Vukaj v. Garland ( 2023 )

NOT FOR PUBLICATION FILED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
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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.
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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.
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