Manzur v. U.S. Dept. of Homeland Sec.

• Citation: 494 F.3d 281
• Decision Date: 16 July 2007
• Docket Number: Docket No. 03-40052-ag(L).,Docket No. 03-40054-ag(con).,Docket No. 03-40056-ag(con).,Docket No. 03-40058-ag(con).
• Parties: Rana Yasmeen MANZUR, Zoheb Manzur, Shafqat Muhammed Manzur, and Rubana Manzur, Petitioners, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

494 F.3d 281

Rana Yasmeen MANZUR, Zoheb Manzur, Shafqat Muhammed Manzur, and Rubana Manzur, Petitioners, v. U.S. DEPARTMENT OF HOMELAND SECURITY, Respondent.

Docket No. 03-40052-ag(L).

Docket No. 03-40054-ag(con).

Docket No. 03-40056-ag(con).

Docket No. 03-40058-ag(con).

United States Court of Appeals, Second Circuit.

Argued: January 26, 2007.

Decided: July 16, 2007.

Walter H. Ruehle, Legal Aid Society, Rochester, NY, for Petitioners.

John C. Truong, Assistant United States Attorney, Washington, DC (Kenneth L. Wainstein, United States Attorney for the District of Columbia, and Madelyn E. Johnson and Heather R. Phillips, Assistant United States Attorneys, Washington, DC, on the brief), for Respondent.

Before: KEARSE, SOTOMAYOR, Circuit Judges, and KOELTL, District Judge.^*

KOELTL, District Judge:

Rana Yasmeen Manzur and three of her adult children, Zoheb Manzur, Shafqat Muhammed Manzur, and Rubana Manzur, all natives and citizens of Bangladesh, petition for review of the May 15, 2003 orders of the Board of Immigration Appeals ("BIA") affirming without opinion the January 31, 2002 decision of Immigration Judge ("IJ") Michael Rocco, denying the petitioners' applications for asylum and withholding of deportation (now "withholding of removal") pursuant to the Immigration and Nationality Act ("INA" or the "Act") and withholding of deportation under the Convention Against Torture ("CAT").¹ Because the IJ's analysis is deficient in several significant respects, depriving this Court of the opportunity to conduct a meaningful judicial review, we grant the petition, vacate, and remand.

I.

A.

The petitioners are the immediate family members of the late Major General Mohammad Abul Manzur, a former high-ranking official in the Bangladeshi military and a leading Bengali "freedom fighter" in the 1971 Bangladeshi war for independence from Pakistan. Rana Manzur, the lead petitioner, is General Manzur's widow, and co-petitioners Zoheb, Shafqat, and Rubana Manzur are three of the couple's four children.²

The last time Rana Manzur saw her husband, and the children their father, was in May 1981 when three military officers entered the Manzurs' home in the middle of the night and took General Manzur away. According to the petitioners, that incident marked the beginning of a pattern of persecution that lasted approximately twelve years, through 1993, around the time the last of the petitioners, Rana Manzur, finally left Bangladesh.

The following morning, after General Manzur was taken away, Rana Manzur and her four young children awoke to find the telephone disconnected and their normal security detail replaced by more than one hundred armed guards, acting under military command. Rana Manzur also learned that the night before, the same night General Manzur was taken away, the Bangladeshi president, Ziaur Rahman (known as "Zia"), had been assassinated. When Rana Manzur tried to escape to find a telephone to call her husband, she was captured by the guards, returned to her home, and handcuffed. Her children were tied up. The guards then looted the house. Rana Manzur was handcuffed intermittently over the next several days as the family remained under house arrest.

About three days after their house arrest began, a Lieutenant Colonel Mohammed Abdul Awal, who was married to General Manzur's younger sister, came to visit Rana Manzur at her home. Colonel Awal was a "razakar," a Bengali officer formerly in the Pakistani army who fought against Bangladeshi independence in the 1971 war and against freedom fighters like General Manzur. Colonel Awal convinced Rana Manzur to leave her home and accompany him to Dhaka, where he told her General Manzur had been taken.

Escorted by Colonel Awal and armed guards, the family was transported by military helicopter to the capital city of Dhaka. Once there, the family was driven to a two-story house in a remote area. They never saw General Manzur. Instead, for the next month, the family was detained in that house, confined to a single room on the second floor. During that time, the family was under constant guard by armed men dressed in civilian attire. These men told Rana Manzur that they were with the "foreign service," but she suspected that they were with the Directorate of General Forces Intelligence ("DGFI"), a government intelligence organization, then headed by a razakar. The guards refused to tell Rana Manzur why the family was being detained. After about a month, the family was released.

Once released, Rana Manzur learned that her husband, General Manzur, had been killed. According to the account provided by the Bangladeshi government, General Manzur was executed for his alleged role in a coup d'etat attempt that led to President Zia's assassination. In addition, thirteen other military officers, eleven of whom were freedom fighters, were eventually executed for their alleged involvement in the coup, including a nephew of General Manzur; for the same alleged reason, two hundred freedom fighters were dismissed from the army. Allegedly, Lieutenant General Hossain Mohammed Ershad, a razakar who was then head of the Bangladeshi army, ordered General Manzur's execution.

The petitioners contend—consistent with at least one account of the events surrounding the 1981 coup—that General Ershad fabricated General Manzur's involvement in the alleged coup and orchestrated the president's assassination as part of a high-level conspiracy designed simultaneously to eliminate the president, suppress political opposition from the freedom fighters, particularly General Manzur, and clear the path for General Ershad's eventual rise to power. In 1982, General Ershad seized control from Bangladesh's interim government in a bloodless, military coup, imposed martial law, and, in 1983, declared himself president.

The petitioners allege that General Ershad was the driving force behind their persecution in Bangladesh, both before and after their release from detention. A friend in the military informed Rana Manzur that after the 1981 coup, General Ershad wanted to kill her and her children, but was talked out of the idea by other officers. Another friend, whose husband was in the military and privy to such information, informed Rana Manzur of a government report alleging that she was involved in antigovernment activity.

After the Manzurs' release from confinement, the family remained under constant surveillance, which lasted throughout their time in Bangladesh; they were followed frequently by what they perceived to be agents of the DGFI. For about six months after their release, the petitioners lived with various extended family members, but were forced to move frequently, in part because these family members were fearful of what they perceived to be a significant threat from ongoing government surveillance. At this time, the DGFI would come to the house where the petitioners were staying and ask personal questions of those with whom the petitioners lived.

During their time in Bangladesh, the petitioners allege that they suffered other harms as well, which they attributed to General Ershad and his regime. These harms included alleged economic privation, based on, for example, the government's refusal to provide Rana Manzur with the benefits to which she believed she was entitled as a military officer's widow, obstruction of her employment opportunities, and the denial of a bank loan to start a business. These alleged harms also included, among other things, restrictions on travel, societal discrimination, the denial of medical care to Rubana Manzur, and several attempted rapes of Rana Manzur by an army officer who accompanied her and her daughter on a trip outside the country.

In December 1990, General Ershad was ousted from power and forced to resign by a democratic movement led in part by Begum Khaleda Zia, the widow of former President Zia. Khaleda Zia was elected Prime Minister of Bangladesh and assumed the office in March 1991. Between September 1990 and September 1991, all of the petitioners except for Rana Manzur left Bangladesh for the United States.

Rana Manzur remained in Bangladesh after General Ershad was ousted from power to investigate General Ershad's involvement in her husband's death and to pursue his prosecution for the execution of her husband. She was inspired by campaign statements made by Khaleda Zia while running for Prime Minister accusing General Ershad of the assassination of Khaleda Zia's husband, former President Zia, and stating that General Ershad should be brought to justice. Immediately after General Ershad resigned, Rana Manzur began speaking with lawyers about the possibility of prosecuting General Ershad and, after Khaleda Zia's election as Prime Minister, attempted to meet and speak with Prime Minister Zia on the subject. Her efforts, however, were unsuccessful. Prime Minister Zia refused to meet with Rana Manzur, and the lawyers with whom Rana Manzur spoke refused to take the case, at least one of whom expressed fear for his safety.

In 1992, after Rana Manzur commenced her efforts to have General Ershad prosecuted, she began receiving threatening phone calls. The calls became more frequent in 1993. The calls normally came in the middle of the night. The callers told her that they knew her every move, knew about her attempts to meet with Prime Minister Zia, and threatened that if she continued her efforts, she would suffer the same fate as her husband. Apart from the threatening anonymous calls, Rana Manzur received one call from a Major Mizzan, a member of Prime Minister Zia's political party and a family friend, who advised her not to do "anything silly" and not to pursue the subject, because she should remember how her husband died.

Around this time, Rana Manzur was also visited on several occasions by the "anticorruption police," who asked her personal questions about her life, income, and children. Further, after her absence from a military ceremony in 19...