Mohammad Butt v. Atty Gen USA ( 2011 )


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  •                                                                    NOT PRECEDENTIAL
    
                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
    
                                          No. 09-4017
    
                                MOHAMMAD SUHAIL BUTT;
                                    MUSTAFA BUTT,
                                              Petitioners
    
    
                                                v.
    
                     ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent
    
    
                              Petition for Review of an Order of the
                                  Board of Immigration Appeals
                             (Nos. A098-493-362 & A098-493-363)
    
                        Submitted pursuant to Third Circuit LAR 34.1(a)
                                   Friday January 28, 2011
    
                      Before: McKEE, Chief Judge, SMITH, Circuit Judge,
                                and STEARNS,* District Judge
    
    
                               (Opinion filed: February 18, 2011)
    
                                           OPINION
    
    McKEE, Chief Judge.
    
          Mohammad Suhail Butt petitions for review of an order of the Board of
    
    Immigration Appeals denying his motion to reopen his immigration proceedings to apply
    
    
    *
     Honorable Richard G. Stearns, District Court Judge, District of Massachusetts, sitting
    by designation.
    for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under Article
    
    III of the Convention Against Torture. For the reasons that follow, we will grant the
    
    petition and remand to the BIA.1
    
                                                     I.
    
           Since we are writing primarily for the parties, we need only briefly summarize as
    
    much of the factual and procedural background as will clarify our discussion.
    
           Mohammad Suhail Butt is a Pakistani citizen and Shia Muslim. His last
    
    administrative hearing before the Immigration Judge was in 2006 when his motion for a
    
    continuance pending adjudication of a labor certification was denied. His subsequent
    
    appeals, including a prior motion to reopen proceedings, related to his attempts to obtain
    
    an adjustment of status by way of a labor certification. Each of those appeals was denied
    
    and exhausted by 2009. See App. 000129, and Butt v. Att’y Gen. of the U.S., 327 F.
    
    App‟x 367 (3d Cir. 2009). In July 2009, he filed the current motion with the BIA to
    
    reopen proceedings in order to apply for asylum, withholding of removal, and relief
    
    under the Convention Against Torture. The BIA denied his motion in a decision dated
    
    September 21, 2009, and Butt filed the instant petition for review to challenge that denial.
    
                                                     II.
    
           We review the BIA's denial of a motion to reopen for an abuse of discretion. Guo
    
    v. Ashcroft, 
    386 F.3d 556
    , 562 (3d Cir. 2004). In order to succeed on a petition for
    
    1
      Since Butt filed a timely petition for review, we have jurisdiction to review the BIA‟s
    final order of removal under 8 U.S.C. § 1252.
    
                                                 2
    review, Butt must show that the BIA‟s discretionary decision was arbitrary, irrational, or
    
    contrary to law. See Tipu v. I.N.S., 
    20 F.3d 580
    , 582 (3d Cir. 1994).
    
           Although a party may normally file only one motion to reopen, there is a statutory
    
    exception to that limitation based on changed country conditions in the country of
    
    nationality. See 8 U.S.C. § 1229a(c)(7)(C)(ii), and 8 C.F.R. § 1003.2(c)(3), and the
    
    motion to reopen at issue here is based upon changed country conditions. Butt primarily
    
    argues that the evidence supports his claim that there has been a fundamental change in
    
    Pakistan‟s country conditions and that he now faces persecution on account of being a
    
    Shia Muslim.2 Butt claims that the BIA abused its discretion in denying his motion to
    
    reopen because it failed to properly analyze the evidence of changed country conditions
    
    he submitted, some of which post-dated his original removal hearing.
    
            The BIA may deny a motion to reopen on three independent grounds: 1) failure
    
    to make out a prima facie case for relief; 2) failure to introduce previously available
    
    material evidence; or 3) even if the first two grounds were met, the BIA has discretion to
    
    identify another reason why the movant is not entitled to relief. See I.N.S. v. Abudu, 
    485 U.S. 94
    , 104-05 (1988).
    
    
    
    2
      Butt makes several other arguments in support of his petition, including: 1) the BIA
    erred by failing to distinguish between “general violence and persecution in the context
    of general violence”; 2) that the BIA failed to review all of the evidence he presented
    with his motion to reopen, and 3) that the BIA failed to provide a reasoned analysis when
    it determined that he is unlikely to be targeted as an “American agent” upon his return to
    Pakistan. However, those arguments are, for the most part, subsumed in his overarching
    claim that changed circumstances justify reopening his petition for asylum.
                                                   3
              The BIA denied Butt‟s motion to reopen on the second ground primarily because
    
    it concluded that the evidence accompanying Butt‟s motion predated the 2006 hearing
    
    and was not shown to have been previously unavailable. See 8 C.F.R. § 1003.2(c)(1).3
    
    The Board also concluded that the evidence provided with the motion did not establish
    
    materially changed conditions in Pakistan, but rather an “incremental increase in general
    
    violence.” App. 000003. We disagree.
    
              Although some of the evidence accompanying the motion to reopen does predate
    
    Butt‟s 2006 hearing, the majority of it consists of post-2006 reports pertaining to violent
    
    acts inflicted upon Shia Muslims in Pakistan. That evidence includes a March 19, 2009
    
    report from an international news service, “Press TV,”4 which includes the following
    
    report:
    
                     This is while extremists groups have embarked on an „ominous
               mission‟ to „eliminate‟ Shia elites across Pakistan – which became a
               safe haven for pro-Taliban and al-Qaeda-linked militants after the US-
               led invasion of Afghanistan in 2001.
                     They have killed hundreds of Shia medical doctors, university
               professors, lawyers and police officers across the violence-wracked
               country during the past few years.
    
    App. 000030.
    
              In addition, Butt‟s motion to reopen includes a petition imploring officials to stop
    
    what can best be described as unrelenting acts of violence directed against Shias. See
    
    3
      The BIA explained: “Much of the evidence accompanying or incorporated within the
    respondent‟s motion to reopen predates the respondent‟s last hearing . . . on September
    26, 2006, and has not been shown to have been unavailable . . . therefore failing to meet
    the requirements for a motion to reopen. See 8 C.F.R. § 1003.2(c)(1).” App. 000003.
    4
      Press TV can be accessed via the internet at: http://www.presstv.ir/
                                                 4
    App. 000031-34. Contrary to the Board‟s conclusion, each of the numerous incidents
    
    that are alleged in that petition purportedly occurred in 2009 – well after the 2006
    
    decision was filed. Id. The following allegation is typical of the atrocities cited in the
    
    petition: “Muslims in Pakistan. Hundreds of Shias have been killed in the last one year
    
    alone in various attacks of terrorism by the Taliban, Al Qaeda, . . . and other sectarian
    
    and jihadi groups in Pakistan.” App. 000031.5
    
           Furthermore, Butt‟s petition has directed our attention to a July 14, 2009 BIA
    
    decision filed in a different proceeding in Houston, Texas approximately two months
    
    before the Board denied Butt‟s motion.6 See Pet‟r‟s Br., Ex A. In the Houston
    
    Adjudication, another Shia Muslim and Pakistani citizen, whose last administrative
    
    hearing was also in 2006, made the same argument in support of a motion to reopen filed
    
    with the BIA: changed conditions in Pakistan with respect to Shia persecution. There,
    
    the Board granted the motion, concluding:
    
             While the background evidence indicates the existence of general
             civil strife, it also demonstrates that Shia Muslims are being targeted
             in violent attacks. Such evidence is material to the respondents‟ claim
    
    5
      We have no way of knowing the accuracy of the statements set forth in that petition and
    we do not cite them as evidence of fact. Rather, we cite the petition and the violence it
    alleges merely to illustrate the analytical weakness of the BIA‟s conclusion that the
    materials Butt presented predated the 2006 decision. Moreover, the issue in an asylum
    claim is whether the alien can demonstrate a “subjective fear [that is] objectively
    reasonable.” Sun Wen Chen v. Att’y Gen. of the U.S., 
    491 F.3d 100
    , 105 (3d Cir. 2007).
    These materials are clearly relevant to that determination absent some explanation to the
    contrary.
    6
      The filed copy of the Board‟s decision contained in the Appendix does not include the
    name of the petitioner in that case. Accordingly, we will refer to it simply as “The
    Houston Adjudication.”
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             of a fear of future threats to their lives or freedom on account of their
             religion and/or their requests for protection under the Convention
             Against Torture.
    Id.
           We are therefore at a loss to understand how the Board could conclude that the
    
    materials of changed country conditions that Butt submitted reflect “simply an
    
    incremental increase in general violence,” rather than a “material change in country
    
    conditions.” App. 000003. Moreover, as Butt argues, an increase in general violence
    
    does not negate the existence of persecution. Butt cites Matter of Villalta, 20 I&N Dec.,
    
    142 (BIA 1990), to argue: “persecution can and often [does] take[] place in the context of
    
    general violence.” Pet‟r‟s Br. at 10. We agree. Indeed, history teaches that festering
    
    religious, political and ethnic objectives of persecutors often surface concomitantly with a
    
    general increase in societal violence. In fact, common sense supports the conclusion that
    
    it is far more difficult to perpetrate acts of ethnic and religious hatred during times of
    
    calm and social order.
    
           The government attempts to refute Butt‟s reliance on Matter of Villalta by arguing
    
    that that case “involved an alien whose case was on direct appeal from the immigration
    
    judge‟s denial of his asylum and withholding claims …” and by claiming that “Villalta
    
    established that he and his immediate family were singled out by [the persecutors]. . . .” .
    
    See Resp‟t Br. at 10. However, the procedural difference does not distinguish the legal
    
    principles that apply to the adjudication of the motion. Furthermore, we are at a loss to
    
    understand the relevance of the fact that Villalta and his family were singled out. Butt
    
    does not have to show that he was “singled out,” because he is relying on a pattern or
                                                  6
    practice of persecution of a group that he is a member of. See 8. C.F.R. § 208.13(b)(2)
    
    (“[T]he asylum officer or immigration judge shall not require the applicant to provide
    
    evidence that there is a reasonable possibility he or she would be singled out individually
    
    for persecution if: . . . there is a pattern or practice . . . of persecution of a group of
    
    persons similarly situated . . . and the applicant establishes his . . . identification with,
    
    such group . . . such that his . . . fear of persecution upon return is reasonable.”). See also
    
    Guo, 386 F.3d at 564. We therefore conclude that the Board acted arbitrarily in refusing
    
    to reopen Butt‟s application for relief.
    
           The Board also rejected Butt‟s claim that he would be persecuted on account of
    
    having been born in India and having resided in the United States for several years; as
    
    well as his claim that he would be targeted because he is a doctor. The former claims
    
    were rejected because the Board failed to find materially changed country conditions.
    
    Since we conclude that the Board‟s analysis was arbitrary and will remand on that basis,
    
    the Board should consider these additional claims on remand to the extent that Butt can
    
    establish these claims based upon the materials submitted with his motion.
    
           The Board explained its rejection of any claim based on Butt‟s status as a doctor
    
    as follows: “To the extent that [Butt] asserts that he would be targeted because he is a
    
    doctor, apparently arguing membership in a particular social group or imputed political
    
    opinion, he has failed to cite any cases which would recognize such as a cognizable
    
    particular social group or imputed political opinion.” App. 000004. Nevertheless, the
    
    materials that Butt submitted do refer to elites being singled out for persecution in
                                                    7
    Pakistan. Although absence of favorable decisions is certainly a factor that can be
    
    considered in rejecting any claim, it is not at all clear that the Board or any appellate
    
    court has ever been asked to decide whether doctors or elites in Pakistan constitute a
    
    particular social group under asylum law given the prevailing conditions at the relevant
    
    time. Thus, the absence of prior decisions should not have automatically precluded Butt
    
    from raising such a claim here. Accordingly, on remand, if the Board considers that such
    
    a claim is not foreclosed as a matter of law, the Board should consider whether the record
    
    would support such a claim here.
    
                                                      III.
    
           For the reasons set forth above, we find that the Board‟s rejection of Butt‟s motion
    
    to reopen was an abuse of discretion and we will therefore grant the petition for review
    
    and remand to the Board for additional proceedings consistent with this opinion.
    
    
    
    
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