Akhtar v. Gonzales

• Decision Date: 29 April 2005
• Docket Number: No. 04-3547.,No. 03-4436.,03-4436.,04-3547.
• Citation: 406 F.3d 399
• Parties: Syed Kashif AKHTAR, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

406 F.3d 399

Syed Kashif AKHTAR, Petitioner, v. Alberto GONZALES, Attorney General, Respondent.

No. 03-4436.

No. 04-3547.

United States Court of Appeals, Sixth Circuit.

Argued: January 25, 2005.

Decided and Filed: April 29, 2005.

COPYRIGHT MATERIAL OMITTED

Scott A. Keillor, Ypsilanti, Michigan, for Petitioner.

Margaret K. Taylor, United States Department of Justice, Washington, D.C., for Respondent.

Papu Sandhu, Allen W. Hausman, Emily A. Radford, United States Department of Justice, Washington, D.C., for Respondent.

Before: RYAN and COOK, Circuit Judges; BELL, Chief District Judge.^*

OPINION

RYAN, Circuit Judge.

Syed Kashif Akhtar petitions this court for review of an order of the Board of Immigration Appeals affirming an Immigration Judge's decision to deny Akhtar's applications for asylum, withholding of deportation, and protection under the United Nations Convention Against Torture. Akhtar also seeks review of the Board's later order denying his motion to reopen his removal proceedings. For reasons we will explain, Akhtar's petition for review of the Board's initial order affirming the IJ's decision is DENIED, and his petition for review of the Board's subsequent order denying his motion to reopen is GRANTED.

I. BACKGROUND

Akhtar is a twenty nine year old native and citizen of Pakistan. He and his family are "Mohajirs," Urdu-speaking Muslims who migrated from India to Pakistan during and after the partition of British India in 1947. The Mohajirs are concentrated in the Sindh province of Pakistan, which includes the city of Karachi, where Akhtar lived with his family. Due to their generally superior education and abilities, the Mohajirs have been able to secure desirable positions in local government and business. Nonetheless, they have been subjected to a certain degree of institutional discrimination through quota systems that limit their access to education and employment opportunities.

In the early 1980s, Akhtar's father joined the Mohajir Qaumi Movement (MQM), a political party representing the collective interests of the Mohajirs. The MQM eventually split into two factions, the MQM (Altaf) (MQM(A)) and the MQM (Haqiqi) (MQM(H)). Hostility among the two groups and government authorities has led to continuing civil unrest and violence in the Sindh province and in the city of Karachi. Responding to the resulting conflict, the federal government called in the military in the early 1990s to eliminate "terrorist" political groups. Members of MQM(A) were allegedly abducted, tortured, and killed by members of MQM(H) and law enforcement officials. The military was withdrawn in 1994, but the raids, abductions, and fighting between the two factions have apparently continued.

In July 1994, Akhtar, then eighteen years old, entered the United States on a one-year visitor visa because his parents wanted him to escape the political violence of Karachi. A few months later, Akhtar's father was murdered and his mother wounded in front of their house in Karachi due to their involvement in the MQM(A). After a period of mourning, Akhtar's mother and his three siblings came to the United States, where they joined Akhtar in June 1995.

In the asylum application submitted by Akhtar's mother to the Immigration and Naturalization Service in 1995, Akhtar and his siblings were included as derivative beneficiaries. Although his mother was eventually granted asylum in 1999, Akhtar had "aged out" in the interim by reaching his twenty-first birthday, and thus no longer qualified as a derivative beneficiary. In October 1997, the INS served Akhtar with a Notice to Appear, alleging that he was subject to removal because he had overstayed his visitor visa. At the initial Master Calendar hearing before the Immigration Court, Akhtar, through his attorney, conceded that he was removable as charged, but renewed his applications for asylum and withholding of removal. Akhtar also filed a claim for protection under the United Nations Convention Against Torture.

On November 22, 1999, a hearing was conducted regarding Akhtar's applications for relief from removal. At the hearing, Akhtar testified that he had never been politically active in Pakistan and had not participated in any MQM(A) activities. He stated that, although he was persistently recruited by several political parties while in college, he had no interest in joining them and his father had urged him not to become involved. In an oral decision, the IJ acknowledged the tragic murder of Akhtar's father and the violent conditions in Karachi, but was unconvinced that Akhtar had suffered past persecution or harbored a well-founded fear of future persecution so as to exempt him from removal for overstaying his visa. In particular, the IJ determined that Akhtar, unlike his father, was apolitical and could not establish that he would be persecuted as a Mohajir or as a member of his own immediate family upon his return to Pakistan. Because Akhtar did not qualify for asylum, the IJ concluded Akhtar could not meet the more stringent requirements for withholding of removal and relief under the United Nations Convention Against Torture.

Akhtar filed a timely notice of appeal to the Board. In April 2003, while his appeal was still pending, Akhtar married Regina Field, a United States citizen. In May 2003, Akhtar's new spouse filed with the INS a visa petition on behalf of Akhtar, together with various supporting documents. On September 17, 2003, Akhtar filed a Motion to Stay Proceedings with the Board so that the visa petition could be adjudicated.

On October 8, 2003, the Board issued its order affirming the IJ's decision to deny Akhtar's applications for asylum, withholding of removal, and relief under the Convention Against Torture. The Board stated that it agreed with the IJ's finding that Akhtar failed to establish eligibility for the various forms of relief he was seeking, and that he had presented no arguments on appeal mandating reversal. In addition, the Board, sua sponte, construed Akhtar's Motion to Stay Proceedings as a motion "to reopen and remand" to the IJ so that Akhtar could adjust his status to permanent resident based on his marriage to a United States citizen. But because Akhtar had not submitted a copy of an application for adjustment of status as required by 8 C.F.R. § 1003.2(c)(1), the Board denied the motion.

In November 2003, Akhtar filed a timely petition for review of the Board's October 8, 2003, decision. Shortly thereafter, Akhtar filed with the Board a motion styled as a "Motion to Reopen and Motion For Stay of Deportation and Reinstatement of Voluntary Departure." Among other things, Akhtar claimed he had complied with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988), a decision in which the Board specified certain evidentiary requirements an alien must satisfy to support a motion to reopen based on a claim of ineffective assistance of counsel.

On April 1, 2004, the Board entered an order denying Akhtar's Motion to Reopen. The order stated that the motion was barred by "numerical limitations" because the Board had already considered and rejected Akhtar's Motion to Stay Proceedings, which the Board had construed as a motion to reopen and remand. The order also stated that Akhtar had not complied with Matter of Lozada and had not demonstrated that he received ineffective assistance of counsel. Akhtar then filed a timely petition in this court for review of the Board's order.

II. ANALYSIS

A.

The Attorney General may grant asylum to an alien if the Attorney General determines that the alien is a "refugee." 8 U.S.C. § 1158(b)(1). A refugee is any person who is outside of the country of such person's nationality or last habitual residence and who is unable or unwilling to return to that country because of past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). A well-founded fear of future persecution "must be both subjectively genuine and objectively reasonable." Abay v. Ashcroft, 368 F.3d 634, 637 (6th Cir.2004).

The subjective fear component turns largely upon the applicant's own testimony and credibility. But the objective component requires the applicant to prove that either (a) there is a reasonable probability that he or she will be singled out individually for persecution, 8 C.F.R. § 208.13(b)(2)(i); or that (b) there is a pattern or practice of persecution of an identifiable group, to which the alien demonstrates he belongs, such that the alien's fear is reasonable, 8 C.F.R. § 208.13(b)(2)(iii).

Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004) (internal citation omitted).

"Resolution of a request for asylum ... involves a two-step inquiry: (1) whether the applicant qualifies as a refugee as defined in § 1101(a)(42)(A), and (2) whether the applicant merits a favorable exercise of discretion by the Attorney General." Ouda v. INS, 324 F.3d 445, 451 (6th Cir.2003) (internal quotation marks and citations omitted). Regarding the first step, the United States Supreme Court has held that an IJ's determination whether an alien qualifies as a refugee must be upheld if "`supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)) (repealed and replaced by 8 U.S.C. § 1252(b)(4)(B)). The Supreme Court explained that to reverse such a finding, the evidence must "not only support [the opposite] conclusion, but compel [ ] it." Id. at n. 1. In articulating the "substantial evidence" standard, the Supreme Court quoted directly from 8 U.S.C. § 1105a(a)(4), which has subsequently been repealed and replaced by 8 U.S.C. § 1252(b)(4)(B). Section 1252(b)(4)(B) provides that "administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled...