Atique v. Atty Gen USA , 66 F. App'x 344 ( 2003 )


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  •                                                                                                                            Opinions of the United
    2003 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    4-28-2003
    Atique v. Atty Gen USA
    Precedential or Non-Precedential: Non-Precedential
    Docket 02-3283
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    Recommended Citation
    "Atique v. Atty Gen USA" (2003). 2003 Decisions. Paper 616.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2003/616
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    No. 02-3283
    QUAZI MUSTAFA ZAHID ATIQUE,
    Petitioner
    v.
    John Ashcroft, Attorney General of
    the United States,
    Respondent*
    APPEAL FROM THE UNITED STATES IMMIGRATION
    AND NATURALIZATION SERVICE
    Agency No. A71-498-356
    Submitted Under Third Circuit LAR 34.1(a)
    April 11, 2003
    Before: BARRY, ROSENN, Circuit Judges and POLLAK,** District Judge
    (Opinion Filed: April 28, 2003)
    *
    John Ashcroft, as the Attorney General of the United States, rather than the
    Immigration and Naturalization Service, is the proper respondent in a petition for review
    of an order of removal. See 
    8 U.S.C. § 1252
    (b)(3)(A). The caption is ordered changed to
    reflect the proper party.
    **
    The Honorable Louis H. Pollak, Senior District Judge, United States District Court
    for the Eastern District of Pennsylvania, sitting by designation.
    OPINION
    BARRY, Circuit Judge
    Petitioner Quazi M ustafa Zahid Atique, a citizen of Bangladesh, filed this timely
    petition for review of a final order of removal issued by the Board of Immigration
    Appeals, affirming without opinion the decision of the Immigration Judge (“IJ”). We
    have jurisdiction under 
    8 U.S.C. § 1252
    (a), and will deny the petition.
    Because we write only for the parties, we will not recite the factual background of
    this case, except as necessary to explain our decision. In this petition, Atique challenges
    the IJ's finding that he had not been subject to past persecution and did not have a well-
    founded fear of future persecution in Bangladesh because of his status as a former officer
    in the Pakistani military. Atique fought on behalf of Pakistan in the civil war between
    Pakistan and the current Bangladesh. Because the Board affirmed without opinion, and
    Atique has not challenged the procedure by which it summarily affirmed, we review the
    decision of the IJ as the final administrative determination.
    The Immigration and Nationality Act (“INA”) authorizes the Attorney General, in
    his discretion, to grant asylum to an alien who is a “refugee” as defined in the Act, i.e., an
    alien who is unable or unwilling to return to his or her home country “because of
    persecution or a well-founded fear of persecution on account of race, religion, nationality,
    membership in a particular social group, or political opinion.” 
    8 U.S.C. §§ 1158
    (b)(1);
    2
    1101(a)(42)(A). The IJ's determination that Atique was not eligible for asylum must be
    upheld if it is “supported by reasonable, substantial, and probative evidence on the record
    considered as a whole.” 8 U.S.C. § 1105a(a)(4). It can be reversed only if the evidence is
    such that a reasonable factfinder would have to conclude that the requisite fear of
    persecution existed. INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481 (1992). Findings of fact,
    including findings regarding “persecution” and “well-founded fear of persecution,” are
    reviewed under the deferential substantial evidence standard. Abdille v. Ashcroft, 
    242 F.3d 477
    , 483 (3d Cir. 2001). Moreover, we may reject the interpretation of the
    immigration laws only if it is “arbitrary, capricious, or manifestly contrary to the statute.”
    Chang v. INS, 
    119 F.3d 1055
    , 1060 (3d Cir. 1997).
    In order to be entitled to withholding of deportation, an alien must satisfy the
    stricter standard of showing “a clear probability of persecution.” INS v. Cardoza-
    Fonseca, 
    480 U.S. 421
    , 430 (1987). “[T]he standard is that he must show that it is more
    likely than not that he will face persecution if he is deported.” Lin v. INS 
    238 F.3d 239
    ,
    244 (3d Cir. 2001). Therefore, if an alien is unable to establish eligibility for asylum, he
    is ineligible for withholding of deportation. See Cardoza-Fonseca, 
    480 U.S. at 443-44
    .
    Atique claims that he is eligible for asylum on the basis of his status as a former
    member of the Pakistani military. The IJ found that Atique's past service in the Pakistani
    air force is an immutable trait or belief, potentially constituting the basis for an asylum
    claim based on persecution on account of political opinion or membership in a particular
    3
    social group. The IJ determined, however, that there was no objective evidence that
    Atique’s status as a former member of the Pakistani air force had resulted in past
    persecution or would create a reasonable likelihood of future persecution.
    In order to show that he has a well-founded fear of persecution, Atique must show
    both that he genuinely fears persecution if he returns to Bangladesh and that his fear is
    objectively reasonable. Lin, 
    238 F.3d at 244
    . “For the government's action to constitute
    persecution, it must amount to more than generally harsh conditions shared by many other
    persons, but does include threats to life, confinement, torture, and economic restrictions
    so severe that they constitute a real threat to life or freedom.” 
    Id. at 243-44
    .
    Atique contends that several events constitute past persecution. The first is his
    imprisonment in a Pakistani concentration camp for two years beginning in 1972. The
    second is his alleged forcible recruitment into Bangladesh's air force following his release
    from the Pakistani camp, and the concomitant harassment, which continued until 1981.
    The third is alleged verbal and physical harassment by supporters of the Bangladesh
    National Party (“BNP”) because of his prior support of the Jatiyo party and its leader,
    General Ershad.
    The IJ's finding that there was no past persecution is supported by substantial
    evidence. First, Atique's confinement by the Pakistan government does not support his
    claim of persecution by the government of Bangladesh. Second, Atique's allegation of
    forcible recruitment to Bangladesh's air force is not supported by the record. Atique
    4
    testified at his immigration hearing only that he was “accepted” into the Bangladesh air
    force–not that he was “forcibly recruited” into it, as he contends in his brief. (Petitioner's
    Br. at 5; R. at 69.) Moreover, the harassment allegedly inflicted on Atique during his
    service in the Bangladesh air force–providing him with inadequate practice hours to
    maintain his flying skills and failing to consider his application to resign in a timely
    fashion–does not rise to level of persecution. “‘[P]ersecution’ is an extreme concept that
    does not include every sort of treatment our society regards as offensive.” Fatin v. INS,
    
    12 F.3d 1233
    , 1243 (3d Cir. 1993).
    Third, and finally, the alleged continuous pressure by BNP supporters to force
    Atique to resign from his civil government position, including the use of campaign
    posters urging his ouster, does not constitute persecution. Substantial evidence supports
    the IJ's finding that the physical assault in 1990 in Atique's office by BNP supporters,
    which ended when they were apprehended by a security guard, was an isolated event that
    occurred during a period of civil unrest throughout Bangladesh. The fact that Atique was
    caught in the “generally high-level of violence associated with Bangladesh politics” does
    not mean he was persecuted. (R. at 136-37, U.S. D EPARTMENT OF S TATE, B ANGLADESH:
    P ROFILE OF A SYLUM C LAIMS & C OUNTRY C ONDITIONS (Feb. 1998).) Similarly, the
    government's alleged failure to pay a pension to Atique's family, in the absence of
    evidence that it was connected to his status as a former Pakistani air force officer, is not
    evidence of persecution. In sum, the IJ's finding of no past persecution is supported by
    5
    substantial evidence.
    In addition, the IJ found no objective evidence that Atique's subjective fear of
    future persecution was well-founded. Atique's contention that he would suffer
    persecution if he returned to Bangladesh is based on two theories. First, he fears future
    persecution based on the past persecution he believes he experienced. Second, he fears
    that he will be arrested immediately upon returning to Bangladesh because he did not
    obtain permission to depart, permission which was required because he was a former
    military officer.
    With regard to Atique's first contention, the regulatory presumption of future
    persecution does not arise in this case given that substantial evidence supports the IJ's
    finding of no past persecution. See Obianuju Ezeagwuna v. Ashcroft, 
    301 F.3d 116
    , 126
    (3d Cir. 2002). In addition, substantial evidence supports the IJ's finding that conditions
    in Bangladesh have, if anything, changed for the better with regard to Atique's situation
    since his departure in 1991. In the 1996 election, which brought the Awami League to
    power, the Jatiyo party won 30 seats in Parliament, Jatiyo party members were appointed
    to cabinet appointments in the new government, and General Ershad was permitted to
    take his seat in Parliament although he was formally still in custody on charges of graft.
    There is no “evidence of systematic political repression on a scale that would make it
    difficult for opposition party members to continue to live and take an active role in
    politics in Bangladesh.” (R. at 136, U.S. D EPARTMENT OF S TATE, B ANGLADESH: P ROFILE
    6
    OF A SYLUM C LAIMS &   C OUNTRY C ONDITIONS (Feb. 1998).)
    With regard to Atique's second contention, no objective evidence supports the
    conclusion that he will be arrested upon his return to Bangladesh. More than his mere
    say-so is required. Moreover, even if Atique does face arrest for violation of a publicized
    law against unauthorized departure by former military personnel, he has not established
    that a reasonable person in his position would fear persecution rather than mere
    prosecution.
    In conclusion, because Atique failed to demonstrate either past persecution or a
    well-founded fear of future persecution, the IJ's decision denying asylum will be upheld.1
    In addition, because Atique does not qualify for asylum, the IJ correctly concluded that he
    could not satisfy the more stringent standard for withholding of deportation.
    The petition for review will be denied.
    TO THE CLERK OF COURT:
    Kindly file the foregoing opinion.
    /s/ Maryanne Trump Barry
    Circuit Judge
    1
    Atique claims that his petition arises in part under the Convention Against Torture
    (“CAT”) and was denied by the IJ on that basis. The IJ does not appear to have denied
    Atique relief under the CAT. However, because Atique has not raised this issue in his
    brief to us, the argument is waived.
    7