Ghulam Mustafa v. Eric Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2456
G HULAM M USTAFA, et al.,
Petitioners,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A98-139-201; A98-139-256; A98-139-257;
A98-139-258 & A98-139-259
A RGUED JANUARY 18, 2013—D ECIDED F EBRUARY 11, 2013
Before P OSNER, F LAUM, and S YKES, Circuit Judges.
F LAUM, Circuit Judge. Ghulam Mustafa and his family
seek review of a decision of the Board of Immigration
Appeals in which the Board affirmed the immigration
judge’s denial of their applications for asylum and with-
holding of removal. Mustafa, a citizen of Pakistan and
member of the Nawaz faction of the Pakistani Muslim
League political party (“PML-N”), filed an application
2 No. 12-2456
for asylum and withholding of removal on the basis that
he fears if he were to return to Pakistan, he would be
targeted for having cooperated with the opposition gov-
ernment under General Pervez Musharraf by providing
information about the financial affairs of his former
employer, who is also a former Pakistani Senator.
In affirming the immigration judge’s denial of the ap-
plication, the Board explained that Mustafa could not
establish a fear of future persecution on account of a
protected statutory ground. Instead, the Board concluded
that the threats and attacks Mustafa had experienced
before coming to the United States were motivated
solely by a personal dispute between Mustafa and his
former boss and that he had not shown that the current
government would persecute him on account of his
membership in the PML-N. We grant the Mustafa
family’s petition for review and remand the case
for further proceedings because the conclusion that
Mustafa’s attackers were motivated solely by a desire
for personal revenge is unsupported by substantial evi-
dence in the record.
I. Background
A. Factual Background
Mustafa, a forty-eight-year-old citizen of Pakistan, and
his family entered the United States legally as non-immi-
grant visitors in November 2003. The Mustafas were
authorized to stay in the United States until May 27,
2004. Two days before the expiration of his visa,
Mustafa filed an application for asylum and withholding
No. 12-2456 3
of removal, asserting that he feared returning to Pakistan
because he believed he would be targeted for having
provided the Musharraf government with information
about the financial affairs of a former Pakistani Sena-
tor. Mustafa’s wife and three of the couple’s minor children
were named as derivatives on the application.1
1. Mustafa’s Life in Pakistan and the United Arab
Emirates
In the affidavit he attached to his asylum application
and during his hearing, Mustafa stated that he has been
an active member of the PML-N since 1988 when he was
a student at the University of Punjab in Lahore, Punjab,
Pakistan. After graduating, Mustafa moved to Abu
Dhabi, United Arab Emirates (“UAE”). In 1996, Saifur
Rehman, a high-ranking member of the PML-N and soon-
to-be Pakistani senator, hired Mustafa to work for him
as the Public Relations Officer at Redco Al Suwaidi
Ready Mix (“Redco”), Rehman’s construction business
in the UAE. In addition to managing daily assignments
and employee relations at Redco, Mustafa assisted
Rehman with several transfers of funds. On one occasion,
1
Mustafa’s wife is a forty-three-year-old native and citizen of
Pakistan. The couple has three children who are citizens of
Pakistan and who are currently eighteen, sixteen, and four-
teen years old. Mustafa and his wife also have an eight-year-old
daughter who was born in Chicago in 2004, who is a citizen
of the United States, and who is not part of their removal
proceedings.
4 No. 12-2456
Rehman directed Mustafa to transfer eighteen million
dollars in multiple transactions from Citibank in New
York to Mashraq Bank in New York and ultimately to
Abu Dhabi. Because of Rehman’s political power and
his close association with Nawaz Sharif, the leader of the
PML-N, Mustafa did not ask any questions about
the transfer.
In 1997, the PML-N won the parliamentary elections
in Pakistan and Sharif took command as Prime Minister.
During the shift in power, Rehman was elected to the
Pakistani Senate, and he served as the chairman of the
National Accountability Bureau (“NAB”), an agency
created to investigate and prosecute public corruption.
After the elections, Rehman told Mustafa that the
Pakistani Inter-Services Intelligence Agency would be
monitoring all of Mustafa’s telephone conversations
at Redco as a part of an investigation of the NAB. When
he learned of the surveillance, Mustafa began looking
for other work, and he eventually resigned from his
position at Redco in 1998.
In October 1999, Sharif attempted to remove General
Pervez Musharraf from his position as the Chief of Army
Staff. Musharraf resisted and with the help of other
Army Generals took power of the country and ousted
Sharif’s administration. After the coup, the Musharraf
government acted quickly in arresting former PML-N
leaders. Rehman and Sharif were among those detained,
and Sharif went into exile shortly thereafter.
Mustafa reports that in early 2000, Pakistani intel-
ligence agents in the UAE approached him and in-
No. 12-2456 5
formed him that Rehman had engaged in corrupt activi-
ties. The agents told Mustafa that because he was
a member of the PML-N, he was required to cooperate
with the Musharraf government and that if he refused
to cooperate, there would be “trouble” and his family
in Pakistan could be arrested. Fearful that his family
would be targeted, Mustafa agreed to participate in
the investigation and provided the Pakistani authorities
with information about certain accounts and large
financial transactions he had overseen at Redco. In
August 2000, Mustafa returned to Pakistan in ac-
cordance with the government’s request and provided
further assistance in the investigation. In addition to
asking about Rehman’s affairs at Redco, the govern-
ment questioned Mustafa about a relationship between
Rehman’s wife and Sharif. When Mustafa refused to
answer questions about Rehman’s personal life, the
government put Mustafa’s name on Pakistan’s Exit
Control List.2 Concerned once again that his family
would be harmed if he refused to cooperate, Mustafa
ultimately agreed to answer the government’s ques-
tions. Once the government officials were satisfied with
his assistance, they removed Mustafa’s name from the
list and allowed him to return to the UAE.
Upon the completion of the investigation, the Mushar-
raf government prosecuted Rehman on corruption
2
The Exit Control List is a border-control system maintained
by the Pakistani government. Persons whose names appear
on the list are not allowed to leave the country.
6 No. 12-2456
charges and sentenced him to fourteen years in prison.
After reaching an apparent agreement with the govern-
ment, however, Rehman was released from jail in
2002. When Rehman returned to the UAE following his
release, a Redco employee called Mustafa and told
him “Rehman would never forgive [him] and he was
going to get [him] for having talked to the NAB about
his affairs.” After receiving this call, Mustafa went to
Rehman’s factory to explain why he had assisted in
the investigation. Rehman disagreed with the explana-
tion and in response threatened Mustafa, telling him,
“you know my powers. I was running the country. I
was equal to [the] prime minister in Pakistan and . . .
I could . . . wipe you up in a minute.”
In February 2003, Mustafa recalls that the car he was
driving in the UAE was trapped between two trucks
and that the trucks were of the type used by Redco. He
believes that Rehman or his associates tried to kill him
by making it look like an accident, which he reported to
be a common occurrence in countries like Pakistan and
the UAE. Although Mustafa reported the accident to
the police, he does not believe that the police took any
action. Instead, shortly after the accident occurred, three
plainclothes policemen came to his house, told him that
it was not safe for him to remain in the UAE, and
informed him that he was “playing with fire.” After
this confrontation, Mustafa reports he was followed,
harassed, and questioned for several months until he
eventually decided to escape the torment and move
back to Pakistan with the rest of his family.
No. 12-2456 7
But the harassment continued. When Mustafa arrived
in Pakistan in August 2003, his brother received a call
from Rehman’s brother, Atikir, inquiring into Mustafa’s
whereabouts. Referring to Mustafa, Atikir said, “[h]e
betrayed my brother . . . . He pass[ed] this information
on to [the government] and due to this action, we were
in trouble so we want to get revenge.” Although
Mustafa’s brother told Atikir that Mustafa was still
living somewhere in the UAE, Rehman’s associates
located Mustafa in Pakistan. On October 5, 2003, Mustafa
and a friend were driving in Mustafa’s car when
another car pulled in front of them and blocked them
from going any farther. A group of men exited the car
with guns and approached Mustafa’s vehicle. The men
dragged Mustafa and his friend out of the car and beat
and kicked them for more than twenty minutes. During
the attack, the men accused Mustafa of being a “traitor”
and told him not to cross Rehman ever again. Mustafa
lost consciousness after being hit in the head and was
taken to a hospital for treatment. He received seven
stitches and remained in the hospital for more than a
week. Mustafa reported the incident to the police,
but the police took no action. Mustafa believes that the
Pakistani government would never protect him from
Rehman’s retribution.
Following the beating, Mustafa returned briefly to the
UAE to sell his car, collect his salary, and settle his ac-
counts. He then traveled to the United States with his
family because he no longer felt safe living in either
Pakistan or the UAE. He received nearly six months
of medical treatment after arriving in the United States
8 No. 12-2456
to assist with the memory loss and speech disorder that
he experienced after the beating. He remains an active
member of the Chicago chapter of the PML-N and works
to support his family.
2. Current Government in Pakistan
In 2008, the Pakistan People’s Party (“PPP”) and the
PML-N defeated General Musharraf’s government in
parliamentary elections. The PPP and the PML-N formed
a coalition government and initiated impeachment pro-
ceedings against General Musharraf, who eventually
resigned. The PML-N then left the coalition because of a
disagreement over whether to reinstate judges removed
by General Musharraf. Asif Ali Zardari, a member of
the PPP, was elected as the new president of Pakistan
in September 2008, shortly after the assassination of his
wife, Benazir Bhutto. Mustafa testified at his hearing
that the PLM-N plays an important role in current Paki-
stani politics and holds the second greatest number
of parliamentary seats. He also testified that Rehman
is currently living in Qatar and that there is an out-
standing warrant for Rehman’s arrest in Pakistan
relating to his treatment of Zardari while the PML-N
was in power in 1999. 3 Mustafa fears if he and his
family were to return to Pakistan, Rehman or his
associates would persecute them in further retribution
for his assistance to the Musharraf government.
3
Mustafa also testified that the Zardari government has
arranged for Rehman’s arrest through the International
Criminal Police Organization (“INTERPOL”).
No. 12-2456 9
3. Supporting Documentary Evidence
In support of his asylum application, Mustafa sub-
mitted an affidavit from Dr. Karen Parker, an attorney
specializing in international law who has studied
human rights in Pakistan. In the affidavit, which she
wrote in October 2007, Dr. Parker summarized Pakistan’s
political structure, discussed the prevalence of human
rights violations, and shared her position on Mustafa’s
likelihood of future persecution in Pakistan. She ex-
plained that most members of the PML-N are “highly
loyal to Sharif and his associates,” and that it is typical
for political parties to have “thugs” in place to “carry
out retaliation against perceived enemies.” Dr. Parker
expressed her view that Mustafa had been attacked
by “thugs” from the PML-N and noted that the type of
“attack he suffered is typical of political retaliation.”
Dr. Parker also opined that Mustafa could face persecu-
tion from the Musharraf government, which was still
in power at the time she signed her affidavit, on
account of his membership in the PML-N.
Also included in the record before the immigration
judge were the State Department’s 2006 and 2009 country
conditions reports for Pakistan and several news
articles addressing the country’s political instability. Both
country reports indicate that corruption among the
police is common in Pakistan. According to the reports,
Pakistani police have been known to charge fees to in-
vestigate genuine complaints and to accept bribes on
behalf of those wishing to avoid charges. The reports
also confirm “politically motivated killings” perpetrated
by “political factions.”
10 No. 12-2456
B. Procedural Background
The United States Citizenship and Immigration
Services denied Mustafa’s application for asylum and
withholding of removal and referred him and his family
to the Immigration Court for removal proceedings. On
October 14, 2004, the Department of Homeland Security
filed a Notice to Appear for each family member
charging their removability for overstaying their period
of admission. On October 11, 2005, the Mustafas
appeared before an immigration judge, and through
counsel, conceded removability. For relief from removal,
however, Mustafa renewed his application for asylum
and requested withholding of removal and protection
under the Convention Against Torture (“CAT”), claiming
that he has a well-founded fear that if he were to return
to Pakistan, he would be persecuted on account of his
membership in a particular social group and his
political opinion.
1. Immigration Judge
Mustafa appeared in front of an immigration judge for
a hearing on his renewed application for asylum and
withholding of removal on April 1, 2010. At the hearing,
Mustafa testified about the harassment he experienced
in the UAE and in Pakistan and elaborated on the
beatings that occurred shortly before he left for the
United States. Mustafa’s friend, Mohammed Asif, who
was with him in his car on the day of the attack in
Pakistan corroborated his testimony about the beatings,
and Mustafa’s then sixteen-year-old son Mohab testified
No. 12-2456 11
that he visited his father in the hospital after the attack.
When pressed by the immigration judge to explain
the social group of which he was a member, Mustafa
clarified through counsel that his claim for asylum was
based solely on his fear of persecution on account of his
actual or imputed political opinion.
At the conclusion of the testimony, the government
argued that the conflict between Mustafa and Rehman
was a personal dispute not based on political affiliation.
In response, Mustafa’s counsel stated, “Yes, your
Honor. It’s true that at the core it involves a vendetta
between two people,” but emphasized that the attacks
could not be separated from the political context in
which they occurred. He explained that governments
in Pakistan use corruption and political investigations
“to effect harm on political rivals” and argued that
Mustafa was persecuted on account of “political opinion
or imputed political opinion” for having assisted
in the Musharraf government’s politically motivated
investigation of Rehman.
Although the immigration judge found Mustafa’s
testimony to be generally credible,4 she concluded that he
4
The immigration judge noted two discrepancies between
Mustafa’s testimony and Asif’s testimony. Both men claimed to
have been driving Mustafa’s car on the day of the attack in
Pakistan, and Mustafa recalled that the incident occurred
in October while Asif thought it happened in August. Never-
theless, she explained that the inconsistencies were slight
(continued...)
12 No. 12-2456
did not show a nexus between any past or future persecu-
tion and a protected statutory ground. She noted that
until the Musharraf government’s investigation, Rehman
and Mustafa had no disputes or disagreements tied at
all to political opinion and that “when Mr. Rehman’s
agents beat [Mustafa] they let him know that he was
paying the price for providing information about
Mr. Rehman to the authorities—not because of any dif-
ference of political opinion between the two men.” Ac-
cordingly, she determined that Mustafa’s attackers
were motivated solely by a desire to inflict personal
retribution.
The immigration judge briefly addressed a portion of
Dr. Parker’s testimony that suggested Mustafa could
face persecution from the current Pakistani government,
but she ultimately gave it little weight because of the
change in political power in Pakistan that occurred
after Dr. Parker signed her affidavit:
Dr. Parker’s testimony states that “General political
violence has dramatically increased, with members
of especially the Muslim League (N) and the PPP
political parties being targeted.” However, that
letter was written in October 2007, when Gen.
Musharraf’s military government was still in power.
4
(...continued)
and did “not significantly undermine the probative weight
of the totality of [Mustafa’s] testimony, especially in light of
the fact that the incident occurred seven years ago.”
No. 12-2456 13
Since then, the PML-N and the PPP have regained
political power.
Admin. R. at 85-86 (internal citations omitted).
Because Mustafa could not satisfy the lower burden
of proof for asylum, the immigration judge concluded
that he did not meet his burden for the purpose of with-
holding of removal. The immigration judge also held
that Mustafa was not entitled to protection under the
CAT because he did not meet his burden of proving he
would “more likely than not” be tortured upon re-
turning to Pakistan.
2. Board of Immigration Appeals
On September 14, 2010, Mustafa appealed his case to
the Board of Immigration Appeals. Mustafa argued that
the immigration judge concluded incorrectly that the
harm he had suffered was solely on account of a personal
vendetta rather than a political opinion his attackers
had imputed to him. He claimed that the Pakistani gov-
ernment used information he had provided to convict
Rehman on corruption charges, which in turn “led
Rehman and his supporters and other members of the
PML-N to perceive [him] as a ‘traitor’ to their political
party.” Mustafa elaborated that by cooperating in the
investigation, he was seen has having “assist[ed] enemies
of the PML-N in targeting and suppressing a leading
member of the [PML-N] and the Sharif government.”
Mustafa also argued that the immigration judge did not
understand or even consider the danger that he would
14 No. 12-2456
face from current Pakistani President Zardari and his
followers if he were to return to Pakistan.
The Board upheld the immigration judge’s decision
and dismissed Mustafa’s appeal on May 21, 2012. The
Board held that the immigration judge did not err in
concluding that Mustafa’s attackers were motivated
solely by a desire for personal revenge. It determined
there was insufficient evidence in the record to support
Mustafa’s contention that Rehman and his followers
imputed an anti-PML-N political opinion to him or
that any perceived anti-PML-N political opinion moti-
vated the attacks. Specifically, the Board found Mustafa’s
attackers’ use of the word “traitor” to be unconvincing
because “[t]he context of its use suggests . . . that he was
seen as betraying Rehman rather than the party: he
was warned not to cross Rehman and to be loyal to
Rehman.” Finally, the Board agreed with the Depart-
ment of Homeland Security that Mustafa did not suffi-
ciently articulate his fear of persecution from the
current Pakistani government before the immigration
judge and that he did not adequately explain why the
Zardari government would seek to harm him for his
prior association with Rehman when he cooperated
with the Musharraf government’s criminal investigation
of Rehman.
II. Discussion
On appeal, Mustafa does not challenge the immigra-
tion judge’s ruling with respect to his eligibility for protec-
tion under the CAT, so we address only his claims for
No. 12-2456 15
asylum and statutory withholding of removal. Our
review of the Board’s denial of asylum and withholding
of removal is deferential; we require only that the
decision be “supported by reasonable, substantial and
probative evidence on the record considered as a
whole.” Boci v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007)
(quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
We will reverse the Board and grant an applicant’s
petition for review, however, when the evidence in the
record is “so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” Bueso-
Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011) (quoting
Elias-Zacarias, 502 U.S. at 483-84). When the Board
adopts the decision of the immigration judge and sup-
plements that decision with its own reasoning, as it did
here, we review the immigration judge’s decision as
supplemented by the Board. Jonaitiene v. Holder, 660
F.3d 267, 270 (7th Cir. 2011).5
To be eligible for asylum, an applicant must show that
he is “unable or unwilling to return” to the country of his
nationality “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)(A). An ap-
5
The Attorney General suggests that we should limit our
review to the Board’s decision, but the Board did not issue a
stand-alone opinion in this case. See Liu v. Ashcroft, 380 F.3d 307,
311-12 (7th Cir. 2004). Instead, the Board agreed with the
immigration judge’s findings and conclusions and supple-
mented the decision with additional reasoning.
16 No. 12-2456
plicant who successfully proves that he was subject to
past persecution is presumed to have a well-founded
fear of future persecution, which the Attorney General
can rebut by demonstrating a change in conditions in the
applicant’s home country. 8 C.F.R. § 1208.13(b)(1). Under
the mixed-motives doctrine applied by this circuit prior
to the enactment of the REAL ID Act, which applies in
this case, 6 an applicant may qualify for asylum if
his persecutors had more than one motive for their
conduct so long as the applicant demonstrates by either
direct or circumstantial evidence that his persecutors
were “motivated, at least in part, by one of the enum-
erated grounds.” Gjerazi v. Gonzales, 435 F.3d 800, 812
(7th Cir. 2006) (internal quotation marks omitted); see
also Mohideen v. Gonzales, 416 F.3d 567, 570 (7th Cir. 2005).
Qualification for withholding of removal requires an
applicant to meet a higher standard. The applicant
must show that there is a “clear probability” his “life or
freedom would be threatened . . . because of [his] race,
religion, nationality, membership in a particular group, or
political opinion.” 8 U.S.C. § 1231(b)(3)(A); Guardia v.
6
The REAL ID Act of 2005 now requires an applicant to
show that one of the five protected grounds was a “central
reason” for his persecution. See 8 U.S.C. § 1158(b)(1)(B)(i). The
record in this case indicates, however, that Mustafa filed his
original application for asylum by May 25, 2004, and thus, pre-
REAL ID standards and case law apply. See Dawoud v.
Gonzales, 424 F.3d 608, 613 (7th Cir. 2005) (“This rule affects
only new asylum applicants (whose applicants are filed after
May 11, 2005) . . . .”).
No. 12-2456 17
Mukasey, 526 F.3d 968, 972 (7th Cir. 2008). As with an
application for asylum, a showing of past persecution
creates a rebuttable presumption that the applicant’s
life or freedom would be threatened in the future
for the purpose of withholding of removal. 8 C.F.R.
§ 1208.16(b)(1).
A. Past Persecution by Rehman and His Associates
Mustafa’s claims for relief are premised on his assertion
that he has been and will be persecuted on account of
his political opinion in Pakistan. But Mustafa does not
argue that his assailants targeted him on account of
his membership in the PML-N. Rather, he contends
that they viewed him as being an opponent of or a
traitor to their party for having cooperated in the
Musharraf government’s politically motivated prosecu-
tion of Rehman.7 To succeed on a claim that one suffered
7
This argument is distinct from one in which an applicant
asserts that he was persecuted on account of his opposition to
government corruption or an imputed anti-corruption political
opinion. See, e.g., Haxhiu v. Mukasey, 519 F.3d 685, 690 (7th Cir.
2008) (explaining that individuals who “engage in political
agitation against state corruption, such as whistleblowers, can
be persecuted on account of a political opinion” (internal
quotation marks omitted)). In addition to considering Mustafa’s
claim that he had been persecuted on account of an imputed
anti-PML-N opinion, the Board, like the immigration judge,
addressed whether Mustafa had been persecuted on account of
(continued...)
18 No. 12-2456
persecution due to an imputed political opinion, an
applicant must show (1) that his persecutors attributed
a political opinion to him and (2) that the attributed
opinion motivated the persecution. Sankoh v. Mukasey,
539 F.3d 456, 471 (7th Cir. 2008). In its opinion, the
Board concluded that there was insufficient evidence in
the record to support Mustafa’s contention that Rehman
and his followers perceived Mustafa to have defected
their political party. Instead, the Board affirmed the
immigration judge’s conclusion that the context of the
attacks suggested that Mustafa was seen as having be-
trayed Rehman personally.
This court has repeatedly held that “[a] personal
dispute, no matter how nasty, cannot support an alien’s
claim of asylum.” Marquez v. INS, 105 F.3d 374, 380
(7th Cir. 1997); see also Wang v. Gonzales, 445 F.3d 993,
998 (7th Cir. 2006). And there is surely evidence in the
record to support the view that Mustafa’s attackers were
motivated in part by a personal dispute. But the critical
question here is whether the record compels this court to
conclude that Rehman and his followers were also moti-
vated by a perception that Mustafa acted with an anti-
PML-N sentiment in cooperating with the Musharraf
government. During Mustafa’s hearing, his counsel
acknowledged that the persecution at its core involved
7
(...continued)
an actual or imputed anti-corruption political opinion. Mustafa’s
focus on appeal, however, is on the anti-PML-N political opinion
he contends his attackers imputed to him.
No. 12-2456 19
a dispute between two parties, but clarified that in Paki-
stan, investigations like the one against Rehman are part
of the country’s politics. Mustafa argues that turning
against Rehman for the purpose of an investigation was
equivalent to turning against the party itself and that
Mustafa’s assailants had indicated their disapproval by
calling him a “traitor” during their attack.
In her decision, the immigration judge cited the
doctrine of mixed motives with approval but did not
engage in a thorough discussion or evaluation of the
evidence of dual motives Mustafa presented. The Board
similarly overlooked significant circumstantial evidence
when it rejected the proposition that Rehman and his
associates viewed Mustafa as having an anti-PML-N
opinion. Specifically, the Board concluded that the at-
tackers’ use of the word “traitor” implied that Mustafa
had betrayed Rehman personally only because the at-
tackers had also warned Mustafa not to “cross” Rehman.
But this conclusion does not address the larger factual
context in which the harassment and attacks occurred.
Following the upheaval in Pakistan in 1999, the
Musharraf regime arbitrarily arrested and detained
political figures from the Sharif government in an
attempt to suppress and control the political opposition
and discredit high-ranking members of the PML-N. The
Musharraf government gave Mustafa the “choice” of
participating in its investigation of a former Senator
and close associate of a former prime minister or having
his family arrested. Mustafa informed the Musharraf
government of his knowledge of Rehman’s financial
affairs, including several large transfers of funds, and in
20 No. 12-2456
effect, assisted in the Musharraf government’s politically
motivated takedown of a PML-N official. Following
his release from prison and during an encounter with
Mustafa, Rehman disagreed with Mustafa’s explanation
for having assisted the Musharraf government and em-
phasized his political power in delivering a threat. He
indicated that he had been running the country, that he
was as powerful as the prime minister, and that he could
quickly destroy Mustafa. After Mustafa returned to
Pakistan, four men who accused him of being a “traitor”
beat him for more than twenty minutes until he
lost consciousness, and the police took no action.8
The immigration judge and the Board also overlooked
the portion of Dr. Parker’s affidavit addressing the attack
Mustafa experienced in Pakistan in 2003. Dr. Parker
explained that most members of the PML-N are highly
loyal to Sharif and his associates and that it is common
for political parties in Pakistan to employ “thugs” to
carry out retaliatory acts against those they view as
enemies. The affidavit also indicated that it is Dr. Parker’s
belief that Mustafa had been attacked by “thugs”
working for the PML-N and that the attack fit the mold
8
The Board also deferred to the immigration judge’s conclu-
sion that the attackers had “let [Mustafa] know that he was
paying the price for providing information about Mr. Rehman
to the authorities—not because of any difference of political
opinion between the two men.” The immigration judge’s
reading of the attackers’ message, however, was based on
the same limited view of the context in which the
beating occurred.
No. 12-2456 21
of political retaliation. The immigration judge’s only
reference to the affidavit related to Dr. Parker’s
opinion about the likelihood that Mustafa would face
persecution from the Musharraf government. Because
Dr. Parker signed the affidavit in 2007 while the
Musharraf regime was still in power, the immigration
judge explained that the affidavit did little to support
the view that Mustafa could face persecution from
the current Zardari government. But the fact that Dr.
Parker authored the report in 2007 does not alter the
relevance of her testimony relating to the attack that
occurred in 2003.
Contrary to the Attorney General’s suggestion, this case
is distinguishable from Tonoyan v. Mukasey, 288 F. App’x
278 (7th Cir. 2008) (nonprecedential decision), in which
we held that a petitioner who faced persecution for
having reported the identity of an individual involved
in a politically motivated attack did not show that his
persecutors “were motivated, at least in part, by an
actual or imputed political opinion.” Id. at 282 (internal
quotation marks omitted). In Tonoyan, an Armenian
citizen who had witnessed a crime involving a local
political candidate applied for asylum, withholding of
removal, and protection under the CAT. Id. at 279. The
alleged persecution in Tonoyan occurred in close proxi-
mity to a local election for an office similar to that of a
mayor in the United States. Id. Shortly before the elec-
tion, one of the challenging candidates dropped out
of the race and endorsed the other challenger. Id. The
day after the endorsement, Tonoyan witnessed four men,
one of whom he recognized to be the nephew of the
22 No. 12-2456
incumbent in the race, attack the candidate who had
dropped out and endorsed the remaining challenger. Id.
At first, Tonoyan told the police that he did not know
any of the men involved in the attack because he was
afraid of the incumbent’s nephew. Id. at 280. But the
police beat him until he gave them the nephew’s name.
Id. The next week, four men came to Tonoyan’s house
and attacked him. Id. The men told Tonoyan they were
carrying out the attack for the incumbent’s nephew and
threatened to kill him if he testified against their friend. Id.
Although the immigration judge found Tonoyan credi-
ble, she denied his request for asylum, concluding that
the men attacked him not on account of an imputed
political opinion, but because they wanted to prevent
him from testifying against their friend. Id. at 280-81.
The Board affirmed. Id. at 281. On appeal to this court,
Tonoyan argued that the immigration judge and the
Board erred by not engaging in a mixed-motives analy-
sis. Id. at 281. We denied the petition for review in
an order, concluding that even if Tonoyan had admin-
istratively exhausted his mixed-motives claim, he could
not point to any evidence in the record that his
attackers had acted in part on account of an imputed
political opinion that the immigration judge and the
Board had not considered. Id. at 282. We also held that
substantial evidence supported the immigration judge’s
and the Board’s conclusion that Tonoyan was not perse-
cuted on account of an imputed political opinion.
Although political actors were involved in the crime
Tonoyan witnessed, we explained that his attackers
“said that they were attacking him for [the nephew] and
No. 12-2456 23
threatened to kill him if he testified against [their
friend]; they did not mention [the incumbent’s name]
or the upcoming election.” Id.
Here, unlike in Tonoyan, Mustafa’s attackers explicitly
stated that they were carrying out their attack on behalf
of a high-ranking member of the PML-N. The immigra-
tion judge and the Board did not address evidence in
the record of the highly polarized political context in
which the attacks occurred. The immigration judge and
the Board also omitted any reference to Rehman’s con-
versation with Mustafa in which Rehman disagreed
with Mustafa’s explanation for having cooperated with
the Musharraf government and emphasized his political
power in delivering a threat. Moreover, the immigration
judge and the Board dismissed without explanation the
portion of Dr. Parker’s testimony in which she analyzed
the political nature of the 2003 attack. Collectively, this
evidence, which was present in the record but absent
from the analysis below, sheds a different light on
Mustafa’s attackers’ use of the word “traitor” during the
beating. Mustafa assisted in the takedown of a high-
ranking member of the PML-N immediately after the
1999 shift in power in Pakistan, and in the context of
the facts articulated above, it would be unreasonable to
conclude that his actions were viewed by his attackers
as solely apolitical.
We have repeatedly held that an applicant is entitled to
a reasoned analysis of his case, “not one which wholly
ignores or disregards relevant, probative evidence.”
Gjerazi, 435 F.3d at 813; see also Mohideen, 416 F.3d at 571.
24 No. 12-2456
In concluding that Mustafa’s attackers were motivated
simply by a personal dispute, the immigration judge
and the Board erred in disregarding evidence in the
record that the attackers acted with mixed motives. This
case presents a unique set of facts that ultimately
compel the conclusion that Mustafa’s attackers were
motivated in part by an anti-PML-N political opinion
they attributed to him. Mustafa is therefore entitled to
a presumption in favor of granting asylum. On remand,
the government will have the opportunity to rebut that
presumption by proving that “[t]here has been a funda-
mental change in circumstances such that [he] no
longer has a well-founded fear of persecution” or that he
“could avoid persecution by relocating to another part
of” Pakistan if “it would be reasonable to expect [him]
to do so.” 8 C.F.R. § 1208.13(b)(1)(i).
The immigration judge’s denial of Mustafa’s with-
holding of removal claim was premised entirely on her
initial determination that Mustafa was not persecuted
on account of political opinion. Having determined
that the record compels a contrary conclusion, Mustafa
is also entitled to a presumption that his life or
freedom would be threatened if he were to return
to Pakistan. 8 C.F.R. § 1208.16(b)(1)(i). On remand,
the government may rebut this presumption by
showing a fundamental change in circumstances or the
reasonableness of a safe relocation elsewhere in Paki-
stan. 8 C.F.R. § 1208.16(b)(1)(ii).
No. 12-2456 25
B. Fear of Persecution by the Zardari Government
Mustafa argues that the immigration judge and the
Board also erred in refusing to consider the persecution he
could face from the current government in Pakistan on
account of his membership in the PML-N and his prior
close association with Rehman and Sharif. He further
contends that members of the Zardari government could,
under threat of arrest, force him to provide informa-
tion about Rehman if Rehman were arrested and prose-
cuted on actual or fabricated charges. Mustafa testified
that President Zardari has an even greater reason to
seek retribution against Rehman than the Musharraf
government because President Zardari blames Rehman
for arbitrarily imprisoning him under harsh conditions
and for an alleged assassination attempt that occurred
while he was in the custody of the Sharif government.
In dismissing Mustafa’s arguments relating to the
Zardari government, the Board concluded that Mustafa
did not sufficiently articulate a fear of persecution
before the immigration judge and did not adequately
explain why the government would seek to harm him.
With regard to Mustafa’s general argument that the
Zardari government will target him on account of his
membership in the PML-N, we agree with the Board
that Mustafa did not sufficiently articulate this fear to
the immigration judge. But even if he had, his argu-
ment would fall short. Mustafa does not cite to any docu-
ment or testimony in the record to support his conten-
tion that the Zardari government is taking action
against political leaders and factions that are no longer
26 No. 12-2456
in power. The Board appropriately rejected Mustafa’s
reliance on the portion of Dr. Parker’s testimony in
which she discussed the likelihood that Mustafa would
be persecuted by the current Pakistani government.
Dr. Parker signed her affidavit in 2007 before President
Zardari was elected and before the PML-N gained a
considerable number of seats in the parliament. The
current government in Pakistan is therefore significantly
different from the government Dr. Parker referenced,
and there is no indication that the Zardari government
has followed the Musharraf government’s practice of
arbitrarily arresting members of the PML-N. And even
if the Zardari government were to target Sharif’s
followers, it is not clear why the government would
target Mustafa, someone who participated in an inves-
tigation against Rehman under the Musharraf government.
Relatedly, Mustafa argues that if he were to return to
Pakistan, the Zardari government would single him out
for his prior close association with Rehman and knowl-
edge of Rehman’s financial affairs and force him,
under threat of arrest, to cooperate in an investigation
against Rehman. He contends that his prior experience
with the Musharraf government demonstrates the likeli-
hood that he would be targeted by the Zardari govern-
ment as a source of information. But Mustafa also
explains that President Zardari holds Rehman
responsible for having imprisoned him under harsh
conditions and for an alleged assassination attempt
against Zardari that occurred while he was in the
custody of the Sharif government. He does not articulate
why the Zardari government would be interested in
No. 12-2456 27
Mustafa’s knowledge of Rehman’s financial affairs in
the context of a murder investigation and does not allege
that he has any special knowledge of Rehman’s treat-
ment of Zardari. The conclusion that Mustafa did not
articulate a well-founded fear of persecution by
President Zardari and his government is thus supported
by the evidence in the record.
On remand, the Board should therefore focus its atten-
tion on Mustafa’s fear of persecution by Rehman and
his associates.
III. Conclusion
For the foregoing reasons, we G RANT Mustafa’s peti-
tion for review and R EMAND to the Board for further
proceedings consistent with this opinion.
2-11-13