Kacalniku v. Holder , 407 F. App'x 182 ( 2010 )


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  •                              NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                            FILED
    FOR THE NINTH CIRCUIT                            DEC 28 2010
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    MUAMET KACALNIKU,                                No. 06-74015
    Petitioner,                        Agency No. A079-517-766
    v.
    ERIC H. HOLDER, Jr., Attorney General,           MEMORANDUM*
    Respondent.
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted November 3, 2010**
    San Francisco, California
    Before: GOULD and CALLAHAN, Circuit Judges, and ENGLAND, District
    Judge.***
    Muamet Kacalniku (“Kacalniku”), a native and citizen of Macedonia,
    petitions for review of a decision of the Board of Immigration Appeals (“BIA”)
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 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 Morrison C. England, Jr., United States District Judge
    for the Eastern District of California, sitting by designation.
    adopting and affirming the denial of his application for asylum, withholding of
    removal, and relief under the Convention Against Torture (“CAT”).1 We deny the
    petition for review.
    A.    Asylum
    1.     Changed Country Conditions
    We review findings of fact concerning changed country conditions for
    substantial evidence. Mutuku v. Holder, 
    600 F.3d 1210
    , 1213 (9th Cir. 2010). We
    have noted that “a State Department report on country conditions, standing alone,
    is not sufficient to rebut the presumption of future persecution when a petitioner
    has established past persecution.” Kamalyan v. Holder, 
    620 F.3d 1054
    , 1057 (9th
    Cir. 2010). We have also recognized, however, that U.S. Department of State
    country reports are the most appropriate and perhaps “the best resource for
    information on political situations in foreign nations.” Sowe v. Mukasey, 
    538 F.3d 1281
    , 1285 (9th Cir. 2008) (internal quotation marks and citation omitted). If the
    IJ or BIA determines that the evidence presented successfully rebuts the
    presumption, it “must provide an individualized analysis of how changed
    conditions will affect the specific petitioner’s situation.” Matuku, 
    600 F.3d at
    1213
    1
    The parties are familiar with the facts and we repeat them here only as
    necessary to explain our decision.
    2
    (internal quotation marks and citation omitted).
    The IJ undertook an individualized analysis of how changes in country
    conditions would affect Kacalniku. He cited: (1) the Human Rights Watch report
    on Macedonia for the year 2005; (2) a U.S. State Department Country Report on
    Human Rights Practices in Macedonia for the year 2004; (3) the U.S. State
    Department Background Note on Macedonia from May 2005; and (4) BBC news
    articles. The IJ also discussed the Ohrid Framework Agreement, which ended
    armed conflict between ethnic Albanian insurgents and Macedonian government
    forces. He further noted specific changes in conditions for ethnic Albanians,
    including the fact that Albanians are represented in the coalition government and
    Parliament, they are finding employment in much greater numbers, their language
    is officially recognized, and the Macedonian police force is required by law to be
    ethnically diverse.
    These changes relate specifically to Kacalniku’s testimony and the reasons
    he claims make him fear returning to Macedonia. We recently found this type of
    individualized analysis sufficient to rebut the fear of future persecution. See
    Tamang v. Holder, 
    598 F.3d 1083
     (9th Cir. 2010). We hold, therefore, that the IJ’s
    individualized analysis concluding that Kacalniku is not eligible for asylum based
    on changed country conditions in Macedonia is supported by substantial evidence,
    3
    and that Kacalniku is accordingly not eligible for asylum. See Zehatye v.
    Gonzales, 
    453 F.3d 1182
    , 1185 (9th Cir. 2006).
    2.     Humanitarian Asylum
    Denials of humanitarian asylum are reviewed for substantial evidence. See,
    e.g., Lal v. INS, 
    255 F.3d 988
    , 1010 (9th Cir. 2001 (determining BIA’s “denial of
    asylum under the humanitarian exception was not supported by substantial
    evidence.”); Vongsakdy v. INS, 
    171 F.3d 1203
    , 1207 (9th Cir. 1999). An applicant
    is eligible for a grant of humanitarian asylum if he can show either “compelling
    reasons for being unwilling or unable to return to the country [that he fled] arising
    out of the severity of the past persecution” or “a reasonable possibility that he or
    she may suffer other serious harm upon removal to that country.” Hanna v.
    Keisler, 
    506 F.3d 933
    , 939 (9th Cir. 2007)(quoting 
    8 C.F.R. §§ 1208.13
    (b)(iii)(A),
    (B)) (internal quotation marks omitted). Humanitarian asylum is generally
    reserved for applicants who “suffered under atrocious forms of persecution.” See
    Lal v. INS, 
    255 F.3d 998
    , 1005 (9th Cir. 2001) (citing Matter of Chen, 
    20 I. & N. Dec. 16
    , 19 (BIA 1989)).
    Kacalniku’s evidence of past persecution does not rise to the level of severe
    treatment that warrants a grant of humanitarian asylum. We therefore deny the
    petition with respect to this claim.
    4
    B.    Withholding of Removal and CAT
    Assuming that Kacalniku has not waived review of his claims for
    withholding of removal and CAT relief, see Arreguin-Moreno v. Mukasey, 
    511 F.3d 1229
    , 1232 (9th Cir. 2008) (holding arguments not exhausted before the BIA
    are waived), he has nonetheless not established his entitlement to such relief . The
    evidence supporting the IJ’s determination that changed country conditions
    rebutted Kacalniku’s claim for asylum also defeats his claim for withholding of
    removal. Sowe, 
    538 F.3d at 1288
     (“When the government rebuts an applicant's
    well-founded fear of future persecution, it defeats the applicant's asylum claim, and
    his or her claim for withholding of removal.”). Similarly, in light of the changed
    country conditions, Kacalniku has not demonstrated the likelihood of torture
    required for CAT relief. 
    Id. at 1288-89
    .
    PETITION DENIED.
    5