Shaghil v. Holder

• Citation: 638 F.3d 828
• Decision Date: 14 April 2011
• Docket Number: Nos. 10–2483,09–3416.,s. 10–2483
• Parties: Tarique Majeed SHAGHIL, Petitioner,v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

638 F.3d 828

Tarique Majeed SHAGHIL, Petitioner,

v.Eric H. HOLDER, Jr., United States Attorney General, Respondent.

Nos. 10–2483

09–3416.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 23, 2010.Filed: April 14, 2011.

Timothy E. Wichmer, argued, St. Louis, MO, for petitioner.Gladys Marta Steffens Guzman, USDOJ, OIL, argued, Washington, DC, for respondent.Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.RILEY, Chief Judge.

Tarique Majeed Shaghil petitions for review of two Board of Immigration Appeals (BIA or Board) decisions. In Case No. 09–3416, Shaghil requests relief from the BIA's affirmance of an immigration judge's (IJ) order denying Shaghil asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In Case No. 10–2483, Shaghil seeks relief from the BIA's denial of his motion to reopen immigration proceedings to enable him to adjust his status, pursuant to 8 U.S.C. § 1255(a), based upon Shaghil's marriage to a United States citizen. We dismiss Shaghil's petition in Case No. 09–3416 as it relates to his asylum claim, and deny the remainder of both petitions.

I. BACKGROUND¹

Shaghil was born and raised as a Suni Moslem in Karachi, Pakistan. In 1991, Shaghil entered the United States to attend the University of South Alabama. In 1995, he married Monica Rodriguez, an American citizen, and filed for adjustment of his immigration status. While married, Shaghil identified himself as a Christian and attended Catholic and Protestant Christian churches. In his testimony, the IJ noted Shaghil “displayed only a marginal knowledge of Christian tenants [sic]” and could not describe his conversion.

In 1998, Shaghil returned to Pakistan for four and a half months. During his visit to Pakistan, Shaghil's friends and family criticized his marriage to Rodriguez because of her Christian faith. He was involved in a fight outside a mosque when he argued with people about his Christian church attendance. Also during the trip, Shaghil's “father told him that he ‘needed to change his faith back.’ ” Shaghil admits, however, “he has never been harmed or arrested or tortured by the government in Pakistan during either the time he grew up there or when he returned later.”

After September 11, 2001, Shaghil began making critical comments about Islamic tenets “that he stated supported terrorism.” Shaghil believes his business of selling prepaid telephone calling cards predominantly to Moslems in the United States suffered because he was “pro-American” and “opposed the terrorists.” During this time period, Shaghil and Rodriguez stopped living together and his then-pending application for adjustment of status was denied. Shaghil and Rodriguez divorced in July or August 2006 and Shaghil has not heard from Rodriguez in several years.

Shaghil believes, if returned to Pakistan, “he would be tortured by the police in jail and eventually killed because of his religious faith.” As the IJ explained, Dr. Nargis Virani, Assistant Professor of Arabic Islamic Studies at Washington University in St. Louis, testified at Shaghil's hearing that “it would be more likely than not that [Shaghil] would be persecuted if he were returned to Pakistan.” The IJ recognized Dr. Virani

later testified that “perhaps” [Shaghil] would be persecuted. She also stated that it was “possible” that the respondent's family would be targeted because of his conversion. She stated that she believed there had been violence directed against Christians in Pakistan, but noted that recent terrorist acts in that country had not been targeted against Christians, but against civilians of all faiths. She also indicated knowledge that Moslems regularly target each other for acts of harm and violence. She stated a belief that Christians only have low-end jobs in Pakistan, but on cross-examination, stated that she obtained this information from [Shaghil].

The United States Department of State International Religious Freedom Report 2004 (country report) is part of the record. Referring to the country report, the IJ noted the Pakistani constitution provides for freedom of religion, with limits; approximately 96% of Pakistanis are Moslem and less than 2% are Christian; the Roman Catholic Diocese of Karachi estimates 120,000 Catholics live in Karachi; and religion (Moslem or non-Moslem) is indicated on Pakistani passports. The country report notes speaking in opposition to Islam is illegal in Pakistan. Although there is no law instituting the death penalty for apostates (converts from Islam to other religions), “social pressure against conversion is so powerful that most convergence [sic] reportedly takes place in secret.” Notwithstanding, foreign missionaries operate in Pakistan, and proselytizing is generally permitted. The country report notes 90% of Pakistan's Christians live in Punjab Province, and that Christians are the largest religious minority there. The Roman Catholic Church and the Church of Pakistan (Protestants associated with the Anglicans) report that links with co-religionists in other countries are maintained relatively easily. The country report also supports Shaghil's view that “Christians have difficulty finding jobs other than those involving menial labor.”

On January 16, 2001, Shaghil received a notice to appear before the immigration court. Shaghil failed to appear at the hearing on May 3, 2001, was found removable and ordered removed. For reasons unrelated to this appeal, the IJ later granted Shaghil's motion to reopen proceedings. Shaghil applied for asylum, withholding of removal, and CAT relief. Before Shaghil's merits hearing, the IJ found Shaghil ineligible for asylum because Shaghil failed to apply within one year of his arrival in the United States and no changed or extraordinary circumstances excused his tardiness.

After the merits hearing, the IJ found Shaghil “generally credible” and Dr. Virani's testimony credible. However, the IJ found the evidence insufficient to show Shaghil would be persecuted because of his religion if he were returned to Pakistan, and denied Shaghil's claim for withholding of removal. Similarly, the IJ was “not convinced that [Shaghil] is more likely than not to be tortured if he were removed to Pakistan at this time.” The IJ therefore ordered Shaghil removed from the United States.

On September 21, 2009, the Board dismissed Shaghil's appeal. The Board agreed with the IJ that Shaghil had presented insufficient evidence to excuse the untimely filing of his asylum application, because although Shaghil claims he was persecuted in 1998, he did not file his asylum application until 2003 and made no showing of cause. The Board rejected Shaghil's argument that, upon an earlier remand, the IJ erred by improperly listening to audio recordings of Shaghil's merits hearing, rather than allowing him to present additional evidence. The Board confirmed the IJ's finding that Shaghil failed to meet his burden of proving a clear probability of future persecution on his withholding of removal claim. Finally, the Board agreed Shaghil had not shown he would be tortured if returned to Pakistan.

On October 19, 2009, Shaghil petitioned this court for relief from the removal order. On December 16, 2009, while Shaghil's petition for review of the removal order was pending, Lorraine A. Campos, a United States citizen, filed a petition for alien relative with the United States Citizenship and Immigration Services on behalf of Shaghil. On December 18, 2009, Shaghil moved the BIA to reopen his case based upon his asserted marriage to Campos, attaching (1) the petition for alien relative and a notice of its receipt, (2) an application for adjustment of status and related biographic information, and (3) a series of wedding photographs.

The BIA found “no other evidence that [Shaghil] and his wife maintained a relationship at any time” and denied the motion to reopen. On July 2, 2010, Shaghil petitioned this court for review of the BIA's denial of his motion to reopen. On July 19, 2010, this court consolidated Shaghil's petitions for oral argument and submission purposes. We have jurisdiction over final orders of removal pursuant to 8 U.S.C. § 1252(a).

II. DISCUSSIONA. Standard of Review

This court reviews the BIA's ruling, but to the extent the BIA adopts the finding or reasoning of the IJ, the court also reviews the IJ's decision. See Ismail v. Ashcroft, 396 F.3d 970, 974 (8th Cir.2005). “[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary,” ² 8 U.S.C. § 1252(b)(4)(B), while conclusions of law are reviewed de novo, “with substantial deference to [the agency's] interpretations of statutes and regulations administered by the agency,” Villanueva v. Holder, 615 F.3d 913, 915 (8th Cir.2010). We review motions to reopen for an abuse of discretion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992).

B. Denial of Asylum, Withholding of Removal, and CAT Relief

1. Asylum

“The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum in accordance with the requirements and procedures established ... under this section if the Secretary ... or the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is a person who “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of” his or her home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” § 1101(a)(42)(A).

Shaghil argues he is entitled to asylum because he both suffered past persecution and has a well-founded fear of future persecution. Shaghil concedes this court lacks jurisdiction to review the BIA's decision that...