Khattak v. Holder

• Decision Date: 17 January 2013
• Docket Number: No. 12–1144.,12–1144.
• Citation: 704 F.3d 197
• Parties: Javed Iqbal KHATTAK; Naheed Alam Khattak; Fatima Javed; Shahbaz Khan, Petitioners, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

704 F.3d 197

Javed Iqbal KHATTAK; Naheed Alam Khattak; Fatima Javed; Shahbaz Khan, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 12–1144.

United States Court of Appeals,First Circuit.

Jan. 17, 2013.

William P. Joyce and Joyce & Associates, P.C. on brief for petitioners.

Sunah Lee, Office of Immigration Litigation, Department of Justice, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Cindy S. Ferrier, Assistant Director, on brief for respondent.

Before LYNCH, Chief Judge, LIPEZ and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

Javed Iqbal Khattak, along with his wife Naheed Alam Khattak and their children Fatima Javed and Shahbaz Khan, all natives and citizens of Pakistan, petition for review of a decision of the Board of Immigration Appeals (BIA) affirming an immigration judge's (IJ) denial of their joint application for asylum.¹

Javed Iqbal Khattak, age 52 (hereinafter “Khattak”), was born in the Nowshera District in Pakistan's Northwest Frontier Province, now known as the Khyber Pakhtunkhwa province. Until 2009, Khattak and his family lived in Narri, a village outside the Nowshera District's principal city (which is also named Nowshera). Khattak owned a marble business in Nowshera; his wife Naheed worked as a schoolteacher in Narri; and the family owned agricultural land nearby on which they raised vegetables, wheat, and sugarcane for additional income. Khattak also owned (and continues to own) a house in Pakistan's capital, Islamabad, which he rents out; according to his and his wife's testimony, Khattak acquired the house in 1991 but lived in Islamabad only briefly before returning to Nowshera when his father became ill.

Khattak is an active member of the Awami National Party (“ANP”), which he describes as a “secular alternative” to the Taliban. According to his testimony in immigration court as well as documentary materials that he appended to his asylum application, Khattak has been a member of the ANP for approximately 20 years and was the president of the local ANP chapter for about 15 years. He also served as Mayor of Khairabad, a municipality of 20,000 people that evidently includes the village of Narri, from 1980 to 1991. ²

More recently, Khattak served as vice president of the Pakistan International Human Rights Organization and, starting in August 2008, as a member of the Nowshera Peace Committee. That month, he began working for the Peace Committee as a volunteer “special police officer”; his task was to “tell people and advise people that the fight that the Taliban are fighting ... [is] not [a] fight of Islam.” He spread this message at the local mosque and at “hujras,” or social spaces. Khattak stated that volunteer special police officers like himself are authorized to carry weapons, as he did, but that he never had to use his weapon in self-defense.

In March or April of 2009, according to affidavits by Khattak and his wife Naheed, an anonymous caller placed two telephone calls to the family's home within the span of three days. Naheed answered the phone on both occasions. The first time, the caller asked for Khattak, and when Naheed said that her husband was not home, the caller hung up. The second time, the caller asked Naheed who she was, and when she identified herself as Khattak's wife, the caller told her to tell Khattak that he should “stop his activities against the Taliban because they know everything and it will be very bad for [him] and [his] family.” ³

Khattak also stated in his affidavit that “[a]fter the phone calls, the Taliban began sending threatening letters to the schools that [his] children attended,” and that “[t]he principal of [his] daughter's school asked that [he and his wife] start sending [their] daughter to school wearing a burka to avoid any problems.” Khattak's wife offered a similar account in her affidavit. ⁴

The threatening calls to the family's home coincided with a series of attacks against ANP members across Pakistan. In early 2009, approximately 100 political activists—including ANP members as well as members of three other parties—were killed in Karachi during interparty clashes. In February 2009, an ANP member of the provincial assembly was killed by a remote-control bomb in Peshawar, the capitalof the Khyber Pakhtunkhwa province. The following month, a senior ANP leader in that province narrowly escaped an assassination attempt, but four other people were killed in the incident. Khattak also testified that fellow Peace Committee members received similar threats in the weeks before the two anonymous calls to his home.

At some point during the spring of 2009, Khattak decided to leave Pakistan with his family and seek refuge in the United States.⁵ On July 4, 2009, Khattak, his wife, and their two younger children entered the United States on B–2 visitor visas. (The oldest of their three children, a son, is currently a student in England and did not accompany the family to the United States.) On November 28, 2009, Khattak, his wife, and their two younger children filed applications for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Khattak's wife and children concede that they have presented no independent basis for removal and that their applications are dependent upon Khattak's. See8 C.F.R. § 208.21(a) (admission of asylee's spouse and children); see also id. § 208.14(f) (denial of principal applicant's asylum claim also results in denial of asylum for dependents who have not submitted independent application).

Taliban attacks against ANP activists have continued since Khattak and his family left Pakistan. In December 2009, an ANP provincial assembly member was killed in a suicide bombing in Swat, a district in the Khyber Pakhtunkhwa province north of Nowshera. According to a State Department report, “dozens” of ANP activists were targeted for assassination across the province throughout 2009. U.S. Dep't of State, Bureau of Democracy, Human Rights & Labor, 2009 Country Reports on Human Rights Practices: Pakistan (2010). In April 2010, at least 43 people were killed in a suicide attack targeting an ANP rally in the Lower Dir district, which is west of Swat and also in Khyber Pakhtunkhwa. In May 2011, the ANP president was killed in Swat, and the State Department notes that ANP elected officials and their families remain “major targets of attack” in Khyber Pakhtunkhwa. See U.S. Dep't of State, Bureau of Democracy, Human Rights & Labor, Country Reports on Human Rights Practices for 2011: Pakistan 4, 22 (2012); see also U.S. Dep't of State, Bureau of Democracy, Human Rights & Labor, 2010 Country Reports on Human Rights Practices: Pakistan 9, 30, 32–33 (2011).

Meanwhile, the Department of Homeland Security initiated removal proceedings against Khattak and his family members in March 2010. On May 24, 2010, an immigration judge in Boston denied Khattak's and his family members' applications for asylum, withholding of removal and CAT relief and ordered them removed to Pakistan; the Board of Immigration Appeals affirmed the IJ's order on December 27, 2011; and the Khattaks filed a timely petition for review in this court.

Although “[o]rdinarily, we review the decision of the BIA and not that of the IJ,” we examine the IJ's decision “to the extent that the BIA deferred to or adopted the IJ's reasoning.” Hasan v. Holder, 673 F.3d 26, 33 (1st Cir.2012) (quoting Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir.2008)) (alteration and internal quotation marks omitted). On issues of fact, we “apply the ‘substantial evidence’ standard and defer to those findings of fact that are ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Perlera–Sola v. Holder, 699 F.3d 572, 576 (1st Cir.2012) (quoting Lobo v. Holder, 684 F.3d 11, 16 (1st Cir.2012)). On questions of law, our review is de novo but “with appropriate deference to the agency's interpretation of the underlying statute in accordance with administrative law principles.” Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir.2011) (quoting Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.2006)) (internal quotation marks omitted).

An asylum applicant bears the burden of showing that he is unable to return to his country of nationality either due to past persecution or “a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Perlera–Sola, 699 F.3d at 576 (quoting 8 U.S.C. § 1101(a)(42)(A)) (internal quotation marks omitted); see also8 U.S.C. § 1158(b)(1)(B)(i) (asylum applicant bears burden of proof). The applicant also must show that the harm he has experienced or reasonably fears he will experience bears “some connection to government action or inaction,” Perlera–Sola, 699 F.3d at 576 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 68 (1st Cir.2005)) (internal quotation mark omitted). This “link may be forged ... by evidence of an inability on the part of the government to prevent the acts” that have caused or will cause harm to the applicant. Harutyunyan, 421 F.3d at 68;see also Castillo–Diaz v. Holder, 562 F.3d 23, 27 (1st Cir.2009).

Where the applicant seeks asylum based on a well-founded fear of future persecution, he must show that he has “a subjective fear of future persecution” and that his fear is “objectively reasonable.” Barsoum v. Holder, 617 F.3d 73, 79 (1st Cir.2010). To meet this latter requirement, the applicant must either (1) “provide evidence that there is a reasonable possibility he or she would be singled out individually for persecution” or (2) “establish[ ] that there is a pattern or practice in his or her country of nationality ... of persecution of a group of persons similarly situated to the applicant.” 8 C.F.R. § 208.13(b)(2)(iii)(A); see also Sugiarto v. Holder, 586 F.3d 90, 97 (1st Cir.2009). An applicant who seeks asylum based on a pattern-or-practice claim...