707 F.3d 743 (7th Cir. 2013), 12-2456, Mustafa v. Holder

Docket Nº:12-2456.
Citation:707 F.3d 743
Opinion Judge:FLAUM, Circuit Judge.
Party Name:Ghulam MUSTAFA, et al., Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
Attorney:Kenneth Y. Geman, Ronald H. Ng (argued), Attorneys, Chicago, IL, for Petitioners. Paul Fiorino, Kurt B. Larson, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Judge Panel:Before POSNER, FLAUM, and SYKES, Circuit Judges.
Case Date:February 11, 2013
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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707 F.3d 743 (7th Cir. 2013)

Ghulam MUSTAFA, et al., Petitioners,


Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12-2456.

United States Court of Appeals, Seventh Circuit.

February 11, 2013

Argued Jan. 18, 2013.

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Kenneth Y. Geman, Ronald H. Ng (argued), Attorneys, Chicago, IL, for Petitioners.

Paul Fiorino, Kurt B. Larson, OIL, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, FLAUM, and SYKES, Circuit Judges.

FLAUM, 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 withholding

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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 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 government 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 application, 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 evidence 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-immigrant 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 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 Senator. 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, 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

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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 intelligence agents in the UAE approached him and informed him that Rehman had engaged in corrupt activities. 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 accordance with the government's request and provided further assistance in the investigation. In addition to asking about Rehman's affairs at Redco, the government 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 questions. 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 Musharraf government prosecuted Rehman on corruption charges and sentenced him to fourteen years in prison. After reaching an apparent agreement with the government, 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 explanation 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

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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.

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 accounts. 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 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...

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