Malik v. Barr
| Decision Date | 28 July 2020 |
| Docket Number | No. 19-9586,19-9586 |
| Parties | ZULQURNAIN MALIK, Petitioner, v. WILLIAM P. BARR, United States Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(Petition for Review)
ORDER AND JUDGMENT*Before HOLMES, KELLY, and BACHARACH, Circuit Judges.
Zulqurnain Malik, a native and citizen of Pakistan appearing pro se, seeks review of the Board of Immigration Appeals' (BIA's) decision dismissing his appeal from an Immigration Judge's (IJ's) removal order. Exercising jurisdiction under 8 U.S.C. § 1252(a), we deny the petition.
In 2007, while in Pakistan, Malik converted from the Muslim faith to the Christian faith when he married his Christian wife. Six years later, in September 2013, he came to the United States with his wife and was admitted as a lawful permanent resident.
In 2018, he was convicted in Utah state court of, among other things, possessing or using methamphetamine, and he was given a 365-day sentence. The Department of Homeland Security initiated removal proceedings. Malik opposed removal, seeking asylum, withholding of removal, and protection under the Convention Against Torture (CAT) because he feared persecution in Pakistan for converting to Christianity.
In April 2019, Malik appeared pro se before an IJ, who found him removable based on his controlled-substance offense. In support of his application for asylum, withholding of removal, and CAT relief, Malik testified that he had never been harmed while living in Pakistan, and that his wife, who returned to Pakistan in 2016, has never been harmed there. Malik expressed his fear, however, that if he returned to Pakistan he would be killed by his family or imprisoned and executed by the government due to his conversion.
The IJ denied Malik's application and ordered him removed to Pakistan. In doing so, the IJ noted that Malik had identified no past persecution. As for fear of future persecution, the IJ found insufficient evidence that either Malik's family or the Pakistani government would view his religious conversion as a violation of the country's blasphemy laws or a reason to otherwise harm him. The IJ found it significant that neither the Pakistani government nor his family had harmed him in any way for the sixyears he lived in Pakistan after converting to Christianity. Further, the IJ found that he had the ability to relocate to another town to avoid harm from his family. Finally, the IJ found there was insufficient evidence that Malik would be tortured in Pakistan even though "the Pakistani government does engage in some discriminatory practices towards religious minorities." R., Vol. II at 373.
Malik appealed to the BIA through counsel and moved for administrative notice of various documents discussing conditions in Pakistan. The BIA agreed with the IJ's findings, denied Malik's motion, and dismissed his appeal.
Where, as here, a single BIA member affirmed the IJ's decision in a brief order, we review the BIA's opinion, but "when seeking to understand the grounds provided by the BIA, we are not precluded from consulting the IJ's more complete explanation of those same grounds." Neri-Garcia v. Holder, 696 F.3d 1003, 1008-09 (10th Cir. 2012) (internal quotation marks omitted). We liberally construe Malik's pro se filings. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Our review is constrained, however, by Malik's controlled-substance conviction. See 8 U.S.C. § 1252(a)(2)(C) (). "[W]e may review the removal order only to the extent [Malik] raises constitutional or legalchallenges to the order." Waugh v. Holder, 642 F.3d 1279, 1281 (10th Cir. 2011); see also 8 U.S.C. § 1252(a)(2)(D) ().1
Recently, the Supreme Court decided two cases that clarify the reach of the jurisdiction-stripping provision of § 1252(a)(2)(C). First, the Supreme Court held that "the application of law to undisputed or established facts is a question of law within the meaning of § 1252(a)(2)(D)." Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020) (brackets and internal quotation marks omitted). Second, the Court held that "a noncitizen may obtain judicial review of factual challenges to CAT orders, [but] that review is highly deferential," such that "[t]he agency's findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (internal quotation marks omitted).
Thus, we review the BIA's application of the asylum and withholding-of-removal legal standards to the settled or undisputed facts in Malik's case, see Guerrero-Lasprilla, 140 S. Ct. at 1069, and we review the BIA's CAT decision for substantial evidence, see Nasrallah, 140 S. Ct. at 1692; Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) ().
To qualify for asylum, Malik needed to show he suffered past persecution or that he has a well-founded fear of future persecution on account of his conversion to Christianity. See Rodas-Orellana v. Holder, 780 F.3d 982, 986 (10th Cir. 2015). Where, as here, an alien seeks asylum based only on fear of future persecution, he must show that his fear is "both subjectively genuine and objectively reasonable." Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005).
During the administrative proceedings, Malik established that he subjectively feared returning to Pakistan. But the BIA determined his fear was not objectively reasonable because he had lived in Pakistan for six years after his conversion without being harmed, Malik's Christian wife had not been harmed after returning to Pakistan, and Malik could relocate within Pakistan to avoid his siblings, who "all reside in the same town," R., Vol. II at 4 n.3.
We conclude that the BIA properly applied asylum law to the undisputed facts of Malik's case. First, the reasonableness of an alien's fear of future persecution is indeed undercut by a lengthy absence of persecution in the country of removal. See, e.g., Lemus-Arita v. Sessions, 854 F.3d 476, 482 (8th Cir. 2017) (). Second, the continued presence of an alien's family member inthe country of removal without harm is a significant factor in the fear-of-persecution calculus. See, e.g., Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233 (10th Cir. 2012).2 And third, "[f]ear of persecution is not well-founded if the applicant can avoid persecution by relocating to another part of the country and it would be reasonable to expect h[im] to do so." Ritonga v. Holder, 633 F.3d 971, 976-77 (10th Cir. 2011).3
Nevertheless, Malik argues that the BIA erred in two respects when evaluating the reasonableness of his fear. He maintains that "Pakistani society in general is extremely hostile to converts, [and that] attacks on those who have converted can re-occur years o[r] even decades after they have changed their religion." Pet'r's Br. at 5. But Malik does not identify any undisputed or established "specific facts" quantifying the possibility of an eventual attack, 8 U.S.C. § 1158(b)(1)(B)(ii), and such a possibility is simply too speculative to be objectively reasonable, see Bartolome v. Sessions, 904 F.3d 803, 814 (9th Cir. 2018) (); see generally INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) ().
Next, Malik contends the IJ used an erroneous definition of "blasphemy" when finding "insufficient evidence . . . that the government of Pakistan[ ] or . . . [Malik's] family in Pakistan[ ] would view [his] conversion . . . as blasphemy such that he would be subject to the criminal penalties up to and including death outlined in the country condition reports that have been submitted." R., Vol. II at 371. Specifically, the IJ consulted a dictionary and defined "blasphemy" as the Id. As the government points out, however, the BIA, unlike the IJ, did not attempt to define the term, and instead rested its analysis on the three grounds discussed above (six years of unharmed, post-conversion residence in Pakistan; no harm to Malik's wife; and Malik's ability to relocate). Because it is the BIA's decision that controls, any error in the IJ's definition is harmless. See Uanreroro v. Gonzales, 443 F.3d 1197, 1204 (10th Cir. 2006) ().
We conclude that the BIA did not err in denying Malik's request for asylum.
Because we conclude that Malik failed to satisfy the standards for asylum, he necessarily has failed to meet the more stringent standards for withholding of removal. See Rodas-Orellana, 780 F.3d at 987 ; id. ().
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