Irfan Ali v. U.S. Attorney General , 931 F.3d 1327 ( 2019 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14332
Non-Argument Calendar
________________________
Agency No. A209-339-475
IRFAN ALI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(August 5, 2019)
Before TJOFLAT, ROSENBAUM, and JULIE CARNES, Circuit Judges.
TJOFLAT, Circuit Judge:
The petitioner in this case asks us to review the Board of Immigration
Appeals’s (the “Board’s”) denial of his asylum, withholding-of-removal, and
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Convention Against Torture (“CAT”) claims. To effectively conduct our review,
we must be left with the conviction, based on the record before us, that the Board
has considered and reasoned through the most relevant evidence of the case.
Because the Board has not left us with that conviction here, we grant the petition
for review, vacate the Board’s decision, and remand the case to the Board for
further consideration.
I.
Petitioner Irfan Ali is a Pakistani Ahmadi—that is, a practitioner of
Ahmadiyya Islam. 1 The Department of Homeland Security initiated removal
proceedings against Ali on the grounds that he entered the United States without a
valid entry document and without being admitted or paroled by an immigration
officer. During those proceedings, Ali sought asylum and withholding-of-removal
relief under the Immigration and Nationality Act (the “INA”), as well as relief
under the CAT. See 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 208.16.
The INA authorizes the Attorney General to grant asylum to any alien
determined to be a “refugee” as defined by the statute. 8 U.S.C § 1158(b)(1)(A).
Under the statute, a “refugee” is “one who is unable or unwilling to return to his or
1
The principal difference between Ahmadiyya Islam and Sunnism, the Muslim majority
sect, centers on the identity of the reformer that the Prophet Muhammad foretold would appear
after him.
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her home country 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.” Id. § 1101(a)(42)(A).
To make out an asylum claim, an applicant must establish either past
persecution or a well-founded fear of future persecution. Sama v. U.S. Att’y Gen.,
887 F.3d 1225, 1231 (11th Cir. 2018); 8 C.F.R. § 208.13(b). This second basis for
relief can be met either by coming forth with applicant-specific evidence or by
showing, broadly speaking, the applicant’s affiliation with a group that is subject to
a “pattern or practice” of persecution (otherwise known as group persecution). 8
C.F.R. § 208.13(b)(2)(iii). In all cases, the persecution must be “‘by government
forces’ or ‘by non-government groups that the government cannot control.’”
Sama, 887 F.3d at 1231−32 (quoting Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948
(11th Cir. 2010)).
Ali alleged past persecution and a well-founded fear of future persecution,
both individually and as a member of a group: He himself was forced to worship in
secret when he lived in Pakistan, and all Pakistani Ahmadis must hide their
religious practice because they face violence and because open worship of the
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religion is criminal.2 The Immigration Judge (“IJ”) rejected each claim, and Ali
appealed the decision to the Board.3
The Board dismissed Ali’s appeal on the asylum claim. Because he was
able to regularly attend his mosque and to serve as a youth organizer for Ahmadis
in his community, the Board found insufficient evidence of past persecution.
Basing its decision largely on the same evidence, the Board likewise found
insufficient evidence of a well-founded fear of future persecution. To be sure, it
acknowledged some contrary evidence in the record, particularly as it related to
Ali’s group-persecution claim. It found, for example, that Pakistani Ahmadis may
not refer to themselves as Muslims or to their places of worship as mosques and
may not sell their religious literature. It also found that they are victims of both
blasphemy accusations and violence. Nonetheless, the Board pointed to efforts by
the Pakistani state to protect Ahmadis from both. So considering these efforts,
2
The Government asserts that Ali has waived his group-persecution claim by failing to
brief the issue on appeal. We disagree. Proceeding pro se, Ali argues that Ahmadis face harsh
circumstances in Pakistan, that they cannot worship openly in the country, and that they must
hide themselves “in every aspect of life” because their practices violate the Pakistani constitution
and criminal code. This argument is enough for us to evaluate his group-persecution claim. Cf.
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (“Pro se pleadings are held
to a less stringent standard than pleadings drafted by attorneys and will, therefore, be liberally
construed.”).
3
We do not summarize the IJ’s findings of fact or conclusions of law because when
assessing a petition for review, we review only the Board’s decision, except to the extent it
“expressly adopts” the IJ’s opinion. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001).
Here, we review only the Board’s decision because the Board independently analyzed the IJ’s
decision in a four-page opinion.
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alongside the fact that Pakistani law guarantees the free exercise of religion, as
well as the fact that Ali practiced his religion, the Board rejected Ali’s asylum
claim. Because withholding of removal has a stricter evidentiary standard than
asylum, 4 the Board rejected that claim, too. And because Ali did not appeal his
CAT claim, the Board deemed it waived. 5
In his brief to the Board, however, Ali flagged specific evidence, ignored by
the IJ, that contradicted the IJ’s decision to deny him asylum and withholding-of-
removal relief. We discuss that evidence in broad strokes now but reserve the
details for our analysis. See infra Part III. For example, though Ali was able to
attend his mosque for a while, that mosque was eventually shut down due to threats
of violence against its attendants that went unaddressed by the police. Once the
mosque was closed, “he was no longer able to pray there and instead had to pray in
secret outside of town.” The IJ’s decision was therefore problematic, Ali argued,
because our cases recognize that “being forced to practice one’s faith in secret
4
Compare 5 C.F.R. § 208.13 (imposing a “credible fear” standard for asylum), with id.§ 208.16(b)(2) (imposing a “more likely than not” standard for withholding of removal); see also
Djonda v. U.S. Att’y Gen., 514 F.3d 1168, 1177 (11th Cir. 2008) (stating that withholding of
removal is a “higher standard”).
5
So do we. We have jurisdiction to review final orders of the Board only when an alien
has exhausted “all administrative remedies available to the alien as of right.” 8 U.S.C.
§ 1252(d)(1). And “when a petitioner has neglected to assert an error before the [Board] that he
later attempts to raise before us, the petitioner has failed to exhaust his administrative remedies.”
Jeune v. U.S. Att’y Gen., 810 F.3d 792, 800 (11th Cir. 2016) (citation omitted). Having reviewed
Ali’s brief, we conclude, as did the Board, that Ali did not raise his CAT claim on appeal. We
thus lack jurisdiction to consider it here.
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amounts to persecution.” Similarly, though the Board echoed the IJ’s finding that
Pakistani Ahmadis were constitutionally protected, Ali argued that they were
“excluded from these alleged constitutional ‘guarantees.’” He then cited specific
examples that supported his position, including Ahmadis’ inability to openly
practice their religion, to propagate their religion, to convene for religious
gatherings, to perform a pilgrimage, to vote, to build mosques, and to pray in
certain manners.
In summary, the IJ ignored specific evidence that Ali brought to its attention,
and on appeal, the Board ignored that same evidence. Ali now petitions us to
review the Board’s decision.
II.
To enable our review, the Board must “give ‘reasoned consideration’” to an
applicant’s claims and “make ‘adequate findings.’” Tan v. U.S. Att’y Gen., 446
F.3d 1369, 1374 (11th Cir. 2006) (quoting Morales v. INS, 208 F.3d 323, 328 (1st
Cir. 2000)). We assess the Board’s compliance with this mandate through
something our cases have come to call a reasoned-consideration examination. See,
e.g., Bing Quan Lin v. U.S. Att’y Gen., 881 F.3d 860, 874 (11th Cir. 2018).
Whether the Board has afforded a petition reasoned consideration is a question we
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review de novo.6 Id. Because the reasoned-consideration requirement has
garnered significant attention in our recent cases, 7 we take a moment to explain it.
Though we review the Board’s legal conclusions de novo and its factual
findings for substantial evidence, Sama, 887 F.3d at 1231, we are sometimes
prevented from performing that review in the first place. This is so because our
review of the Board’s decisions operates on a simple premise: The Board has
reached a decision only after having evaluated the entire evidentiary record. When
the Board has not convinced us that it has done so, as is the case when we remand
for a lack of reasoned consideration, we hold that the decision is incapable of
review and thus do not proceed to analyze the Board’s legal or factual conclusions.
Thus,
when we remand for lack of reasoned consideration, it is not because
we have reviewed [the Board’s] decision and disagreed with its legal
conclusions and factual findings. Rather, we have determined that,
given the facts and claims in the specific case before the IJ and the
[Board], the agency decision is so fundamentally incomplete that a
review of legal and factual determinations would be quixotic.
Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1302 (11th Cir. 2015) (citation
omitted).
6
On finding a lack of reasoned consideration, we grant the petition for review, vacate the
Board’s decision, and remand the case for further proceedings. Jeune, 810 F.3d at 803.
7
See Bing Quan Lin, 881 F.3d at 874; Jeune, 810 F.3d at 803; Indrawati v. U.S. Att’y
Gen., 779 F.3d 1284, 1302 (11th Cir. 2015); Min Yong Huang v. Holder, 774 F.3d 1342, 1349
(11th Cir. 2014).
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To generate grounds for reviewability in this Court, the Board does not need
to do much. We just need to be left with the conviction that the Board “has heard
and thought [about the case] and not merely reacted.” Min Yong Huang v. Holder,
774 F.3d 1342, 1349 (11th Cir. 2014) (alteration adopted) (quoting Tan, 446 F.3d
at 1374); see also Bing Quan Lin, 881 F.3d at 874 (“What is central to a showing
of reasoned consideration is that the reasoning of the [IJ] and the [Board] is logical
and can be reviewed for error.”). For this reason, we have repeatedly emphasized
that although the Board “must consider all the evidence submitted,” Indrawati, 779
F.3d at 1302, it “need not address specifically . . . each piece of evidence the
petitioner presented,” id. (quoting Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th
Cir. 2013)).
We have sustained reasoned-consideration claims in three types of
circumstances: when the Board “misstates the contents of the record, fails to
adequately explain its rejection of logical conclusions, or provides justifications for
its decision which are unreasonable and which do not respond to any arguments in
the record.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 803 (11th Cir. 2016). The
first of these three circumstances, involving the “contents of the record,” clearly
relates to the evidence amassed before the Board, but so do the other two
circumstances. Indeed, the failure both to explain the rejection of logical
conclusions and to provide reasonable justifications for decisions each flow from
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some irreconcilable tension between the opinion and the record evidence. All
failures to give reasoned consideration thus share a common trait: The Board’s
opinion, read alongside the evidentiary record, forces us to doubt whether we and
the Board are, in substance, looking at the same case.
We emphasize today—just as we have in the past—that to write a
reviewable decision, the Board does not need to discuss all record evidence. In
some cases, however, it is practically impossible for the Board to write a
reviewable decision without discussing “highly relevant” evidence. See Min Yong
Huang, 774 F.3d at 1349. In simplest terms, this situation arises when the record
would compel a different outcome, absent the discussion of certain evidence. Cf.
Shi v. U.S. Att’y Gen., 707 F.3d 1231, 1234 (11th Cir. 2013) (stating that we
reverse on substantial-evidence review when the record “compels” a conclusion
contrary to that reached by the Board (quoting Imelda v. U.S. Att’y Gen., 611 F.3d
724, 728 (11th Cir. 2010))). So unless the Board discusses that evidence, the
Board “fails to adequately explain its rejection of logical conclusions,” thus
rendering the decision incapable of review. See Jeune, 810 F.3d at 803.
With that standard in mind, we turn to the Board’s assessment of Ali’s
religious-persecution claims.
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III.
Persecution, we have said, is an “extreme concept that does not include
every sort of treatment that our society regards as offensive.” Min Yong Huang,
774 F.3d at 1346−47 (quoting Shi, 707 F.3d at 1235). We have noted that it
requires “more than a few isolated incidents of verbal harassment or intimidation.”
Id. at 1347 (quoting Shi, 707 F.3d at 1235). And we have explained that it must be
evaluated “cumulatively.” Id. At the end of the day, however, what constitutes
persecution is determined by the “totality of the circumstances on a case-by-case
basis.” Id. Though this standard might want for clarity, a core principle animates
our religious-persecution cases: An applicant is a victim of religious persecution
when he cannot practice his religion openly. See Kazemzadeh v. U.S. Att’y Gen.,
577 F.3d 1341, 1354 (11th Cir. 2009) (“[H]aving to practice religion underground
to avoid punishment is itself a form of persecution.” (citing Muhur v. Ashcroft, 355
F.3d 958, 960–61 (7th Cir. 2004) (Posner, J.))).
The Board assures us that Ali’s treatment, and that of Ahmadis in Pakistan
generally, is “harassment, not persecution.” It supports its denial of Ali’s claims
with two overarching findings: (1) Pakistani law guarantees the free exercise of
religion, and (2) Ali himself freely practiced Ahmadiyya Islam when he was still
living in Pakistan. This reasoning falters in light of the record, however, which
seems to “compel[]” a contrary conclusion. See Shi, 707 F.3d at 1234 (quoting
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Imelda, 611 F.3d at 728). Because the Board has not discussed “highly relevant”
evidence, however, see Min Yong Huang, 774 F.3d at 1349, we cannot yet conduct
substantial-evidence review.
The Board determined that “Pakistani law guarantees the right to the free
exercise of religion and allows for the profession and practice of one’s faith.” But
this conclusion is illogical in light of the record. The record contains significant
evidence that (1) contrary to the Board’s finding, de jure persecution does exist
and (2) even if it did not, de facto persecution does. For example, though
Pakistan’s constitution provides that “every citizen shall have the right to profess,
practice, and propagate his religion,” its penal code bans Ahmadis from preaching
or propagating their religious beliefs. Even if there were no inconsistencies in the
laws, moreover, the record is replete with evidence that undercuts any nominal
guarantee of religious freedom.
Take as just one obvious example blasphemy. The record indicates that
Pakistan’s anti-blasphemy laws prohibit Ahmadis from professing core tenets of
their faith by making it a crime to defile the Prophet Muhammad and by
interpreting a central tenet of the Ahmadi faith as doing so.8 In fact, the record
suggests that both the Pakistani state and the public use the anti-blasphemy laws to
8
In Pakistan, “defiling Prophet Muhammad” can earn you the death sentence, and
“defiling, damaging, or desecrating the Quran” can earn you life imprisonment.
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specifically target, harass, and abuse Ahmadis: Though Ahmadis constitute less
than five percent of the population, they represent nearly forty percent of those
arrested for blasphemy.
That’s hardly all. Look at this evidence that gets not one iota of treatment in
the Board’s opinion:
• The Pakistani state interferes with Ahmadi places of worship. The state
has “seal[ed] or demolish[ed] Ahmadiyya mosques, barred construction
of new mosques, and [taken] no action to prevent or punish assailants
who demolished, damaged, forcibly occupied[,] or set Ahmadiyya
mosques on fire.” Ali, whose credibility the Board affirmed, testified
that even within the mosques, Arabic verses were not permitted to be
written on the walls and that the police would remove those writings
when they were present.
• The Pakistani state interferes with Ahmadi religious texts. The
“publication of religious texts” and “importation of sacred books” is
permitted—“except for Ahmadis.” Ali testified that Ahmadis were not
permitted to carry or to recite from the Quran.
• The Pakistani state interferes with an Ahmadi pilgrimage. Ali testified
that the Hajj is a “very important pillar of Islam for any Muslim.” But
Ahmadis were unable to complete the Hajj because securing a passport
requires an applicant “to list religious affiliation and denounce the
Ahmadiyya prophet.”
• The Pakistani state imposes penal violations on Ahmadis for preaching or
proselytizing their religious beliefs. Ali testified, moreover, that
preaching is “part of [Ahmadis’] religion.”
• The Pakistani state’s treatment of Ahmadis carries over to the polling
place. Ahmadis are “kept on a separate voter list” and “physically
intimidated while trying to vote.”
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The Board merely states that “Ahmadiyya Muslims are prohibited from identifying
themselves as Muslims, from referring to their places of worship as mosques, and
from selling Ahmadiyya literature, among other things.” Here’s the problem: We
expect the Board to “list[] the basic facts of the case.” See Bing Quan Lin, 881
F.3d at 874. The Board’s failure to mention any of these five pieces of “highly
relevant” evidence, see Min Yong Huang, 774 F.3d at 1349, undermines our belief
that it “has heard and thought and not merely reacted,” id. (quoting Tan, 446 F.3d
at 1374 (alteration adopted)).9 More specifically, when the Board fails to explain
why interference with place of worship, text of worship, ritual of worship, and
tenets of worship does not rise to the level of persecution, it “fails to adequately
explain its rejection of logical conclusions.” See Jeune, 810 F.3d at 803.
The Board also rested its decision on the fact that, putting Pakistani law
aside, Ali while living in Pakistan “was able to freely practice his religion.” Yet
this conclusion, too, is illogical in light of the record. The Board reasoned that Ali
attended mosque and served as a youth organizer, a role through which he taught
young community members about the faith. But it wholly ignored Ali’s own
9
Because the Board need not “write an exegesis on every contention,” Min Yong Huang,
774 F.3d at 1349 (alteration adopted) (quoting Vergara-Molina v. INS, 956 F.2d 682, 685 (7th
Cir. 1992)), we do not raise all record evidence that the Board failed to address. So we suggest
neither that this evidence is the only evidence that might compel a conclusion contrary to the
Board’s decision nor that no other record evidence supports the Board’s decision.
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testimony—testimony the IJ found to be credible and testimony the Board did not
discredit.
Ali testified that after converting, he kept his religion a secret for years and
that it was difficult to practice his faith because Ahmadis were forced to pray “in
hiding” in a “secret place” that was “away from the public eye.” Other Muslims
would kill Ahmadis if they practiced in public, and due to threats against the
community, Ahmadi women and children could not attend their mosques. For
example, the mosque Ali regularly attended faced security threats, and in his
youth-organizing capacity, he was responsible for creating a security plan to
protect the group’s members. In line with that plan, the members would divide
into groups of ten to twelve and pray inside different houses, while several other
members acted as lookouts. Alternatively, they would pray in hiding at a
member’s farm outside the city. Considering this testimony, the Board’s
conclusion that Ali does not have a religious-persecution claim is downright
befuddling. After all, “having to practice religion underground to avoid
punishment is itself a form of persecution,” Kazemzadeh, 577 F.3d at 1354, and the
“logical conclusion[]” is that Ali was forced to do just that, see Jeune, 810 F.3d at
803.
All in all, the Board’s opinion in this case is a classic example of a decision
that is incapable of review due to a lack of reasoned consideration. Its failure to
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discuss “highly relevant” evidence, see Min Yong Huang, 774 F.3d at 1349, leads
to illogical conclusions—ones that cast doubt on whether the Board considered that
evidence in the first place. For this reason, we grant Ali’s petition for review,
vacate the Board’s decision, and remand the case for further proceedings.
This evidence does not compel a finding of persecution, though the Board is
certainly free to conclude as much on remand. But the evidence must be wrestled
with. The Board can explain why it accords certain highly relevant evidence less
weight than other evidence—or why it discredits that evidence altogether. Or it
can explain why the evidence does not meet the legal standard of religious
persecution. In conclusion, the Board wields wide discretion on how to proceed on
remand, and we today express no opinion on the merits. We simply hold that the
Board’s decision, read alongside the record, considered alongside our religious-
persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the
consideration of his claims that the law requires.
IV.
Because the Board has not afforded this case reasoned consideration, and
because we will not substitute our own reasoning for that of the Board, we
GRANT Ali’s petition for review, VACATE the Board’s decision, and
REMAND the case to the Board for further consideration of Ali’s asylum and
withholding-of-removal claims.
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