreover, with respect to Gaxherri’s membership in the
12 Democratic League of Kosovo (“DLK”), the record reflects that,
13 since the assaults in 2005 and 2006, Kosovo has declared its
14 independence, and is currently governed by a parliamentary
15 democracy, within which the DLK and the Democratic Party share
16 power. Accordingly, although Gaxherri argues that he fears
17 the Democratic Party because many former members of the Kosovo
18 Liberation Army, whose members he believed were his
19 assailants, had joined that party, given the change in
20 political conditions that has taken place since Gaxherri left
21 Kosovo, nothing in the record establishes that Gaxherri has a
22 well-founded fear of persecution on the basis of his DLK
23 membership. Jian Xing Huang, 421 F.3d at 129.
4
1 II. CAT Relief
2 The agency also reasonably concluded that Gaxherri failed
3 to demonstrate a likelihood of torture by or with the
4 acquiescence of the government of Kosovo. The agency’s
5 regulations define torture, in pertinent part, “as any act by
6 which severe pain or suffering . . . is intentionally
7 inflicted . . . [for certain purposes] when such pain or
8 suffering is inflicted by or at the acquiescence of a public
9 official or other person acting in an official capacity.”
10 8 C.F.R. § 1208.18(a)(1). “[A]cquiescence . . . requires only
11 that government officials know of or remain willfully blind to
12 an act and thereafter breach their legal responsibility to
13 prevent it.” Khouzam v. Ashcroft, 361 F.3d 161, 170-71 (2d
14 Cir. 2004). Gaxherri offered no evidence that government
15 officials in Kosovo would breach their legal responsibility to
16 prevent harm related to the blood feud. Absent such evidence,
17 the agency did not err in determining that Gaxherri failed to
18 demonstrate a likelihood of torture with the acquiescence of
19 the government of Kosovo.
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any pending motion
22 for a stay of removal in this petition is DISMISSED as moot
5
1 and the pending request for oral argument in this petition is
2 DENIED in accordance with Federal Rule of Appellate Procedure
3 34(a)(2), and Second Circuit Local Rule 34.1(b).
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6