John Nasir v. Atty Gen USA

IMG-230 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2426
___________
JOHN NASIR, a/k/a Nasir Mehmoud Qureshi,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A089-086-455)
Immigration Judge: Honorable Mirlande Tadal
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 9, 2010
Before: MCKEE, Chief Judge, HARDIMAN AND COWEN, Circuit Judges
(Opinion filed: October 19, 2010)
_________
OPINION
_________
PER CURIAM
John Nasir petitions for review of the Board of Immigration Appeals’ (“BIA”)
final order affirming the Immigration Judge’s (“IJ”) denial of Nasir’s application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). For the reasons that follow, we will deny the petition for review.
I.
Nasir, a 35-year-old native and citizen of India, entered the United States in June
2008 and was placed in removal proceedings for not possessing a valid travel document at
admission. Nasir conceded removability and applied for asylum, withholding of removal,
and relief under the CAT. In a hearing before the IJ, Nasir testified that following his
conversion from Islam to Christianity, he had been harassed and threatened. He testified
that his godfather and business associate, a man who had also converted to Christianity,
was murdered in June 2006 on account of his conversion. Nasir testified that he feared
returning to India because the Indian government fails to protect Christian converts who
are attacked by Muslims.
The IJ determined that the threatening incidents experienced by Nasir — an armed
man breaking into his family’s house in 2006 and a stranger grabbing his arm and yelling
“murtad” in 2007 — were insufficient to rise to the level of past persecution or to ground
an objectively well-founded fear of future persecution based on religion. The IJ further
found that Nasir’s claim of fear of future persecution was undermined by the fact that,
after traveling to the United States for three months, Nasir returned to live in India from
May 2007 to June 2008 without experiencing any serious harm. Furthermore, Nasir
testified that the reason that he traveled to the United States for a second time in June
2
2008 was in order to join a mission in Colorado, not to flee active harassment. After
finding there was no evidence in the record to support Nasir’s fear that he would be killed
for converting, the IJ denied Nasir’s applications for relief and ordered him excluded.
Nasir appealed, submitting additional background reports with his appellate brief to the
BIA. In an order dated April 15, 2009, the BIA denied Nasir’s appeal, agreeing with the
IJ’s reasoning. The BIA additionally observed that Nasir could avoid the violence by
moving to parts of India where Christians are not in danger. Treating the additional
background materials as a motion to remand, see 8 C.F.R. § 1003.2(c)(4), the BIA
declined to restart the proceedings, concluding that “the background evidence submitted
does not show that the Indian government or individuals that the government is unable or
unwilling to control currently persecute Indian citizens who convert to Christianity even
in the Kashmir region.” (See BIA Dec. at 2.) Nasir filed a timely petition for review.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a).
Where “the BIA both adopts the findings of the IJ and discusses some of the bases for the
IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.”
Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). Our review is for substantial
evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005). Under this deferential
standard of review, we must uphold the agency’s findings “unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-
3
84 (3d Cir. 2001). We review the denial of a motion to reopen or remand for abuse of
discretion. See Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir. 2009).
Substantial evidence supports the BIA’s and IJ’s decisions. Nasir argues that the
IJ and BIA failed to consider his testimony “within the larger context of persecution”
against Christians in India based on the Department of State’s Country Conditions
Report.1 (See Pet. Br. at 11.) The record does not support this argument. See, e.g., A.R.
290 (the IJ expressly considering the country conditions). As for the evidence that Nasir
submitted to the BIA along with his appeal, see A.R. 20, 140-233, we agree with the BIA
that the submitted evidence “does not show that the Indian government or individuals that
the government is unable or unwilling to control currently persecute Indian citizens who
convert to Christianity even in the Kashmir region.” (See BIA Dec. at 2.) Accordingly,
we find that the BIA did not abuse its discretion in denying a remand to the IJ to consider
the newly submitted evidence.
Substantial evidence supports the conclusion that the harm suffered by Nasir does
not constitute past persecution. Threats constitute past persecution “in only a small
category of cases, and only when the threats are so menacing as to cause significant actual
1
In support of his claim, Nasir cites the 2009 Annual Report prepared by the
United States Commission on International Religious Freedom. (See Pet. Br. at 13.) We
note that this evidence was not submitted to the IJ or to the BIA, as it is not contained in
the Administrative Record; thus the IJ and the BIA could not have erred for failing to take
it into consideration. See 8 U.S.C. § 1252(b)(4)(A) (limiting review to the administrative
record).
4
‘suffering or harm..’” Li v. Att’y Gen. of the U.S., 400 F.3d 157, 164 (3d Cir. 2005)
(quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000)). The threats in this case —
showing up at Nasir’s house while he was not present — were never acted upon and did
not cause Nasir any physical injury. The incident in which a man grabbed Nasir’s arm
and yelled “murtad” at him also does not rise to the level of persecution.
Additionally, substantial evidence supports the BIA’s determination that Nasir did
not establish that he had a well-founded fear of future persecution if he returned to India.
While he testified that anyone who leaves Islam and converts to Christianity is punished
by death, he provided no evidence to support that contention. As the IJ emphasized, the
2006 Country Report states that 2.3 percent of India’s population is Christian and that the
government generally respects the constitution’s provision for freedom of religion. (See
A.R. 290, 384-85.) 2
For the above reasons, we will deny the petition for review.
2
Because Nasir has not established his eligibility for asylum, he cannot satisfy the
higher burden of proof for withholding or removal. See Shehu v. Att’y Gen., 482 F.3d
652, 657-58 (3d Cir. 2007). Nor is Nasir eligible for relief under CAT, as he failed to
show that he would likely be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2).
5