Khan v. Holder , 727 F.3d 1 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 13-1102
SIRAJ AHMAD KHAN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Kelly J. Walls, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Leslie McKay, Assistant Director, Office of Immigration Litigation,
on brief for respondent.
August 9, 2013
LYNCH, Chief Judge. On November 3, 2010, an immigration
judge (IJ) denied Siraj Ahmad Khan's application for asylum,
withholding of removal, and withholding under the Convention
Against Torture (CAT). The Board of Immigration Appeals (BIA)
affirmed this denial on December 18, 2012. Khan timely petitions
for review of the BIA's decision. We deny his petition.
I.
Khan is a native and citizen of Pakistan who entered the
United States on April 5, 2008 on a seaman crew visa that
authorized him to remain in the United States until May 4, 2008.
Khan had flown from Pakistan to Dubai and then to New York; his
purported ultimate destination was Bermuda, where he was to rejoin
the ship on which he worked. Khan remained in the United States in
New York instead.
On September 10, 2008, Khan filed an application for
asylum and for withholding of removal in which he also sought
protection under the CAT. Khan alleged that he was eligible for
relief based on claims he had and would suffer persecution because
of his political opinion and membership in a particular social
group. On July 14, 2009, Khan was issued a notice to appear (NTA)
which alleged that he was removable as an alien who had remained in
the United States beyond May 4, 2008 without authorization. Khan
conceded the allegations in the NTA and sought the relief
described.
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A. Khan's Hearing Before the IJ
On November 3, 2010, an IJ conducted a merits hearing in
Khan's removal proceedings, at which Khan testified. We describe
Khan's testimony and evidence.
Khan was born on December 24, 1958, in the village of
Shah Dheri, in the Swat district in Pakistan. Khan had a wife and
seven children who, at the time of the hearing, had remained in
Pakistan but no longer resided in Shah Dheri; instead, they lived
with relatives in other towns.
The Taliban became active in Khan's area of Pakistan in
2007, while Khan was away working on a ship. When Khan returned to
Shah Dheri in January 2008, he found that the Taliban were forcing
local residents to cut their hair and grow long beards, and that
they were "brainwashing young people" via radio broadcasts. Khan
also stated that the Taliban were kidnapping children to secure
ransom money from their families.
Khan testified that the Taliban in fact blew up his
daughter's school in January 2008. The Taliban believed that girls
should not attend school and that English should not be taught in
schools. Khan said that he "kn[e]w" the Taliban was responsible
for destroying this school because "there is no one else" who would
have done it. He conceded that the Taliban did not target his
daughter's school specifically because his daughter went there.
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Khan's view was that the Taliban's philosophy was "completely
wrong" and "very bad for the future generation."
Khan testified that after returning home in January 2008,
he started secretly urging his neighbors in the village "to make
sure not to lose your freedom to Taliban" and "not to allow your
children to be influenced by them." Khan also claimed that he went
to the local police station ten to twenty times to report Taliban
activities that community members described to him, and that the
police initially arrested Taliban members based on this
information, but later became ineffective.
Khan learned from a friend that the Taliban had held a
meeting in a mosque where they discussed plans to blow up the local
police station. Upon learning this information, Khan "informed to
the police and they thanked [him] polite[ly]"; the police then
called the army, which "put that area under surveillance and
secure[d] it." Khan conceded that the presence of the army
"improve[d] the situation in Shah Dheri," though he said the
Taliban remained secretly active.
Khan testified that after he disclosed this Taliban plot
to the police, someone threw a letter attached to a stone at his
house. Khan submitted this letter into evidence with a
translation; it stated:
From: Taliban
02/20/2008
Notice in the name of Siraj Ahmad . . .
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You are getting informed by this notice and letter. That
you do not pay money to local Taliban nor do you feed
them for one time meal. And you speak against us. And
you are gathering with local police and army and spying
on us. Limit your actions, and quit that. If you did
not quit that we will bomb you and your children. Then
you will know. There is no need for writing more. That
is all.
FROM TALIBAN COMMANDER SHAH DHERAI
Khan testified that the Taliban had learned that he was speaking
against them through their "many spies," but also stated that he
was initially "careless" in his activities concerning the Taliban,
and became more secretive after receiving the letter. Khan took
the letter to the police, who attempted to investigate, but they
told Khan that without knowing who had sent the letter they could
not issue a bench warrant or take other action.
Khan claimed that he continued attempting to "unite the
people and . . . get a group against [the Taliban]," but that his
activities were ineffective because "the people" were afraid.
On the morning of March 7, 2008, someone threw a grenade
at Khan's house. Khan heard a noise, awoke, and found the
undetonated grenade, but it did not explode. Khan called the
police, who came to his home and collected the undetonated grenade.
Later that day, the police filed a report concerning the incident
that Khan submitted into evidence. The report recorded that a hand
grenade had been recovered from the veranda of Khan's house, and
that the grenade "was thrown by some unknown terrorists." The
report stated that the case had been "registered" and was "being
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investigated."1 Khan testified that the police took statements
from witnesses, but were ultimately unable to catch the perpetrator
of this attack because he remained unidentified.
Khan testified that after this incident, he concluded
that the "they [the Taliban] are not leaving me alone." He
testified that "over there once a person is a target that person is
gone, most of the targets are destroyed." Khan therefore decided
to rejoin the ship on which he worked, and left Pakistan on April
4, 2008. However, upon arriving in New York en route to rejoining
his ship in Bermuda, Khan said he "changed [his] mind" and decided
to stay in the United States because if he rejoined his ship, he
"would be with the ship for ten months and then [he] would go back
home and it would be the same situation." Khan admitted he left
his wife and children in Pakistan and came to the United States
less than a month after, by his account, his family was put at risk
by the undetonated grenade. He said he left because (1) the danger
to him was greater than the danger to his family, and (2) if he had
not left, his family would have "starved."
Khan has relatives living in Islamabad and Karachi. He
claimed, however, that even if he relocated within Pakistan, the
1
Khan also submitted into evidence a March 8, 2008 article
from a newspaper, "The News International," which stated that
"unidentified miscreants hurled a hand grenade at the house of one
Siraj Ahmah Khan in Shah Daray area" which "did not explode" and
"was later defused by the police disposal squad." The IJ stated
that this newspaper was "not a publication known to the Court and
therefore is not a reliable source."
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Taliban would find him because "[t]he entire Pakistan is in the
hand of the Taliban." When cross-examined about this statement,
Khan backtracked and admitted that the Taliban was "secretly
active" in places such as Islamabad and Karachi, but not in
control. He also conceded that the Taliban "cannot find [his
children]" because "they are with [his] other relatives" in
Islamabad.
As for Khan's wife, she was living with her brothers in
a village five kilometers away from Shah Dheri. Khan testified
that on one occasion, when his wife returned to their house in Shah
Dheri, callers identifying themselves as "commanders of the
Taliban" called the house four or five times and "told her you have
to give us money." He also testified that they "threaten[ed] her
that we would kidnap your kids." Khan stated that the objective of
these callers was "to get money." According to Khan, a couple
months later, the same people shot his house at night.2 Khan did
not explain how he knew who shot his house, and he had stated in an
affidavit only that his "wife found bullet holes on the outside
wall of [their] house." Khan also conceded that the area around
Shah Dheri was a "war zone."
Khan testified that after he left Pakistan, the Taliban
blew up the police station in Shah Dheri. However, he conceded
2
Khan did not testify that anyone was living in the house at
the time of the alleged shooting.
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that the Pakistani army took control of the Swat area in 2009 and
2010, where they were essentially at war with the Taliban, and that
the Taliban was only "secretly active staying in the mountains" in
the area. Khan also admitted that neither his wife nor his
children had been physically harmed by the Taliban since he had
left Pakistan.
Khan submitted, as corroborative evidence, a translated
letter from his wife which stated that the Taliban "want[ed] to
kill [Khan] very soon" and that they had threatened Khan's family
and several times "attacked . . . our home." Importantly, the
affidavit did not mention the grenade incident, any threatening
telephone calls, their house being shot at night, or that the
Taliban had blown up the local police station. Specifically, it
did not mention the threat supposedly made to Khan's wife to kidnap
her children. Khan attempted to excuse these omissions by claiming
that "the letter was written by the elderly people of the village
who know the situation at the area and [his wife] just signed it."
Khan also submitted his own affidavit in support of his
application, which failed to mention that the Taliban had blown up
the local police station.3
3
When confronted with the fact that his affidavit omitted
this fact, Khan incorrectly claimed that he "did write that the
Taliban bl[e]w up the police station."
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B. The IJ's Denial of Khan's Application, and the BIA's
Affirmance of the IJ's Decision on Appeal
On November 3, 2010, the IJ denied Khan's claims for
relief. The IJ declined to make an adverse credibility finding
regarding Khan, but noted concerns about his credibility.4 The IJ
did find that Khan's petition failed because of his failure to
provide corroborating evidence or acceptably explain why he had not
provided such evidence.5
The IJ also made independent findings to support denial.
The IJ noted that though Khan's application was purportedly based
on his membership in a particular social group, he had not
identified the social group to which he claimed to belong. To the
extent Khan's asylum application was based on membership in the
group of informants to the police, the IJ concluded that informants
do not constitute a particular social group. The IJ also concluded
that insofar as Khan's application was based on his anti-Taliban
political opinion, he had provided no evidence that the Taliban
knew he held this opinion.
4
The IJ noted that neither Khan's affidavit nor Khan's wife's
letter mentioned that the Taliban had blown up the Shah Dheri
police station, and that Khan's wife's letter did not mention the
grenade incident, the threatening phone calls, the threat to kidnap
the children, or the shooting of their house. The IJ was "not
satisfied" with Khan's explanation for these omissions, and
particularly refused to credit his explanation for why his wife's
letter did not mention the Taliban's "horrifying" threat to kidnap
their children.
5
The IJ noted that Khan had failed to provide sufficient
evidence corroborating that he was a police informant in Pakistan.
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Importantly, the IJ's denial of Khan's application for
asylum, withholding of removal, and CAT protection was also based
on grounds independent of any concerns about Khan's credibility and
corroboration. The IJ's decision also went beyond the conclusion
that Khan had not shown his past or future mistreatment was or
would be on account of his political opinion or membership in a
particular social group.
The IJ found that "even if it credited the respondent's
testimony fully, it would find that he is not the victim of past
persecution." The IJ concluded that the threatening letter and the
undetonated grenade incidents had not resulted in any harm and did
not rise to the level of past persecution. In addition, the IJ
found that Khan was "victimized by the Taliban and not by the
government of Pakistan," and that "[t]he government does not appear
to have been unable or unwilling to control the Taliban."
As for Khan's alleged fear of future persecution, the IJ
found that Khan did "not have an objectively reasonable fear of
returning to Pakistan" even "[i]f his testimony had been credited
fully." The IJ noted that Khan's wife and children had remained in
Pakistan and had not been harmed. The IJ also stated that in 2009,
the Pakistani army had occupied the Swat valley, where Khan's
village was located, and that in any event neither Karachi nor
Islamabad was controlled by the Taliban, so that Khan could
relocate within Pakistan to avoid persecution. Finally, the IJ
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determined that there was no connection between Khan's fear of
future persecution and the Pakistani government. Because Khan's
claim for asylum failed, the IJ rejected his claim for withholding
of removal. The IJ also denied his CAT claim because "[h]is fear
extends only to the Taliban."
Khan appealed to the BIA, which dismissed his appeal on
December 18, 2012. The BIA affirmed the IJ's findings as to
credibility and corroboration, and the BIA also affirmed the IJ's
"determination that the respondent did not establish past
persecution or a well-founded fear of future persecution even
assuming that the respondent was credible." The BIA noted the
paucity of specific information about Khan's purported assistance
to the police and about the motive for any mistreatment by the
Taliban. It found that the threatening letter and undetonated
grenade thrown at Khan's house did not amount to past persecution,
given that Khan did not in response move out immediately, and that
Khan's fear of future persecution was not well-founded, since his
family continued to live in Pakistan and had not been harmed. The
BIA also found that "the record does not show that the respondent
would not be able to relocate in Pakistan or that the Pakistani
government would not assist or protect the respondent from the
Taliban." The BIA affirmed the denial of Khan's claims for asylum,
withholding of removal, and CAT protection.
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II.
Where the BIA issues its own opinion, we review both that
opinion and any portion of the IJ's opinion that the BIA adopted.
Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). We review the
BIA's determinations under the deferential substantial evidence
standard, id. at 111, which means we will uphold these
determinations unless "any reasonable adjudicator would be
compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B).
To be eligible for asylum, an applicant must be a
"refugee," id. § 1158(b)(1)(A), who is unwilling or unable to
return to his home country due to "persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion," id.
§ 1101(a)(42)(A). A showing of past persecution creates a
rebuttable presumption of a well-founded fear of future
persecution. Nelson v. INS, 232 F.3d 258, 264 (1st Cir. 2000).
On petition for review, Khan argues that the BIA erred in
failing to accord him a rebuttable presumption of credibility, and
in rejecting his argument that his persecution was or would be on
account of his imputed anti-Taliban political opinion. As said,
the IJ's and BIA's decisions rested on alternate grounds as well,
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independent of these grounds, and we do not address these
arguments.6
Khan also argues that the BIA erred in concluding that:
(1) the Pakistani government could protect him from the Taliban;
(2) his past treatment did not rise to the level of persecution;
(3) his fear of future persecution was not well-founded; and (4) he
could reasonably relocate within Pakistan to avoid persecution.
Because we reject Khan's argument that the agency was compelled to
find a government nexus that could support a finding of
persecution, we need not address the agency's finding that Khan's
past treatment did not rise to the level of persecution. Though
the lack of a government connection also dooms Khan's claim of a
well-founded fear of future persecution, we conclude that the
agency's finding that no such fear existed was independently
supported by substantial evidence, including its determination that
6
Because Khan submitted his application for asylum,
withholding of removal, and protection under the CAT on September
10, 2008, the REAL ID Act of 2005 (which became effective on May
11, 2005) applies to his application. See 8 U.S.C. § 1158 note
(Effective Date of 2005 Amendment); Tay-Chan v. Holder, 699 F.3d
107, 111 n.4 (1st Cir. 2012). However, since we do not reach
Khan's arguments concerning credibility and corroboration, or
whether his alleged persecution was or will be on account of a
protected ground, the amendments introduced by the REAL ID Act are
not relevant to our analysis. See Guta-Tolossa v. Holder, 674 F.3d
57, 62 (1st Cir. 2012) (describing changes made by REAL ID Act to
law regarding credibility and the need for corroborating evidence);
Sompotan v. Mukasey, 533 F.3d 63, 69 n.3 (1st Cir. 2008)
(describing REAL ID Act's requirement that applicant show a
protected ground was a "central reason" for persecution).
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Khan had not demonstrated he could not reasonably relocate within
Pakistan.
A. The BIA's Determination That Khan Had Not Established the
Pakistani Government Would Not Assist or Protect Him
Khan's first argument is that no reasonable person could
find he had failed to meet his burden to show a connection between
his mistreatment in the Swat valley in 2008 and the Pakistani
government. Persecution "always implies some connection to
government action or inaction," Harutyunyan v. Gonzales, 421 F.3d
64, 68 (1st Cir. 2005), and "violence by private citizens . . .,
absent proof that the government is unwilling or unable to address
it, is not persecution," Butt v. Keisler, 506 F.3d 86, 92 (1st Cir.
2007). As we explained in Burbiene v. Holder, 568 F.3d 251 (1st
Cir. 2009), where a government is "making every effort to combat"
violence by private actors, and its "inability to stop the problem"
is not distinguishable "from any other government's struggles," the
private violence has no government nexus and does not constitute
persecution. Id. at 255-56 (internal quotation marks omitted). We
have been particularly unwilling to overturn a finding of no
government connection where the local authorities have
appropriately responded to incidents of violence. See
Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007).
Khan claims that he presented compelling evidence of
Pakistan's inability to protect him from the Taliban. In reality,
Khan testified that the Pakistani police responded to his
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information about Taliban activities by arresting Taliban members
and calling on the Pakistani army to secure the area, and he
conceded that this "improve[d] the situation." He also testified
that after the Taliban sent him a threatening letter and threw a
grenade, which did not detonate, at his house, the local police
wrote reports, took witness statements, and attempted to
investigate, but were stymied by the fact that the identities of
the perpetrators remained unknown. Khan also conceded that the
Pakistani army took control of the Swat valley, where his village
was located, in 2009 and 2010, and that the Taliban was no longer
openly active in the area.
Far from showing that Pakistan is "unwilling or unable to
pursue . . . lines of redress on [Khan's] behalf," Guaman-Loja v.
Holder, 707 F.3d 119, 124 (1st Cir. 2013) (quoting Castillo-Diaz v.
Holder, 562 F.3d 23, 28 (1st Cir. 2009)) (internal quotation mark
omitted), the evidence shows that the Pakistani government has
actively sought to protect Khan from the Taliban and that it has
been to some extent successful in controlling the Taliban in the
Swat valley, even if it has not eradicated the threat the Taliban
poses. Where, as here, the government "has experienced both
setbacks and successes in its fight," Burbiene, 568 F.3d at 255,
the BIA does not err in concluding that there is no government
connection to support a finding of past or future persecution.
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This case is in contrast to Khattak v. Holder, 704 F.3d
197 (1st Cir. 2013), where petitioner was a prominent political
figure and special police officer engaged in anti-Taliban
activities. Id. at 200. The petitioner there, along with his wife
and children, sought asylum based on their fear of future
persecution by the Taliban in Pakistan. Id. at 199. They said
they would be specially targeted. Id. at 204 n.7.
We granted the petition for review and remanded the case
to the BIA. Id. at 208. We explained that the IJ and BIA stated
there was no corroborative evidence that persons in petitioner's
position could not be protected by the government, when there was
exactly such evidence. Id. at 206. We also held that the agency
had failed to "offer legally sufficient reasons for its decision."
Id. at 208 (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.
2004)) (internal quotation marks omitted). We explained that the
IJ found there was no government nexus because generally there was
"a war going on involving the Taliban," the Pakistani government
was "in fact taking on the Taliban," and "the government continues
to make inroads against the Taliban. Id. at 206 (internal
quotation marks omitted). However, the IJ did not "explain what
these 'inroads' were," and the BIA "added little to the IJ's
analysis." Id. We remanded for further explanation.
Here, neither the IJ nor the BIA mischaracterized the
evidence in the record concerning the Pakistani government's
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ability to protect Khan, and the IJ explained at some length why
Khan had not carried his burden of showing a government nexus:
The government does not appear to have been unable or
unwilling to control the Taliban at that time [of Khan's
mistreatment]. Indeed, the police investigated the
respondent's complaint, recovered evidence, specifically,
the grenade, wrote reports about the incident, took
witness statements, but did not catch the perpetrator,
not because it did not wish to, but because, as the
testimony establishes, the perpetrator was not
identified.
The IJ also explained that "in 2009 and 2010 the army of Pakistan
occupied the Swat Valley where the respondent's village is
located." The BIA adopted the IJ's findings on this point. The
agency here therefore offered legally sufficient reasons for its
findings, and this case is distinguishable from Khattak.
Our rejection of Khan's first argument by itself requires
his petition be denied. Nonetheless, we address his remaining
arguments as to whether he demonstrated a well-founded fear of
future persecution.
B. The BIA's Determination that Khan Could Reasonably
Relocate Within Pakistan and So Did Not Face a Well-
Founded Fear of Future Persecution
Khan's arguments regarding his fear of future persecution
are unavailing. As we have explained, "the fact that close
relatives continue to live peacefully in the alien's homeland
undercuts the alien's claim that persecution awaits his return."
Lobo v. Holder, 684 F.3d 11, 19 (1st Cir. 2012) (quoting Budiono v.
Mukasey, 548 F.3d 44, 50 (1st Cir. 2008)) (internal quotation marks
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omitted). Khan also conceded that in 2009 and 2010 the army had
taken control of the Swat valley, where Shah Dheri was located, and
driven the Taliban into hiding.
Furthermore, because Khan was unable to demonstrate a
connection between his mistreatment and the Pakistani government,
he failed to show past persecution or that any persecution would be
by a government or government-sponsored. He therefore "bear[s] the
burden of establishing that it would not be reasonable for him
. . . to relocate." 8 C.F.R. § 208.13(b)(3)(i). Khan testified
that the Taliban was "secretly active" in Islamabad and Karachi,
and presented evidence that the Taliban had carried out attacks in
those cities. But he admitted that the Taliban did not control
Islamabad or Karachi, and that his children had safely resided in
Islamabad since he left Pakistan, despite his assertion that they
were Taliban targets. The BIA did not err in concluding that Khan
had not met his burden of showing he could not reasonably relocate
within Pakistan to avoid persecution, and that he did not face a
well-founded fear of future persecution.
This case is distinguishable from Khattak on this point,
as well. In that case, regarding the reasonableness of internal
relocation, we explained that "neither the IJ nor the BIA addressed
evidence in the record indicating that the Taliban's reach may
extend as far as Islamabad," in light of evidence that even in
Islamabad the petitioner faced a risk of being the subject of a
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targeted killing, as others had been. 704 F.3d at 207. Here, the
IJ explicitly noted Khan's "testimony that [the Taliban] continue
to be secretly active in" Islamabad and Karachi, but explained that
"[e]ven the respondent agreed that neither Islamabad nor Karachi is
controlled by the Taliban." The IJ also observed that Khan's
children had remained safe in Pakistan through internal relocation.
The BIA adopted the IJ's reasoning on these points. As with its
finding that Khan failed to demonstrate a government nexus, the
agency here offered legally sufficient reasons for its finding that
Khan had not carried his burden of showing the unreasonableness of
relocation within Pakistan.
The failure of Khan's asylum claim dooms his claim for
withholding of removal. Zheng v. Gonzales, 416 F.3d 97, 101 n.3
(1st Cir. 2005). Because Khan did not establish a connection
between his mistreatment and the Pakistani government, his CAT
claim likewise fails. See 8 C.F.R. § 1208.18(a)(1) (to constitute
torture, pain or suffering must be "inflicted by or at the
instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity").
III.
Khan's petition for review is denied.
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