Sahi, Naveed v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2828
NAVEED AHMED SAHI,
Petitioner,
v.
ALBERTO GONZALES,
Respondent.
____________
On Petition to Review an Order of
the Board of Immigration Appeals.
No. A 78 265 021
____________
ARGUED JULY 5, 2005—DECIDED JULY 25, 2005
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. The Board of Immigration Appeals
denied Naveed Sahi’s application for asylum and ordered
him sent back to Pakistan, his country of origin. Sahi is a
member of the Ahmadi religious sect. The Ahmadis con-
sider themselves Muslims, but many Muslims disagree. The
disagreement arises from the fact that Ahmadis do not
accept, as most Muslims do, that Mohammed was the last
prophet of Islam—they think that Mizra Ghulam Ahmad,
who founded their sect in the nineteenth century, was also
2 No. 04-2828
a prophet of Islam. Pakistan considers the sect a pernicious
heresy. In 1974 it officially declared that Ahmadis were not
Muslims. According to the State Department’s Country
Reports on Human Rights Practices—2004 (Feb. 28, 2005), the
accuracy of which is not questioned by either party, “pro-
visions of the [Pakistani] penal code prohibited Ahmadis
from engaging in any Muslim practices, including using
Muslim greetings, referring to their places of worship as
mosques, reciting Islamic prayers, and participation in the
Hajj [the pilgrimage to Mecca] or Ramadan fast. Ahmadis
are prohibited from proselytizing, holding gatherings, or
distributing literature. Government forms, including pass-
port applications and voter registration documents, require
anyone wishing to be listed as Muslim to denounce the
founder of the Ahmadi faith . . . . Ahmadis were prevented
from building houses of worship . . .[and] were the targets
of religious violence.” (Although written in the past tense,
there is no suggestion that any of these laws or practices
have changed since the 2004 Country Report.) Sahi himself,
before leaving Pakistan, had been beaten by orthodox
Muslims, who in addition had burned the crops of his
family farm and stolen buffaloes from the farm. The police
refused to protect him and his family from these criminal
acts.
Nevertheless the immigration judge, seconded by the
Board, ruled that Sahi had no well-founded fear of being
persecuted should he be returned to Pakistan. Although the
judge’s oral opinion is meandering and none too clear, the
heart of it seems to be the following sentence: “While this
Court [i.e., the immigration judge] fully recognizes that
Ahmadis are discriminated against and face harassment in
Pakistan because of their religious beliefs, I do not find that
this fact, coupled with the general risk of random violence
singles the respondent out or establishes a pattern and
No. 04-2828 3
practice of persecution of all Ahmadis.” What the immigra-
tion judge seems to be saying is (1) Ahmadis face discrimi-
nation and harassment but not persecution, because they are
not subject to systematic violence; (2) unless “all” Ahmadis
are persecuted, Sahi cannot obtain asylum without proving
that he will be “singled out” for persecution if he returns to
Pakistan. Elsewhere in his opinion the immigration judge
said that “the respondent’s situation is no different than any
other Pakistani Ahmadi.”
The judge neither defined “persecution” nor cited a deci-
sion by the Board, or for that matter any other source of
guidance, on what constitutes, or should be deemed to
constitute, persecution in an asylum case. Implicitly he
defines it as systematic violence directed against a group,
and so he pointed to a statement in an earlier Country
Report that Pakistan is trying to curtail intimidation of
religious minorities. His conception of persecution seems
too limited. Suppose the Congress of the United States
declared Catholicism a heresy and prohibited Catholics from
engaging in any Christian practices, including referring to
their places of worship as churches and reciting Christian
prayers, and from proselytizing, holding religious gather-
ings, distributing religious literature, or building new
churches—but also forbade religiously motivated violence
against Catholics. The case for regarding the total package
as persecution, even though vigilantism was forbidden and
the authorities enforced the prohibition energetically—
which Pakistan apparently does not—would be a strong
one. This is apparent from cases which hold that forcing a
person to practice his religion in secret is persecution. Iao v.
Gonzales, 400 F.3d 530, 531 (7th Cir. 2005); Muhur v. Ashcroft,
355 F.3d 958, 960-61 (7th Cir. 2004); Zhang v. Ashcroft, 388
F.3d 713, 720 (9th Cir. 2004) (per curiam); see also Huang v.
Gonzales, 403 F.3d 945, 947 (7th Cir. 2005). Judging from the
4 No. 04-2828
2004 Country Report, that is in effect the situation of
Ahmadis in Pakistan.
Yet we do not hold that Sahi was a victim of persecution;
we merely assume it in the absence of any effort by the
Board of Immigration Appeals to define the word more
narrowly than is plausible without the benefit of the Board’s
thinking. The primary responsibility for defining key terms
in the immigration statute that the statutes themselves do
not define, such as “persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion,” 8 U.S.C. § 1101(a)(42)(a), is that of the
Board of Immigration Appeals as the Attorney General’s
delegate. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999);
INS v. Cardoza-Fonseca, 480 U.S. 421, 446-49 (1987); Uritsky v.
Gonzales, 399 F.3d 728, 731-32 (6th Cir. 2005). The Board has
failed to discharge that responsibility. Neither the parties’
research nor our own has brought to light a case in which
the BIA has defined “persecution.” The Board’s interpreta-
tion of “well-founded” fear of persecution as meaning that
the alien was more likely than not to be persecuted if
returned to his country of origin was rejected by the Su-
preme Court in the Cardoza-Fonseca case as a misinterpreta-
tion of the statute, but the Board had not attempted to define
“persecution” itself. Similarly, although the Board in In re A-
M-, 23 I.&N. Dec. 737, 740-41 (BIA 2005), adopted the
definition in Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005),
of a “pattern or practice” of persecution as “persecution of
a group that is ‘systemic, pervasive, or organized,’ ” again
it did not define “persecution.” It said in In re A-E-M, 21
I.&N. Dec. 1157, 1159 (BIA 1998), that incidents of “harass-
ment” do not constitute persecution, but did not explain the
distinction between mere harassment and outright persecu-
tion. It has also said that “persecution” does not include “all
treatment that society regards as unfair, unjust, or even
No. 04-2828 5
unlawful or unconstitutional,” In re V-T-S, 21 I.&N. Dec.
792, 798 (BIA 1997), but has not said what it does include.
We haven’t a clue as to what it thinks religious persecution
is.
We realize that no court has found that Ahmadis as a
group suffer a “pattern and practice of persecution.” Ahmad
v. INS, 163 F.3d 457, 463 (7th Cir. 1999), remarked merely
that they face “some level of mistreatment” in Pakistan.
Nasir v. INS, 122 F.3d 484, 486, 488 (7th Cir. 1997), noted that
“Ahmadis in general have suffered prejudice and discrimi-
nation in Pakistan ever since the country was founded in
1947,” but found it unnecessary to decide “whether
Ahmadis as a group are subject to persecution.” Hakeem v.
INS, 273 F.3d 812, 817 (9th Cir. 2001), noted State Depart-
ment reports that Ahmadis were being tried for violating
Pakistan’s blasphemy law, but found that Hakeem “prac-
ticed his faith without incident” in Pakistan and had failed
to prove that anyone in his family had ever been “charged,
arrested, or physically harmed based on their Ahmadi
faith.” All these rulings were based on the facts presented in
their specific cases. That Ahmad, Nasir, and Hakeem, none
of whom had the benefit of the 2004 Country Report, did
not prove that Ahmadis are persecuted does not mean that
Sahi has failed to prove it. Muhur v. Ashcroft, supra, 355 F.3d
at 959.
There are dicta that an alien cannot obtain asylum unless
he proves that he has been or will be treated worse than
other members of his group. Ahmad v. INS, supra, 163 F.3d
at 463; Ivezaj v. INS, 84 F.3d 215, 221 (6th Cir. 1996); But
besides being in the teeth of a regulation not claimed to be
invalid, 8 C.F.R. § 208.13(b)(2)(iii); Mekhoukh v. Ashcroft, 258
F.3d 118, 124 (1st Cir. 2004); Ramsameachire v. Ashcroft, 357
F.3d 169, 183 (2d Cir. 2004); Eduard v. Ashcroft, 379 F.3d 182,
192 (5th Cir. 2004), these dicta cannot be correct; they imply
6 No. 04-2828
that a German Jew who sought asylum during the Hitler era
would have to show that he would be treated even worse
than other German Jews if he were returned to Germany.
The immigration judge didn’t quite fall into that trap, but
his formulation—that unless all members of the group are
being persecuted, the alien must show that he has been
singled out—is also untenable. Suppose most members of
some group are persecuted, but others are not—maybe they
have relatives among the persecutors, or unique skills, or
great wealth, and so obtain a special dispensation. (The
Nazis spared some Jews because they were married to
Gentiles.) It would not follow that a member of the group
who sought asylum would have to prove that he was not
one of the favored ones, especially if the favored were only
a small percentage of the group. See Lolong v. Gonzales, 400
F.3d 1215, 1219-20 (9th Cir. 2005).
The denial of asylum cannot be sustained on this record.
The petition for review is therefore granted and the case
remanded to the immigration service.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-25-05