Hussain v. Attorney General , 260 F. App'x 447 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
1-9-2008
Hussain v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2576
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-2576
____________
MOHAMMED REZAUL HUSSAIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A79 727 899)
Immigration Judge: Miriam K. Mills
____________
Submitted Under Third Circuit LAR 34.1(a)
January 7, 2008
Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.
(Filed: January 9, 2008)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
In this case we consider whether the Board of Immigration Appeals (BIA)
improperly neglected to address one of the grounds of appeal raised by Mohammed
Rezaul Hussain, who petitions for our review of the BIA’s dismissal of his appeal from
the order of the Immigration Judge (IJ) denying asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). For the reasons that follow, we will
grant the petition for review in part and remand.
I.
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
Hussain, a native and citizen of Bangladesh, entered the United States on
March 10, 2001. About a year later, Hussain was charged as removable for overstaying
his admission period. Hussain conceded removability and applied for asylum,
withholding of removal, and CAT relief, arguing that, if removed, he would be persecuted
on account of his political opinion. The IJ denied relief and ordered Hussain removed to
Bangladesh. The BIA dismissed his subsequent appeal in a written decision, explaining
in part that Hussain “does not challenge the [IJ]’s finding that [he] has not established
past persecution, and we find no error in the [IJ]’s conclusion that [he] has also failed to
establish a well-founded fear of persecution in Bangladesh on account of his political
opinion.” The instant petition for review followed.
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II.
We have jurisdiction to review a final order of the BIA pursuant to 8 U.S.C.
§ 1252(a)(1). “We must uphold the BIA’s factual findings if they are supported by
reasonable, substantial, and probative evidence on the record considered as a whole.”
Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (internal quotation marks and citation
omitted). With respect to asylum:
“A well-founded fear of persecution is the key to eligibility. 8 C.F.R.
§ 208.13(b). . . . If an applicant demonstrates past persecution on account
of a protected ground there is ‘a rebuttable presumption of a well-founded
fear of future persecution, as long as that fear is related to the past
persecution.’ [Citation omitted]; 8 C.F.R. § 208.13(b)(1). This
presumption may only be rebutted if the Government proves by a
preponderance of the evidence that: (1) ‘[t]here has been a fundamental
change in circumstances such that the applicant no longer has a
well-founded fear of persecution’; or (2) ‘[t]he applicant could avoid future
persecution by relocating to another part of the applicant’s country of
nationality . . . and . . . it would be reasonable to expect the applicant to do
so.’ 8 C.F.R. § 208.13(b)(1)(i).”
Shardar v. Attorney Gen., 503 F.3d 308, 312-13 (3d Cir. 2007).
With respect to withholding of removal, a clear probability of future persecution,
not just a well-founded fear thereof, is required. Gabuniya v. Attorney Gen., 463 F.3d
316, 320-21 (3d Cir. 2006). However, similar to asylum, a demonstration of past
persecution entitles an applicant to a “presumption that his life or freedom will be
threatened if he returns.” Id. at 321 (citing 8 C.F.R. § 208.16(b)(1)). Again, so long as
the future threat is related to the past persecution, the burden shifts to the Government to
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rebut the presumption using one or both of the methods discussed in Shardar, as quoted
above. See 8 C.F.R. § 208.16(b)(1)(ii).
In the case at bar, Hussain argues that the BIA incorrectly found that he did not
appeal the IJ’s findings regarding past persecution. We agree. As we previously have
held, “so long as an immigration petitioner makes some effort, however insufficient, to
place the [BIA] on notice of a straightforward issue being raised on appeal, a petitioner is
deemed to have exhausted her administrative remedies.” Joseph v. Attorney Gen., 465
F.3d 123, 126 (3d Cir. 2006) (quoting Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)).
Our review of the record here reveals that in his brief before the BIA, Hussain recounted
a 1994 attack by members of the Bangladeshi ruling party on a meeting of his political
party, as well as his later arrest by Bangladeshi police, apparently when he reported the
political attack. He then specifically pointed out that a well-founded fear of persecution
can be based on past persecution. Therefore, Hussain has adequately raised the issue of
past persecution before the BIA.
There remains the question whether we should decide the past persecution issue
presently. The answer is no, for “[w]here a matter requires determining the facts and
deciding whether the facts as found fall within a statutory term, the BIA, not a court of
appeals, should make the initial determination.” Cruz v. Attorney Gen., 452 F.3d 240,
248 (3d Cir. 2006) (internal quotation marks and citation omitted). Here, we cannot
review meaningfully the BIA’s decision because there is none: the BIA explicitly
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declined to address whether Hussain established past persecution, so it also did not
analyze whether the Government successfully rebutted, using one of the two methods
described in Shardar, the presumption of Hussain’s well-founded fear of future
persecution (for asylum) or clear probability of future persecution (for withholding of
removal). Accordingly, on remand the BIA must address the past persecution issue.1
III.
For the foregoing reasons, we will grant Hussain’s petition for review in part and
remand the matter to the BIA for further proceedings consistent with this opinion.
1
Our remand does not apply, however, to Hussain’s request for relief under the
CAT because past persecution does not establish any presumption that an applicant would
be tortured if he returns to the country of removal. See Gabuniya, 463 F.3d at 321; see
also 8 C.F.R. § 208.16(c)(2), (3)(i). Therefore, we have the ability to review
meaningfully the BIA’s conclusion under the CAT, and we conclude that it is supported
by substantial evidence because nothing that Hussain suffered during the 1994 attack –
even as described in his own terms – amounts to an “act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person.” Gabuniya,
463 F.3d at 321 (quoting 8 C.F.R. § 208.18(a)(1)).
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