Khan v. Attorney General of the United States

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-16-2007
Khan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1097
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1097
____________
IMRAN HABIB KHAN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A96 427 028)
Immigration Judge: Alberto J. Riefkohl
____________
Submitted Under Third Circuit LAR 34.1(a)
February 13, 2007
Before: SMITH and FISHER, Circuit Judges, and DIAMOND,* District Judge.
(Filed: February 16, 2007)
____________
OPINION OF THE COURT
____________
*
The Honorable Gustave Diamond, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.
Imran1 Habib Khan seeks review of the order of the Board of Immigration Appeals
(“BIA”) denying his applications for withholding of removal and protection pursuant to
the Convention Against Torture (“CAT”). For the reasons set forth below, we will deny
the petition.
I.
Because we write only for the parties, who are familiar with the factual and legal
background of this case, we will recite only those facts necessary to our review. Khan, a
native and citizen of Bangladesh, has been in the United States since 1993, initially as a
tourist and then on a student visa. After he left school for financial reasons, Khan was
placed in removal proceedings on June 12, 2003, for failure to comply with the conditions
of the nonimmigrant status under which he was admitted. At his September 24, 2004
hearing, Khan admitted the factual allegations and conceded removability. However, he
sought withholding of removal and protection under the CAT.
At his hearing, Khan argued that he had previously faced persecution in
Bangladesh and would more likely than not be persecuted again upon his return. He
premised this argument on several troubling incidents in Bangladesh. Khan stated that he
had returned to Bangladesh in 1997 to get married. While there, he received two or three
1
Khan’s name is spelled at least three different ways in the papers accompanying
his petition. Our review of the proceedings suggest the proper spelling is Imran.
Therefore we will use that spelling.
2
threatening phone calls from Muslim fundamentalists, who were part of a political party
known as Jama’at-e-Islam, warning that he would be killed for being an atheist. Khan did
nothing to respond to the calls. Khan returned to Bangladesh in 1999. He testified that
during the two-month period he was there, he was cursed at on the street, was refused
service in stores in his neighborhood, and received as many as three or four phone calls a
day threatening his life. He again claimed that the calls came from members of Jama’at-
e-Islam. On one occasion, someone threw a rock at Khan. He was not injured. After he
returned to the United States, his parents received two or three threatening calls for him,
calls which stopped when Khan’s parents informed the callers that Khan was no longer
staying with them. Since his return to the United States, Jama’at-e-Islam has regained
power in Bangladesh as part of a coalition with the Bangladesh Nationalistic Party. Khan
claimed before the Immigration Judge (“IJ”) and now claims before us that if he is
returned to Bangladesh, he will eventually be tortured or killed by Jama’at-e-Islam for
being an atheist.
At Khan’s September 24 hearing, the IJ determined that Khan had not met the
requirements for withholding of removal or protection under the CAT.2 While the IJ
found that throwing rocks can result in substantial injury, the single instance of rock
throwing did not amount to sufficient evidence for withholding of removal. Similarly, the
IJ determined that Khan had not addressed the issue but that, if he had, there was
2
Khan could not claim asylum as he had not filed for asylum within the one-year
time period. 8 U.S.C. § 1158. He does not appeal this determination.
3
insufficient evidence to support a claim that Khan would be tortured if returned to
Bangladesh. This timely petition for review followed.
II.
We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1). Our
review of a decision of the BIA is for substantial evidence, considering whether the
decision is “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)
(internal citations omitted). We will overturn the BIA’s factual findings only where any
reasonable finder of fact would be compelled to conclude otherwise. Abdille v. Ashcroft,
242 F.3d 477, 483 (3d Cir. 2001). Where, as here, the BIA has adopted wholesale the
reasoning of the IJ, we review the IJ’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549
n.2 (3d Cir. 2001).
Under the withholding of removal provision of the Immigration and Nationality
Act (“INA”), “the Attorney General may not remove an alien to a country if the Attorney
General decides that the alien’s life or freedom would be threatened in that country
because of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3). In order to qualify for withholding of
removal, an alien must establish by a “clear probability” that his freedom would be
threatened if he returned to his country of nationality. Zubeda v. Ashcroft, 333 F.3d 463,
469 (3d Cir. 2003). In other words, an alien must show that it is more likely than not that,
if returned, he would be subject to persecution. Toussaint v. Att’y General, 455 F.3d 409,
4
413 (3d Cir. 2006) (internal citations omitted). If an alien proves that he has suffered past
persecution, there is a rebuttable presumption that he will suffer future persecution.
Chavarria v. Gonzales, 446 F.3d 508, 520 (3d Cir. 2006).
Khan argues that the threats he received when in Bangladesh coupled with the
rock-throwing incident are sufficient to prove past persecution. We have previously held
that threats are sufficient to prove past persecution only in a very narrow set of
circumstances. “Threats standing alone . . . constitute persecution in only a small
category of cases, and only when the threats are so menacing as to cause significant actual
suffering or harm.” Li v. Att’y General, 400 F.3d 157, 164 (3d Cir. 2005) (internal
quotation marks and citations omitted). For example, in Li we determined that threats of
sterilization and physical violence were insufficient to form a basis for past persecution
where the threats were unfulfilled and were not particularly imminent or menacing.
Khan attempts to distinguish his case by arguing that, while the death threats may
have been unfulfilled, the incident where a rock was thrown at him proved that the threats
had escalated into violence. Based on this, he claims past persecution or, at least, fear of
future persecution should he return to Bangladesh. While we have held that unfulfilled
threats are properly addressed when considering whether an alien has a fear of future
persecution, id. at 165, the threats aimed at Khan and the rock-throwing incident are
insufficiently imminent and menacing to constitute past persecution or to create a fear of
future persecution. In Chavarria, for example, we found that death threats coupled with
an incident where the men who threatened the petitioner forced him into the trunk of his
5
car at gun and knife point and told him if they ever saw him again he “wouldn’t live to
tell about it,” was sufficient to prove persecution. 446 F.3d at 518. Here, while the
threats against Khan and the rock-throwing incident are reprehensible, they do not fall
within the “small category of cases” where the threats “are so menacing as to cause
significant actual suffering or harm.” Li, 400 F.3d at 164 (internal quotation marks and
citations omitted). See also Lim v. INS, 224 F.3d 929, 932-33 (9th Cir. 2000) (holding
that threats were insufficient to rise to the level of persecution where petitioner, with
police protection, lived six years in the Philippines after receiving death threats and
seeing colleagues being murdered one by one); Boykov v. INS, 109 F.3d 413, 417-18 (7th
Cir. 1997) (holding that threats did not rise to the level of persecution where petitioner
faced repeated threats by the communist party, petitioner’s friend was found murdered,
and the police told him that “now . . . it would be much easier for them to get rid of” him).
Therefore, the IJ did not err when determining that Khan had failed to prove fear of future
persecution.
6
III.
Alternatively, Khan argues that he should be allowed protection under the CAT.3
In order to qualify for protection under the CAT, an alien must prove that it is more likely
than not that he will be tortured if returned to his country of nationality. 8 C.F.R.
§ 208.16(c)(2); Gabuniya v. Att’y General, 463 F.3d 316, 321 (3d Cir. 2006). Torture is
defined as:
any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or her or a third person information or a confession, punishing him or her
for an act he or she or a third person has committed or is suspected of
having committed, or intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity.
8 U.S.C. § 208.18(a)(1); Gabuniya, 463 F.3d at 321.
Again, while the rock-throwing incident and the threats against Khan are
reprehensible, they are not sufficient to prove that it is more likely than not that Khan will
be tortured if returned to Bangladesh. Without more, Khan’s claims of unfulfilled threats,
3
Although the IJ stated that Khan had not addressed a CAT claim, Khan included
discussion of the CAT in his initial application for withholding of removal. In addition,
as evidenced by the BIA’s inclusion of Khan’s CAT claim in its short opinion, Khan’s
passing reference to protection under a torture convention in his brief to the BIA was
sufficient to alert the BIA to the fact that he was appealing the IJ’s CAT determination.
Joseph v. Att’y General, 465 F.3d 123, 125 (3d Cir. 2006) (“Under the liberal exhaustion
policy outlined in Bhiski [v. Ashcroft, 373 F.3d 363 (3d Cir. 2004),] and Yan Lan Wu [v.
Ashcroft, 393 F.3d 418 (3d Cir. 2005)], an alien need not do much to alert the Board that
he is raising an issue.”). This is sufficient for us to retain jurisdiction over Khan’s CAT
claim.
7
a single rock-throwing incident that did not injure him, and dirty looks on the street do
not constitute torture under the CAT.4 Therefore, there is substantial evidence to support
the IJ’s decision that it is not more likely than not that Khan will be tortured upon
returning to Bangladesh.
IV.
For the reasons set forth above, we will deny Khan’s petition for review.
4
The case on which Khan relies, In re O-Z & I-Z, 22 I & N Dec. 23 (BIA 1988), is
distinguishable, as the petitioner in that case was not simply threatened, but suffered
repeated beatings, had his apartment vandalized and personal property destroyed, and had
a son who was physically assaulted twice.
8