Gojcaj v. Ashcroft

MEMORANDUM ^**

Vinko K. Gojcaj, a native of the republic of Montenegro and citizen of the Federal Republic of Yugoslavia, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“LJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252(b)(2).¹ We grant the petition for review in part, deny in part, and remand for further proceedings.

Substantial evidence does not support the IJ’s finding that Gojcaj lacks a well-founded fear of future persecution based on the military’s improper recruiting of Albanians, and the physical mistreatment Gojcaj suffered. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003) (stating that where the degree of persecution against a group is great, the level of individualized persecution may be less).

We therefore remand this matter to the BIA for a determination, accepting Gojcaj established a well-founded fear of future persecution, whether Gojcaj is otherwise eligible for asylum or withholding of removal, and for the exercise of discretion whether to grant his application. See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

Finally, Gojcaj’s CAT claim fails because he has not shown that it is more likely than not that he will be tortured if returned to Montenegro. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir.2003)

PETITION GRANTED in part, DENIED in part, and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . Respondent's August 6, 2003 motion to vacate the stay of proceedings is granted.