Amjad v. Attorney General ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-29-2005
Amjad v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3709
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 04-3709, 04-4647
RAFIQ AMJAD and ASTER AMJAD,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of the Order
of the Board of Immigration Appeals
(A95 467 602, A95 467 603)
Argued October 24, 2005
Before: SLOVITER, FISHER, Circuit Judges,
and THOMPSON, District Judge *
(Filed: November 29, 2005)
Michael Morrone (Argued)
Bloomington, IN 47401
Attorney for Petitioner
Peter D. Keisler
Assistant Attorney General
Christopher C. Fuller
Senior Litigation Counsel
* Hon. Anne E. Thompson, United States District Judge for the District of New
Jersey, sitting by designation.
Jonathan Potter
Jill Ptacek, (Argued)
Trial Attorney
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044
Attorneys for Respondent
OPINION
SLOVITER, Circuit Judge.
Petitioners Rafiq Amjad 1 and his wife Aster Amjad seek review of the final order
issued by the Board of Immigration Appeals (“BIA”) affirming the determination of the
Immigration Judge (“IJ”) denying petitioners’ application for asylum, application for
withholding of removal to Pakistan, and request for relief under Article Three of the UN
Convention Against Torture (“CAT”). For the reasons that follow, we will deny the
petition for review.
I.
The Amjads are natives and citizens of Pakistan. They entered the United States on
June 31, 2001 on visitors visas, but overstayed their approved period of stay and filed for
asylum on May 17, 2002. On November 5, 2002, the INS issued Notices to Appear
1
Petitioners note that Mr. Rafiq’s first and last name have
been reversed in the case caption and request that the caption be
corrected if possible. (Pet. Br. 2) For purposes of this opinion, we
will use the official case caption and refer to the male petitioner as
“Mr. Amjad.”
2
(“NTA”) charging that the Amjads were removable aliens who had remained in the
United States without authorization. At the initial removal hearing on December 3, 2002,
the Amjads conceded removability but renewed their applications for asylum,
withholding of removal and CAT protection.
At a hearing before an IJ, Mr Amjad testified that he and his wife fled Pakistan
because they were Christians living in a predominately Muslim country and, as such,
suffered persecution. Mr. Amjad stated that he was born and baptized a Christian in
Pakistan and that his parents and grandparents were also Christians. He further testified
that he had attended a Methodist Church in Pakistan and that he was ordained a Methodist
pastor in 1995 after attending pastoral training at the Methodist Independent School in
Pakistan. Mrs. Amjad also testified that she was born Christian and had attended a
Methodist Church in Pakistan.
Mr. Amjad testified that he had worked as a Methodist pastor in Pakistan from
1995 to 2000, during which period Muslims had opposed and threatened him. He
testified that the leader of the mosque (i.e., “Iman”) 2 in a village where he served as a
full-time pastor told him “he could not use loud speakers and . . . should not hold Bible
studies,” and that on one occasion the same Iman and a group of individuals stopped him
on his way home from preaching and punctured his motorcycle tires. App. at 20.
2
In referring to the “Iman,” we use the spelling adopted by
the IJ.
3
Mr. Amjad further testified that he was transferred to the city of Lahore because of
the problems he was facing, that his parents moved with him due to similar problems, and
that while in Lahore he started a pre-school for young children in a building connected to
his church and a sewing school for young women that was run by his wife. He testified
that the sewing school enrolled twenty-eight girls, four of whom were Muslim, and that
the Muslim students told their parents that they were being forced to participate in
Christian ceremonies. Both Amjads testified that because of this, they started receiving
threatening phone calls and some Muslim boys had followed Mrs. Amjad home and tried
to attack her, which problems eventually escalated to the point that the Amjads were
forced to close both schools.
At the conclusion of the testimony, the IJ issued an opinion finding that the
Amjads’ testimony was not credible. Although the IJ stated that “the court will take
administrative notice that during these times Christians are in a precarious position in
Pakistan,” she concluded that the Amjads had failed to establish that they were being
persecuted for being Christians and denied their applications for asylum, withholding of
removal and CAT protection.
The IJ noted that the Amjads were basing their claim of past persecution and fear
of likely future persecution not just on the fact that they were Christians, but on the facts
that they faced greater persecution because Mr. Amjad was a Methodist pastor and that
they both played a visible role in the Methodist Church. The IJ was especially critical of
4
the Amjads’ perceived lack of knowledge about the Methodist Church in light of their
purported leadership roles.
The IJ questioned Mr. Amjad during his testimony about various aspects of the
Methodist faith. Mr. Amjad was unable to identify the founder of the Methodist Church,
the religion of Jesus Christ, or the most significant event in his favorite book of the Bible.
(App. 34-36) Based on the IJ’s view that Mr. Amjad had not satisfactorily answered
these and other questions, the IJ concluded that Mr. Amjad was “totally lacking in
knowledge about the Methodist Church,” App. at 35, and that when “one holds himself
out as a pastor, a leader, a scholar of a particular religion, one would expect this
individual to have at least a minimum amount of knowledge about the religion which they
[sic] profess to adhere to, and in this case the respondent’s lack of knowledge about the
church certainly is a reflection on his credibility.” App. at 37.
The IJ pointed to many other discrepancies in the Amjads’ testimony to support her
adverse credibility determination. She noted that Mr. Amjad has a Muslim name and that
if he were born and baptized a Christian it would be “highly unlikely” that a Christian
family would give their child a Muslim name. App. at 35. She also pointed out that,
when questioned, Mr. Amjad’s knowledge of the Koran was greater than his knowledge
of Christianity, leading her to doubt whether he was even a Christian in Pakistan and to
suspect that his knowledge of Christianity may have come from attending church in the
United States.
5
The IJ also discounted the testimony of witnesses who testified on behalf of the
Amjads. The witnesses who testified at the hearing were the Amjads’ brother-in-law and
a reverend from the church the Amjads were attending in the United States. The IJ
concluded that these witnesses were testifying only about what they were told by Mr.
Amjad because they could not provide independent corroboration of the events in
Pakistan. (App. 41-42) Furthermore, the IJ gave little weight to letters presented by Mr.
Amjad, purportedly from a Methodist minister in Pakistan, stating that Mr. Amjad was a
pastor. The IJ concluded that the letters were “questionable” considering their
grammatical and spelling errors and that they were “self serving” at the very least. App.
at 36.
On appeal, the BIA affirmed. The BIA noted that the Amjads were unable to
respond to basic questions about the Methodist faith, and concluded:
The respondents’ claim for asylum is predicated upon their Christian religious
beliefs, as such, the absence of knowledge regarding those beliefs goes to the very
heart of their claim and supports the Immigration Judge’s determination.
Consequently, we conclude that the respondents have failed to provide a plausible
and coherent account of the basis of their fear.
App. at 7.
The Amjads timely filed a petition for review with this court and moved for a stay
of removal pending review, which we granted on December 1, 2004.
II.
To qualify as a “refugee” who may receive asylum, an alien must establish that
6
s/he is unable or unwilling to return to his or her country of nationality “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.” INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (citation omitted). The persecution alleged must be at the hands of
“the government or forces the government is either unable or unwilling to control.” Gao
v. Ashcroft, 299 F.3d 266, 272 (3d. Cir. 2002) (citation omitted).
To establish eligibility for asylum on the basis of past persecution, an applicant
must show: (1) an incident (or incidents) that constituted persecution; (2) that occurred on
account of one of the statutorily protected grounds; and (3) that was (or were) committed
by the government or forces the government is either unable or unwilling to control.
Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). The BIA and this court have
interpreted “persecution” to include conduct or conditions “so severe that they constitute
a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Thus,
“persecution does not encompass all treatment that our society regards as unfair, unjust,
or even unlawful or unconstitutional.” Id. at 1240.
Whether an applicant has demonstrated “persecution or a well-founded fear of
persecution” on account of a statutorily enumerated factor is a factual determination,
which this court reviews under the substantial evidence standard. Shardar v. Ashcroft,
382 F.3d 318, 323 (3d Cir. 2004). Under this highly deferential standard, the IJ’s finding
must be upheld unless “the evidence not only supports” a contrary conclusion, “but
7
compels it.” Elias-Zacarias, 502 U.S. at 481 n.1. Thus, the IJ’s determinations will be
upheld to the extent that they are “supported by reasonable, substantial, and probative
evidence on the record considered as a whole.” Id. at 481 (citation omitted).
The Amjads contend that the IJ violated due process by failing to consider
objective evidence of Mr. Amjad’s status as a pastor in her finding this aspect of his
testimony incredible. The evidence presented by the Amjads that they claim the IJ failed
to consider includes: photographs purporting to show Mr. Amjad in a leadership role
during a Christian ceremony; marriage and birth certificates indicating the Amjads are
Christian; passports which list their religion as Christian and Mr. Amjad’s occupation as a
pastor; and letters indicating that Mr. Amjad is a pastor and documenting his struggles
with Muslims. They assert that the IJ failed to consider this evidence because it was not
mentioned in her opinion.
In removal proceedings, the IJ “shall consider evidence submitted by the applicant
together with his or her asylum application, as well as any evidence submitted by the
applicant before or at the interview.” 8 C.F.R. § 208.9(e). However, we have stated that
the IJ does not have to comment on every piece of evidence in the record. Liu v.
Ashcroft, 372 F.3d 529, 531 n.3 (3d Cir. 2004); see also, Chen v. Ashcroft, 376 F.3d 215(3d Cir. 2004) (holding that evidence in the record considered as a whole was substantial
enough to support adverse credibility determination).
The IJ focused on one primary inconsistency in the Amjads’ testimony when
8
finding them not credible. She questioned Mr. Amjad on the fundamental aspects of
Christianity and the Methodist Church and concluded that his inability to respond to these
questions seriously undermined his credibility given that he was alleging to be a pastor.
She further concluded that the Amjads’ knowledge of the Bible was inconsistent with
their testimony that they taught Bible studies in Pakistan.
The Government argues that the inconsistencies relied upon by the BIA and the IJ
are not minor, but instead they go to the “heart of the Amjads’ asylum claims.”
Respondent’s Br. at 22. The Amjads respond that the IJ’s credibility determination is not
supported by substantial evidence because the IJ’s reasoning is based upon her questions
about Christianity and the record contains no information about Christian doctrine.
Rather than decide this case on the Amjads’ knowledge of Christianity in general
and the fundamentals of Methodist religion, we turn to a more striking deficiency in their
case – the lack of evidence that the Pakistani government was responsible for the
incidents on which they base their claim of persecution. We repeat that portion of their
brief verbatim:
(1) recurring incidents in which [Mr. Amjad] was identified and warned to
stop his pastoral work;
(2) threats by Muslim fanatics to burn the church and school when he
worked at St. Dominic school in 1995;
(3) beating of Fr. Javaid at St. Dominic’s in 1995;
(4) attacks, insults, threats during full-time pastoral work from 1996-2000,
by Muslim fanatics who wanted Mr. Rafiq to stop his pastoral work;
9
(5) in August 1997, a village mayor of sorts in one of the town’s he visited
with some councilmen and used a tractor to knock over a church that one of
his congregations was building;
(6) In one of the towns, Mr. Rafiq had to end his pastoral work, because the
Muslims who owned most of the businesses where the Christians work told
the Christians that they would be fired if they went to the Christian services;
(7) On December 20, 2000, at the church in Lahore, there was a scuffle at a
church party, because some local Muslim men began to fight with some of
the churchgoers who were having a Christmas party;
(8) On December 22, 2000, rape charges were fabricated against one of the
boys who attended the church (and who was a singer at the December 20 th
party). He was held in jail for two weeks, during which he was beaten. No
charges were filed;
(9) In April 2001, Mr. Rafiq and Ms. Amjad started a sewing school that
included a mix of Christian and Muslim students. Two of the Muslim
students complained that they heard Bible verses and that Muslims were
being taught about Christianity. The girls’ parents told the Rafiqs they were
committing Blasphemy;
(10) Also in April, a Muslim boy stalked Ms. Amjad and threatened to harm
Mr. [Amjad];
(11) In April and May 2001, the threats escalated and culminated in a
Muslim mob screaming and forcing them to close school.
Petitioners’ Brief at 7-8 (citations omitted).
In response to this court’s request that the parties point to evidence in the record
that addresses whether past persecution set forth on pages 7 and 8 of Petitioners’ Brief
was committed by the Government of Pakistan or forces that the Government either is
unwilling or unable to control, counsel for the Petitioners responded that “the
Government of Pakistan is acquiescent and is in certain ways an active participant in
10
violence against Christians;” “violence against Christians is common place in Pakistan;”
Government officials are implicated in three of the listed incidents; and the Country
Conditions support Mr. Amjad’s testimony about the “fecklessness of notifying the police
about the violence and threats perpetrated by Muslims against him or his wife.”
Petitioners’ Response to the Court’s Supplementary Request at 1-2 (October 24, 2005).
We are not persuaded.
As its response to this court’s inquiry, the Government notes that neither of the
Petitioners testified or suggested that they sought protection of the Government or that
such protection was not afforded them when it was sought. Although the Government
reports recognize that there were instances in which the Pakistani Government failed to
intervene in cases of societal violence directed at minority religious groups, the United
States Department of State Reports included in the Administrative Record states that the
Pakistani Government does not encourage sectarian violence. Of most significance in the
Government’s response is the statement that “none of the evidence presented directly
relating to the Amjads’ experiences in Pakistan compels the conclusion that the Amjads
have been, or will be, subjected to persecution by the government, or by private
individuals which the government is ‘unable to unwilling’ to control.” Respondent’s
Response to the Court’s Supplementary Request at 3 (October 21, 2005).
As we noted earlier, the past persecution that will support a presumption of future
persecution is persecution at the hands of the government or forces the government is
11
either unable or unwilling to control. The evidence in this record does not support the
Amjads’ assertion that they have satisfied this requirement. Accordingly, we will deny
the Petition for Review.
12
Amjad v. Attorney General of the United States,
Nos. 04-3709, 04-4647
THOMPSON, District Judge, Concurring.
In addition to the arguments addressed in the majority opinion, Petitioners also
argued that the translator employed at their asylum hearing was not familiar with
Christian terminology and therefore interpreted words relating to Christianity poorly (e.g.,
translating “Genesis” as “the book of birth”). The BIA denied Petitioners’ request for an
evidentiary hearing, stating that it would not consider the translation issue because
counsel for Petitioners had failed to object to the poor translation at the asylum hearing.
The BIA has not responded to Petitioners’ subsequent requests for access to the audio
recording of the hearing.
The substantial evidence standard requires a reviewing court to afford great
deference to an IJ’s credibility determinations because the IJ is best positioned to observe
and assess an asylum applicant’s testimony and demeanor. See Dia v. Ashcroft, 353 F.3d
228, 252 n.23 (3d. Cir 2003). That standard is strained, however, where the IJ’s
evaluation is based on a potentially inaccurate translation of the applicant’s testimony.
An adverse credibility determination based on potentially inaccurate information
stemming from poor translation is hardly more reliable than one based on speculation or
conjecture. See Dia, 353 F.3d at 249.
Attorneys representing asylum applicants cannot reasonably be required to speak
13
the various languages of their clients and cannot be expected to know whether or not a
translation is objectionable without further investigation after the hearing. I would find
that the BIA was unreasonable to require Petitioners’ counsel to object to the translation
problems during the asylum hearing and should have given Petitioners access to the audio
tapes of the hearing. Nonetheless, I agree with the majority that Petitioners have not
shown that the government of Pakistan was responsible for any of the incidents of past
persecution. Therefore, I concur in the result.