Kacalniku v. Holder

NOT FOR PUBLICATION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
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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,
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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.
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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.
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