Chatta, Adeel H. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2179
ADEEL HASSAN CHATTA,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A78 865 668
____________
ARGUED FEBRUARY 13, 2008—DECIDED APRIL 21, 2008
____________
Before CUDAHY, POSNER, and EVANS, Circuit Judges.
EVANS, Circuit Judge. In September 2002, when he was
16 years old, Adeel Hassan Chatta, a citizen of Pakistan,
entered the United States at Chicago’s O’Hare Interna-
tional Airport without a valid entry document. Immigra-
tion officials detained him at the airport and removal
proceedings were filed against him under 8 U.S.C.
§ 1182(a)(4)(A), as an alien who was likely to become a
public charge, and 8 U.S.C. § 1182(a)(7)(A)(i)(i), as an
alien who was not in possession of a valid immigration
document. Chatta applied for asylum, withholding of
2 No. 07-2179
removal, and protection under the United Nations Con-
vention Against Torture. Following a hearing on his
applications, the immigration judge denied relief. Chatta
appealed to the Board of Immigration Appeals, which
affirmed without opinion. Today we consider his petition
for review of that decision.
In Chatta’s interview with an immigration official at
O’Hare, he said he was born in Pakistan in 1988, thus
claiming to be 14 years old. He said he did not have a valid
Pakistani passport and admitted that he had a false pass-
port given to him by someone his father paid. Chatta
also said he was a student headed to Canada. He denied
any fear of returning to Pakistan and said he would not
be harmed if he returned. Asked specifically whether he
had any reservations about returning home because of
his race, religion, nationality, political opinion, or mem-
bership in a particular social group, he said he did not.
At his hearing before the immigration judge, however,
Chatta testified that he feared persecution and torture
in Pakistan because of his religion and family member-
ship. He said he was born in Jhamwala, Pakistan, a town
of about 2,000 residents, in 1986, not 1988 as he had said
at the airport. He said he lived in Pakistan with his parents,
two older brothers, a sister, and his grandfather. His
grandfather and parents remain in the family home, but
his sister now lives with an aunt in another town. He said
he is not sure where his brothers live. When he left Paki-
stan, Chatta was in the tenth grade. He said he left be-
cause he was “scared of some people and the police that
I might be killed.”
The reasons he gave for his fear involve a prominent
Shi’a family in Jhamwala. Chatta’s family is Sunni Muslim.
Although most of his family is not particularly religious,
No. 07-2179 3
his grandfather belongs to the Deoband Sunni sect, and
consequently his entire family is affiliated with that sect.
Three Deoband families live in the town, and according
to Chatta the majority of the other residents are Shi’a
Muslims. He contends that in Jhamwala, two or three
powerful Shi’a families own land. One of those families,
also named Chatta but not related to our petitioner Chatta,
is well-connected with politicians and police officers. (To
minimize the confusion, we will refer to the petitioner as
Chatta and to the other family as the Shi’a Chattas.)
The two families did not get along because of economic
and religious differences. According to Chatta’s testimony,
in 2002 the Shi’a Chatta family directed its mosque to
make insulting announcements over its external loud-
speaker directed at the Deoband sect. Chatta’s grandfather,
oldest brother, and an individual from another Deoband
family were angered and asked their Maulvi (religious
leader) to do something about the broadcast. The Maulvi
then broadcast, over the external loudspeakers of
the Chatta family mosque, a message denouncing the
message of the Shi’a Chattas. The Shi’a Chattas con-
fronted the other Deoband family, which then left town.
Chatta’s father was worried that his family might have
to leave town as well. Chatta’s father and grandfather
apologized to the Shi’a Chattas and sent Chatta’s oldest
brother to live in another town.
But two days later, three or four of the young men in the
Shi’a family asked Chatta to sell drugs for them. He
refused, and on his way home from school the men as-
saulted Chatta, who stayed home from school for a day
or two. When he returned, the young men again asked
him to sell drugs, and he again refused. He was attacked
for a second time. This time Chatta was taken to a doctor
4 No. 07-2179
and his father reported the incident to the police; a copy of
the report is in the record. Two or three days later, Chatta
returned to school; again he was asked to sell drugs; and
again he refused and was beaten.
Later, on Pakistan’s Independence Day, Chatta and his
brothers were riding around on motorbikes, celebrating.
When they returned home, they heard their mother and
sister screaming inside the house. When they entered,
they saw their grandfather and mother tied up to pillars
and their sister being held down in a rape attempt. Three
or four of the same men who had previously attacked
Chatta were in the house. Chatta’s brother grabbed a
kitchen knife and stabbed one of the men in the stomach.
Chatta and his brothers rode away on their motorbikes. As
they fled, Chatta’s oldest brother was shot in the leg. The
brothers went to a neighboring town, where they took
the injured brother to a doctor and then telephoned
their parents. Their father told him that “they” were
looking for Chatta and his brothers. Chatta attributed
the attack to religious differences between the families
and the confrontation over the mosque broadcasts.
A week later, Chatta’s father sent him to Canada, where
he says he has relatives. Chatta also said he spoke to his
parents after arriving in the United States and they told
him the police continue to look for his brothers. Chatta
says he could not live with relatives elsewhere in Pakistan
because the police are controlled by the Shi’a Chatta
family and he would be found and killed. In the record
is an arrest warrant for Chatta in connection with the
stabbing incident.
Other documentary evidence in the record includes an
affidavit describing his family, his religious background,
and the circumstances which led to his departure from
No. 07-2179 5
Pakistan. There are also newspaper and Internet articles,
country condition reports prepared by both the United
States Department of State and Amnesty International.
Also, there are statements from his father, mother, grand-
father, and the headmaster of his school. His mother’s
statement says that “his enemy will not let it go and
will most probably kill him on his return.” His father
says that Chatta’s “life is in danger here. And he will not
be able to study here. When in America, he can complete
his studies and his life will be out of danger.” His grandfa-
ther says Chatta’s “enemies will not let it go.” His head-
master said that Chatta left school because of a “fight in
the village.”
In addition, Dr. Joan Liautaud testified at the hearing as
to her diagnosis that Chatta suffers from post-traumatic
stress disorder as a result of seeing his sister raped and
being separated from his family.
In a careful and thorough decision, the immigration
judge denied Chatta’s request for relief. He found that
Chatta was not credible because of (1) the discrepancies
between the documentary evidence and Chatta’s claim,
(2) the blatant contradictions between Chatta’s airport
interview and subsequent asylum testimony regarding
his age, his purpose for traveling to Canada, and whether
he had a fear of returning to Pakistan, and (3) the im-
plausibility of the circumstances surrounding the arrest
warrant against him. In the face of Chatta’s incredible
testimony, the judge looked for corroborating evidence
to bolster the claim for relief but found little support for
his claim. Finally, the judge determined that, even if
Chatta were believed, he failed to demonstrate past
persecution or a well-founded fear of future persecution.
He failed to show that the Pakistani government was
6 No. 07-2179
unable or unwilling to protect him and he could not show
a well-founded fear of future persecution when his family
remained unharmed in Pakistan. Further, any potential
criminal prosecution that Chatta might face in Pakistan
would be simple law enforcement, not persecution. We
find there is substantial evidence in the record to sup-
port the immigration judge’s conclusions.
When the Board of Immigration Appeals affirms an
immigration judge’s decision without comment, we
review the immigration judge’s decision because it is the
final agency determination. Qureshi v. Gonzales, 442 F.3d
985 (7th Cir. 2006). The determination that a petitioner
is not eligible for asylum must be upheld if “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” 8 U.S.C. § 1105a(a)(4). INS
v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815 (1992);
Toptchev v. INS, 295 F.3d 714, 720 (7th Cir. 2002).
To obtain asylum under 8 U.S.C. § 1158(a), an applicant
must demonstrate by credible evidence that he (1) is
statutorily eligible for asylum because he is a “refugee,”
and (2) merits a favorable exercise of discretion on the
part of the Attorney General. Jun Ying Wang v. Gonzales,
445 F.3d 993 (7th Cir. 2006). A refugee is a person who is
unable or unwilling to return to his home country because
of past persecution or a well-founded fear of future
persecution because of his race, religion, nationality,
membership in a particular social group, or his political
opinions. The burden is on the applicant to establish that
he is a refugee. If the immigration judge concludes that
an asylum applicant fails to present specific facts that he
or she has been persecuted or has good reason to fear
that he or she will be singled out for persecution in the
future, we will not disturb that conclusion unless the
No. 07-2179 7
evidence is “so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.”
Elias-Zacarias, at 483-84; Sayaxing v. INS, 179 F.3d 515,
519 (7th Cir. 1999).
The immigration judge clearly explained his reasons for
finding that Chatta’s testimony was not credible. There
were material inconsistencies between Chatta’s airport
interview and his testimony at his hearing. It is true that
we have found the airport interviews “are not always
reliable indicators of credibility.” Dong v. Gonzales, 421
F.3d 573, 579 (7th Cir. 2005). In certain cases, however,
the interview can help support an adverse credibility
finding. Alimi v. Gonzales, 489 F.3d 829 (7th Cir. 2007). The
immigration judge found that the record of Chatta’s air-
port interview had many markers of probative value and
reliability. The record contained the actual transcript of the
interview. The immigration official asked Chatta at least
five times about his fear of returning to Pakistan. Chatta
acknowledged that he understood the translator during
the interview, and he admitted the accuracy of the tran-
scripts during his hearing testimony. On the other hand,
Chatta was young and, no doubt, frightened. However,
given other evidence that bears on Chatta’s credibility,
reliance on the airport interview here was certainly rea-
sonable.
There were also discrepancies between Chatta’s claim
and other evidence in the record. First, it is reasonable to
doubt the claim that the Shi’a Chattas are all-powerful
throughout the entire country. The State Department’s
International Religious Freedom Report indicates that the
“vast majority” of the population in Chatta’s home prov-
ince of Punjab are Sunni Muslim. Even if the majority
population in Jhamwala is, as Chatta claims, Shi’a, and if
8 No. 07-2179
the Shi’a Chattas have excessive power and influence in
that town, it is reasonable to doubt that they have that
power countrywide, and it is hard to believe that there
would be no place in Pakistan for Chatta to be safe from
their influence. The State Department’s Country Report
on Human Rights Practices in Pakistan indicates, ironically,
that the police fail to protect Shi’a Muslims, not Sunnis.
There was substantial evidence for the immigration
judge to find implausible that the police report arising
out of the stabbing resulted from the Shi’a Chattas filing
a false claim against him. The report was filed by one of
the Shi’a Chattas, but others involved in the altercation
were not Chattas. The judge also found it implausible,
given that Chatta spoke to his family regularly, that he did
not know whether the stabbing victim survived. All in all,
for these reasons and others, the immigration judge
found that Chatta’s testimony was insufficient to support
his claim that the arrest warrant was not legitimate and
rather was a result of the Shi’a Chattas’ power to persecute
him through the local police based on religious differ-
ences and family affiliation.
Other evidence in the record also failed to convince the
judge that the claim was true. The letters from Chatta’s
relatives and his headmaster do not support his claim in
any detail. In short, it was reasonable for the judge to find
that there is a real possibility that the arrest warrant is
legitimate.
The significant hurdle that Chatta faces is that his claim
involves that he was persecuted for his religion by private
individuals of another religious sect. But when the persecu-
tors are non-government actors, a respondent must show
that the government perpetuated or condoned the persecu-
tion or was completely helpless to protect him. Roman v.
No. 07-2179 9
INS, 233 F.3d 1027 (7th Cir. 2000). As we already men-
tioned, the majority population of the country is Sunni.
Even if the Shi’a Chattas were as powerful in Chatta’s
hometown as he says, it is difficult to see why he would
be unsafe in other parts of the country. Further, he does
not contest that he was involved in a stabbing, and he
claims not to know the condition of the victim. It seems
more likely that Chatta is afraid of legitimate criminal
prosecution, not impermissible persecution. The investiga-
tion of incidents which would be crimes in the United
States does not constitute persecution. Guchshenkov v.
Ashcroft, 366 F.3d 554 (7th Cir. 2004). Substantial evidence
in the record supports the conclusion of the immigration
judge that Chatta has not established a persuasive claim
to asylum.
To establish eligibility for withholding of removal under
8 U.S.C. § 1231(b)(3), Chatta must demonstrate a clear
probability of persecution if removed to Pakistan. It must
be more likely than not that he would be persecuted. Prela
v. Ashcroft, 394 F.3d 515 (7th Cir. 2005). Because this
standard is higher than that for asylum, this claim also
fails.
To qualify for withholding of removal under the Conven-
tion Against Torture, Chatta must show that he likely
would be subject to harm amounting to torture by the
instigation of or with the consent of a public official.
8 C.F.R. § 1208.18(a)(1). He also fails to establish that he
would be subject to torture.
For these reasons, the petition for review is DENIED.
10 No. 07-2179
CUDAHY, Circuit Judge, concurring in the judgment.
I join in the result and in much of the rationale. I do not,
however, agree with the apparent view of the majority and
the Immigration Judge that the Shi’a Chattas could not
have strongly influenced police in Chatta’s village because
of the demographic predominance of Sunnis in Pakistan.
I think there is nothing incredible about a religious ele-
ment wielding a local effective animus even though far
from a majority factor in the country. But, by the same
token, I am skeptical of a changed result on remand
because Chatta could probably cure his own security
problems by moving to a different area of Pakistan
where the local situation would not place him in jeopardy.
Hence, his exposure to persecution would be removed
without requiring him to leave Pakistan and emigrate
to the United States.
USCA-02-C-0072—4-21-08