Imdad Ullah v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 9 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IMDAD ULLAH, No. 19-70087
Petitioner, Agency No. A216-273-533
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2021
San Francisco, California
Before: BERZON, CHRISTEN, and BADE, Circuit Judges.
Imdad Ullah, a native and citizen of Pakistan, petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from an
Immigration Judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Ullah
fears harm from the Taliban because he worked for the Pakistani government
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
distributing polio vaccines. We review the agency’s “legal conclusions de novo
and its factual findings for substantial evidence.” Bringas-Rodriguez v. Sessions,
850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted). Exercising
jurisdiction under 8 U.S.C. § 1252, we deny the petition for review as to Ullah’s
CAT claim, grant the petition as to Ullah’s claims for asylum and withholding of
removal, and remand.
1. Substantial evidence supports the BIA’s denial of Ullah’s CAT claim.
The record does not compel the conclusion that it is more likely than not that he
will be tortured by or with the consent or acquiescence of a public official if
removed to Pakistan. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033–34 (9th
Cir. 2014). Ullah contends that because he was “threatened with death by” the
Taliban, “a group fully capable of carrying its threats out,” it is “more likely than
not that he would be tortured in the future.” But “[a] government does not
acquiesce in the torture of its citizens merely because it is aware of torture but
powerless to stop it.” Id. at 1034 (alteration in original) (quoting Mouawad v.
Gonzales, 485 F.3d 405, 413 (8th Cir. 2007)). And the record supports the
agency’s finding that, rather than inflicting or acquiescing in any torture, the
Pakistani government endeavored to protect polio workers from violence
committed by the Taliban by enhancing security and investigation measures.
2. With respect to Ullah’s asylum and withholding of removal claims,
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substantial evidence does not support the BIA’s conclusion that Ullah failed to
establish past persecution.
First, the BIA erred in concluding that the harm suffered by Ullah in
Pakistan did not rise to the level of past persecution. Ullah received two “specific
and menacing” death threats from the Taliban, Mashiri v. Ashcroft, 383 F.3d 1112,
1119 (9th Cir. 2004), one of which was left at his family’s home and caused him to
flee that same day. See Mendoza-Pablo v. Holder, 667 F.3d 1308, 1314 (9th Cir.
2012). After Ullah fled, the Taliban beat his father and brother to extract
information about Ullah’s whereabouts and vandalized their family home. See
Kaur v. Wilkinson, 986 F.3d 1216, 1227 (9th Cir. 2021) (“Death threats alone can
constitute persecution, and ‘[v]iolence directed against . . . family members
provides support for a claim of persecution and in some instances is sufficient to
establish persecution.’” (alterations in original) (internal citations omitted));
Mashiri, 383 F.3d at 1120–21. The “totality of the circumstances” compels the
conclusion that the harm Ullah suffered rose to the level of persecution. Guo v.
Ashcroft, 361 F.3d 1194, 1203 (9th Cir. 2004).
Second, the BIA erred in concluding that Ullah failed to meet his burden of
establishing that the “persecution was committed by the government, or by forces
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that the government was unable or unwilling to control.”1 Bringas-Rodriguez, 850
F.3d at 1062 (citation omitted). While substantial evidence supports the BIA’s
determination that the Pakistani government was not “unwilling” to protect Ullah
from the Taliban given its efforts to safeguard polio workers and investigate crimes
committed against them, the record compels the finding that it was “unable” to do
so. “Willingness to control persecutors notwithstanding, authorities may
nevertheless be ‘powerless to stop’ them because of a ‘lack of . . . resources or
because of the character or pervasiveness of the persecution.’” J.R. v. Barr, 975
F.3d 778, 782 (9th Cir. 2020) (omission in original) (internal citations omitted).
That is the case here. Even with Pakistan’s implementation of increased security
measures, polio vaccinators continue to be routinely targeted for deadly violence
by the Taliban, especially in the remote Federally Administered Tribal Area
(FATA), where Ullah resided and which lacks formal law enforcement entities and
infrastructure to combat the Taliban.
Therefore, we conclude that the BIA erred in determining that the harm
Ullah suffered in Pakistan did not rise to the level of past persecution and in
1
We do not address the parties’ arguments concerning Matter of A-B-, 27
I. & N. Dec. 316 (A.G. 2018) (“A-B- I”), and Matter of A-B-, 28 I. & N. Dec. 199(A.G. 2021) (“A-B- II”), because the Attorney General has since vacated those
opinions “in their entirety.” Matter of A-B-, 28 I. & N. Dec. 307, 309 (A.G. 2021).
Accordingly, they do not apply on remand. See id. (“[I]mmigration judges and the
[BIA] should no longer follow A-B- I or A-B- II when adjudicating pending or future
cases.”).
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concluding that the government of Pakistan was not “unable or unwilling to
control” the Taliban. Accordingly, we grant the petition as to Ullah’s asylum and
withholding of removal claims.2 Because the record before the BIA compelled the
conclusion that Ullah established past persecution on account of a protected
ground, thereby triggering a rebuttable presumption of a well-founded fear of
future persecution, we remand to the BIA for consideration in the first instance of
whether the presumption has been rebutted. See Bringas-Rodriguez, 850 F.3d at
1076; see also INS v. Orlando Ventura, 537 U.S. 12, 16–18 (2002) (per curiam).
Costs on appeal are awarded to Petitioner.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
2
We deny as moot the government’s unopposed motion to remand, filed at
Dkt. 43, and its amended motion to remand, filed at Dkt. 60.
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