Augustine Victor v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1982
A UGUSTINE V ICTOR, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the Board
of Immigration Appeals.
Nos. A070-648-759; A072-414-939; A072-414-940 & A072-414-941
A RGUED N OVEMBER 6, 2009—D ECIDED A UGUST 6, 2010
Before P OSNER, K ANNE, and R OVNER, Circuit Judges.
R OVNER, Circuit Judge. Augustine Victor and his
family are citizens and natives of Pakistan. Victor, his
wife Jacqueline, and their two children came to the
United States in April of 2001 as visitors for pleasure
authorized to remain for six months. Victor overstayed
his visa and at the beginning of 2002 he applied for
asylum, naming his wife and children as derivative
2 No. 09-1982
beneficiaries.1 His request languished until he was ulti-
mately charged as removable in 2005. Victor renewed his
request for asylum and requested withholding of removal
and protection under the United Nations Convention
Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, 23 I.L.M. 1027 (1984). In 2007,
an IJ denied Victor’s requests. The BIA denied his appeal.
Two months later Victor moved the BIA to reopen and
reconsider, requests which it denied in March of 2009.
Victor appealed, but we stayed his appeal pending the
Supreme Court’s decision in Kucana v. Holder, 130 S. Ct. 827(2010). Kucana makes clear that we have jurisdiction to
review Victor’s appeal, but we ultimately conclude that
the BIA did not abuse its discretion when it denied
Victor’s motions to reopen and reconsider.
I.
Victor and his family are members of the small
minority population of practicing Christians in Pakistan.
In 2006, approximately 96% of the Pakistani popula-
tion were Muslim (the state religion), and the Christian
minority made up approximately 1.6% of the population.
Bureau of Democracy, Human Rights, & Labor, U.S. Dep’t
of State, Pakistan: Int’l Religious Freedom Report—2006
1
This was actually Victor’s second asylum application. In
1992, Victor had visited the United States and filed a political
asylum application based on his activity in the Pakistani Peo-
ple’s Party. He returned to Pakistan before the application
was adjudicated. The current application is unrelated.
No. 09-1982 3
(Sept. 15, 2006). In April 2001, Victor and his family
travelled between 600 and 700 miles from their home
in Rawalpindi, Pakistan, to the home of Victor’s brother
in Hyderabad for his daughter’s wedding (Victor’s
niece) and the festivities leading up to it. Victor’s under-
lying asylum claim stems from an incident that oc-
curred in Hyderabad during the wedding celebration
for his niece.
Both Augustine Victor and his wife, Jacqueline, testified
at the hearing that the family had been playing music and
dancing as part of their customary celebration the
night before the wedding. That evening when the azaan
(Muslim call to prayer) sounded, a mullah (Islamic cleric)
named Mansoor (or Manzoor) Ahmed appeared with six
or seven of his followers. They complained that the
music and festivities were interfering with their evening
prayer at a mosque some two blocks away. Both Victor
and his wife testified that when the mullah arrived the
music had been lowered to the point that it could not
be heard outside of the home. Nonetheless, the mullah
came to the door along with his followers, cursing and
swearing and calling the family “coffers,” which
translates to infidels or unbelievers.
Victor testified that he tried to handle the situation to
spare his brother from bother, but his attempts to
defuse the situation proved futile. The mullah and his
followers, some of whom were carrying large sticks,
began hitting Victor and his brother. Finally, the mullah
threatened to call the police and tell them that Victor
had mocked and blasphemed the prophet Muhammad.
Pakistan’s blasphemy laws prohibit derogatory state-
4 No. 09-1982
ments or action against Islam, the Koran, or the prophets.
Individuals convicted of blasphemy may be executed.
Before the police arrived, Victor left his brother’s home
with his pastor, Rafique Masih, who had witnessed the
incident. Victor remained at Masih’s home until Masih
reported back to him that the police had come and that
Victor needed to leave the country. Victor went directly
to Karachi and then came to the United States. His wife
and children returned briefly to the family’s home
in Rawalpindi and then stayed with an uncle in
Rawalpindi until they were able to join Victor in
the United States approximately two months later.
Victor’s brother also moved to another neighborhood in
Hyderabad so as to avoid further contact with the
mullah, who continued to ask about Victor after his
departure.
The IJ denied Victor’s request for asylum. As an initial
matter, he concluded that the fight during the wedding
celebration did not amount to past persecution. Specifi-
cally, the IJ reasoned that although the mullah may
have overreacted to the music, he had a legitimate
request when he approached. The IJ further determined
that the ensuing fisticuffs and threat to file a blasphemy
charge lacked the severity and immediacy necessary
to amount to past persecution.
Second, the IJ concluded that notwithstanding the
possibility that a blasphemy charge had been filed
against him, Victor had proffered no evidence that either
the mullah or the police intended to harm him if he
returned to Pakistan. On this point, the IJ concluded that
No. 09-1982 5
it was reasonable to require some corroboration of either
the filing of a complaint or an outstanding court case
against Victor. Because Victor had equivocated on
whether a complaint had in fact been filed, the IJ deemed
it significant that no supporting documentation existed
to verify the existence of a complaint against Victor. The
IJ also made much of the fact that Victor’s brother
had remained in Hyderabad without incident, despite
his involvement in the altercation with the mullah.
Finally, the IJ necessarily concluded that, having failed
to establish his eligibility for asylum, Victor was likewise
ineligible for relief under the more stringent require-
ments for withholding of removal or relief under the
Convention Against Torture.
Victor appealed to the BIA, which denied his request for
oral argument and adopted and affirmed the decision of
the IJ. Victor did not petition this court for review. Later
Victor moved the BIA to reopen and reconsider, see 8
U.S.C. § 1229a(c)(6)-(7); 8 C.F.R. § 1003.2, arguing that
the IJ had underestimated the magnitude of the alterca-
tion and the ensuing blasphemy charge. Victor also
attached a letter from a former member of the Pakistan
National Assembly to his motion stating that blasphemy
charges had been brought against Victor. In March 2009,
the BIA denied Victor’s motion, concluding that it essen-
tially reiterated arguments that he had presented in his
original appeal. It also deemed his additional unsworn
letter to be cumulative of the statements Victor had
already submitted representing that he was subject to
blasphemy charges. Victor now petitions for review.
6 No. 09-1982
II.
On appeal, Victor argues primarily that substantial
evidence does not support the IJ’s initial decision or the
BIA’s July 2008 opinion adopting and affirming it. For
instance, Victor spends much of his brief attacking the
IJ’s conclusion that the mullah’s threats against him
did not amount to past persecution. Victor also main-
tains that the IJ erred by failing to recognize the likeli-
hood that Victor would be tortured if imprisoned on
a blasphemy charge.
But it is too late for Victor to make these arguments
now. He failed to petition in this court for review of
the BIA’s July 2008 decision. Instead, Victor filed his
motion to reopen and reconsider, which the BIA denied.
Because Victor did not appeal from the decision on
his asylum claim, we are limited to reviewing the denial
of his motion to reopen and reconsider. See 8 U.S.C.
§ 1252(b)(1); Stone v. I.N.S., 514 U.S. 386, 405-406 (1995)
(holding that finality of removal order “is not affected
by the subsequent filing of a motion to reconsider”); Asere
v. Gonzales, 439 F.3d 378, 380 (7th Cir. 2008) (same).
Until recently, that would have been the end of
Victor’s appeal. Prior to the Supreme Court’s decision in
Kucana, supra, we had held that the jurisdiction-stripping
provision in 8 U.S.C. § 1252(a)(2)(B)(ii) blocked our
review of discretionary decisions conferred upon the
Attorney General by regulation, including denials of
motions to reopen and reconsider. See Kucana v. Mukasey,
533 F.3d 534 (7th Cir. 2008) (motion to reopen) rev’d by
Kucana, 130 S. Ct. 827; Johnson v. Mukasey, 546 F.3d 403No. 09-1982 7
(7th Cir. 2008) abrogated by Kucana, 130 S. Ct. at
831. In Kucana, the Supreme Court held instead that
the jurisdiction-stripping provision applies only to
agency decisions made discretionary by statute, not
regulation. Kucana, 130 S. Ct. at 831, 839-40. Thus, section
1252(a)(2)(B)(ii) does not limit our review of motions
to reopen and reconsider to constitutional claims or
questions of law, as we had previously held. See Kucana
v. Holder, 603 F.3d 394, 395 (7th Cir. 2010), on remand
from Kucana, 130 S. Ct. 827; Juarez v. Holder, 599 F.3d 560,
564-65 (7th Cir. 2010).
Thus, we have jurisdiction to review Victor’s appeal.
However, our review is circumscribed in light of the
BIA’s “broad discretion” over motions to reopen. Kucana,
130 S. Ct. at 834 (internal quotation marks and citation
omitted). Thus, we review the BIA’s decision only for
abuse of discretion. Id.; see also Raghunathan v. Holder,
604 F.3d 371, 376 (7th Cir. 2010). Under this deferential
standard, we will uphold the Board’s decision unless
it “was made without a rational explanation, inexplicably
departed from established policies, or rested on an
impermissible basis such as invidious discrimination
against a particular race or group.” Achacoso-Sanchez v.
I.N.S., 779 F.2d 1260, 1265 (7th Cir. 1985) (adopting abuse
of discretion standard applicable to motions to reopen); see
also Raghunathan, 604 F.3d at 376. Moreover, we have
recognized that in this particular context, the abuse of
discretion standard is especially deferential in light of
the BIA’s broad latitude in reopening and reconsidering
cases. See Achacoso-Sanchez, 779 F.2d at 1264-65 (ex-
plaining that lack of standards governing BIA’s power
to reopen results in “exceedingly constricted” judicial
8 No. 09-1982
review); see also I.N.S. v. Abudu, 485 U.S. 94, 107-08, 110
(1988) (“[T]he reasons for giving deference to agency
decisions on petitions for reopening or reconsideration
in other administrative contexts apply with even
greater force in the INS context.”).
Victor’s motion to the BIA requested relief in the form
of both reconsideration and reopening. The two types
of relief serve distinct purposes. A motion to reconsider
contends that the original decision was somehow errone-
ous. Such a motion asks the BIA to revisit its decision
in light of “additional legal arguments, a change of law,
or an argument that was overlooked earlier.” Patel v.
Gonzales, 442 F.3d 1011, 1015 (7th Cir. 2006) (quoting
Kurzban’s Immigration Law Sourcebook 738, 744 (8th ed.
2002)). In contrast, a motion to reopen does not take
issue with the BIA’s decision at the time it was entered,
but instead asks the BIA to reexamine its opinion in
light of evidence that was unavailable at the time of the
original opinion. Mungongo v. Gonzales, 479 F.3d 531, 534
(7th Cir. 2007).
We consider Victor’s arguments in support of each in
turn. A motion to reconsider “shall state the reasons for
the motion by specifying the errors of fact or law in the
prior Board decision and shall be supported by pertinent
authority.” 8 C.F.R. § 1003.2(b)(1). Victor argued in
his motion that the IJ had ignored the import of a charge
under Pakistan’s blasphemy law, which is enforced with
a penalty of death. Essentially, Victor maintained that
despite testimony explaining the mullah’s threat to file
a police report accusing Victor of making fun of Islam
and blaspheming the prophet Mohammed, the IJ failed
No. 09-1982 9
to recognize the dispute as more than a personal alterca-
tion or disturbance of the peace. Victor also argued that
the IJ overlooked the certainty that once placed in
police custody, Victor would be tortured. Finally, Victor
faulted the IJ for failing to recognize what social
group Victor claimed membership in—that of minority
Christians in Pakistan.
We are satisfied that the BIA did not abuse its discre-
tion when it denied Victor’s motion to reconsider. Like
his motion before the BIA, his brief on appeal takes aim
at the IJ’s underlying decision and argues essentially
that the IJ got it wrong. Specifically, Victor maintains
that being charged with blasphemy rises above the level
of mere harassment. He also makes much of the IJ’s
failure to adequately recognize the mullah as the
instigator of the conflict. But neither of these alleged
errors in the IJ’s decision are the sort of error of fact or law
warranting relief in a motion to reconsider. Victor is not
arguing that the IJ or BIA applied an incorrect legal
standard to his claim; he is simply unhappy with the
outcome reached. These arguments should have been
presented in a petition for review of the underlying
removal order.
The one potential error of law that Victor identi-
fies—albeit in his discussion of the IJ’s underlying
opinion and not his motion to reopen—is the IJ’s failure
to recognize Victor’s membership in a social group. In
his opinion, the IJ curiously stated that he was “not able
to identify any particular social grouping.” We agree
with Victor that this observation is troubling; it seems
10 No. 09-1982
apparent that Victor’s claim is anchored in his status as
a minority Christian in a Muslim state. But a careful
read of the IJ’s discussion on this point makes clear that
the IJ’s primary focus was on the fact that Victor
himself apparently failed to identify a social group.
Thus, although the IJ was “not attempting to be hyper-
technical with the respondent,” he did want to emphasize
that Victor bore the “responsibility to define the social
grouping.”
Moreover, neither the IJ nor the BIA relied on Victor’s
alleged failure to identify a social group when denying
his asylum application. Thus, even if we were to
consider the IJ’s mistake the sort of “error of law” contem-
plated by a motion to reconsider, it would be harmless.
See Kadia v. Gonzales, 501 F.3d 817, 821 (2007) (noting
that “the doctrine of harmless error is applicable to
judicial review of immigration decisions” but remanding
on account of numerous uncorrected mistakes by the IJ).
In short, Victor’s motion to reconsider did not present
a change in law or point out additional legal arguments
that were erroneously overlooked by the BIA. Thus,
the BIA did not abuse its discretion when it denied
Victor’s motion to reconsider. See, e.g., Mungongo, 479
F.3d at 534-35.
That leaves the possibility that the BIA abused its
discretion when it also denied Victor’s motion to reopen.
The BIA has discretion to reopen a removal proceeding
when the alien presents material evidence that
“was not available and could not have been discovered
or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1).
No. 09-1982 11
To support his motion to reopen, Victor attached an
affidavit from Mr. Simon Jacob Gill, a former member
of the Pakistan National Assembly, attesting to the fact
that he had met with the police and was told that the
mullah had recorded a complaint against Victor under
the blasphemy law.
Here too, the BIA was within its considerable discre-
tion when it denied Victor’s motion to reopen. First, it is
not clear why Victor could not have obtained Gill’s af-
fidavit before his hearing. Gill recounted that because
he is an ex-parliamentarian the Pakistani authorities
respect him, and that he met with the police and district
authorities about Victor’s case. He stated that the au-
thorities had told him that Mr. Manzoor (the mullah)
had “recorded a written complaint against [Victor]
under the Blasphemy Law.” Gill also attested that the
authorities wanted Victor to appear so that they could
investigate the charges and that they could not give
any guarantee that he would not be charged and arrested
following investigation. There is nothing in Gill’s affi-
davit or Victor’s motion explaining why this informa-
tion was “unavailable” at the time of Victor’s hearing.
Moreover, the affidavit was not “material”—it simply
reaffirmed the testimony and exhibits presented at
Victor’s hearing. For example, Victor himself testified at
his hearing that a criminal complaint had been filed
against him (although he did equivocate on this point
at times). Jacqueline also testified that there were blas-
phemy charges against her husband and that the penalty
for blasphemy was death. And Victor submitted his
brother Nelson Paul’s statement attesting that the
12 No. 09-1982
mullah had “registered” criminal cases and “nominated”
Victor as the “main accused.” Victor’s reverend, S.K.
Dass, also submitted a statement to the effect that the
mullah planned to register a criminal case targeting
Victor as the “main accused.” So Simon Jacob Gill’s
affidavit, although further buttressing the statements
and exhibits presented at Victor’s hearing, was not “new
evidence.” Moreover, Victor has presented no evidence
that the affidavit was unobtainable before his initial
hearing. See 8 U.S.C. § 1229a(c)(7)(B); Kucana, 603 F.3d
at 396-97 (“Only evidence that could not have been pre-
sented earlier supports a motion to reopen[.]”). Thus,
the BIA did not abuse its discretion by denying Victor’s
motion to reopen.
III.
We are troubled by the prospect that Victor could
return to Pakistan to find an outstanding criminal com-
plaint for blasphemy against him, particularly in light
of the potential consequences if the police move forward
on the complaint. But Victor’s failure to appeal from
the BIA’s decision affirming the IJ’s underlying decision
severely cabins our review. In light of our limited role
in assessing whether the BIA abused its discretion
when denying Victor’s motions to reconsider and
reopen, there is little we can do to assist Victor and his
family. As discussed above, the denial of Victor’s motions
was not an abuse of discretion. We thus D ENY Victor’s
petition for review.
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