Shardar v. Attorney General of U.S.

• Decision Date: 19 September 2007
• Docket Number: No. 06-1238.,06-1238.
• Citation: 503 F.3d 308
• Parties: Mohammad Arif SHARDAR, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

503 F.3d 308

Mohammad Arif SHARDAR, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 06-1238.

United States Court of Appeals, Third Circuit.

Argued July 10, 2007.

Opinion Filed: September 19, 2007.

Alan M. Strauss, Esquire (Argued), Law Office of Stanley H. Wallenstein, New York, NY, for Petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Alison M. Igoe, Senior Litigation Counsel, Richard M. Evans, Esquire, Joan E. Smiley, Esquire, Lyle D. Jentzer, Esquire (Argued), Ada E. Bosque, Esquire, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: RENDELL and AMBRO, Circuit Judges, SHAPIRO,^* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Mohammad Arif Shardar seeks review of an order of the Board of Immigration Appeals ("Board" or "BIA") denying his motion to reopen removal proceedings. Because we conclude that the Board abused its discretion in denying the motion, we grant the petition for review and remand with instructions to reopen the proceedings.

I. Factual and Procedural Background

Shardar is a native of Bangladesh. He became a member, and later a local leader, of the Jatiya Party. That political party was formed by Army Chief of Staff General H.M. Ershad, who seized power in a bloodless coup d'état in 1983 and ruled Bangladesh until he was forced to resign in December 1990. In 1989, Shardar became Secretary of the Jatiya Party in Demra, a suburb of the capital, Dhaka. In the wake of Ershad's resignation, there was violence directed against those associated with Ershad and the Jatiya Party. In Demra, Jatiya Party headquarters were ransacked by members of rival political factions and Shardar's life was threatened. One of the rival political parties, the Bangladesh Nationalist Party (BNP), won national elections in February 1991.

In January 1992, Shardar participated in a political demonstration in support of the Jatiya Party in Jatrabari Square in Demra. During the demonstration, police dispersed the crowd with tear gas and arrested Shardar and three others. Shardar was charged with having weapons and explosives, but he testified in removal proceedings that the demonstration was peaceful and that the allegations against him were false.¹ Following his arrest, Shardar testified that he was severely beaten by police. The police struck him with canes and kicked him. They also told him that "Ershad time is over. Now is ... BNP time." App. at A330. While in custody, Shardar was forced to confess to the charges against him and to renounce the Jatiya Party in order to stop the beating and save his life. After three days in the police station and six days in a jail, Shardar appeared before a judge and was released on bail. He was then taken by his father to a private medical clinic for nine days to receive treatment for the injuries he sustained while in police custody.

Fearful of further police brutality and not confident in his ability to get a fair trial, Shardar evaded the police who came looking for him on several occasions. Eventually, a warrant was issued for his arrest because of his failure to attend a hearing. When the police discovered that he was hiding at a friend's house, Shardar decided to flee the country and procured a false passport. He entered the United States in August 1992 and filed an affirmative application for asylum in November of that year.

After initially denying his asylum claim, the Government began removal proceedings; Shardar requested asylum relief and withholding of removal. A hearing was held before an Immigration Judge in February 1998, at which Shardar testified and presented evidence. In July 1998, the IJ denied his claim for asylum and for withholding of removal but allowed him to depart the United States voluntarily. The IJ found Shardar credible ("The respondent testified extremely credibly with regard to his incarceration and the beatings that he suffered."), and specifically credited his testimony regarding the beatings he had received at the hands of the police.

Nevertheless, while conceding that Shardar could arguably show past persecution, the IJ rejected his asylum claim after concluding that he had not shown that his arrest was pretextual or that he could not receive justice in the Bangladeshi courts. The IJ insisted that Shardar feared prosecution, not persecution. In rejecting Shardar's contentions, the IJ specifically relied on a 1997 State Department report, which stated that Jatiya Party members who had been harassed by the BNP "were able to defend themselves in court actions and have the same judicial rights as other Bangladeshis." App. at 419. Without some evidence that the judicial system was corrupt, the IJ concluded that Shardar could not sustain his burden of showing a well-founded fear of persecution.

In August 1998, Shardar appealed the IJ's decision to the Board, and on June 25, 1999, he moved to reopen removal proceedings in order to seek relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. The Board affirmed the IJ's decision and denied his motion to reopen in March 2003, stating that it had "no reason to conclude that the prosecution [Shardar] may face if he returns to Bangladesh is politically motivated, and there is no reason to find that he would be unable to establish his claimed innocence." Shardar petitioned for review of the Board's decision in our Court and, based on the record before us at that time, we denied that petition in August 2004. Shardar v. Ashcroft, 382 F.3d 318 (3d Cir.2004).

Following our Court's denial of his petition for review, Shardar filed a motion before the Board in October 2004 to reopen his removal proceedings based on changed country conditions and new evidence. Specifically, Shardar presented evidence that the re-emergence of the BNP as the ruling party in Bangladesh in 2001² represented a change in country condition and that his position as a former local leader of the Jatiya Party made it likely that he would be persecuted if returned to Bangladesh. The Board denied his motion to reopen in a three-paragraph order, which concluded that Shardar had "not adequately demonstrated that his situation is appreciably different from the dangers faced by all his countrymen," and that he had "failed to establish [that] materially changed country conditions exist in Bangladesh."³ Shardar filed a timely petition for review of the Board's order.

II. Jurisdiction and Standard of Review

The BIA has jurisdiction over motions to reopen removal proceedings under 8 C.F.R. § 1003.2(a). Our Court has jurisdiction over Shardar's petition for review under 8 U.S.C. § 1252. Cruz v. Att'y Gen., 452 F.3d 240, 246 (3d Cir.2006) ("Congress has explicitly granted federal courts the power to review `any final order of removal' under 8 U.S.C. § 1252(a)(1). Implicit in this jurisdictional grant is the authority to review the denial of a motion to reopen any such final order.").

"We review the BIA's denial of a motion to reopen for abuse of discretion ... and review its underlying factual findings related to the motion for substantial evidence." Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir.2006) (internal citation omitted). Its "denial of a motion to reopen may only be reversed if it is `arbitrary, irrational, or contrary to law.'" Id. (quoting Sevoian v. Ashcroft, 290 F.3d 166, 174 (3d Cir.2002)).

III. Discussion

A. Introduction

The resolution of this appeal turns on two related but analytically distinct issues: (1) whether Shardar has presented evidence of changed country conditions sufficient to allow him to file a motion to reopen more than 90 days after the Board rejected his claims; and (2) whether the new evidence Shardar has presented and the prior evidence in the record together show that he has a reasonable likelihood of prevailing on his asylum claim, i.e., whether he has presented a prima facie case for asylum.⁴ The first is a threshold question: does the new evidence show a change in country conditions that would allow the motion to reopen to be brought? The second then asks a question about the merits: does the new and the old evidence together make out a prima facie case for asylum? We conclude that the decision of the Board answering no to these two questions is both irrational and arbitrary; thus it abused its discretion. Furthermore, to the extent the Board's decision is grounded in a factual finding that Shardar's "situation" is not "appreciably different from the dangers faced by all his countrymen," that finding is not supported by substantial evidence.

B. Governing Legal Standards

1. Asylum

Under 8 U.S.C. § 1158(b), the Attorney General may grant asylum to an alien who is a "refugee." A "refugee" is defined as

any person who is outside any country of such person's nationality ... who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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.

8 U.S.C.A. § 1101(a)(42)(A). "An applicant bears the burden of proving eligibility for asylum based on specific facts and credible testimony." Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004). A well-founded fear of persecution is the key to eligibility. 8 C.F.R. § 208.13(b). Persecution includes "`threats to life, confinement, torture, and economic restrictions so severe that they constitute a real threat to life or freedom.'" Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir.2003) (quoting Lin v. INS, 238 F.3d 239, 244 (3d Cir.2001)). "The persecution must be committed by the government or forces the government is unable or unwilling to control." Vente v. Gonzales, 415 F.3d 296, 300 (3d...