Khan v. Attorney General of United States , 691 F.3d 488 ( 2012 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1789
_____________
MOHAMMED SHUAIB KHAN; FARAS SHUAIB KHAN,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
_____________
On Petition for Review of a Decision and Order of
the Board of Immigration Appeals
(BIA Nos. A029-762-291 & A029-762-293)
Submitted January 27, 2012
____________
Before: AMBRO, CHAGARES, and HARDIMAN, Circuit
Judges.
(Filed: August 14, 2012)
Bryan R. Pu-Folkes, Esquire
Suite 4
78-27 37th Avenue
Jackson Heights, NY 11372
Counsel for Petitioners
Jacob A. Bashyrov, Esquire
Eric H. Holder, Jr., Esquire
Thomas W. Hussey, Esquire
Melissa K. Lott, Esquire
United States Department of Justice
Office of Immigration Litigation, Civil Division
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
____________
OPINION
___________
CHAGARES, Circuit Judge.
Mohammed Shuaib Khan (“Mohammed”) and his son
Faras Shuaib Khan (“Faras”), both citizens of Pakistan,
petition for review of an order by the Board of Immigration
Appeals (“BIA”) denying their motion for an emergency stay
of removal and motion to reopen their joint application for
asylum, withholding of removal, or protection under the
United Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (“CAT”).
Respondent United States Attorney General Eric Holder, Jr.
has moved to dismiss the petition for review, arguing that we
2
lack jurisdiction to consider it because it was untimely and
because it was filed before the BIA rendered a final decision
on the petitioners’ motions. We hold that we do have
jurisdiction. We will, therefore, deny the Attorney General’s
motion to dismiss. However, we will also deny the petition
for review.
I.
The petitioners initially were admitted to the United
States as nonimmigrant visitors in December 1990. After
they overstayed their visas, the United States Immigration and
Naturalization Service initiated removal proceedings.
Mohammed sought asylum, withholding of removal, and
protection under the CAT, claiming that he was persecuted in
Pakistan based on his membership in the Pakistan People’s
Party. Faras, who was a minor, was listed as a derivative
beneficiary on Mohammed’s asylum application. In January
2000, an Immigration Judge (“IJ”) denied the petitioners’
applications for asylum, withholding of removal, and
protection under the CAT because they presented no credible
evidence of past persecution or fear of future persecution.
The BIA affirmed the denial on February 25, 2003, and the
petitioners did not petition this Court for review of that
denial. Instead, on October 21, 2010 — seven and one-half
years later — they filed with the BIA a motion for an
emergency stay of removal and a motion to reopen their case.
In the subsequent weeks, this case followed a
somewhat unusual timeline. On March 29, 2011, the
petitioners prematurely filed in this Court a petition for
review, challenging the BIA’s alleged refusal to adjudicate
their motion for an emergency stay of removal and motion to
3
reopen. The petition was filed within hours of Mohammed’s
scheduled removal from the United States and after a clerk at
the BIA allegedly notified the petitioners that the BIA would
not consider their motion for an emergency stay of removal.
On the same day, a panel of this Court granted the petitioners
a temporary stay of removal and ordered the parties to submit
briefs addressing this Court’s jurisdiction over the petition for
review. Thereafter, on March 31, 2011, the Attorney General
moved to dismiss the petition for lack of jurisdiction, arguing
that we were without jurisdiction to adjudicate the petition
because it was (1) untimely with respect to the BIA’s
February 2003 decision and (2) premature with respect to the
BIA’s anticipated decision on the petitioners’ motion for an
emergency stay of removal and motion to reopen.
All of this occurred before the BIA issued a final
decision on the petitioners’ October 2010 motions. Finally,
on April 12, 2011, the BIA denied the petitioners’ October
2010 motion to reopen because it was untimely and also
denied the motion for an emergency stay of removal. The
following week, on April 18, 2011, the petitioners moved for
leave to amend their response to the motion to dismiss in
order to address this Court’s jurisdiction in light of the April
12, 2011 BIA order. The next day, a panel of this Court
granted the motion to amend, referred the motion to dismiss
to a merits panel, and vacated the temporary stay of removal
entered on March 29, 2011 because the petitioners had not
shown a likelihood of success on the merits of their petition
for review. We now consider whether we have jurisdiction
and, if so, whether the petitioners are entitled to relief.
II.
4
The Attorney General contends that the petition for
review should be dismissed because it was filed almost two
weeks prior to the BIA’s April 12, 2011 denial of the
petitioners’ motions, making it premature and depriving this
Court of jurisdiction. 1 We have jurisdiction to review the
BIA’s denial of a motion to reopen unless 8 U.S.C. §
1252(a)(2) otherwise strips us of jurisdiction. Cruz v. Att’y
Gen., 452 F.3d 240, 246 (3d Cir. 2006) (“Congress has
explicitly granted federal courts the power to review ‘any
final order of removal’ under 8 U.S.C. § 1252(a)(1). Implicit
in this jurisdictional grant is the authority to review the denial
of a motion to reopen any such final order.”). The
Government does not argue that any of the jurisdiction-
stripping provisions in 8 U.S.C. § 1252(a)(2) deprive us of
jurisdiction. The petitioners set forth a number of reasons
why we had jurisdiction to review the BIA’s alleged refusal
to adjudicate their motions even before the April 12, 2011
order denying the motion to reopen. We need not address
those arguments, however, because we conclude that we have
jurisdiction to review the BIA’s April 12, 2011 order, despite
the petition for review having been filed before that order was
issued.
1
The Attorney General also argues that we lack
jurisdiction over the petition for review because it was filed
more than thirty days after the BIA’s February 2003 final
order of removal. Pursuant to 8 U.S.C. § 1252(b)(1), a
petition for review must be filed no later than thirty days after
a final order of removal. The petitioners maintain, however,
that they are challenging only the denial of their October
2010 motions, not the BIA’s February 2003 denial of relief.
Thus, we reject the Attorney General’s argument that we lack
jurisdiction to consider the petition for review on this basis.
5
There are differing views among our sister Courts of
Appeals with regard to whether premature petitions for
review can ripen upon a final decision by the BIA. The
Courts of Appeals for the Fifth and Sixth Circuits have held
that a premature petition for review does not ripen into a
timely petition when the final order is eventually issued.
Moreira v. Mukasey, 509 F.3d 709, 713 (5th Cir. 2007); Jaber
v. Gonzales, 486 F.3d 223, 228–30 (6th Cir. 2007). The
Court of Appeals for the Second Circuit, in contrast, has held
that a premature petition can ripen provided that the BIA later
orders the petitioner removed and the Attorney General has
not shown that he would be prejudiced. Herrera-Molina v.
Holder, 597 F.3d 128, 132 (2d Cir. 2010). We have yet to
decide this issue.
We opt to follow the Court of Appeals for the Second
Circuit and will not dismiss the petition on the basis that it
was filed two weeks prematurely. We have held in civil cases
that, where there is no showing of prejudice by the adverse
party and we have not taken action on the merits of an appeal,
“‘a premature notice of appeal, filed after disposition of some
of the claims before a district court, but before entry of final
judgment, will ripen upon the court’s disposal of the
remaining claims.’” DL Res., Inc. v. FirstEnergy Solutions
Corp., 506 F.3d 209, 215 (3d Cir. 2007) (quoting Lazy Oil
Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999)). This
rule is referred to as the “Cape May Greene doctrine” after
the case in which it was first recognized, Cape May Greene,
Inc. v. Warren, 698 F.2d 179, 184–85 (3d Cir. 1983). In Cape
May Greene, the plaintiff filed its notice of appeal of the
district court’s grant of summary judgment while a cross-
claim filed by the defendant was still pending. Id. at 184.
While the appeal was pending, but before we had taken any
6
action on the appeal, the parties dismissed the cross-claim and
the district court entered a final judgment dismissing the case.
Id. In holding that the notice of appeal ripened upon entry of
the final judgment, we relied on the United States Supreme
Court’s pronouncement that “‘practical, not technical
considerations are to govern the application of principles of
finality.’” Id. at 185 (quoting Gillespie v. U.S. Steel Corp.,
379 U.S. 148, 152 (1949)).
Similarly, in Lazy Oil Co. v. Witco Corp., 166 F.3d at
585, the objectors to a class action settlement filed a notice of
appeal over two months before the district court gave its final
approval on all elements of the settlement and entered a final
judgment. In choosing to apply the Cape May Greene
doctrine, we explained that, “[f]or us to decline jurisdiction in
this appeal would elevate a mere technicality above the
important substantive issues here involved, as well as the
right of the parties in this case to have their dispute resolved
on its merits.” Id. at 587. Motivated by such concerns, we
have continued to allow a premature notice of appeal to ripen
in cases where the adverse party was not prejudiced by the
premature filing and where we have yet to adjudicate the
appeal. E.g., DL Res., Inc., 506 F.3d at 215. But see ADAPT
of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 361–65 (3d Cir.
2006) (holding that the Cape May Greene doctrine is
inapplicable to appeals from interlocutory orders, such as
discovery orders, and that appeals from interlocutory orders
may not ripen upon entry of final judgment). 2
2
Although Federal Rule of Appellate Procedure
4(a)(4)(B)(ii) allows for the ripening of a notice of appeal that
is filed while certain motions are pending once those motions
are adjudicated, we have opined that “Rule 4 does not
7
We will apply that same rule to the circumstances
presented in this case. So long as the Attorney General has
not shown that he will suffer prejudice resulting from the
premature filing of a petition for review, and we have yet to
take action on the merits of the appeal, a premature petition
for review can ripen once the BIA issues a final order on a
motion to reopen. We see no reason to treat premature
petitions for review from final orders of removal differently
than we have treated premature notices of appeal in other
types of cases. 3
exclusively govern every ‘situation in which a premature
notice of appeal will ripen at a later date.’” DL Res., Inc.,
506 F.3d at 215 (quoting Lazy Oil Co., 166 F.3d at 587). We
recognize that some of our sister Courts of Appeals have
declined to join us in this regard. See Brown v. Columbia
Sussex Corp., 664 F.3d 182, 188 (7th Cir. 2011) (holding that
“premature notices of appeal in civil cases can only ripen
when under the auspices of [Federal Rule of Appellate
Procedure] 4(a)(2), as defined by the Supreme Court in
[FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S.
269 (1991)]”); Outlaw v. Airtech Air Conditioning &
Heating, Inc., 412 F.3d 156, 160 n.2 (D.C. Cir. 2005) (same);
United States v. Cooper, 135 F.3d 960, 963 (5th Cir. 1998)
(applying analogous reasoning in a criminal appeal); Serine v.
Peterson, 989 F.2d 371, 372–73 (9th Cir. 1993) (same).
3
Likewise, we have exercised appellate jurisdiction in
certain criminal cases where a notice of appeal was filed after
conviction but before sentencing, so long as the notice of
appeal adequately advised the government of what was being
appealed, the premature filing did not cause prejudice, and the
notice of appeal was not filed extraordinarily prematurely.
See, e.g., United States v. Hashagen, 816 F.2d 899, 903–06
8
Turning to this case, we hold that the premature
petition for review ripened and we have jurisdiction to
adjudicate it. While technically the petitioners should have
filed a new petition once the BIA issued its final order on the
motion to reopen and motion for an emergency stay of
removal on April 12, 2011, the BIA’s decision denying the
motions was entered only two weeks after the petitioners filed
their petition for review and the Attorney General had plenty
of time to respond to the petition. The Attorney General has
made no argument that he was prejudiced by the premature
filing and we do not perceive any prejudice. Although the
petition for review challenged the BIA’s refusal to adjudicate
the petitioners’ motions rather than the denial of those
motions, the petitioners amended their response to the
Attorney General’s motion to dismiss after the BIA denied
the motions. We will treat the petitioners’ amended response
to the Attorney General’s motion to dismiss as updating the
petition for review into a challenge to the BIA’s April 12,
2011 order. Finally, we had not taken action on the merits
before the BIA entered its final disposition. In these
circumstances, we conclude that it would be unfair to dismiss
the petition due to its premature filing.
The Attorney General argues that this case is
distinguishable from Cape May Greene and Lazy Oil Co.,
because those were appeals from interlocutory orders that
later became final orders while, here, there was no order by
(3d Cir. 1987) (en banc). But see Gov’t of the V.I. v.
Leonard A., 922 F.2d 1141, 1146 n.6 (3d Cir. 1991) (holding
that notice of appeal did not ripen because it did not
adequately notify the government of what was being
appealed).
9
the BIA at the time the petitioners filed their petition. We do
not find that distinction to be dispositive in this case. While
there may be circumstances in which there is no order from
the BIA and the petition is so premature that allowing it to
ripen would prejudice the Attorney General, this is not such a
case. Again, the Attorney General has alleged no prejudice
caused by the premature petition for review. In addition, the
petitioners allege, and the Attorney General does not deny,
that a clerk at the BIA informed the petitioners on March 29,
2011 that the BIA would not rule on their motion for an
emergency stay of removal. Given that the petitioners were
scheduled to leave for Pakistan that day, it is understandable
why the petitioners would interpret that message as an
effective denial of their motion for an emergency stay of
removal and motion to reopen. Thus, the Attorney General’s
proposed distinction is not compelling.
We hold, therefore, that we have jurisdiction over the
ripened petition for review and we will deny the Attorney
General’s motion to dismiss.
III.
While we hold in favor of the petitioners on the
jurisdictional question, we nonetheless conclude that they
cannot prevail on the merits of their petition for review. We
review the BIA’s denial of a motion to reopen for abuse of
discretion. Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004). 4 We will not reverse the BIA’s discretionary rulings
4
We need not address the BIA’s denial of the
petitioners’ motion for an emergency stay of removal because
the petitioners did not challenge that denial in their appellate
10
“‘unless they are found to be arbitrary, irrational, or contrary
to law.’” Id. (quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir.
1994)). A motion to reopen must be filed within ninety days
of a final order of removal. 8 U.S.C. § 1229a(c)(7)(C)(i).
The petitioners do not dispute that their motion to reopen was
untimely, as the final order of removal was entered on
February 25, 2003 and the motion to reopen was not filed
until October 21, 2010. Instead, they seek application of the
changed country conditions exception to the ninety-day
deadline set forth in 8 U.S.C. § 1229a(c)(7)(C)(ii), which
provides that
[t]here is no time limit on the filing of a motion
to reopen if the basis of the motion is to apply
for relief under sections 1158 or 1231(b)(3) of
this title and is based on changed country
conditions arising in the country of nationality
or the country to which removal has been
ordered, if such evidence is material and was
not available and would not have been
discovered or presented at the previous
proceeding.
Sections 1158 and 1231(b)(3) — referenced above — outline
the requirements for asylum and withholding of removal,
respectively.
briefs. See Skretvedt v. E.I. DuPont DeNemours, 372 F.3d
193, 202–03 (3d Cir. 2004) (“[A]n issue is waived unless a
party raises it in its opening brief, and for those purposes a
passing reference to an issue will not suffice to bring that
issue before this court.” (quotation marks omitted)).
11
The petitioners seek to reopen under the changed
country conditions exception based on allegations that
extremist violence has increased in Pakistan; the Pakistani
government is less able to control that violence than in 2000,
when the petitioners had their original hearing; the petitioners
now belong to the Awami National Party (“ANP”), which is
targeted by extremists in Pakistan; the petitioners’ hometown
of Bahawalpur has become more dangerous; Pakistan has
become more anti-American since 2000; and the petitioners
now suffer from mental illnesses. With their motion to
reopen, the petitioners submitted a report published on July 1,
2009 by the University of Maryland entitled “Pakistani Public
Opinion on the Swat Conflict, Afghanistan, and the US.” The
report includes the results of a poll which found that 81% of
Pakistanis believed that the Taliban and other religious
militants constituted a “critical threat” to the country. Two
years earlier, only 34% percent had responded affirmatively
to that question. Among other documents, the petitioners also
provided a number of articles reporting violence and
instability in Pakistan; a 2009 United States Department of
State Human Rights Report documenting human rights abuses
and politically motivated killings by extremists in Pakistan;
information on the treatment of persons with mental illness in
Pakistan; and the petitioners’ medical records.
For the changed country conditions exception in 8
U.S.C. § 1229a(c)(7)(C)(ii) to apply, the petitioners must
show that the new evidence they submit is material to their
application for relief. To meet the materiality requirement,
the petitioners must allege facts that “‘would be sufficient, if
proved, to change the result’” of their application. Kaur v.
BIA, 413 F.3d 232, 234 (2d Cir. 2005) (quoting Ballenilla-
Gonzalez v. INS, 546 F.2d 515, 520 (2d Cir. 1976)). Even if
12
an alien can demonstrate changed country conditions, a
motion to reopen will not be granted unless the petitioner
establishes prima facie eligibility for relief by “produc[ing]
objective evidence showing a reasonable likelihood that he
can establish that he is entitled to relief.” Guo, 386 F.3d at
563 (quotation marks and brackets omitted); see 8 C.F.R. §
1003.2(c)(1) (“A motion to reopen proceedings shall not be
granted unless it appears to the Board that evidence sought to
be offered is material . . . .”).
To prevail on an asylum claim, 5 an alien must show
that he or she “is unable or unwilling to return to, and is
unable or unwilling to avail himself or herself of the
protection of, [his or her native 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. §
1101(a)(42)(A). To establish a well-founded fear of
persecution, the alien must show both a subjective fear and
“that a reasonable person in his position would fear
persecution, either because he would be individually singled
out for persecution or because there is a pattern or practice in
his home country of persecution against a group of which he
is a member.” Huang v. Att’y Gen., 620 F.3d 372, 381 (3d
Cir. 2010) (quotation marks omitted). “The source of the
persecution must be the government or forces that the
government is unwilling or unable to control.” Ahmed v.
5
Because the petitioners have failed to make any
argument with regard to their claims for withholding of
removal and relief under the CAT, we deem such arguments
waived and we will not address them. See Skretvedt, 372
F.3d at 202–03.
13
Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). In order to
prove a reasonable fear of future persecution, the petitioners
must produce “credible, direct, and specific evidence . . . that
would support a reasonable fear of persecution.” Id.(quotation marks omitted). The BIA’s underlying factual
determinations are entitled to broad deference under the
substantial evidence standard, “and will be upheld to the
extent [they are] supported by reasonable, substantial and
probative evidence on the record on as a whole.” Shardar v.
Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004) (quotation marks
omitted). In considering motions to reopen, “[t]he critical
question is . . . whether circumstances have changed
sufficiently that a petitioner who previously did not have a
legitimate claim for asylum now has a well-founded fear of
future persecution.” Malty v. Ashcroft, 381 F.3d 942, 945
(9th Cir. 2004).
We agree with the BIA that the petitioners cannot avail
themselves of the changed country conditions exception in 8
U.S.C. § 1229a(c)(7)(C)(ii) to the time limit for filing a
motion to reopen. With respect to much of the evidence they
submitted with their motion to reopen, the petitioners have
not met their heavy burden of demonstrating that the evidence
is material to their application for asylum. The BIA held that
the petitioners’ evidence of violence towards members of the
Pakistan People’s Party (“PPP”) was not material to their
asylum application because the petitioners had not addressed
the IJ’s finding in January 2000 that there was no credible
evidence that the petitioners belonged to the PPP. The BIA
did not err in reaching that conclusion. Because the
petitioners have not attempted to rehabilitate their credibility
following the IJ’s adverse credibility finding with respect to
their membership in the PPP, they have not shown “a
14
reasonable likelihood that [they] can establish that [they are]
entitled to relief” on the basis that they would be targeted as
members of the PPP. Guo, 386 F.3d at 563 (quotation marks
omitted); see also Kaur, 413 F.3d at 234 (upholding BIA’s
conclusion that the “evidence submitted by petitioner in
support of her motion was not ‘material’ because it did not
rebut the adverse credibility finding that provided the basis
for the IJ’s denial of petitioner’s underlying asylum
application.”). Without credible evidence that the petitioners
belonged to the PPP, the petitioners cannot prevail on an
asylum claim based on membership in that group.
Nor did the BIA err in relying on the IJ’s adverse
credibility determination. “We have emphasized that adverse
credibility findings are afforded deference only if they are
supported by specific cogent reasons” that are “substantial
and bear a legitimate nexus to the finding.” Guo, 386 F.3d at562–63 (quotation marks omitted). The petitioners have not
disputed that the adverse credibility determination was
supported by the record. The adverse credibility
determination in this case was also directly relevant to the
merits of the asylum application that the petitioners seek to
reopen. See id. at 563 (explaining that there must be a
sufficient nexus between the adverse credibility finding and
the BIA’s holding). Thus, it was appropriate for the BIA to
defer to the IJ’s credibility determination.
The BIA also held that the petitioners could not avail
themselves of the changed country conditions exception in 8
U.S.C. § 1229a(c)(7)(C)(ii) on the basis that, since their
hearing in 2000, they had become members of the ANP in the
United States and that their membership in that group would
subject them to persecution in Pakistan. The petitioners have
15
submitted evidence indicating that members of the ANP have
been targeted by extremists. The record contains the 2009
United States Department of State Human Rights Report on
Pakistan, which reported that 100 political workers, some of
whom belonged to the ANP, were killed in Karachi, Pakistan
as the result of interparty clashes. The report also noted that
members of the ANP had been the targets of terrorist attacks.
Despite that evidence, we agree with the BIA that this
argument is unavailing. This claim for asylum relief is based
on changes in the petitioners’ personal circumstances in the
United States and is not “based on changed country
conditions” in Pakistan. 8 U.S.C. § 1229a(c)(7)(C)(ii). The
petitioners’ choice to engage in such political activities after
being ordered deported does not support application of the
changed country conditions exception in 8 U.S.C.
§ 1229a(c)(7)(C)(ii). See Haddad v. Gonzales, 437 F.3d 515,
517 (6th Cir. 2006) (holding that petitioner’s divorce was a
“purely personal change in circumstances that does not
constitute changed conditions or circumstances in Jordon”);
Zheng v. Dep’t of Justice, 416 F.3d 129, 130–31 (2d Cir.
2005) (holding that the birth of petitioner’s children did not
constitute changed country conditions). The Court of
Appeals for the Second Circuit has explained why application
of 8 U.S.C. § 1229a(c)(7)(C)(ii) cannot be based on changed
personal circumstances alone:
It is quite a different situation, however, where
a petitioner is seeking to reopen his asylum case
due to circumstances entirely of his own
making after being ordered to leave the United
States. In such a situation, it would be ironic,
indeed, if petitioners . . . who have remained in
16
the United States illegally following an order of
deportation[] were permitted to have a second
and third bite at the apple . . . . This apparent
gaming of the system in an effort to avoid
deportation is not tolerated by the existing
regulatory scheme. The law is clear that a
petitioner must show changed country
conditions in order to exceed the 90-day filing
requirement for seeking to reopen removal
proceedings. A self-induced change in personal
circumstances cannot suffice.
Wang v. BIA, 437 F.3d 270, 274 (2d Cir. 2006) (citations
omitted). We agree that, where an alien intentionally alters
his or her own circumstances, knowing that he or she has
been ordered removed from the United States, 8 U.S.C.
§ 1229a(c)(7)(C)(ii) does not properly apply. See Larngar v.
Holder, 562 F.3d 71, 76 (1st Cir. 2009).
We also conclude that the BIA did not err in finding
that the evidence of increased anti-American sentiment in
Pakistan was immaterial to the petitioners’ case. Although
we acknowledge that Faras has been in the United States for
the majority of his life and that both have been here for over
twenty years, there is no cognizable social group of
“secularized and westernized Pakistanis perceived to be
affiliated with the United States.” Ahmed v. Holder, 611
F.3d 90, 94 (1st Cir. 2010).
[F]or a proposed social group to achieve
cognizability (that is, to come within the
compass of the statute), its members must share
at least one common, immutable characteristic.
17
In addition, the shared characteristic or
characteristics must make the group generally
recognizable in the community and must be
sufficiently particular to permit an accurate
separation of members from non-members.
Id. (citation omitted); see Valdiviezo-Galdamez v. Att’y Gen.,
502 F.3d 285, 291 (3d Cir. 2007). The social group that the
petitioners propose — of Pakistanis who have “become more
acculturated to American culture, language and values than
those of Pakistan” — calls for “subjective value judgments”
and, thus, is not an easily definable group. See Ahmed, 611
F.3d at 94–95. “Americanization is not an immutable
characteristic.” Lizama v. Holder, 629 F.3d 440, 447 (4th
Cir. 2011). Nor is having an affiliation with or connection to
the United States. Ahmed, 611 F.3d at 94. The social group
that the petitioners propose is too amorphous to support an
asylum application. Moreover, the evidence submitted by the
petitioners discusses anti-American sentiment in Pakistan but
it does not specifically report persecution of Pakistanis who
have returned from the United States to Pakistan. Thus, the
petitioners have not shown “a reasonable likelihood that
[they] can establish that [they are] entitled to relief” on this
basis. Guo, 386 F.3d at 563.
We further hold that the BIA’s finding that the
petitioners failed to provide sufficient medical information to
support a prima facie case for asylum was supported by
substantial evidence. The petitioners provided a medical
record showing that, on February 4, 2011, Faras was
diagnosed with bipolar disorder. The record also contains an
evaluation from a New Jersey hospital from November 2010
stating that Mohammed suffered from mental depression due
18
to anxiety and a report from a different hospital on March 21,
2011 diagnosing Mohammed with “adjustment disorder with
mixed emotions.” On the March 2011 hospital visit,
Mohammed was discharged after his condition improved
without any recommendation of follow-up care.
The few medical documents the petitioners submitted
provide very limited information about their mental health.
More importantly, however, the petitioners did not establish
how those particular diagnoses would cause them to be
persecuted in Pakistan. The evidence the petitioners
submitted indicates that it is difficult to obtain mental health
treatment in Pakistan. The lack of access to mental health
treatment alone, however, does not create a well-founded fear
of persecution. See Ixtlilco–Morales v. Keisler, 507 F.3d
651, 655–56 (8th Cir. 2007) (upholding the BIA’s
determination that the alien had “failed to establish that
inadequacies in health care for HIV-positive individuals in
Mexico was an attempt to persecute those with HIV”). While
some of the evidence in the record describes abuse of
psychiatric patients and the social stigma attached to mental
illness in Pakistan, we conclude that the BIA’s finding that
the petitioners did not sufficiently demonstrate that they had a
mental illness that would subject them to mistreatment upon
return to Pakistan was supported by substantial evidence.
Finally, the petitioners argue that the BIA’s failure to
address their evidence of changed country conditions was a
procedural violation. We have held that “the BIA must
actually consider the evidence and argument that a party
presents.” Zheng v. Att’y Gen., 549 F.3d 260, 266 (3d Cir.
2008) (quotation marks omitted). The BIA must engage in
some analysis of the petitioner’s evidence but may do so in a
19
“‘summary fashion.’” Id. at 268 (quoting Wang, 437 F.3d at
275). “The BIA must show that it reviewed the record and
considered the evidence upon which the IJ relied, and it must
explain why the record warrants [its conclusion].” Huang,
620 F.3d at 387. Although the BIA’s opinion in this case
does not specifically mention all of the evidence that the
petitioners submitted, it demonstrates that the BIA reviewed
the record and sets forth in summary fashion why the record
supports its conclusion. Thus, the BIA sufficiently addressed
the petitioners’ claims and evidence.
For all of these reasons, we are not persuaded that the
BIA abused its discretion in finding that the petitioners’
motion to reopen was untimely and that the changed country
conditions exception in 8 U.S.C. § 1229a(c)(7)(C)(ii) was
inapplicable.
IV.
In accordance with the foregoing, we will deny the
Attorney General’s motion to dismiss and we will deny the
petition for review.
20