Miah v. Ashcroft, 01-3764.
| Decision Date | 09 October 2003 |
| Docket Number | No. 01-3764.,01-3764. |
| Citation | 346 F.3d 434 |
| Parties | Bismillah MIAH, Petitioner v. John ASHCROFT, Attorney General of the United States; Immigration & Naturalization Service, Respondents. |
| Court | U.S. Court of Appeals — Third Circuit |
Brian P. Downey [Argued], Pepper Hamilton, Harrisburg, PA, Barak A. Bassman, Pepper Hamilton, Philadelphia, PA, Angelo Stio, Pepper Hamilton, Princeton, N.J., for Petitioner.
David V. Bernal, Christopher C. Fuller, William C. Minick, Anthony C. Payne [Argued], United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, D.C., for Respondents.
Before ROTH, FUENTES and ALDISERT, Circuit Judges.
Bismillah Miah ("Miah"), a national of Bangladesh, petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "Board") ordering him removed to his home country. The Immigration Judge had denied Miah's petition for political asylum and withholding of removal on the basis that Miah's testimony lacked sufficient credibility and corroboration to sustain the burden of proof. The BIA, rejecting the Immigration Judge's adverse credibility determination, nonetheless dismissed the appeal because the petitioner failed to corroborate the events on which he based his claim. We agree with petitioner that the BIA failed to properly analyze the issue of corroboration in accordance with previous rulings of this Court. We therefore vacate the BIA's order and remand the matter for further proceedings consistent with this opinion.
Miah attempted to enter the United States on November 11, 2000, at John F. Kennedy International Airport in New York, New York. He was denied admission to the United States and detained by the Immigration and Naturalization Service for a full asylum hearing after an INS officer determined that Miah had established a credible fear of persecution if returned to Bangladesh. The INS initiated removal proceedings against Miah, charging him as inadmissible pursuant to Section 212(a)(6)(C)(I) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(C)(I), as an alien who sought admission by fraud or willful misrepresentation. Miah was also charged as inadmissible under Section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), as an immigrant not in possession of a valid entry document. On January 29, 2001, Miah appeared before an Immigration Judge ("IJ") and denied that he was removable under section 1182(a)(6)(C)(1). He conceded removability under section 1182(a)(7)(A)(i)(I); but, he requested political asylum, withholding of removal, and relief under the United Nations Convention Against Torture.
The IJ held a hearing on Miah's application for relief on February 21, 2001. Thereafter, on April 11, 2001, the IJ denied Miah's application on all grounds of requested relief. Two aspects of the IJ's decision are relevant to this appeal. First, the IJ determined that Miah's testimony was not credible because it lacked sufficient detail. A.R. 34. Second, the IJ concluded that the documentation submitted by Miah failed to corroborate any of the incidents described in his testimony. Id. at 35.
Specifically, the IJ noted that a letter from Miah's father lacked detail regarding any of the alleged incidents. Id. The IJ also commented that, other than the letter from his father, Miah neglected to submit any letters or affidavits from any witnesses to the alleged incidents, such as other members of his political party, his employees, or other family members. Id. Finally, the IJ found that, while Miah submitted a doctor's note indicating that he received treatment during three periods of time, the note lacked details regarding Miah's injuries and treatments and contained some dates that did not coincide with the dates described in Miah's testimony and written application. Id.
On May 11, 2001, Miah filed a Notice of Appeal of the IJ's decision with the BIA. The BIA dismissed the appeal on September 17, 2001. Although the BIA dismissed the appeal, it did not accept all of the IJ's conclusions. After indicating that the IJ placed undue weight on Miah's airport statement and mistakenly relied on the fact that Miah escaped harm until 1999, the BIA rejected the IJ's adverse credibility finding. Id. at 3. However, the BIA agreed with the IJ that Miah failed to meet his burden of proof due to a lack of corroboration. Id. In reaching this conclusion the BIA took note of several findings made by the IJ: (1) the letter from Miah's father did not provide specific details regarding any of the incidents described by Miah; (2) the doctor's note supplied by Miah was unpersuasive; and (3) Miah failed to obtain specific factual statements from his employees, other members of his political party, or family members who witnessed the incidents on which his claim is based. Id. After observing that Miah neglected to offer an explanation for these shortcomings on appeal, the BIA concluded that the IJ correctly ruled that Miah failed to carry his burden of proof.
On October 3, 2001, Miah filed a Petition for Review and Motion to Stay Removal with this Court. Thereafter, we granted a Motion to Stay Removal pending the outcome of the instant appeal.
Miah, a thirty-six year old citizen of Bangladesh, joined the Bangladesh National Party ("BNP") on April 17, 1992. At that time, the BNP held power in Bangladesh. Initially, during 1992 and 1993, Miah worked as a supporter of the party, helping with donations, participating in meetings and processions, and engaging in publicity using a loudspeaker.
Gradually, Miah rose through the BNP hierarchy. In 1994, he became the local publicity secretary in the city of Noakhali. As local publicity secretary, Miah hung posters, put up banners, and used a loudspeaker to announce BNP activities and meetings. He also served the branch committee of the party. In 1998, Miah was elected organizing secretary in the Noakhali district. He served as one of three BNP officials in charge of organizing party activities in a city of two million. His responsibilities included organizing volunteers, ensuring participation at meetings, and arranging for publicity.
On March 30, 1996, the BNP lost the national election in Bangladesh and a rival political party, the Awami League, came to power. Under control of the Awami League, the government has harassed political opponents through the use of various tactics, including arbitrary detentions and limitations on the freedom of assembly. Because of his work on behalf of the BNP, Miah became a target of Awami League supporters.
In Miah's case, the harassment started on July 9, 1999, when Awami League supporters beat Miah and his brother outside of their home. The men warned Miah to quit the BNP and join the ruling party. Five months later, on December 1, 1999, Awami League activists kidnaped Miah on his way home from the store that he operated. The men stopped their car on the street in front of Miah, forced him into their car, and blindfolded him. They brought Miah to a room where he was held and beaten for two days. The Awami League supporters released Miah only after he promised to quit the BNP and join the ruling party.
Despite his promise to the contrary, Miah continued to work on behalf of the BNP. On August 15, 2000, while he walked the streets of Noakhali, Miah used a loudspeaker to publicize an upcoming BNP meeting. In response to this conduct, the police seized Miah, took him to the local station, and beat him. Upon learning of the situation, other BNP party members protested in front of the police station until Miah was released.
Two weeks later, on September 1, 2000, Awami League supporters looted and burned Miah's store and attacked two of his employees. Because Miah was not present in the store at the time of the incident, the Awami League supporters came looking for him at his house later that night. After hearing the sounds of cars and gunfire on the streets surrounding his home, Miah climbed to the roof to see what was happening outside. He saw men enter his home. Once inside, the men beat Miah's mother and father and demanded to know the whereabouts of Miah. Upon hearing the screaming and shouting from inside of the house, Miah jumped to the roof of the next house, which was owned by his uncle, and escaped to the street. Miah's brother was kidnaped by the Awami League workers who raided the house. No one has heard from Miah's brother since that night and the police refused to register a complaint against the ruling party when Miah's father went to report the kidnaping.
Miah fled to a nearby city and hid in the homes of BNP leaders. While there, he learned that the police were seeking to arrest him and file false charges against him. He also learned that Awami League activists had been seen in cars circling his home. They continued to threaten Miah's friends and relatives in an attempt to locate him.
On September 9, 2000, Miah returned to Noakhali, where Awami League workers attacked him again after learning that he had returned. A few weeks later, on October 20, 2000, Miah was on his way to a BNP leader's home when he noticed Awami League workers waiting outside the house in a car. As soon as he saw them, Miah ran away. The men shot at Miah as he ran, but he escaped unharmed.
After consulting with BNP leaders about the situation, Miah secured a passport with their assistance and made plans to leave Bangladesh. He left Bangladesh on November 10, 2000, and arrived at John F. Kennedy International Airport the following day.
Miah submitted various documents in support of his application including: photographs evidence of his membership in the BNP; a letter from his father; a note from a medical doctor; newspaper articles; and a birth certificate. The letter from Miah's father and the note from the...
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