Hasan v. Holder

• Decision Date: 12 March 2012
• Docket Number: No. 10–1656.,10–1656.
• Citation: 673 F.3d 26
• Parties: Mohammed Suzaul HASAN, Tanjila Hasan, and Tameem Hasan, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

673 F.3d 26

Mohammed Suzaul HASAN, Tanjila Hasan, and Tameem Hasan, Petitioners,

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

No. 10–1656.

United States Court of Appeals, First Circuit.

Submitted Dec. 8, 2011.Decided March 12, 2012.

Salim Sheikh, on brief for petitioners.

Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, Civil Division, Tony West, Assistant Attorney General, Civil Division, and Shelley R. Goad, Assistant Director, on brief for respondent.

Before TORRUELLA, BOUDIN, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

The petitioners in this case, natives and citizens of Bangladesh, seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”). See 8 U.S.C. § 1252(a)(1). The BIA affirmed the denial by an immigration judge (“IJ”) of the petitioners' applications for cancellation of removal, asylum, withholding of removal, and relief pursuant to the Convention Against Torture (“CAT”). After careful consideration, we dismiss the petition for review regarding cancellation of removal for lack of jurisdiction. The remainder of the petition is denied, as we find that the BIA's decision was supported by substantial evidence.

I. Background

A. Facts and Procedural History

Mohammed Suzaul Hasan (“Hasan”), the lead petitioner in this case, entered the United States, on or about August 4, 1992, with his wife, Tanjila, and son, Tameem. The three were admitted to this country as non-immigrant visitors with authorization to remain in the United States until February 3, 1993. Hasan and his family overstayed their visas. In the interim, a daughter, Tashfia, was born to the family on July 2, 1993 in Los Angeles, California.¹ Ten days later, on July 12, 1993, Hasan filed an application seeking asylum and withholding of removal under sections 208 and 241(b)(3) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 & 1231(b)(3), as well as protection under the CAT, as implemented by 8 C.F.R. §§ 1208.16– 18, listing his wife and son as derivatives.

Over a decade later, on May 25, 2007, the government filed Notices to Appear (“NTA”) in immigration court, charging Hasan, Tanjila, and Tameem (collectively, “Petitioners”) with removability pursuant to section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). The three were placed in removal proceedings and, in pleadings submitted to the IJ on June 17, 2007, they admitted the factual allegations in the NTA, conceding their removability as charged.

On June 30, 2008, Petitioners filed individual applications seeking cancellation of removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1). Hearings on the merits of Hasan's pending application for asylum, withholding of removal, and CAT protection, as well as Hasan and Tanjila's applications for cancellation of removal,² were held by an IJ on October 15 and November 21, 2008. Hasan testified as to the events giving rise to his request for relief and protection, and the alleged exceptional and extremely unusual hardship that would befall his daughter, Tashfia, a U.S. citizen, if he and the rest of his family were removed to Bangladesh. Tashfia also testified in support of her parents' application for cancellation of removal.

Hasan declared that he came to the United States because of political persecution in Bangladesh by opposition parties. Hasan began his political career in 1985 with the Youth Front of the Jatiya Party,³ and was eventually elected to prominent positions within the local party chapter. Prior to his departure from Bangladesh in 1992, Hasan had been attacked and threatened on numerous occasions by political opponents of the Jatiya Party, including the Bangladesh National Party (“BNP”), the Awami League, and a fundamentalist Islamic group called the Jamaat–e–Islami. Specifically, Hasan described: (1) being beaten by members of the Awami League on October 7, 1988 while on his way back from a political meeting, for which he received medical treatment and several stitches on his face; (2) being attacked on March 2, 1989 by BNP members who attempted to abduct him from a marketplace and fired upon him as he fled on a motorcycle; (3) being robbed and beaten severely by BNP members on August 25, 1989 while he was collecting donations for the Jatiya Party at a marketplace; (4) receiving death threats from a BNP leader on October 26, 1989 for his work with the Jatiya Party; (5) being beaten with a hockey stick and assaulted with a knife by Islamic fundamentalists of the Jamaat–e–Islami on August 30, 1990 as he was leaving a rally; (6) being beaten in front of his home on December 6, 1990 by members of the BNP and Awami League after the Jatiya Party stepped down from power, from which attack he was saved by his wife's successful entreaty to the mob; and (7) being arrested and detained for three days in February of 1992 without an explanation or formal charges, after the BNP came into power, during which time he was beaten and given inedible food. Hasan declared that he was released from the last of these events only after his wife pleaded with the police and offered them a cash bribe.

Hasan was once again attacked and attempts were made against his life in April of 1992. Consequently, he left Bangladesh with his wife and son on July 30, 1992, and made for Belgium, from which country the family found its way to the United States on a valid, non-immigration visa.

Hasan testified that, at the time of his hearing, Bangladesh had a “caretaker government,” that all political activities were “suspended” and restricted, and that the Jatiya Party was “not in power at all.” The government, in contrast, presented the U.S. State Department's 2007 Country Report on Human Rights Practices for Bangladesh, which indicated that after the 2001 elections, which were supervised by a nonparty caretaker government, the BNP had formed a four-party coalition government with the Jamaat–e–Islami, the Bangladesh Jatiya Party, and the Islami Oikko Jote. The 2007 Country Report also recounted the implementation of electoral and political reforms. In addition, the government pointed to newspaper articles chronicling a historic democratic election held on December 29, 2008, as well as statements in the 2008 Country Report on Human Rights Practices for Bangladesh that the elections were “considered by international and domestic observers as free and fair,” blemished only by “isolated irregularities” and “sporadic violence.” Asked specifically what harm might befall him if he returned to Bangladesh, Hasan stated that he did not “know what will happen.” He identified the BNP and Jamaat–e–Islami as “the main threat” for him and averred that members of these organizations would not like it “if [he] g[o]t into politics again.”

As to Tashfia, Hasan's daughter and a U.S. citizen, declarations by herself and Petitioners reflected that she had never traveled to Bangladesh, knew little about the country, and is not comfortable speaking the native language, nor can she read or write in Bengali. If the Petitioners were repatriated to Bangladesh, Tashfia would accompany them as there is no one in the United States that could care for her. Hasan expressed fears that political rivals might kidnap Tashfia in order to hurt him, or that she might be kidnapped simply for being perceived as a foreigner from a rich country. Hasan also worried that food shortages, substandard health care, and the expense of education for English speakers in Bangladesh might affect Tashfia negatively.

B. The IJ's Decision

On June 17, 2009, the IJ issued a written decision denying Hasan's request for asylum, withholding of removal, and CAT protection, denying Hasan and Tanjila's request for cancellation of removal, but granting Petitioners voluntary departure.

The IJ determined that Petitioners were ineligible for cancellation of removal because they failed to demonstrate that their removal would result in “exceptional and extremely unusual hardship,” 8 U.S.C. § 1229b(b)(1)(D), to their one qualifying relative, Tashfia, that would be “substantially different from, or beyond, that which would normally be expected” from repatriation, Matter of Monreal–Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A.2001) (citing H.R. Conf. Rep. No. 104–828 discussing intended reach of INA section 240A(b)(1)(D)). The IJ held that Petitioners could not establish that removal would cause Tashfia to be submitted to the necessary level of economic hardship since the record reflected that Hasan did not allege any adverse medical conditions; possessed a high degree of education as a CPA and college graduate; and was the co-owner of his family's house in Bangladesh. The IJ also considered Petitioners' strong family ties in Bangladesh, including Hasan's brothers, sisters, and father who all currently reside there, and the fact that a number of these relatives held skilled positions.⁴ There was also meager evidence indicating that Tashfia would face peril based on any political activities in which her father may have engaged over seventeen years ago, or that her U.S. citizenship would make her an appreciable target for kidnapping or other criminal activity.

Regarding Petitioners' eligibility for asylum under the INA's section 208, 8 U.S.C. § 1158, the IJ determined that, assuming Petitioners had sustained their burden of establishing past persecution, the government had nevertheless established by a preponderance of the evidence that there had been a fundamental change in circumstances in Bangladesh such that Petitioners no longer had a well-founded fear of persecution on account of a statutorily cognizable ground. See id. § 1158(b)(1)(A) (in order to establish eligibility for asylum under INA section 208, an alien must be a refugee within the meaning of INA section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)); id. § 1101(a)(42)(A) (defining “refugee” as any person who is unwilling or unable to return to his or...