Sultana v. INS

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0060n.06
Filed: January 26, 2005
Nos. 02-4415/4416/4417
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GHULAM MEHBOOB, et. al., )
)
Petitioners, ) ON PETITION FOR REVIEW
) OF AN ORDER OF THE
v. ) BOARD OF IMMIGRATION
) APPEALS
IMMIGRATION AND NATURALIZATION )
SERVICE, )
) OPINION
Respondent. )
BEFORE: COLE, ROGERS, Circuit Judges; COHN, District Judge.*
R. GUY COLE, JR., Circuit Judge. This is an appeal from the Board of Immigration
Appeals’ (“BIA”) decision to affirm, without opinion, the decision of an Immigration Judge (“IJ”)
who denied the asylum and withholding of removal claims under the Convention Against Torture
(“Torture Convention”) of the petitioner, his wife, and their daughter. For the reasons discussed
below, we DENY the petition for review.
I. BACKGROUND
In May 1994, the lead petitioner, Ghulam Mehboob, his wife, and their daughter entered the
United States from Bangladesh via Canada, with the assistance of a smuggler. Because the
petitioner and his family entered without inspection, the Immigration and Naturalization Service
*
The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
initiated removal proceedings against them. The petitioner admitted deportability but filed
applications for asylum and withholding of removal under the Immigration and Nationality Act, and
withholding of removal under the Torture Convention, based on Mehboob’s alleged hardships in
Bangladesh. In the alternative, Mehboob requested voluntary departure. The immigration status
of Mehboob’s wife and daughter depend upon his status.
Mehboob claims that he was an active member of the Jatiyo Party in Bangladesh for
approximately eight years, attending weekly meetings and monthly rallies. Although Mehboob did
not describe the goals of his party in detail, it is clear that the Jatiyo Party was an opponent of the
Bangladesh National Party (“BNP”), which was in power in 1994.
According to Mehboob, he attended a large protest rally on March 3, 1994, and was in front
of his group when he was shot in the chest. Mehboob did not see who shot him but believes that it
was the BNP. After he returned home from the hospital, Mehboob claims that BNP activists and
police officers came to his home approximately three times a month to harass him. However, he was
not present during any of these visits; instead, he learned about the visits through relatives and other
Jatiyo Party members. Mehboob also told the IJ that members of the BNP would throw stones at
him when he traveled home from work, would stop potential customers from entering his grocery
store, and would verbally harass him and his wife, threatening to kill him if he continued to support
the Jatiyo Party.
On March 30, 1994, Mehboob’s grocery store burned down. Mehboob alleges that his
brother told him that he saw members of the BNP set fire to the store, although Mehboob did not
submit any such statements from his brother. Mehboob admits that he did not tell the police about
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the fire because he was afraid of contacting them. Shortly thereafter, Mehboob and his family fled
Bangladesh.
During the removal proceedings, Mehboob testified that he fears returning to Bangladesh
because he believes that the faction of the Jatiyo Party with which he was associated is currently
being suppressed by the Awami League (the group in power as of the hearing), and that the league
is using a “special order” division to arrest and harass people at any time without any standards.
Mehboob claimed that since the Awami League came into power, the Jatiyo Party and the BNP have
formed an alliance in opposition to the league. Mehboob told the IJ that if he were to return to
Bangladesh, he would resume his political activity and that would put him in danger of persecution.
Mehboob did not present any specific evidence to support his depiction of the current
political status of Bangladesh, aside from his own testimony which relayed information he obtained
from phone calls with friends and relatives in Bangladesh. The parties submitted to the IJ a 2000
Country Report for Bangladesh produced by the State Department, which made no mention of the
persecution of any Jatiyo Party members that year, and a 1998 Profile Report containing the
Department’s opinion that it does “not believe that a vast majority of Jatiyo Party members, or
members of any other Bangladeshi political parties, would be targeted for mistreatment on account
of their political affiliation upon their return to Bangladesh.” The report does indicate that members
of the BNP might be currently persecuted by the Awami League. Mehboob’s response was that the
1998 report relates old information and that the situation in Bangladesh, according to his relatives,
is quite different today. Nevertheless, the IJ was not convinced by Mehboob’s response to the State
Department reports.
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The IJ determined that Mehboob had not sufficiently established that he suffered past
persecution, and that even if he had, the political conditions have changed in Bangladesh since
Mehboob fled because the BNP, which is the party that Mehboob claims persecuted him, is no
longer in power. The IJ concluded that the Awami League is currently in power in Bangladesh and
that the Jatiyo Party (Mehboob’s party) is a member of the League. Thus, the IJ found that
Mehboob would not fear future persecution if returned to Bangladesh because his party is now in
a position of power. The IJ also found that Mehboob was not more likely than not to be tortured if
he returned to Bangladesh. Accordingly, the IJ denied both the asylum petition and the petition for
withholding of removal under the Act and the Torture Convention. This appeal followed.
Petitioner now argues: (1) that the BIA violated his due process rights by summarily
affirming the IJ’s decision without writing a separate opinion; and (2) that the IJ erred in finding that
Mehboob did not prove that he suffered past persecution and would suffer future persecution if he
returned to Bangladesh.
II. ANALYSIS
A. BIA’s Affirmance Without Opinion
In an effort to streamline BIA workload, the Attorney General adopted the affirmance
without opinion (“AWO”) procedure in 1999. Under 8 C.F.R. § 1003.1(e)(4), the BIA may choose
for a single Board member to review an appeal from an IJ’s decision, rather than the usual three-
member review. The regulation requires the single Board member to issue an AWO if:
[T]he Board member determines that the result reached in the decision under review
was correct; that any errors in the decision under review were harmless or
nonmaterial; and that (A) The issues on appeal are squarely controlled by existing
Board or federal court precedent and do not involve the application of precedent to
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a novel factual situation; or (B) The factual and legal issues raised on appeal are not
so substantial that the case warrants the issuance of a written opinion in the case.
Id. Petitioner initially argued that the AWO procedure itself violates due process because a
boilerplate opinion by the BIA fails to provide applicants with a rational explanation of the BIA’s
denial and is therefore always an abuse of discretion. However, after petitioner filed his opening
brief, we decided this very issue in Denko v. I.N.S., 351 F.3d 717 (6th Cir. 2003), and upheld the
AWO procedure. This Court stated that:
[I]t is not a due process violation for the BIA to affirm the IJ’s decision without
issuing an opinion . . . [e]ven if the BIA would view the factual and legal issues
differently from the immigration judge, the summary-affirmance-without-opinion
rule renders the IJ’s decision the final agency order, and we review that decision . .
. . Moreover, in functional terms, if the BIA does not independently state a correct
ground for affirmance in a case in which the reasoning proffered by the IJ is faulty,
the BIA risks reversal on appeal . . . Thus, we are not forced to guess at the rationale
of the BIA, but instead we evaluate the IJ’s explanation as that of the Board . . .
Id. at 730 (internal quotations omitted). Consequently, petitioner conceded that the AWO procedure
is facially valid. However, he argues that the BIA improperly invoked the AWO procedure in his
case, because his case involved substantial factual issues.
As we will explain in Part B., the IJ’s findings, that Mehboob did not prove past persecution
and that the conditions in Bangladesh have fundamentally changed since Mehboob fled, are not
based on factual issues that are so substantial as to warrant a written opinion by the BIA. Moreover,
the IJ’s decision was correct, and any errors that the IJ may have committed are harmless or
nonmaterial. Because the facts and legal issues presented by Mehboob’s case fit squarely within the
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boundaries of 8 C.F.R. § 1003.1(e)(4), the BIA properly invoked the summary affirmance procedure
in this case.
B. Petitioner’s Asylum Claim
Because the BIA summarily affirmed the IJ’s decision, we must look to the reasoning
articulated in the IJ’s opinion. Denko, 351 F.3d at 723. An applicant may obtain asylum under
Section 208(a) of the Immigration and Nationality Act if he shows that he is a “refugee,” meaning
that he is unwilling or unable to return to his 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.” 8 U.S.C. § 1101(a)(42). The applicant must establish that he has
both a subjective and objective fear of persecution. Ivezaj v. I.N.S., 84 F.3d 215, 221 (6th Cir.
1996). The standard for reviewing the IJ’s factual findings is deferential: factual findings are
conclusive, unless the court determines that the evidence is “so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 478,
484 (1992).
1. Past Persecution
Mehboob claims that substantial evidence supports his fear of persecution because he was
shot while protesting the government, his grocery store was burned down, and he had many
unwelcome visits by the BNP/police. The IJ, however, found Mehboob’s evidence of these events
to be insufficient.
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First, the IJ noted that Mehboob did not see or have any personal knowledge of who shot him
at the protest rally, and he failed to provide any documents from eyewitnesses supporting his claim
that a BNP member shot him. Although Mehboob provided letters from a doctor confirming that
Mehboob had suffered from a bullet wound, the IJ determined that this evidence proved only that
Mehboob had been shot, not who shot him. The IJ found Mehboob’s bare assertion that the person
who shot him must have been a BNP member to be vague and lacking in credibility.
Mehboob argues that the IJ required an unreasonable amount of corroboration, particularly
because the IJ asked Mehboob the name of the person who shot him, the name of a fellow protestor
who was also shot, as well as the type of gun that was used to shoot him. While it may well be
unreasonable to require these particular details, it is not unreasonable for the IJ to try to elicit some
corroboration for Mehboob’s claim by asking him specific questions. This is particularly true when
the petitioner did not supply any evidence to support directly his claim of persecution. Here,
Mehboob presented no evidence suggesting that he was a target at the rally, or that it was a BNP
member who shot him. Given that the only proof that the IJ had before him was that Mehboob was
shot during a political rally, we are not compelled to find that the shooting is evidence of the BNP’s
persecution of Mehboob.
The IJ also found that Mehboob did not supply sufficient evidence to prove that his grocery
store was burned down by the BNP and that he was harassed at home by the BNP or the police. In
support of the claim regarding the store, Mehboob offered two brief letters written by individuals
in Bangladesh, essentially stating that Mehboob’s shop was burned by his “political rivals/enemies.”
The IJ found that the letters lacked credibility and were ultimately unpersuasive because neither of
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them explained how the authoring individuals had obtained their information, whether through
personal knowledge or rumors. Additionally, both letters contained the exact same language,
including the same grammatical errors, causing some doubt regarding the veracity and independence
of their inception. Mehboob also told the IJ that his brother saw the BNP burn down the grocery
store; however, Mehboob provided no corroborating evidence by his brother even though his brother
lives in Italy and was by all accounts reachable. In sum, Mehboob presented no direct evidence
linking the BNP with the burning of his store, save for the brief letters which lack credibility and
contain little detail. Therefore, as for Mehboob’s contention that the BNP burned down his store,
there is simply not enough evidence in the record to compel us to find that the BNP persecuted
Mehboob in this instance.
Similarly, the IJ determined that Mehboob failed to demonstrate that he was harassed by the
BNP, because he was not present during their purported visits to his home, and because he failed
to provide corroborating evidence from his uncle, who Mehboob claims was present. The IJ
determined that Mehboob’s testimony was “pure unadulterated speculation,” because his statements,
even if true, indicated no personal knowledge that the BNP visited his home to harass him.
Mehboob failed to present sufficient evidence on this point, as his evidence largely revolves around
his own testimony, that he heard from others that members of the BNP attempted to visit his home.
The IJ might have viewed the petitioner’s testimony and evidence in a more favorable light.
However, the question before us is not whether the IJ could have found for the petitioners, but
rather, whether “no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-
Zacarias, 502 U.S. at 484. Aside from his own testimony, which was largely devoid of any personal
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knowledge of who caused the alleged acts of persecution, Mehboob did not present the type of
evidence which would compel this Court to reverse the IJ’s factual determinations. Accordingly,
we affirm the IJ’s findings that Mehboob did not present sufficient evidence to prove that he was
persecuted in Bangladesh.
2. Future Persecution
Because Mehboob failed to establish past persecution, there is no presumption in his favor
regarding future persecution under 8 C.F.R. § 208.13. Here, the IJ found that even assuming a
presumption of a well-founded fear of future persecution, such a presumption would have been
rebutted by the evidence presented by the State Department’s 2000 Country Report. The Country
Report indicated that the government in Bangladesh has changed since 1994, and that the Awami
League coalition party took over in 1996, of which Mehboob’s Jatiyo Party was a member. Nothing
in the Country Report indicates that members of the Jatiyo Party have been persecuted by the
Awami League since this time, although the report does indicate that the Awami League may now
be persecuting members of the BNP. Therefore, in light of these political changes, petitioner has
not carried his burden of proving that he has a well-founded fear of persecution if he were to return
to Bangladesh.
Petitioner argues that there has been only a temporary change in leadership in Bangladesh,
not a fundamental change in the widespread practice of persecuting opponents of the incumbent
leadership. Therefore, Mehboob argues that, as soon as a party which opposes the Jatiyo is in place,
he could easily be persecuted. This analysis is not sufficient to support a finding of a well-founded
fear of future persecution, because Mehboob’s claim of future persecution is based solely on
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speculation of what might happen in the political structure of Bangladesh sometime in the future.
The immigration laws require a highly specific showing to be made by the asylum-seeker. See, e.g.,
M.A. v. INS, 899 F.2d 304, 311 (4th Cir. 1990) (en banc) (holding that a well-founded fear of
persecution requires that the petitioner’s fear has “some basis in the reality of the circumstances,”
and is supported by “specific, concrete facts”). It is not enough for an applicant to show that his
government persecutes its opponents and that violence permeates the system in his home country,
if he does not prove that he in fact is one of those opponents who would likely be persecuted.
Consequently, the IJ correctly held that the petitioner did not satisfy his burden of proving that he
would have a well-founded fear of persecution if he returned to Bangladesh.
Further, the IJ correctly denied withholding of removal under the Immigration and
Nationality Act and the Torture Convention, because petitioner did not prove he was more likely
than not to be persecuted or tortured if returned to Bangladesh. See 8 C.F.R. § 208.16(b)(2)
(withholding under the Act); 8 C.F.R. § 208.16(c)(2) (withholding under the Torture Convention).
V. CONCLUSION
For the reasons stated above, we hereby DENY the petition for review.
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