Ahmed v. Keisler
| Decision Date | 16 October 2007 |
| Docket Number | No. 04-76246.,04-76246. |
| Citation | 504 F.3d 1183 |
| Parties | Shaikh Ali AHMED, Petitioner, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Shameem Hasan, Hasan & Samson, Los Angeles, CA, for the petitioner.
James E. Grimes, Office of Immigration Litigation, Washington, D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-516-529.
Before: HARRY PREGERSON and JOHNNIE B. RAWLINSON, Circuit Judges, and BRIAN E. SANDOVAL,** District Judge.
Petitioner Shaikh Ali Ahmed, a native of Bangladesh, appeals the Board of Immigration Appeals' ("BIA") decision affirming the Immigration Judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition for review.
Petitioner Ahmed is a forty-eight-year-old native of Bangladesh. He is a Bihari, born in East Pakistan before it became Bangladesh. The Biharis sided with Pakistan against East Pakistan in the War of Independence in 1971. The Biharis consider themselves to be citizens of Pakistan and they hope to someday return to Pakistan. Biharis speak Urdu, the language of Pakistan, rather than Bengali, the language of Bangladesh. Pakistan has admitted only a few thousand Biharis — the remainder, approximately 250,000, live in Bangladesh.
After the Biharis' refusal to accept Bengali citizenship, the Bengali government removed them from their homes, confiscated their property and businesses, and relocated them to squalid, overcrowded resettlement camps. Ahmed testified that Biharis are virtual prisoners inside these camps; there is not enough food to sustain them, they are not allowed to work, and they do not have the right to travel within the country. Following the War of Independence, Ahmed lived in two settlement camps before coming to this country. From 1972 to 1984, Ahmed lived in Kalishpur Camp. From 1984 to 1994, Ahmed lived in Geneva Camp.
In 1972, Ahmed, his older brother, and uncle, were captured and detained by the Bengali army. The army suspected Ahmed's uncle of having collaborated with Pakistan. During the detention, the army killed Ahmed's uncle in front of Ahmed. They also beat Ahmed and his brother. Ahmed's brother suffered a fractured hand and Ahmed has scars all over his body from the beating.
After moving to Geneva Camp, Ahmed became politically active. He joined the Bihari organization Stranded Pakistani General Repatriation Committee ("SPGRC") in 1985, and became an assistant to Nassin Khan, the SPGRC's chief leader. In 1990, Ahmed organized a hunger strike. During the strike, the police arrived, took Ahmed into custody overnight, beat him, and released him the next day.
In 1991, Ahmed participated in a demonstration in front of the Pakistan Embassy. The demonstrators sat in a circle around the embassy, and they tried to give the Ambassador a memorandum requesting that he make arrangements to send them to Pakistan. When they were not allowed to enter the embassy, the demonstrators screamed and threw rocks. The police were called, and they fired guns and threw tear gas at the demonstrators. The demonstrators tried to run away but they were caught by police. Many demonstrators, including Ahmed, were beaten by the police. The police forced Ahmed to sign a statement saying that he would not organize in the future.
On December 26, 1994, Ahmed, together with the Bihari community in Geneva camp, participated in a demonstration. The community protested that they wanted to go to Pakistan because they "cannot live with this kind of living." The police arrived and tried to break up the demonstration. At one point, the demonstrators became angry with the police and started throwing stones. The police called for backup and fired guns and tear gas at the demonstrators. The police captured many demonstrators, including Ahmed, took them into custody, and beat them. The police released Ahmed the next day but threatened him with death should he ever protest again. Ahmed testified that, "if I ever try to say anything like this or try to speak then we will be killed in the police camp." After he was released, Ahmed fled the camp, realizing that he was not safe and that he needed to leave the country. After four visits to the American Embassy, Ahmed succeeded in getting a visa. There is no evidence that Ahmed was violent or that he advocated violence at any of the three demonstrations.
Like Ahmed, his brother was politically active within the Bihari community. In 1993, the Awami League, a group opposing the ruling Bengali party, kidnaped Ahmed's brother.1 Members of the Awami League had tried to force Ahmed's brother to provide them with Biharis to participate in a demonstration because they wanted to increase the number of demonstrators.2 Ahmed's brother told the Awami League that he could not provide people for the rallies because the ruling party would get angry with the Biharis. The Awami League became increasingly angry with Ahmed's brother. One night they came to the camp with a truck and took Ahmed's brother. Ahmed never saw his brother again. Nassin Khan, the head of the SPGRC, asked the police commissioner for information about Ahmed's brother, hoping to find his body or where he had been killed. No information was ever given.
Ahmed came to this country on November 10, 1995, on a B-1 non-immigrant business visa with authorization to remain until November 9, 1996. Ahmed remained in the United States beyond this deadline and on April 15, 1998, he filed an application for asylum and for withholding of removal. In his application, Ahmed stated that he was stateless, that he had been persecuted in Bangladesh, and that his life was in danger because of his leadership role among Biharis.
Following an interview with an asylum officer, the INS issued Ahmed a Notice to Appear, charging him with removability as an alien who remained in the United States longer than permitted. At a subsequent hearing on July 24, 1998, Ahmed conceded his removability and stated his intention to pursue asylum and withholding of removal. On October 5, 1998, an IJ issued an oral decision denying Ahmed's asylum and withholding of removal claims. The IJ stated that Ahmed's arrests at violent demonstrations did not constitute persecution. The IJ found that Ahmed was assimilated, that he was not stateless, and that he could live anywhere in Bangladesh because he speaks fluent Bengali. "Nobody would know that he's a Bihari unless he wants to let them know, since he's fluent in Bengali" and "nobody could tell by looking at him." The IJ concluded that Ahmed was a Bengali citizen.
Discussing the death of Ahmed's uncle, the IJ stated that Ahmed's uncle was believed to be a spy "or at least he was believed to be assisting the Pakistani army," and "we don't know the specific reasons why he was killed." The IJ recognized that Ahmed and his brother were severely beaten in connection with their uncle's death. The IJ also found that Ahmed's brother's kidnaping resulted from an argument with the Awami League and did not constitute persecution because the kidnaping was not an act supported by the government.
Finding that Ahmed had not suffered past persecution and had no well-founded fear of future persecution, the IJ denied Ahmed asylum and withholding of removal. The IJ found Ahmed credible and had "no reason to believe . . . that he's undeserving of relief as a matter of discretion." However, finding that there were no "factors of a discretionary nature," he granted Ahmed sixty days to voluntarily depart — the maximum allowable period.
On June 14, 1999, Ahmed filed a motion to remand the case to an IJ so that Ahmed could apply for relief under the Convention Against Torture ("CAT").3 The BIA granted Ahmed's motion on April 15, 2002. Hearings on remand were held on February 21, 2002, and August 4, 2003.4 On August 4, 2003, a new IJ issued a decision regarding Ahmed's asylum, withholding of removal, and newly-added CAT claim. The IJ adopted the prior IJ's finding that Ahmed was not entitled to asylum relief or withholding of removal. The IJ denied Ahmed's CAT claim, finding that Ahmed failed to demonstrate that he would be tortured if returned to Bangladesh. The IJ found Ahmed to be credible and eligible for voluntary departure. Ahmed timely appealed to the BIA.
On November 4, 2004, the BIA issued a brief per curiam order affirming the IJ's finding that Ahmed "failed to meet his burden of establishing past persecution or a well-founded fear of persecution on account of one of the statutorily protected grounds, or that it is more likely than not that he will be persecuted or subjected to torture upon his return to Bangladesh." The BIA then dismissed Ahmed's appeal. Ahmed timely appealed to this court.
Although the BIA's opinion did not expressly state whether it conducted a de novo review, its phrasing suggests that it conducted an independent review of the record. If that were the case, we would review the BIA's decision. See Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000) (citing Vongsakdy v. INS, 171 F.3d 1203, 1206 (9th Cir.1999)). But the lack of analysis that the BIA opinion devoted to the issue at hand — its simple statement of a conclusion — also suggests that the BIA gave significant weight to the IJ's findings. See id. In light of that ambiguity, we also look to the IJ's oral decision as a guide to what lay behind the BIA's conclusion. See id.
We review for substantial evidence the decision that an applicant has...
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