Paul v. Gonzales, Docket No. 034807.

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtCalabresi
Citation444 F.3d 148
Docket NumberDocket No. 034807.
Decision Date06 April 2006
PartiesVictor PAUL, Petitioner, v. Alberto GONZALES,<SMALL><SUP>*</SUP></SMALL> Attorney General of the United States, Respondent.
444 F.3d 148
Victor PAUL, Petitioner,
v.
Alberto GONZALES,* Attorney General of the United States, Respondent.
Docket No. 034807.
United States Court of Appeals, Second Circuit.
Argued: March 7, 2006.
Decided: April 6, 2006.

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Amy Gell of Gell & Gell (Parker Waggaman, on the brief), New York, N.Y., for Petitioner.

Jamie M. Bennett, Assistant United States Attorney for Rod J. Rosenstein, United States Attorney for the District of Maryland, Baltimore, Md., for Respondent.

Before: CARDAMONE, CALABRESI, and HALL, Circuit Judges.

CALABRESI, Circuit Judge.


Petitioner Victor Paul (hereinafter "petitioner" or "Paul"), a native and citizen of Pakistan, seeks review of the Board of Immigration Appeals' ("BIA") denial of his motion to reopen his case to consider changed conditions in his native country. The BIA declined to reopen asylum proceedings because evidence of intensifying persecution of Christians in Pakistan did not bear on the immigration judge's ("IJ") original adverse credibility decision, and it was on the basis of that credibility ruling that Paul was denied asylum and withholding of removal in the first place. But the adverse credibility determination in this case was not a typical one. The IJ only found petitioner's stories of past persecution incredible, and, in contrast, explicitly credited petitioner's testimony that he was a practicing Christian. Consequently, petitioner could, independently of his defeated assertions of past persecution, have successfully made out a claim of a likelihood of future persecution by proving that, as a Christian, he would face religious persecution if returned to Pakistan. Because a petition for asylum and withholding of removal on the basis of such a risk of future persecution was potentially meritorious, the BIA abused its discretion in failing even to consider evidence of deteriorating conditions for Christians in Pakistan. Accordingly, we grant Paul's petition for review, and we vacate and remand the case to the BIA for reconsideration.

BACKGROUND

Born in Gujarat, Pakistan in June 1945, petitioner entered the United States in

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September 1994, and in August 1995, filed an asylum application, claiming religious persecution. In his written application, petitioner stated that he had faced aggression, harassment, and discrimination as a practicing Christian in Pakistan. In addition to the routine and widespread abuses supposedly faced by Christians throughout Pakistan, petitioner also described several instances in which Paul and his family were specifically targeted. In particular, petitioner claimed that he had been thrown out of a restaurant on account of his religion, and that, on one occasion, as he and his family left church, "fundamentalist" Muslims had hurled stones at his family, injuring his daughter's arm.

During a full hearing in April 1997, petitioner elaborated on the contentions he made in his written application. He testified that, shortly after he began working for the maintenance staff at the United States embassy in 1970, he was instructed to leave a restaurant because he was not Muslim. He also reiterated that, in May 1990, "fundamentalist" Muslims threw stones at him and his family as they exited their church, and that, as Paul's family fled, his daughter was struck on the upper arm by one of the stones. Petitioner stated that he decided not to report the event to the police because local law enforcement routinely turned a blind eye to the filing of such complaints. Finally, petitioner testified that, in April 1994, as he left church, two individuals approached him and asked him who Christ was. When he replied, "Jesus Christ is the son of God," the aggressors told Paul that he had insulted the Koran. They subsequently demanded that Paul come with them, and, when petitioner resisted, they dragged and beat him until a crowd (which was apparently oblivious to the underlying conflict) forced the assailants to disperse. Afterwards, petitioner went into hiding, and a few months later left Pakistan for the United States.

Significantly, during his asylum hearing, petitioner discussed his religious beliefs and practices at some length. He relayed that he was born and raised a Christian, that he brought up his four children in the Christian faith, and that he was a member of two churches in Pakistan — the Sialkot Diocese of the Church of Pakistan (in which he was a parishioner while he lived in Gujarat, Pakistan), and Christ Church, which he joined once he moved to Rawalpindi, Pakistan in 1970. In addition, Paul recounted that, as a child, he participated in a prayer group (called Dwaya), and that, as an adult, he attended multi-day religious conventions. He also chronicled political developments in Pakistan that allegedly exacerbated discrimination against Christians, i.e., the nationalization of colleges and hospitals, and the enactment of Sharia law in 1986. Moreover, in response to a series of questions from his lawyer and the IJ, petitioner gave fairly detailed descriptions of various Christian traditions and beliefs, e.g., baptism, the Last Supper, Holy Communion, etc.1

On cross-examination, petitioner was confronted with an affidavit he had submitted to support his asylum petition. The statement was seemingly drafted by Alim Raza, who, according to the affidavit, was one of Paul's best friends. Later, petitioner testified that Raza was actually his brother-in-law. The affidavit corroborated petitioner's testimony that he had been thrown out of a restaurant because of his religion, and that his family had been pelted with stones as they left their church. The statement also indicated that Paul had

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been charged with blasphemy in Pakistan. When questioned about the contents of the affidavit, however, petitioner flatly denied that he had ever been charged with blasphemy. Asked to reconcile this manifest discrepancy, petitioner explained that, after a paralegal working in his lawyer's office had encouraged him to secure a statement corroborating his assertions, petitioner had asked his wife (who was still in Pakistan) to obtain an affidavit attesting to what he had endured. Paul also claimed that he was unaware of what the statement said since no one had translated the affidavit or reviewed its contents with him. Petitioner subsequently suggested that the aforementioned paralegal had prepared the affidavit himself.

Shortly thereafter, the hearing was adjourned. A month or so later, on May 19, 1997, the IJ issued his decision, denying petitioner's claims on adverse credibility grounds.

The IJ expressed concern that Paul's original application did not include dates either of Paul's restaurant incident or of his family's violent encounter as they left church. Those dates, the IJ observed, were supplied only during later testimony and in a subsequently-submitted affidavit. The IJ also stressed that "an exhibit which [petitioner] essentially admits . . . was a falsified affidavit," provided the sole corroboration for Paul's claim. Unwilling both to accept those portions of the affidavit that supported Paul's stories of past persecution, and at the same time to disregard the part that petitioner had disavowed, the IJ entered an adverse credibility finding against Paul. The IJ also stated, however, that he was "mindful of the fact that [petitioner had] provided detailed testimony as to his Christian affiliation and [had] provided letters, as well as sufficient detail to lead this Court to believe that [petitioner], at minimum, has some Christian affiliation." On the basis of this mixed credibility ruling, the IJ ultimately denied asylum and withholding of removal, but granted the privilege of voluntary departure.

On May 8, 2002, the BIA affirmed the IJ's decision for substantially the reasons given by the IJ. Petitioner did not appeal this decision. Instead, on July 17, 2002, petitioner filed a motion to reopen the proceedings based on updated country reports that purportedly detailed increasingly harsh conditions for Christians in Pakistan.2 The BIA denied this motion on March 26, 2003, on the ground that the proffered evidence was not relevant to the IJ's original adverse credibility determination against petitioner:

Our May 8, 2002 decision specifically affirmed the Immigration Judge's determination that [petitioner] failed to present a credible asylum claim. However, [petitioner's] motion to reopen does not address the Board's decision regarding the credibility of his testimony. The [petitioner] only raises arguments regarding the increased level of violence directed toward Christians in Pakistan and suggests that mannerisms acquired by [petitioner] in this country will somehow make him a target of anti-American sentiment when he returns to Pakistan. In light of [petitioner's] failure to present any new evidence relating specifically to the adverse credibility finding upon which the denial of his applications was based, the motion to reopen must be denied.

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Paul subsequently filed a timely petition for review, challenging the BIA's denial of his motion to reopen his case. It is to the merits of this petition that we now turn.

DISCUSSION

We review the BIA's denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Khouzam v. Ashcroft, 361 F.3d 161, 165 (2d Cir.2004). "An abuse of discretion may be found in those circumstances where the Board's decision provides no rational explanation, inexplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclusory statements; that is to say, where the Board has acted in an arbitrary or capricious manner." Ke Zhen Zhao v. U.S. Dep't of Justice, 265...

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1566 practice notes
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...the BIA's denial of Ni's application for asylum and withholding of removal is supported by substantial evidence. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gon......
  • Scarlett v. Barr, No. 16-940
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 28, 2020
    ...standard is "concerned only with objective evidence of future persecution"; it has no "subjective component." Paul v. Gonzales , 444 F.3d 148, 155–56 (2d Cir. 2006). Nevertheless, "[a] rebuttable presumption of withholding eligibility attaches to an applicant who demonstrates that [he] suff......
  • Vanegas-Ramirez v. Holder, Docket No. 13–749–ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 25, 2014
    ...104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The “clear probability” standard is higher than the “well-founded fear” standard. Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.2006) (“It is well-settled that the burden of proof for a withholding of removal claim is higher than the burden of proof for ......
  • Vanegas-Ramirez v. Holder, Docket No. 13–749–ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 25, 2014
    ...104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The “clear probability” standard is higher than the “well-founded fear” standard. Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.2006) (“It is well-settled that the burden of proof for a withholding of removal claim is higher than the burden of proof for ......
  • Request a trial to view additional results
1566 cases
  • Xiao Xing Ni v. Gonzales, Docket No. 04-0042-AG.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • July 12, 2007
    ...the BIA's denial of Ni's application for asylum and withholding of removal is supported by substantial evidence. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Ni has pressed no meaningful challenge to the denial of her CAT claim; so any challenge is waived. Cf. Yueqing Zhang v. Gon......
  • Scarlett v. Barr, No. 16-940
    • United States
    • U.S. Court of Appeals — Second Circuit
    • April 28, 2020
    ...standard is "concerned only with objective evidence of future persecution"; it has no "subjective component." Paul v. Gonzales , 444 F.3d 148, 155–56 (2d Cir. 2006). Nevertheless, "[a] rebuttable presumption of withholding eligibility attaches to an applicant who demonstrates that [he] suff......
  • Vanegas-Ramirez v. Holder, Docket No. 13–749–ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 25, 2014
    ...104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The “clear probability” standard is higher than the “well-founded fear” standard. Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.2006) (“It is well-settled that the burden of proof for a withholding of removal claim is higher than the burden of proof for ......
  • Vanegas-Ramirez v. Holder, Docket No. 13–749–ag.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 25, 2014
    ...104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The “clear probability” standard is higher than the “well-founded fear” standard. Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir.2006) (“It is well-settled that the burden of proof for a withholding of removal claim is higher than the burden of proof for ......
  • Request a trial to view additional results

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