429 F.3d 430 (3rd Cir. 2005), 03-4360, Butt v. Gonzales

Docket Nº:03-4360.
Citation:429 F.3d 430
Party Name:Khalid Mahmood BUTT, A29 760 955; Sidrad Khalid, A29 760 957; Ali Khalid, A29 760 959; Ayisha Jabeen, A29 760 956; Waqar Khalid, A29 760 958; Sadia Khalid, A29 760 960, Petitioners v. * Alberto GONZALES, Attorney General of the United States, Respondent. * Substituted pursuant to Rule 43c, F.R.A.P.
Case Date:November 23, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 430

429 F.3d 430 (3rd Cir. 2005)

Khalid Mahmood BUTT, A29 760 955; Sidrad Khalid, A29 760 957; Ali Khalid, A29 760 959; Ayisha Jabeen, A29 760 956; Waqar Khalid, A29 760 958; Sadia Khalid, A29 760 960, Petitioners

v.

* Alberto GONZALES, Attorney General of the United States, Respondent.

* Substituted pursuant to Rule 43c, F.R.A.P.

No. 03-4360.

United States Court of Appeals, Third Circuit.

November 23, 2005

Argued March 10, 2005

On Petition for Review of an Order of The Board of Immigration Appeals, BIA Nos. A29-760-955, A29-760-956, A29-760-957, A29-760-958 A29-760-959, A29-760-960.

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John J. Seehousen, Esquire (Argued), Philadelphia, PA, Counsel for Petitioners.

Peter D. Keisler Assistant Attorney General David V. Bernal Assistant Director Andrew C. MacLachlan, Esquire (Argued) Office of Immigration Litigation United States Department of Justice Counsel for Respondent.

Before: ROTH and AMBRO, Circuit Judges SHAPIRO, [**] District Judge

OPINION

AMBRO, Circuit Judge

Khalid Mahmood Butt petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying his claims for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT").1 The Immigration Judge ("IJ") presiding over Butt's case denied these claims based on his determination that Butt was not credible, and that decision was affirmed without opinion by the BIA. Because the IJ's credibility determination is not supported by substantial evidence in the record, we grant the petition.

I. Factual Background & Procedural History

Butt is a native and citizen of Pakistan. From 1969 to 1970, he worked full time in his father's dry cleaning business. Subsequently, he worked there only part-time so that he could also work for the Pakistan People's Party ("PPP"), a political party. His involvement in that organization increased over time, and in 1971 he began working for the PPP full time. Butt testified before the IJ that he did not receive compensation from the PPP, but his family was sufficiently well off to allow him to continue to work only for the party. Butt was the General Secretary of his local PPP ward from 1980 to 1990. From 1984 to 1996, he was also a "Counselor," which appears to be an elected position within the PPP.

Butt testified that, as General Secretary, he collected dues for the PPP and held party meetings at his home. He stated that the PPP existed to help local people solve their problems and that it wanted "everyone [to] . . . have a right to speak." Butt attempted to assist people within his ward with issues such as obtaining water facilities and health care. He also helped people who had problems with the police.

In the 1980s, Pakistan was under military rule, and Butt testified that he was arrested twice during this time—in 1987—and charged with being a troublemaker. According to Butt, the police told him on both occasions that they did not like the PPP and that he should stop his activities on behalf of the party. Each time Butt was released after a couple hours.

Elections were held in Pakistan in 1989, after the governing general died, and the PPP gained power in the country. However, its government dissolved on August 6,1990. Butt testified that he was again arrested on August 31, 1990 and detained until September 7, 1990. He stated that he was not given food or water for two days and that he was beaten at least twice a day, sometimes with a leather strap. Butt related his treatment while detained as follows: "They hung me upside down

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and beat me. They stripped me and beat me . . . . And they beat me up so brutally that my leg and my back [were] so hurt and still my leg and my back do[] not function properly." Butt stated that he could not walk for some time after he was released.

Butt and his wife testified that Butt was treated by a doctor (Dr. Sasjad) from September 10, 1990 to October 15, 1990 for his injuries and that his treatment took place at home. At his hearing, Butt introduced a doctor's note regarding this time period that reads: "Certified that I have examined and treated Mr. Khalid Mahmood Butt . . . . He reported at my clinic with multiple bruises on both legs and back. He remained under my treatment . . . 10-9-90 to 15-10-90." When asked about this note, Butt testified that he did not remember going to the clinic, but because he was unconscious when he was brought home after his release from detention, he may have been taken to the clinic for treatment at that time without having been aware of it.

Butt testified that, after this incident, his friends, family, and the PPP advised him that his life was in danger and that he and his family should leave the country. He stated that he and his family went into hiding at a friend's house until they left Pakistan for the United States in November 1990. According to Butt, the PPP arranged for their visas and passports.

Butt also testified that he was being "framed" for "another [criminal] case" right before he left Pakistan. A criminal information naming Butt, among others, as a member of the PPP was introduced as documentary evidence at his hearing before the IJ. Butt stated that he had not seen the actual document before he left Pakistan but that he knew about it at that time. According to his testimony, some of the other people named in the document were arrested and eventually released.

Butt and his family arrived in the United States in November 1990 on non-immigrant visitor visas that authorized them to stay in this country until May 1, 1991. He applied for asylum on May 21, 1991, claiming that he feared persecution if returned to Pakistan on account of his work with the PPP. Butt's wife and children filed derivative asylum applications. The Immigration & Naturalization Service ("INS")2 in 1999 issued the family Notices to Appear for staying in the United States beyond the period authorized by their visas, 3 and the Butt family conceded removability. At this time, Butt renewed his application for asylum and withholding of removal.

Butt appeared at a hearing before the IJ on his asylum, withholding of removal, and CAT claims in July 2001, and the IJ issued a written decision denying those claims in October 2001. The discrepancies between the testimony of Butt and his wife and the documentary evidence that had been submitted caused the IJ to "conclude that the

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respondents have deliberately lied to the court." Specifically, the IJ identified the "crucial part" of the Butts' testimony as their statements regarding the events leading to Mr. Butt's "incarceration and mistreatment and his examination and care by a physician afterwards." He found that the Butts' testimony on these issues could not be reconciled with the letter from Mr. Butt's doctor.

The BIA affirmed the IJ's decision without opinion in October 2003. Butt's petition for review of that decision is now before us.4

II. Jurisdiction & Standard of Review

Under 8 U.S.C. § 1252(a), we have jurisdiction to hear a petition for review from a final order of the BIA. When the BIA affirms an IJ without opinion, "we review the IJ's opinion and scrutinize its reasoning." Smriko v. Ashcroft, 387 F.3d 279, 282 (3d Cir.2004) (internal quotation marks and citation omitted). In asylum cases, we must uphold the agency's factual findings if they are supported by substantial evidence. Singh-Kaur v. Ashcroft, 385 F.3d 293, 296 (3d Cir.2004). That is, the denial of asylum can be reversed "only if the evidence presented by [the Petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) ("[T]he [agency] 's finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it."). Adverse credibility determinations, like other factual findings in immigration proceedings, are reviewed under the substantial evidence standard. Mulanga v. Ashcroft, 349 F.3d 123, 131 (3d Cir.2003).

III. Discussion

The Attorney General and his delegates may grant asylum to any alien who qualifies as a refugee under the Immigration & Nationality Act ("INA"). 8 U.S.C. § 1158(b)(1). A refugee is an alien who is "unable or unwilling" to return to his or her country of origin "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). "Aliens have the burden of supporting their asylum claims through credible testimony." Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). "Testimony, by itself, is sufficient to meet this burden, if 'credible.'" Id. (quoting 8 C.F.R. § 208.13(a)). To establish eligibility for asylum, an applicant must demonstrate past persecution by substantial evidence or a well-founded fear of persecution that is both subjectively and objectively reasonable. Lukwago v. Ashcroft, 329 F.3d 157, 177 (3d Cir.2003).

Butt's principal argument before us is that the IJ's adverse credibility finding was not supported by the record.5 Specifically,

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he contends that the finding was based solely on the IJ's erroneous interpretation of the doctor's note regarding his treatment and that, if the note is interpreted correctly, the finding cannot be upheld.6 Butt further argues that, if the IJ's credibility determination is overturned, the record compels the conclusion that he is eligible for asylum.

A. The IJ's Interpretation of the Doctor's Note

We must afford the IJ's adverse credibility finding "substantial deference so long as the findings are supported by sufficient cogent reasons." Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir.2004) (internal quotation marks and citation omitted); Senathirajah v. INS, 157 F.3d 210, 216 (3d...

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