Javed v. Holder , 715 F.3d 391 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1657
MOHAMMAD ILYAS JAVED,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Stahl, and Lipez,
Circuit Judges.
Randy Olen on brief for petitioner.
Edward C. Durant, Attorney, Office of Immigration Litigation,
Civil Division, Stuart F. Delery, Principal Deputy Assistant
Attorney General, and Holly M. Smith, Senior Litigation Counsel, on
brief for respondent.
May 24, 2013
STAHL, Circuit Judge. Mohammad Ilyas Javed petitions for
review of a decision by the Board of Immigration Appeals (BIA or
Board) affirming the denial of his applications for withholding of
removal and protection under the Convention Against Torture (CAT).
Because the BIA's withholding-of-removal decision is contrary to
the evidence, we grant the petition in part and remand the case for
further proceedings.
I. Background
Javed was born in 1962 in Gujrat, a district of Punjab
Province, in Pakistan. He attended high school and then studied
business administration and accounting in Gujrat. He went on to
earn degrees in commerce and law from the University of Karachi,
completing his studies in 1987. He worked for a Karachi accounting
firm until 1990 and then returned to Batore, his home village in
Gujrat. Upon his return, he joined a law firm there.
While at the law firm, Javed was assigned to a case
stemming from a conflict between rival political factions: the
Batore group and the Hunj group (each named after its home
village). These groups were "subsidiaries" of the ruling Pakistan
Muslim League and the Pakistan People's Party, respectively.
(Javed was not a member of either party.) Some members of the Hunj
group had been injured in a shooting that resulted from a dispute
over an apparently rigged election in October 1990. Javed and his
firm represented the Hunj group in their efforts to prosecute the
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case in court. In Pakistan, private parties can, through their
attorneys, initiate criminal cases (although there are public
prosecutors as well). For that process to begin, the police must
file a particular document; Javed and his law firm were eventually
able to persuade the police to do so, but not before he and others
were arrested during a protest. Javed was held by the local police
for "a few days" and then released. Thereafter, the court case
commenced, but was prolonged by repeated adjournments. The local
police, apparently seeking to shelter the Batore group from
punishment, were complicit in these delays.
While the case was slowly proceeding, Javed came under
pressure from the Batore group, which was based in his home village
of Batore. After hearing about his role representing the Hunj
group in the case, the Batore group began to threaten Javed, and,
on "many" occasions, members of the group "got[] hold of [him] and
beat [him] up." They threatened to kill him if he did not stop
representing the Hunj. As Javed described it, "the Batore group
thought that [he] was affiliated with the Hunj group and they
thought of [him] as their enemy."
In 1991, Javed left the law firm and started his own
practice. He opened an office in a small building near the local
courthouse. The local government, however, under the "control" of
the Batore group, demolished the office building.
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In 1993, as a result of the threats against him, Javed
fled Pakistan. The Hunj-Batore litigation was still ongoing when
he left, but apparently ended in 1998. Javed moved to South Africa
and worked in a supermarket. His wife and two children remained in
Pakistan; he returned to visit them twice but avoided his village,
instead staying with a relative elsewhere and having his family
come meet him there. Javed's wife passed away in early 1999, after
which he came to the United States. His two children (now in their
late teens and early twenties, respectively) still live in
Pakistan; he supported them during his absence by sending them
money from abroad.
Javed entered the United States as a non-immigrant
visitor in February 1999. He remained in the country beyond the
time authorized, and was thus served with a Notice to Appear in
March 2002. In 2005, Javed appeared before the Immigration Judge
(IJ), conceded removability, and applied for withholding of removal
and CAT protection. He offered various materials in support of his
applications and testified to the events described above. He also
testified that the threats against him continue even in his
absence. His friends in Pakistan report that the Batore
continually tell them: "[W]henever [Javed] returns over here we are
not going to leave him alive." He also expressed concern that he
would be even less safe in Pakistan now than when he left because
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the Hunj group has ceased to exist politically and because of the
prevalence of contract killings.
The IJ denied Javed's applications. He found that Javed
was a credible witness and had given testimony that was both
internally consistent and consistent with the record. He
concluded, however, that Javed had not established that he had
experienced persecution "as a result of an immutable
characteristic."1 Rather, the IJ concluded that the threats and
violence Javed experienced were the result of "his involvement in
litigation with a violent and politically influential
organization." The IJ also believed that the passage of time had
likely "removed, or greatly lessened, any threat to" Javed's
safety. He therefore found that Javed was not eligible for
withholding of removal. As to Javed's application for CAT
protection, the IJ found no "mention" of torture in Javed's
testimony or affidavit. The IJ noted that Javed had been detained
by the local police for several days, but pointed out that he had
apparently not suffered any abuse during that period. Thus, the IJ
denied the CAT application as well.2
1
As Javed points out, the phrase "immutable
characteristic" refers to the statutory term "particular social
group," and not to the other protected grounds of race, religion,
nationality, and political opinion. Mayorga-Vidal v. Holder, 675
F.3d 9, 14 (1st Cir. 2012). Insofar as the IJ used it as short-
hand for all of the protected grounds, that usage was misleading.
2
The IJ also denied a motion by the government to
pretermit the proceedings on the ground that Javed had filed
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The BIA affirmed. It agreed with the IJ that Javed "was
targeted because of his involvement as an attorney in litigation,
which does not establish a nexus between the harm [he experienced]
and a protected ground." The Board also found that Javed had not
experienced harm that rose to the level of "persecution" within the
meaning of the statute, in part because he was, in the Board's
view, embroiled in a purely private dispute. And the Board noted
that Javed's family had apparently remained in Pakistan without
incident since his departure, which it believed undermined his
argument that he would face persecution if repatriated. Finally,
the Board agreed with the IJ that Javed had not been tortured and
that the record did not establish a sufficient likelihood of future
torture. Accordingly, it affirmed the denial of both applications.
II. Discussion
The BIA's "findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C. § 1252(b)(4)(B). Thus, we will "accept the
BIA's findings so long as they are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'" Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009)
(quoting Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005)).
We review the BIA's legal interpretations de novo. See id. Where,
fraudulent supporting materials; the IJ found insufficient evidence
to support the conclusion that Javed's application was fraudulent
or frivolous.
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as here, the BIA affirms and elaborates on the IJ's findings, we
review both decisions. Chanthou Hem v. Mukasey, 514 F.3d 67, 69
(1st Cir. 2008).
We begin with Javed's application for withholding of
removal. Withholding "protects an otherwise removable alien from
removal to a country where 'the alien's life or freedom would be
threatened in that country because of the alien's race, religion,
nationality, membership in a particular social group, or political
opinion.'" Tay-Chan v. Holder, 699 F.3d 107, 111 (1st Cir. 2012)
(quoting 8 U.S.C. § 1231(b)(3)(A)). To be eligible for this
remedy, a petitioner must make one of two showings: (i) that he has
suffered past persecution on account of one of the enumerated
grounds, which creates a rebuttable presumption of future
persecution; or (ii) that future persecution on account of one of
these grounds is more likely than not to occur. Id.; see 8 C.F.R.
§ 1208.16(b)(1)-(2). Under the REAL ID Act of 2005, persecution is
"on account of" a protected ground if that ground "was or will be
at least 'one central reason' for [the] persecution." Tay-Chan,
699 F.3d at 111.
Javed challenges the BIA's withholding determination on
two grounds. First, he contends that the record showed that he
experienced past persecution, entitling him to a presumption that
he had a well-founded fear of future persecution (which he did not
receive). Second, he attacks the conclusion that his troubles
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stemmed from his litigation activities rather than any protected
ground; he says that the record reveals that his representation of
the Hunj group caused the Batore group to impute a political
opinion to him.
In deciding that Javed had not suffered past persecution,
the Board concluded (with scant explanation) that the threats and
violence he experienced did not rise to the level of persecution,
which requires harm that goes beyond mere harassment, unfairness,
or unpleasantness. See Attia v. Gonzales, 477 F.3d 21, 23 (1st
Cir. 2007). The Board also seemed to conclude that Javed had not
shown any government involvement in the threats and beatings. See
Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005)
(persecution requires "government action, government-supported
action, or government's unwillingness or inability to control
private conduct"). It is true that a single, vague threat or even
a number of non-specific threats, "unaccompanied by any significant
physical abuse and any government involvement," will be unlikely to
constitute persecution. Badache v. Holder, 492 F. App'x 124, 125
(1st Cir. 2012) (Souter, J.) (quoting Abdelmalek v. Mukasey, 540
F.3d 19, 22 (1st Cir. 2008)) (internal quotation mark omitted).
But credible, specific threats can amount to persecution if they
are severe enough. Id.; see Sok v. Mukasey, 526 F.3d 48, 54-55
(1st Cir. 2008). "[T]hreats of murder" fit squarely within this
rubric. Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007);
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see also Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005); Un v.
Gonzales, 415 F.3d 205, 210 (1st Cir. 2005). And the addition of
physical violence, although not required, makes a threat more
likely to constitute persecution. See Gilca v. Holder, 680 F.3d
109, 115 (1st Cir. 2012). Here, the record compels the conclusion
that Javed was subjected to threats and violence that rose to the
level of past persecution.
To begin with, the Board was wrong to say that the
threats and beatings Javed experienced were part of a purely
private conflict. See Nikijuluw, 427 F.3d at 121; cf. Hussain v.
Holder, 576 F.3d 54, 58 (1st Cir. 2009). Javed testified that the
local authorities condoned or participated in the attacks on him,
including by demolishing his office building. He was also arrested
and detained by local police. He further testified that the police
and local officials protected the Batore, apparently at the behest
of the ruling national political party, with which the Batore group
was affiliated. In light of this credible and uncontested
testimony, the Board's unelaborated conclusion that this dispute
lacked government involvement is wholly unsupported by the record.
Likewise, the record squarely contradicts the Board's
determination that Javed experienced mere unpleasantness that did
not rise to the level of persecution. As noted above, specific,
credible threats, especially when bolstered by violence, can
constitute persecution. See Badache, 492 F. App'x at 125. And
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"threats of murder" go well beyond the "ordinary harassment" that
does not qualify. Hincapie, 494 F.3d at 217. Here, Javed
testified -- credibly, according to the IJ -- that the Batore group
threatened to kill him on "many" occasions. These threats
continued, via intermediaries, even after he fled Pakistan. And
the threats were accompanied by violence. Although the Board and
the IJ said (somewhat euphemistically) that Javed was "manhandled"
by the Batore, Javed testified that he was "beat . . . up" "many"
times. And then there was his arrest and detention by the police
as a result of his protests on behalf of the Hunj. See Sok, 526
F.3d at 54 (finding that a three-day detention after a protest
rally, in conjunction with an assault and serious death threats,
suggested past persecution). The demolition of Javed's office by
the Batore-controlled local government only added to this pattern.
Finally, we must be mindful that the genesis of these events was an
incident in which the same group that threatened to kill Javed shot
people with whom he was associated. This is not a case in which
the petitioner was threatened, but was "never in serious danger."
See Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010). Nor were
these isolated incidents. Cf. Tasya v. Holder, 574 F.3d 1, 5 (1st
Cir. 2009). In sum, the record, considered as a whole, compels us
to find that Javed experienced past persecution. Cf. Sok, 526 F.3d
at 53-55; Iffat v. Gonzales, 126 F. App'x 862, 864 (9th Cir. 2005)
(specific death threats, arson of petitioner's home, and the
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attempted abduction of her daughter cumulatively constituted past
persecution). Accordingly, Javed was entitled to a presumption of
future persecution, Tay-Chan, 699 F.3d at 111, which he did not
receive.
Nevertheless, the Board and the IJ's shared error as to
past persecution would be harmless if they were correct that the
persecution Javed experienced was not "on account of" a protected
ground. But they were not correct. Both the Board and the IJ
concluded that Javed "was targeted because of his involvement as an
attorney in litigation," and not on the basis of any protected
ground. To be sure, the record reflects that Javed's involvement
in the Hunj-Batore litigation was a catalyst for his persecution.
But Javed also testified that, as a result of his representation,
"the Batore group thought that [he] was affiliated with the Hunj
group and they thought of [him] as their enemy." He went on to
explain that, in the political and social climate in Gujrat,
assisting a rival political party was tantamount to joining that
party. In fact, in his case, it was apparently perceived as an
egregious betrayal, since Javed was from Batore village, and thus
would have been expected to support the political group that
carried the village's name. As he put it, "whoever belongs to that
village has to go along with [the village's ruling party] and
anybody who tries to do something against them is considered their
enemy." The essence of Javed's testimony was that the Batore group
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attacked Javed because they thought, mistakenly, that his
representation of the Hunj revealed him to be their political
opponent. Put another way, they perceived his legal advocacy as a
manifestation of his political beliefs. The fact that this
testimony came amidst a discussion of Javed's political
affiliations bolsters that conclusion. See Mayorga-Vidal v.
Holder, 675 F.3d 9, 18 (1st Cir. 2012) ("Political persecution may
be grounded on an imputed political opinion, whether or not the
opinion is correctly or incorrectly attributed to the alien."); see
also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 294 (2d
Cir. 2007) (cautioning against "an impoverished view" of what
constitutes persecution on account of a political opinion).
We think this factual testimony about the political
implications of Javed's representation is different from a
petitioner's conclusory assertion as to his persecutor's motives,
which we need not accept. See Ali v. Gonzales, 190 F. App'x 13, 15
(1st Cir. 2006). Javed's credible, factual testimony amply
established that his persecutors imputed a political opinion to him
(albeit incorrectly), and that this opinion was at least a "central
reason" for their attacks on him. Cf. Manzur, 494 F.3d at 294
(faulting the IJ for concluding that a petitioner's efforts to have
a soldier suspected of assassinating her husband prosecuted could
not have resulted in persecution on the basis of imputed political
opinion); Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995)
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(finding that the petitioner was persecuted on the basis of imputed
political opinion when authorities abused him because of his
association with political dissidents). The Board and IJ's
contrary conclusion is not supported by the record.
At this point, we could find these dual errors harmless
only "if the record compelled a finding that any presumption of
future threats was rebutted by 'a fundamental change in
circumstances such that [petitioner's] life or freedom would not be
threatened.'" Un, 415 F.3d at 210 (quoting 8 C.F.R.
§ 1208.16(b)(1)(i)(A)). But "[t]he government has not made this
argument, addressing only the converse issue (which assumes that
petitioner bore the burden of proof) of whether there was
substantial evidence supporting the . . . finding that petitioner
failed to establish the likelihood of [future] harm." Id.
Consequently, we must remand the case. See id. On remand, Javed
should have the benefit of the presumption of future persecution,
and the government should have the opportunity to attempt to rebut
that presumption.
In closing, we address Javed's CAT-protection claim. To
avoid removal under the CAT, a petitioner must show that he will
more likely than not face torture upon repatriation, with the
consent or acquiescence of the government then in power. Mariko v.
Holder, 632 F.3d 1, 7 (1st Cir. 2011); Ahmed v. Holder, 611 F.3d
90, 98 (1st Cir. 2010). "Torture is . . . any act by which severe
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pain or suffering, whether physical or mental, is intentionally
inflicted on a person" for various reasons. 8 C.F.R.
§ 208.18(a)(1). In other words, it is "an extreme form of cruel
and inhuman treatment." Id. § 208.18(a)(2).
On this issue, the IJ and BIA's determination is
supported by the record. There is no evidence of past torture, and
Javed does not argue otherwise. Nor does documentary evidence of
the general use of torture by Pakistani authorities suffice,
without more, to establish that Javed himself is more likely than
not to be tortured there. It is true that Javed's persecutors were
associated with the ruling political party, but we cannot, on that
basis alone, make the inferential leap he suggests, which is that
he is therefore likely to be tortured by the national government.
Beyond these cursory points, Javed has not offered any other basis
to disturb the Board's and IJ's CAT rulings. Therefore, we will
deny his petition insofar as it seeks review of the denial of his
CAT application.
III. Conclusion
For the foregoing reasons, we grant in part and deny in
part Javed's petition for review, and remand this case to the BIA
for further proceedings consistent with this opinion.
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