Ahmed v. Holder

• Decision Date: 13 July 2010
• Docket Number: No. 09-2085.,09-2085.
• Citation: 611 F.3d 90
• Parties: Usman AHMED and Afsheen Iqbal Butt, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

611 F.3d 90

Usman AHMED and Afsheen Iqbal Butt, Petitioners,v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 09-2085.

United States Court of Appeals, First Circuit.

Submitted May 7, 2010.

Decided July 13, 2010.

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Daniel F. Cashman and Cashman & Lovely, P.C. on brief for petitioners.

Tony West, Assistant Attorney General, Civil Division, United States Department of Justice, Shelley R. Goad, Assistant Director, Office of Immigration Litigation, and Jennifer A. Singer, Trial Attorney, Office of Immigration Litigation, on brief for respondent.

Before TORRUELLA, SELYA and HOWARD, Circuit Judges.

SELYA, Circuit Judge.

The petitioners, Usman Ahmed and Afsheen Iqbal Butt, are Pakistani nationals. They seek judicial review of an order of the Board of Immigration Appeals (BIA) denying their applications for withholding of removal and protection under the United Nations Convention Against Torture (CAT). Discerning no error, we deny the petition.

The facts are straightforward. In January of 1997, Ahmed entered the United States on an F-1 student visa and began attending school in New Hampshire. He returned to Pakistan for roughly two weeks in early 1999 and married Butt. The newlyweds promptly returned to the United States. Due to the combined effect of their marriage and Ahmed's student status, Butt received a derivative F-2 visa.

In time, Ahmed stopped going to school and went to work in the private sector. This shift resulted in a loss of his student status, and effectively terminated the couple's right to stay in the United States. See 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i). The petitioners nevertheless remained in the United States without legal authorization. Over time, their nuclear family expanded to include four American-born children.

The Department of Homeland Security instituted removal proceedings against Ahmed in December of 2005 and against Butt in January of 2006. The petitioners cross-applied for divers forms of relief. At a hearing held before an immigration judge (IJ) on October 16, 2007, their cases were consolidated. The petitioners conceded removability but, pertinently, pressed their claims for withholding of removal and CAT protection.

The petitioners made no developed claim of past persecution. Rather, the basic theme of their argument was that, if removed to Pakistan, they would be targeted by Islamic fundamentalists because of their pro-American views. Butt mounted an independent line of argument, asserting that she would face the prospect of persecution on account of her gender.

Both petitioners testified at the hearing. In addition, they introduced documentary evidence, including Amnesty International publications, State Department reports on human rights in Pakistan, background materials concerning the treatment of women in Pakistan, and the like.

The IJ found the testimony of both petitioners credible. He nonetheless determined that they had not established a clear probability of persecution on account of a statutorily protected ground should they be returned to Pakistan. The IJ made a similar determination with respect to the lack of any likelihood of torture. Accordingly, he denied the applications for withholding of removal and protection under the CAT.

On appeal to the BIA, the petitioners argued, among other things, that the IJ had failed appropriately to weigh their claims for withholding of removal based on persecution traceable to their membership in a cognizable social group and/or their political opinions. The BIA rejected these arguments, concluding that the petitioners had not established that they would be in harm's way on account of either their membership in the purported social group (“secularized and westernized Pakistanis perceived to be affiliated with the United States”) or their political opinions (pro-American views). The BIA also concluded that Butt had not shown a clear probability that she would be persecuted on account of her gender. Finally, the BIA rebuffed the petitioners' claims for protection under the CAT. This timely petition for judicial review followed.

When the BIA has embarked upon an independent evaluation of the record and rested its decision on a self-generated rationale, judicial review focuses on the BIA's decision, rather than the IJ's decision. Pulisir v. Mukasey, 524 F.3d 302, 307-08 (1st Cir.2008). This is such a case.

In appraising a decision of the BIA, we defer to the agency's factual determinations as long as those determinations are supported by substantial evidence. Id. at 307. This standard requires that a determination be “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). In a nutshell, the BIA's fact-based determinations must be honored unless the record compels a reasonable factfinder to make a contrary determination. Bocova v. Gonzales, 412 F.3d 257, 262 (1st Cir.2005); Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.2004).

Questions of law are treated differently. Such questions engender de novo review, albeit with a measure of respect afforded to the BIA's reasonable interpretations of statutes and regulations falling within its purview. See Pulisir, 524 F.3d at 307; see also Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

In this venue, the petitioners' preserved challenges relate to withholding of removal. In order to succeed in a quest for that relief, an alien must show that, more likely than not, he will be persecuted on account of a statutorily protected ground if returned to his homeland. Pulisir, 524 F.3d at 308. Such statutorily protected grounds include race, religion, national origin, membership in a particular social group, and political opinion. 8 U.S.C. § 1231(b)(3)(A). This paradigm requires an alien to demonstrate a clear probability of future persecution. See Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir.2005) (noting that a claim for withholding of removal imposes a more stringent burden of proof on an alien than does a counterpart claim for asylum). This may be accomplished either directly or indirectly (by showing past persecution sufficient to create a rebuttable presumption that the alien is likely to suffer future persecution). Pulisir, 524 F.3d at 308.

In this instance, the petitioners have tried to link their putative entitlement to withholding of removal both to membership in a particular social group and to political opinion. Those are related, but conceptually distinct, links. We therefore address them separately.

As to their membership in a particular social group, the petitioners refer to a social group comprising “secularized and westernized Pakistanis perceived to be affiliated with the United States.” But a social group does not exist as such merely because words are sufficiently malleable to allow a litigant to sketch its margins. Rather, for a proposed social group to achieve cognizability (that is, to come within the compass of the statute), its members must share at least one common, immutable characteristic. Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.2005). In addition, the shared characteristic or characteristics must make the group generally recognizable in the community and must be sufficiently particular to permit an accurate separation of members from non-members. Faye v. Holder, 580 F.3d 37, 41 (1st Cir.2009); Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir.2009).

Here, the BIA determined that the petitioners had failed to establish the existence of a cognizable social group. As we explain below, this determination is supported by substantial evidence.

We start with the most obvious flaw in the fabric of the petitioners' argument they have failed to show that their definition of a proposed social group satisfies the particularity requirement. Adjectives like “secularized” and “westernized” reflect matters of degree and, in the last analysis, such adjectives call for subjective value judgments. Whether a person is “secularized” or “westernized” is neither readily apparent nor susceptible to determination through objective means. Given the vagueness of the proffered definition, an objective observer cannot reliably gauge who is or is not a member of the group.

We have noted, with a regularity bordering on the echolalic, that a loose description of a purported social group does not establish a sufficient level of particularity to render that group cognizable for purposes of the immigration laws. See, e.g., Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir.2010); Faye, 580 F.3d at 42. The gauzy generalities in which the petitioners couch the contours of the proffered group do not permit us to conclude that the BIA erred in refusing to recognize that group.

If more were needed-and we doubt that it is-the petitioners have failed to provide any evidence indicating that this supposed social group is recognized as such in contemporary Pakistan. See Mendez-Barrera, 602 F.3d at 26-27. This omission is fatal.

For these reasons, the BIA's determination that the petitioners failed to establish membership in a cognizable social group must stand.

The petitioners' claims anent persecution based on political opinion bear a family resemblance to their social group claims. They posit that Islamic fundamentalists will target them in Pakistan because of their pro-American views. This hypothesis, though forcefully pronounced, amounts to nothing more than speculation-and speculation is not a substitute for proof.

The petitioners point to documentary evidence in support of their position. This evidence suggests that the Pakistani people have diverse political, social, and cultural views (including mixed sentiments about the United States). The same evidence also suggests that violence and human rights violations are concomitants of everyday life in some parts of Pakistan. But...