Javed v. Holder

• Decision Date: 24 May 2013
• Docket Number: No. 12–1657.,12–1657.
• Citation: 715 F.3d 391
• Parties: Mohammad Ilyas JAVED, Petitioner, v. Eric H. HOLDER, JR., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

715 F.3d 391

Mohammad Ilyas JAVED, Petitioner,

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

No. 12–1657.

United States Court of Appeals,First Circuit.

May 24, 2013.

Randy Olen on brief for petitioner.

Edward C. Durant, Attorney, Office of Immigration Litigation, Civil Division, Stuart F. Delery, Principal Deputy Assistant Attorney General, and Holly M. Smith, Senior Litigation Counsel, on brief for respondent.

Before TORRUELLA, STAHL, and LIPEZ, Circuit Judges.

STAHL, Circuit Judge.

Mohammad Ilyas Javed petitions for review of a decision by the Board of Immigration Appeals (BIA or Board) affirming the denial of his applications for withholding of removal and protection under the Convention Against Torture (CAT). Because the BIA's withholding-of-removal decision is contrary to the evidence, we grant the petition in part and remand the case for further proceedings.

I. Background

Javed was born in 1962 in Gujrat, a district of Punjab Province, in Pakistan. He attended high school and then studied business administration and accounting in Gujrat. He went on to earn degrees in commerce and law from the University of Karachi, completing his studies in 1987. He worked for a Karachi accounting firm until 1990 and then returned to Batore, his home village in Gujrat. Upon his return, he joined a law firm there.

While at the law firm, Javed was assigned to a case stemming from a conflict between rival political factions: the Batore group and the Hunj group (each named after its home village). These groups were “subsidiaries” of the ruling Pakistan Muslim League and the Pakistan People's Party, respectively. (Javed was not a member of either party.) Some members of the Hunj group had been injured in a shooting that resulted from a dispute over an apparently rigged election in October 1990. Javed and his firm represented the Hunj group in their efforts to prosecute the case in court. In Pakistan, private parties can, through their attorneys, initiate criminal cases (although there are public prosecutors as well). For that process to begin, the police must file a particular document; Javed and his law firm were eventually able to persuade the police to do so, but not before he and others were arrested during a protest. Javed was held by the local police for “a few days” and then released. Thereafter, the court case commenced, but was prolonged by repeated adjournments. The local police, apparently seeking to shelter the Batore group from punishment, were complicit in these delays.

While the case was slowly proceeding, Javed came under pressure from the Batore group, which was based in his home village of Batore. After hearing about his role representing the Hunj group in the case, the Batore group began to threaten Javed, and, on “many” occasions, members of the group “got[ ] hold of [him] and beat [him] up.” They threatened to kill him if he did not stop representing the Hunj. As Javed described it, “the Batore group thought that [he] was affiliated with the Hunj group and they thought of [him] as their enemy.”

In 1991, Javed left the law firm and started his own practice. He opened an office in a small building near the local courthouse. The local government, however, under the “control” of the Batore group, demolished the office building.

In 1993, as a result of the threats against him, Javed fled Pakistan. The Hunj–Batore litigation was still ongoing when he left, but apparently ended in 1998. Javed moved to South Africa and worked in a supermarket. His wife and two children remained in Pakistan; he returned to visit them twice but avoided his village, instead staying with a relative elsewhere and having his family come meet him there. Javed's wife passed away in early 1999, after which he came to the United States. His two children (now in their late teens and early twenties, respectively) still live in Pakistan; he supported them during his absence by sending them money from abroad.

Javed entered the United States as a non-immigrant visitor in February 1999. He remained in the country beyond the time authorized, and was thus served with a Notice to Appear in March 2002. In 2005, Javed appeared before the Immigration Judge (IJ), conceded removability, and applied for withholding of removal and CAT protection. He offered various materials in support of his applications and testified to the events described above. He also testified that the threats against him continue even in his absence. His friends in Pakistan report that the Batore continually tell them: “[W]henever [Javed] returns over here we are not going to leave him alive.” He also expressed concern that he would be even less safe in Pakistan now than when he left because the Hunj group has ceased to exist politically and because of the prevalence of contract killings.

The IJ denied Javed's applications. He found that Javed was a credible witness and had given testimony that was both internally consistent and consistent with the record. He concluded, however, that Javed had not established that he had experienced persecution “as a result of an immutable characteristic.” ¹ Rather, the IJ concluded that the threats and violence Javed experienced were the result of “his involvement in litigation with a violent and politically influential organization.” The IJ also believed that the passage of time had likely “removed, or greatly lessened, any threat to” Javed's safety. He therefore found that Javed was not eligible for withholding of removal. As to Javed's application for CAT protection, the IJ found no “mention” of torture in Javed's testimony or affidavit. The IJ noted that Javed had been detained by the local police for several days, but pointed out that he had apparently not suffered any abuse during that period. Thus, the IJ denied the CAT application as well.²

The BIA affirmed. It agreed with the IJ that Javed “was targeted because of his involvement as an attorney in litigation, which does not establish a nexus between the harm [he experienced] and a protected ground.” The Board also found that Javed had not experienced harm that rose to the level of “persecution” within the meaning of the statute, in part because he was, in the Board's view, embroiled in a purely private dispute. And the Board noted that Javed's family had apparently remained in Pakistan without incident since his departure, which it believed undermined his argument that he would face persecution if repatriated. Finally, the Board agreed with the IJ that Javed had not been tortured and that the record did not establish a sufficient likelihood of future torture. Accordingly, it affirmed the denial of both applications.

II. Discussion

The BIA's “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we will “accept the BIA's findings so long as they are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.2009) (quoting Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir.2005)). We review the BIA's legal interpretations de novo. See id. Where, as here, the BIA affirms and elaborates on the IJ's findings, we review both decisions. Chanthou Hem v. Mukasey, 514 F.3d 67, 69 (1st Cir.2008).

We begin with Javed's application for withholding of removal. Withholding “protects an otherwise removable alien from removal to a country where ‘the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion.’ ” Tay–Chan v. Holder, 699 F.3d 107, 111 (1st Cir.2012) (quoting 8 U.S.C. § 1231(b)(3)(A)). To be eligible for this remedy, a petitioner must make one of two showings: (i) that he has suffered past persecution on account of one of the enumerated grounds, which creates a rebuttable presumption of future persecution; or (ii) that future persecution on account of one of these grounds is more likely than not to occur. Id.; see8 C.F.R. § 1208.16(b)(1)–(2). Under the REAL ID Act of 2005, persecution is “on account of” a protected ground if that ground “was or will be at least ‘one central reason’ for [the] persecution.” Tay–Chan, 699 F.3d at 111.

Javed challenges the BIA's withholding determination on two grounds. First, he contends that the record showed that he experienced past persecution, entitling him to a presumption that he had a well-founded fear of future persecution (which he did not receive). Second, he attacks the conclusion that his troubles stemmed from his litigation activities rather than any protected ground; he says that the record reveals that his representation of the Hunj group caused the Batore group to impute a political opinion to him.

In deciding that Javed had not suffered past persecution, the Board concluded (with scant explanation) that the threats and violence he experienced did not rise to the level of persecution, which requires harm that goes beyond mere harassment, unfairness, or unpleasantness. See Attia v. Gonzales, 477 F.3d 21, 23 (1st Cir.2007). The Board also seemed to conclude that Javed had not shown any government involvement in the threats and beatings. See Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir.2005) (persecution requires “government action, government-supported action, or government's unwillingness or inability to control private conduct”). It is true that a single, vague threat or even a number of non-specific threats, “unaccompanied by any significant physical abuse and any government involvement,” will be unlikely to constitute persecution. Badache v. Holder, 492 Fed.Appx. 124, 125 (1st Cir.2012) (Souter, J.) (quoting Abdelmalek v. Mukasey, 540 F.3d 19, 22 (1st Cir.2008)) (internal quotation mark omitted). But credible, specific threats can amount to persecution if they are severe enough. Id.; see Sok v....