Rezaul Karim v. Eric H. Holder, Jr. ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3684
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Rezaul Karim; Zannatul Karim; *
Neamulzannat Neela, *
*
Petitioners, *
* Petitions for Review from the
v. * Board of Immigration Appeals.
*
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
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Submitted: November 17, 2009
Filed: March 4, 2010
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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MELLOY, Circuit Judge.
Lead petitioner Rezaul Karim ("Karim"), along with his wife and daughter, are
natives and citizens of Bangladesh. They petition for review of an order of the Board
of Immigration Appeals ("BIA") denying asylum and withholding of removal.1 We
deny the petition.2
I.
Karim and his family entered the United States as visitors in September 1993
with permission to remain until March 26, 1994. Karim applied for asylum in
December 1993 based on allegations of persecution due to his membership in the
Jatiya political party in Bangladesh. Removal proceedings began more than twelve
years later with the issuance of Notices to Appear dated January 4, 2006. During a
November 2006 immigration hearing, the petitioners conceded removability for
overstaying their visas and added a claim under the Convention Against Torture
("CAT"). A hearing on the merits occurred on March 6, 2007.
1
The BIA opinion states that petitioners did not dispute the Immigration Judge's
("IJ") denial of relief under the Convention Against Torture ("CAT") or denial of
voluntary departure. The BIA also noted that the CAT claim was based on the same
evidence as the unsuccessful asylum claim.
Petitioners make no argument regarding CAT relief in their opening brief, and
we consider the claim waived. Hasalla v. Ashcroft, 367 F.3d 799, 805 (8th Cir.
2004). A discussion of voluntary departure is also absent from the opening brief,
though some question about it arose in the petitioners' reply brief and at oral
argument. Even if we were to consider it, as a practical matter, we have held that we
lack jurisdiction to review the denial of voluntary departure. E.g., Tebit v. Holder,
321 F. App'x 525, 526 (8th Cir. 2009) (unpublished per curiam).
2
Petitioners have motions pending before the BIA related to ineffective
assistance of counsel at earlier stages of their proceedings. We deny this petition
without prejudice to those motions.
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The record indicates Karim joined the Jatiya party in 1982, became a
supervisory secretary in 1985, and ran into problems because of his political affiliation
when a rival political group, the Bangladesh National Party ("BNP"), came to power.
In May 1991, BNP militants threw rocks at Karim's home. In July 1991 BNP
members assaulted him, and in December 1991, BNP members allegedly took him
to their local office, beat him again, and detained him for half a day. Karim did not
suffer significant injuries from the 1991 incidents. The most serious attack allegedly
occurred in March 1992, when Karim stated he was again taken to a local BNP office
and beaten so severely that he remained hospitalized for two months. He testified
that he reported each incident to the police, who refused to help.
Karim also claimed that in May 1993, he learned that a BNP leader had filed
a criminal complaint falsely accusing him of carrying a weapon illegally and that
police had gone to his home to look for him. These incidents prompted his flight to
the United States. According to Karim, he considered returning to Bangladesh in
1997, but his brother obtained and sent him the police report for the May 1993
incident. Karim submitted the police report to corroborate this aspect of his claim in
January 2007, less than two months before the merits hearing.
The Department of Homeland Security ("DHS") sent the police report to the
Immigration and Customs Enforcement Document Forensic Laboratory for testing.
Forensic testing was not completed in time, so DHS asked the fraud section of the
U.S. embassy in Dhaka to verify the authenticity of the report. The resultant Consular
Investigation Report ("consular report") indicated that Karim's police report for the
weapons charge was "a totally false case."
During the merits hearing, Karim's attorney moved to continue or adjourn
because DHS had not submitted the consular report until about a week before.
Counsel argued that proceedings should at least wait until forensic testing could be
completed. The Immigration Judge ("IJ") denied the motion and admitted the
consular report into evidence over Karim's objection. Karim attempted to rebut the
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consular report by asserting that the investigator had perhaps failed to look in the right
records or go to the right police station when creating it.
Karim testified that he feared returning to Bangladesh because of ongoing
violent conflict between the political parties, which he had learned about from the
news and from his brother who lived there. Background evidence in the record
includes a 2005 State Department country condition report and a 2005 State
Department profile of Bangladeshi asylum cases, both submitted by the government.
The record also contains a 2006 report from an international NGO that the IJ had
suggested the parties consider during the initial November 2006 hearing. The 2005
State Department country conditions report and the 2006 NGO report indicate that
the Jatiya party had joined a BNP-led coalition government in 2001, suggesting that
the BNP was unlikely to persecute members or low-level leaders of the Jatiya party,
like Karim. Karim maintained that he belonged to a different Jatiya faction than the
one aligned with the BNP; however, evidence indicated that Karim was a member of
the faction that had joined the coalition government.
The IJ denied all forms of relief in an oral opinion. The IJ noted "the point
of departure for this decision are country conditions"3 and then turned to Karim's
3
We note that Karim argued in his opening brief that the IJ erroneously
inverted the burden of proof by finding changed country conditions at the outset and
requiring Karim to refute them before considering his claim of persecution. Upon
careful review of the IJ opinion, we disagree. Although the IJ made this remark at the
beginning of the opinion's analysis section and failed to outline the burden-shifting
analysis discussed in Part II, infra, the substance of the opinion allocated this initial
burden properly.
The IJ then conducted a separate well-founded-fear analysis. It is here that the
IJ considered country conditions in Bangladesh as relevant to Karim's case. In this
regard, the IJ first stated:
Turning to the respondent's confession that he faces likely mistreatment
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claims of past persecution. The IJ believed that Karim held a supervisory secretary
position in the Jatiya party and had been beaten on a number of occasions. However,
the IJ found Karim not credible as to the most severe beating in 1992 due to
inconsistencies in his statements about the incident. The IJ determined the other, less
severe beatings and threats did not rise to the level of persecution. Additionally, the
IJ found Karim had submitted a false police report and stated that Karim had given
"misleading testimony in that regard." Considering these problems, the IJ determined
that Karim had failed to establish past persecution. The IJ also found that Karim
lacked a well-founded fear of future persecution. Further, the IJ denied asylum as a
matter of discretion based on the submission of the fraudulent police report. The IJ
next found Karim had failed to meet the higher burdens of proof for withholding of
removal and CAT relief. Finally, the IJ denied voluntary departure primarily based
on Karim's submission of the fraudulent police report.
On appeal to the BIA, Karim argued that (1) he had established eligibility for
asylum; (2) the IJ erred in admitting the potentially flawed consular report without
on return to Bangladesh, I would say even apart from the fraudulent
document, the case has no merit. It is clear that the party of which the
respondent was active in as an unpaid member, and it seems to me on a
scale of activism at the very bottom, and that the conditions have
substantially changed. This particular party, a small party, is now part
of the governing coalition.
The IJ then went on note that Karim had little reason to believe the BNP
militants would attack him upon his return, that he had been away from the country
for more than thirteen years at that point, and the contact he had with the Bangladeshi
government did not suggest it was interested in harming him. Summarizing the
findings, the IJ reiterated that Karim had failed to establish past persecution and stated
that: "I do not find that there is a well-founded fear of persecution here, that is, that
there is an objective basis for the respondent's proclaimed fear of returning to
Bangladesh."
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allowing for a continuance; and (3) the IJ's conduct at the merits hearing lacked
impartiality. The BIA dismissed the appeal. It noted at the outset that Karim had
failed to challenge the IJ’s adverse credibility finding and that the IJ's finding of no
past persecution was based largely on the IJ's disbelief of Karim as to the 1992
beating. The BIA then went on to hold that the IJ had not abused its discretion in
denying a continuance, had not erred in admitting the consular report, and had not
demonstrated a lack of impartiality. Finally, the BIA held that the IJ's denial of
asylum and withholding of removal based on changed country conditions was
supported by the record. In doing so, the BIA cited the portions of the IJ's decision
describing the evidence of changed country conditions and assumed that Karim could
establish past persecution, thus shifting the burden to the government for rebuttal.
The instant petition for review followed.
II.
To qualify for asylum, Karim must establish that he is a "refugee" as defined
in the Immigration and Nationality Act. 8 U.S.C. §§ 1158(b)(1)(A), 1158(b)(1)(B)(i);
8 C.F.R. § 1208.13(a). In short, a refugee is someone who is unable or unwilling to
return to his or her native country because of persecution or a well-founded fear of
persecution on account of five enumerated grounds, including political opinion. 8
U.S.C. § 1101(a)(42)(A). Persecution is a "fluid concept" that includes the "threat of
death, the threat or infliction of torture, and the threat or infliction of injury to one's
person or one's liberty on account of a protected ground." Sholla v. Gonzales, 492
F.3d 946, 951 (8th Cir. 2007).
If Karim establishes past persecution, he is entitled to a presumption of a well-
founded fear of persecution upon return to Bangladesh. 8 C.F.R. § 1208.13(b)(1).
The burden then shifts to the government to rebut the presumption by showing
fundamentally changed country conditions or the possibility of internal relocation.
Id. §§ 1208.13(b)(1)(i)–(ii). "If an applicant attempts to establish a well-founded fear
of future persecution without having shown past persecution, then the burden does not
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shift and the applicant must show the fear is both subjectively genuine and
objectively reasonable." Uli v. Mukasey, 533 F.3d 950, 955 (8th Cir. 2008) (quotation
and citation omitted). "An alien may establish the subjective element with credible
testimony that he or she genuinely fears persecution. " Francois v. INS, 283 F.3d
926, 930 (8th Cir. 2002). "Objectively, the alien must show credible, direct, and
specific evidence that a reasonable person in the alien’s position would fear
persecution if returned to the alien's native country." Turay v. Ashcroft, 405 F.3d
663, 667 (8th Cir. 2005) (internal quotations and citations omitted).
Withholding of removal is a mandatory form of relief, unlike asylum which is
discretionary. 8 U.S.C. §§ 1231(b)(3)(A), 1158(b)(1). To obtain withholding of
removal, an alien must demonstrate a clear probability—i.e., that it is more likely than
not—that he would suffer persecution on account of a protected ground. Ngure v.
Ashcroft, 367 F.3d 975, 989 (8th Cir. 2004). The standard for withholding of removal
is more rigorous than the well-founded-fear standard for asylum, so an alien who fails
to prove eligibility for asylum cannot meet the burden for withholding of removal.
Id.
"Where the BIA's decision is the final agency decision, it is the subject of our
review." Diallo v. Mukasey, 508 F.3d 451, 453–54 (8th Cir. 2007) (quotations and
citation omitted). However, to the extent that the BIA adopted the findings or the
reasoning of the IJ, we review the IJ's decision as well. Id. at 454. We review a denial
of asylum for abuse of discretion. Uli, 533 F.3d at 955. We review underlying factual
findings for substantial evidence in the record, id., and the substantial-evidence
standard is "extremely deferential." Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir.
2005). We will not overturn the agency's decision unless Karim demonstrates that the
evidence "not only supports a contrary conclusion," Diallo, 508 F.3d at 454
(quotation omitted), but that it is so compelling "that no reasonable fact finder could
fail to find the requisite fear of persecution." Cooke v. Mukasey, 538 F.3d 899, 904
(8th Cir. 2008). "We analyze questions of law de novo, according substantial
deference to the agency's interpretations of the statutes and regulations it administers."
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Gitimu v. Holder, 581 F.3d 769, 772 (8th Cir. 2009) (internal quotations and citation
omitted).
III.
Karim puts forth several arguments against the agency’s denial of relief. His
main contentions remain that the IJ violated his due process rights by admitting the
consular report and should have granted a continuance instead. Karim argues that the
admission of the consular report resulted in a damaging adverse credibility finding
regarding the alleged illegal weapon case against him, which in turn led to the IJ’s
conclusion that Karim failed to establish past persecution and the IJ's denial of asylum
as a matter of discretion. He also argues that the IJ’s separate adverse credibility
finding as to the 1992 beating is unsupported by substantial evidence. The Attorney
General counters that we lack jurisdiction to consider the "dispositive" issue of
adverse credibility because Karim failed to properly raise it before the BIA–as the
BIA opinion itself points out.
Alternatively, the Attorney General asserts that the finding of changed country
conditions is conclusive in this case. We agree. Even assuming that Karim was
credible and could establish past persecution, we will not interfere with the decision
"if the record provides sufficient support for . . . the factual finding that changed
country conditions mean [Karim] do[es] not have a well-founded fear of future
persecution." Gitimu, 581 F.3d at 773. We have held that "State Department country
reports can support a factual finding of changed conditions to rebut a presumption of
a well-founded fear of future persecution." Id.; see also Mambwe v. Holder, 572 F.3d
540, 548 (8th Cir. 2009); Diallo, 508 F.3d at 455 (in withholding of removal and
CAT case, "[e]ven if the credibility determination were in error, substantial evidence
[including country reports] supports the BIA's conclusion that changed country
conditions preclude a finding of future persecution or torture" if petitioner returned);
Reyes-Morales v. Gonzales, 435 F.3d 937, 942 (8th Cir. 2006) ("Our court has
expressly held that a State Department country report may be used to rebut the
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presumption that an asylum-seeker has a reasonable fear of persecution."). Here, the
2005 State Department country conditions report states that a BNP candidate became
prime minister in 2001 in an election "deemed free and fair by international and
domestic observers." Although this election took place in an environment of
"sporadic violence and isolated irregularities," the Jatiya party became and remained
a member of a coalition government led by the BNP. We acknowledge that the
country report indicates ongoing politically motivated violence and notes NGO and
press accounts of politically-motivated kidnappings, disappearances, and government
harassment such as arbitrary and false arrests and detentions. However, the country
report does not suggest that people in positions comparable to Karim's in the Jatiya
party continue to be targeted for persecution, either by members or leaders of the
BNP, by the other political parties, or by the government itself.
Other documentary evidence the agency relied on has much the same tenor.
The 2006 NGO report confirms that the Jatiya party joined a BNP alliance and that
the BNP recognized that it must maintain alliances, including with the Jatiya party,
to retain power through subsequent elections. Moreover, this report suggests overall
that tension and hostilities have centered in recent years around the BNP and the
Awami League, the two largest mainstream parties, with a growing concern over
potential violent clashes with Islamist political parties and militant groups. Neither
party has asserted here that the Jatiya party is such a group.
Finally, our own review of the record reveals additional evidence that, while
not explicitly discussed by the agency, tends to support its position. A 2005 State
Department profile of Bangladeshi asylum claims observes that "[t]he violence that
applicants relate as a result of their membership and work for a political party
[including the Jatiya party] is real," and that student organizations of the various
political groups, including the BNP and Jatiya parties, continue to clash violently in
particular. Once again, however, the report does not suggest Karim or someone in his
position would become a target. In fact, elsewhere this report states that "the Jatiy[a]
Party . . . is no longer a major force in Bangladesh politics . . . ."
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To be sure, the record paints politics in Bangladesh as a messy and often violent
business. This alone does not compel a conclusion contrary to that of the BIA.
"While a different factfinder may have reasonably found in the Petitioners’ favor,
that is not enough to require reversal . . . ." Gitimu, 581 F.3d at 774.
Where applicants fail to establish eligibility for asylum, “they necessarily
cannot meet the more rigorous standard of proof for withholding of removal.”
Khrystotodorov v. Mukasey, 551 F.3d 775, 784 (8th Cir. 2008). Accordingly, we
affirm the BIA order dismissing the appeal and deny the petition for review.
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