NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

IMDAD ULLAH, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 19-70087 

Agency No. A216-273-533 

MEMORANDUM*

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.

FILED

JUL 9 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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, 
3 

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 
4 

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.”).
5 

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.