         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




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