Hussain v. Rosen

• Decision Date: 11 January 2021
• Docket Number: No. 18-70780,18-70780
• Parties: Bilal HUSSAIN, Petitioner, v. Jeffrey A. ROSEN, Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

985 F.3d 634

Bilal HUSSAIN, Petitioner,

v.Jeffrey A. ROSEN, Acting Attorney General, Respondent.

No. 18-70780

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 12, 2020 Pasadena, California

Filed January 11, 2021

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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX1-424

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

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 in failing to probe a 2012 convoy attack described only in Hussain's written application because Hussain did not allege the attack targeted or injured him specifically.³ The BIA determined that "any future harm [Hussain] may suffer in Pakistan would not constitute ‘persecution’ under the Act because" of the Pakistani government's "significant efforts to combat terrorist organizations." And the fact that "terrorist attacks continue in Pakistan ... is insufficient" on its own to conclude the government was unable to control the Taliban. Although Hussain testified that the police did not intervene after the 2007 attack on his village, the BIA concluded the single incident did not in itself demonstrate the government's inability or unwillingness "to protect him from the Taliban." The BIA therefore found no clear error in the IJ's conclusion that Hussain failed to meet his burden of proof for asylum, withholding of removal, or CAT protection.

II. STANDARD OF REVIEW

We review the BIA's factual findings underlying its determination that a petitioner failed to establish eligibility for asylum, withholding of removal, and protection under CAT for substantial evidence. Hanna v. Keisler , 506 F.3d 933, 937, 940 (9th Cir. 2007) (asylum and withholding of removal); Zheng v. Ashcroft , 332 F.3d 1186, 1193 (9th Cir. 2003) (CAT). We reverse the BIA only where "any reasonable adjudicator would be compelled to conclude to the contrary." Ali v. Holder , 637 F.3d 1025, 1029 (9th Cir. 2011) (citation omitted). "The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Go v. Holder , 640 F.3d 1047, 1054 (9th Cir. 2011) (citation omitted). Accordingly, review of the Board's eligibility determinations in this regard is "extremely deferential." Ghaly v. INS , 58 F.3d 1425, 1431 (9th Cir. 1995).

III. DUE PROCESS

As an initial matter, Hussain claims the IJ did not sufficiently explain the proceedings and did not ask him adequately probing questions, resulting in a denial of due process.⁴ A petitioner facing removal "is entitled to a full and fair hearing of his claims and a reasonable opportunity to present evidence on his behalf." Colmenar v. INS , 210 F.3d 967, 971 (9th Cir. 2000). We "will reverse the BIA's decision on due process grounds if the proceeding was ‘so fundamentally unfair that the alien was prevented from reasonably presenting his case.’ " Id. (citation omitted). To prevail on such a claim, a petitioner must also demonstrate "substantial prejudice." Lata v. INS , 204 F.3d 1241, 1246 (9th Cir. 2000).

A. The Fairness of the Proceedings

1. The IJ Explained the Legal Procedures.

"[T]he Fifth Amendment entitles aliens to due process of law in deportation proceedings." Reno v. Flores , 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). But because "an alien in civil removal proceedings is not entitled to the same bundle of constitutional rights afforded defendants in criminal proceedings ... ‘various protections that apply in the context of a criminal trial do not apply in a deportation hearing.’ " Valencia v. Mukasey , 548 F.3d 1261, 1263 (9th Cir. 2008) (quoting Ramirez-Osorio v. INS , 745 F.2d 937, 944 (5th Cir. 1984) ). As an adversarial process, immigration proceedings are impartial proceedings where petitioners may make their case, but are not entitled to the IJ's legal assistance in doing so. Crucially, a pro se "alien has no blanket right to be advised of the possibility of asylum" in a hearing before an Immigration Judge. Valencia , 548 F.3d at 1263. As required by statute, an IJ must ensure "the alien shall have a reasonable opportunity to examine the evidence against the alien, to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the Government." 8 U.S.C. § 1229a(b)(4)(B). In considering...