Hussain v. Rosen, 011121 FED9, 18-7078

Docket Nº:18-7078
Opinion Judge:VANDYKE, Circuit Judge.
Party Name:Bilal Hussain, Petitioner v. Jeffrey A. Rosen, Acting Attorney General, Respondent
Attorney:Salmah Y. Rizvi (argued) and Douglas H. Hallward-Driemeier, Ropes & Gray LLP, Washington, D.C., for Petitioner. Kristen A. Giuffreda (argued), Trial Attorney; Shelley R. Goad, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United ...
Judge Panel:Before: Consuelo M. Callahan, Patrick J. Bumatay, and Lawrence VanDyke, Circuit Judges.
Case Date:January 11, 2021
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Bilal Hussain, Petitioner

v.

Jeffrey A. Rosen, Acting Attorney General, Respondent

No. 18-7078

United States Court of Appeals, Ninth Circuit

January 11, 2021

Argued and Submitted August 12, 2020 Pasadena, California

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A209-171-424

Salmah Y. Rizvi (argued) and Douglas H. Hallward-Driemeier, Ropes & Gray LLP, Washington, D.C., for Petitioner.

Kristen A. Giuffreda (argued), Trial Attorney; Shelley R. Goad, Assistant Director; Joseph H. Hunt, Assistant Attorney General; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Consuelo M. Callahan, Patrick J. Bumatay, and Lawrence VanDyke, Circuit Judges.

SUMMARY[*]

Immigration

Denying Pakistani national Bilal Hussain's petition for review of a decision of the Board of Immigration Appeals, the panel held that substantial evidence supported the denial of asylum, withholding of removal, and protection under the Convention Against Torture, and that the immigration judge did not deprive Hussain of due process.

The panel held that the IJ provided Hussain, who was pro se, due process by providing details about the structure of the hearing and the availability of counsel, and asking numerous questions through which Hussain had ample opportunity to develop his testimony. The panel rejected Hussain's assertion that the IJ repeatedly misled him about what he needed to show to meet his burdens by asking open-ended questions and failing to adequately probe the record. Rather, the panel explained that the IJ developed the record in its role as an independent fact-finder, and it was Hussain's responses that determined the scope of the testimony elicited. The panel also rejected Hussain's reliance on Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000), for the proposition that IJs must go beyond their impartial role and instead essentially act as advocates for pro se asylum applicants. The panel explained that it could not read Jacinto's imprecise "fully-develop-the-record-for-pro-se-petitioners" dicta as expansively as Hussain seeks without doing serious harm to the adversarial process established by Congress for petitioners like Hussain. The panel also concluded that, even if Hussain could demonstrate error, he did not show prejudice, where he failed to point to any additional evidence concerning past persecution or the other grounds upon which the Board denied relief.

The panel held that the evidence did not compel the finding of past persecution, where Hussain did not testify to any individualized physical attacks or threats, and he failed to show sufficient economic or psychological harm.

The panel also held that Hussain failed to establish that the Pakistani government was unable to control the Taliban, noting that Hussain failed to report his two attacks to authorities, and that record evidence demonstrated that the government's significant efforts to combat terrorism and sectarian violence had resulted in a substantial reduction in terror-related fatalities. Although Hussain argued that he did not report the attacks because police provide no protection, the panel noted that even if the government's response to Hussain's two attacks was lacking, the standard is not that the government can prevent all risk of harm.

The panel held that Hussain failed to establish that he could not reasonably relocate within Pakistan to avoid future persecution. The panel rejected Hussain's arguments that it would be unreasonable for him to relocate to an unfamiliar town without family, or because he would need to live in a rented space or with a host family. The panel also noted that Hussain failed to show there were restrictions on movement in areas outside the areas of high unrest that Hussain would assumedly seek to avoid. The panel also explained Hussain could not successfully argue that relocation was unreasonable because the country at large is subject to generalized violence, because he did not show he is at risk of country-wide targeted persecution.

The panel also held that substantial evidence supported the denial of CAT protection because Hussain failed to establish that he faces a particularized risk of torture, and never alleged, in the record or in his testimony, that he ever suffered any harm-"severe pain or suffering"-that rose to the level of torture.

OPINION

VANDYKE, Circuit Judge.

Pakistani national Bilal Hussain (Hussain) attempted to enter the United States near Otay Mesa, California without valid documentation, stating he feared persecution from the Taliban in his native Pakistan. The Department of Homeland Security initiated removal proceedings, and Hussain petitioned for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).

At his removal hearing, Hussain testified before the Immigration Judge (IJ) that the Taliban burned down his jewelry store in an attack on his hometown in 2007, but never hurt or personally threatened him or his family during that attack or at any other time, including up to when Hussain left Pakistan in September 2015. Hussain also submitted documents describing a subsequent 2012 Taliban attack on a convoy of cars that he was traveling with. The attack did not injure Hussain, but in fleeing he lost the business inventory in his car. The IJ asked Hussain open-ended questions about his experiences with the Taliban and never received any information suggesting Hussain was specifically targeted, and ultimately determined that Hussain failed to meet his burden of proof for asylum, withholding of removal, or CAT.

The Board of Immigration Appeals (BIA) affirmed, noting that Hussain never testified or submitted evidence claiming any actual injury caused by the Taliban, or that the Taliban individually targeted or attacked him for any reason. The BIA also concluded that the IJ provided Hussain due process because there was no indication in the transcript or the appeal that Hussain did not understand the proceedings or that there were facts he was "unable to present."

Hussain seeks review of the BIA's decision, and we have jurisdiction under 8 U.S.C. § 1252. We dismiss Hussain's due process claims and deny review of his petition because the IJ provided Hussain with a full opportunity to present testimony, and the record does not compel the conclusion that the agency erred in determining that Hussain's description of generalized violence did not meet his burden of proof to show targeted persecution or torture.

I. BACKGROUND

At the start of Hussain's first hearing before the Immigration Court, the IJ explained his statutory rights as a petitioner, detailed the court's procedures, told him he had the right to an attorney, and continued the hearing to allow Hussain to find an attorney. The IJ also described the role of the facility's "legal orientation provider (LOP)," and placed Hussain on the LOP list. Hussain chose to receive LOP assistance instead of retaining counsel.

During Hussain's hearing, the IJ asked "why [he was] afraid to return to Pakistan." When asked to describe his first Taliban encounter, Hussain described an incident in 2007 where "the Talibans [sic] were passing through our town, and we did not give them the way," causing the Taliban "to fire on the people and in the market." Neither Hussain nor his family were injured or targeted in the attack.1 He testified his jewelry shop was among others that the Taliban burned, and that the Taliban later killed people and blocked the roads. Hussain testified that no police or military responded to this particular attack, but described that the end of the encounter occurred when people from his village "attacked back." Hussain's hometown is located within the FATA region, where "[i]n lieu of police, . . . [t]ribal leaders convene . . . tribal militias . . . not . . . formal law enforcement entities." Hussain remained in his hometown of Parachinar until 2015, and testified he had no further interaction with the Taliban there.

Hussain responded "no" when the IJ asked if he was "ever harmed," if "anybody threaten[ed]" him, or if at "any time at all . . . anybody harmed or threatened [him] in Pakistan." Hussain also denied any problems with the police or any threats to his wife, children, mother, brothers, or sisters.[2]

The IJ considered this evidence and concluded Hussain "was not a victim of past persecution." The IJ ultimately found Hussain credible, but not "100 percent accurate as to country conditions in Pakistan." The IJ acknowledged that the 2015 and 2016 country reports for Pakistan described "a culture of lawlessness" in Hussain's region, but also showed "that the government is making great efforts to try to control the violence that is committed by . . . the Taliban." The IJ thus found Hussain "has not established a well-founded fear of future persecution on account of a protected ground," nor does he "have a nexus to a protected ground if he fears general violence in his home country." (emphasis added). The IJ denied Hussain's applications because he was never "harmed in the past, let alone tortured," and "could live in other locations in Pakistan without fearing or suffering any harm at the hands [of] the Taliban." And given that "the government has taken great strides to crack down on the Taliban," Pakistan was not "unable or unwilling to control the Taliban."

The BIA affirmed, noting that there was no indication in the transcript or the appeal that Hussain did not understand the proceedings or was "unable to present" any facts. The BIA agreed with the IJ that Hussain "was never physically harmed or personally threatened in Pakistan" and concluded that the IJ did not err...

To continue reading

FREE SIGN UP