Sahi v. Gonzales

Decision Date25 July 2005
Docket NumberNo. 04-2828.,04-2828.
Citation416 F.3d 587
PartiesNaveed Ahmed SAHI, Petitioner, v. Alberto GONZALES, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Edwin T. Gania (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Dana D. Biehl, Mark A. Maldonado (argued), Department of Justice, Criminal Division, Washington, DC, for Respondent.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

The Board of Immigration Appeals denied Naveed Sahi's application for asylum and ordered him sent back to Pakistan, his country of origin. Sahi is a member of the Ahmadi religious sect. The Ahmadis consider themselves Muslims, but many Muslims disagree. The disagreement arises from the fact that Ahmadis do not accept, as most Muslims do, that Mohammed was the last prophet of Islam—they think that Mizra Ghulam Ahmad, who founded their sect in the nineteenth century, was also a prophet of Islam. Pakistan considers the sect a pernicious heresy. In 1974 it officially declared that Ahmadis were not Muslims. According to the State Department's Country Reports on Human Rights Practices—2004 (Feb. 28, 2005), the accuracy of which is not questioned by either party, "provisions of the [Pakistani] penal code prohibited Ahmadis from engaging in any Muslim practices, including using Muslim greetings, referring to their places of worship as mosques, reciting Islamic prayers, and participation in the Hajj [the pilgrimage to Mecca] or Ramadan fast. Ahmadis are prohibited from proselytizing, holding gatherings, or distributing literature. Government forms, including passport applications and voter registration documents, require anyone wishing to be listed as Muslim to denounce the founder of the Ahmadi faith . . . . Ahmadis were prevented from building houses of worship . . .[and] were the targets of religious violence." (Although written in the past tense, there is no suggestion that any of these laws or practices have changed since the 2004 Country Report.) Sahi himself, before leaving Pakistan, had been beaten by orthodox Muslims, who in addition had burned the crops of his family farm and stolen buffaloes from the farm. The police refused to protect him and his family from these criminal acts.

Nevertheless the immigration judge, seconded by the Board, ruled that Sahi had no well-founded fear of being persecuted should he be returned to Pakistan. Although the judge's oral opinion is meandering and none too clear, the heart of it seems to be the following sentence: "While this Court [i.e., the immigration judge] fully recognizes that Ahmadis are discriminated against and face harassment in Pakistan because of their religious beliefs, I do not find that this fact, coupled with the general risk of random violence singles the respondent out or establishes a pattern and practice of persecution of all Ahmadis." What the immigration judge seems to be saying is (1) Ahmadis face discrimination and harassment but not persecution, because they are not subject to systematic violence; (2) unless "all" Ahmadis are persecuted, Sahi cannot obtain asylum without proving that he will be "singled out" for persecution if he returns to Pakistan. Elsewhere in his opinion the immigration judge said that "the respondent's situation is no different than any other Pakistani Ahmadi."

The judge neither defined "persecution" nor cited a decision by the Board, or for that matter any other source of guidance, on what constitutes, or should be deemed to constitute, persecution in an asylum case. Implicitly he defines it as systematic violence directed against a group, and so he pointed to a statement in an earlier Country Report that Pakistan is trying to curtail intimidation of religious minorities. His conception of persecution seems too limited. Suppose the Congress of the United States declared Catholicism a heresy and prohibited Catholics from engaging in any Christian practices, including referring to their places of worship as churches and reciting Christian prayers, and from proselytizing, holding religious gatherings, distributing religious literature, or building new churches—but also forbade religiously motivated violence against Catholics. The case for regarding the total package as persecution, even though vigilantism was forbidden and the authorities enforced the prohibition energetically—which Pakistan apparently does not—would be a strong one. This is apparent from cases which hold that forcing a person to practice his religion in secret is persecution. Iao v. Gonzales, 400 F.3d 530, 531 (7th Cir.2005); Muhur v. Ashcroft, 355 F.3d 958, 960-61 (7th Cir.2004); Zhang v. Ashcroft, 388 F.3d 713, 720 (9th Cir.2004) (per curiam); see also Huang v. Gonzales, 403 F.3d 945, 947 (7th Cir.2005). Judging from the 2004 Country Report, that is in effect the situation of Ahmadis in Pakistan.

Yet we do not hold that Sahi was a victim of persecution; we merely assume it in the absence of any effort by the Board of Immigration Appeals to define the word more narrowly than is plausible without the benefit of the Board's thinking. The primary responsibility for defining key terms in the immigration statute that the statutes themselves do not define, such as "persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. § 1101(a)(42)(a), is that of the Board of Immigration Appeals as the Attorney General's delegate. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999); INS v. Cardoza-Fonseca, 480 U.S. 421, 446-49, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Uritsky v. Gonzales, 399 F.3d 728, 731-32 (6th Cir.2005). The Board has failed to discharge that responsibility. Neither the parties' research nor our own has brought to light a case in which the BIA has defined "per...

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10 cases
  • Kazemzadeh v. U.S. Atty. Gen.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 6 Agosto 2009
    ...Gonzalez v. Reno, 212 F.3d 1338, 1355 (11th Cir.2000). Likewise, the BIA has never defined persecution directly. See Sahi v. Gonzales, 416 F.3d 587, 588-89 (7th Cir.2005) ("[W]e haven't a clue as to what [the BIA] thinks religious persecution is."). This Court has repeatedly held that "pers......
  • Japarkulova v. Holder
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 11 Agosto 2010
    ...fear of future persecution. The INA does not define “persecution,” and to our knowledge the Board has not either. See Sahi v. Gonzales, 416 F.3d 587, 588-89 (7th Cir.2005). Our cases have given the term some content, but mostly by identifying what does not count. See, e.g., Ali v. Ashcroft,......
  • Sioe Tjen Wong v. Attorney General of U.S.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • 20 Agosto 2008
    ...of the standard and remanding for BIA to "elaborate upon the `systemic, pervasive, or organized' standard"); Sahi v. Gonzales, 416 F.3d 587, 589 (7th Cir.2005) (noting that the BIA has not "explain[ed] the distinction between mere harassment and outright persecution" and remanding for BIA t......
  • Koval v. Gonzales
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 16 Agosto 2005
    ...but must "rise above the level of mere `harassment.' " Borca v. INS, 77 F.3d 210, 214 (7th Cir.1996); see Naveed Ahmed Sahi v. Gonzales, 416 F.3d 587, 588 (7th Cir.2005). Actions that might constitute persecution include "detention, arrest, interrogation, prosecution, imprisonment, illegal ......
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1 books & journal articles
  • Immigration Defense Waivers in Federal Criminal Plea Agreements
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 69-3, March 2018
    • Invalid date
    ..."crime of violence" as defined by 18 U.S.C. § 16(b) unconstitutionally vague in the immigration context).93. See, e.g., Sahi v. Gonzales, 416 F.3d 587, 588-89 (7th Cir. 2005) (commenting that "[this court has not] a clue as to what [the agency] thinks religious persecution is").94. See Brie......

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