Yusupov v. Attorney Gen. of The United States

• Decision Date: 16 June 2011
• Docket Number: Nos. 09–3032,09–3074.,s. 09–3032
• Citation: 650 F.3d 968
• Parties: Bekhzod Bakhtiyarovich YUSUPOV, a/k/a Bekhzod Yusupov, Petitionerv.ATTORNEY GENERAL OF the UNITED STATES, Respondent.Ismoil Samadov, Petitionerv.Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

650 F.3d 968

Bekhzod Bakhtiyarovich YUSUPOV, a/k/a Bekhzod Yusupov, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES, Respondent.Ismoil Samadov, Petitioner

v.Attorney General of the United States, Respondent.

Nos. 09–3032

09–3074.

United States Court of Appeals, Third Circuit.

Argued Dec. 14, 2010.Filed: June 16, 2011.

Lawrence H. Rudnick (Argued), Steel, Rudnick & Ruben, Philadelphia, PA, for Petitioner Bekhzod Yusupov.Baher A. Azmy (Argued), Anjana Malhotra, Seton Hall Law School, Newark, NJ, for Petitioner Ismoil Samadov.Eric H. Holder, Jr., Thomas W. Hussey, Lyle D. Jentzer (Argued), John M. McAdams, Jr., United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondents.Naureen Shah, Columbia University School of Law, Robin L. Alperstein, Becker, Glynn, Melamed & Muffly, Carl J. Micarelli, Debevoise & Plimpton, New York, NY, Amicus Curiae.Before: SLOVITER, GREENAWAY, JR., and STAPLETON, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

A federal statute, Immigration and Nationality Act (“INA”) § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv), precludes withholding of removal if “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” In November 2003, the Government of Uzbekistan requested the extradition of, inter alia, Petitioners Bekhzod Yusupov and Ismoil Samadov (collectively “Petitioners”), asserting they participated with others in a movement seeking the “forced overthrow” of the Republic of Uzbekistan, and the establishment on its territory of a “religious extremist Islamic fundamental state.” Y.App. at 705, S.App. at 2993.¹ After hearing testimony that it was merely pretext for persecution, both Immigration Judges (“IJs”) concluded that the extradition request would be given no weight, “coming from a government such as this with a history of engaging in persecution and using torture as a sovereign tool.” In Re Yusupov, No. A 79–729–905, at 10 (IJ Dec. Nov. 19, 2004). In addition, Uzbekistan stimulated Interpol notices seeking assistance in locating Petitioners. The Government now asserts that there are reasonable grounds to believe both Petitioners are a danger to the security of the United States.

These consolidated cases were previously before this court. In Yusupov v. Att'y Gen., 518 F.3d 185, 201 (3d Cir.2008) (“ Yusupov I ”), this court overruled the Attorney General's construction of the national security exception that required merely that a person “may” pose a danger to our security and held that the provision only applies to an individual who actually “is” a danger. Because the Board of Immigration Appeals (“BIA”) evaluated Petitioners' cases under the incorrect standard, this court remanded to the BIA without passing on the merits. On remand, the BIA found that Petitioners are a danger to national security and are thus ineligible for withholding of removal. The BIA, however, granted the Petitioners deferral of removal under the United Nations Convention Against Torture (“CAT”) finding it more likely than not that Petitioners would be persecuted and tortured on account of their religion and political opinion if returned to Uzbekistan. We are now called on to consider whether substantial evidence supports the BIA's determination that Petitioners pose an actual, present danger to the security of the United States.²

I.Background

A. Factual Overview

Yusupov and Samadov are two nationals of Uzbekistan who claim to be Independent Muslims and followers of Imam Obidkhon Nazarov. Nazarov and his followers have been subject to persecution since the early 1990s by the Uzbek Government, known for its silencing of dissent and its “very poor” human rights track record, charges also maintained by the U.S. Government. S.App. at 2170–73, Y.App. at 108. Petitioners left Uzbekistan in 1999, allegedly to pursue educational opportunities in the United States, and are now unwilling to return for fear of persecution.

Yusupov and Samadov both testified at their respective initial hearings that they had only peacefully attended their mosques in their homeland and had engaged in no violent or subversive activity. Both reported that in 2001, after they were in the United States, a former roommate, surname Oripjanov, was tortured and interrogated in Uzbekistan and forced to sign false allegations against them. This, they testified, precipitated Uzbekistan's issuance of the extradition requests and Interpol warrants charging them with participating in activities in support of an illegal, religious, extremist movement. The IJ presiding at Yusupov's hearing concluded that “after listening closely to his testimony, and examining the voluminous evidence of record, [he] found respondent to have testified credibly.” In re Yusupov, No. A 79–729–905, at 9 (IJ Dec. Nov. 19, 2004). After hearing this testimony, Samadov's IJ similarly concluded as follows:

The Court has carefully reviewed that extradition request. It does not charge the respondent with any specific incident.... It appears that the respondent is being sought by the government of Uzbekistan because of his religious beliefs.

Based upon the documentary evidence that has been provided in this case, the reports of the State Department, about the religious Freedom Report and the Human Rights Report, the report from Human Rights Watch, the other corroborating evidence, the Court finds that the respondent's testimony when placed against this evidence is extremely credible.

S.App. at 46.

Neither of these findings regarding the credibility of Petitioners has subsequently been withdrawn by the IJ or found by the BIA to be clearly erroneous.³ Indeed, the BIA on review, expressly found “no clear error in [Yusupov's] Immigration Judge's credibility determination regarding ... the Uzbek extradition request and INTERPOL warrant.” In Re Yusupov, No. 79–729–905, at 3 (BIA Dec. June 18, 2009).

Meanwhile, in 2002, after receiving notice of criminal charges against Petitioners in Uzbekistan, the United States initiated an investigation during which Petitioners consented to a search of their shared home and computer. The search revealed cached video clips of Osama bin Laden and an alleged Chechen militant and what appear to be attacks on Russian troops and vehicles, a map of Pennsylvania State Police facilities, and an email addressed to Petitioners' former roommate, Erkinjon Zakirov, also an Uzbek national, that references “jihad.” ⁴See Yusupov I, 518 F.3d at 190–92.

The Government initiated removal proceedings against Petitioners. Petitioners conceded removability and applied for asylum, withholding of removal, and CAT relief.

In March 2004, IJ Grace A. Sease granted Samadov's application for withholding of removal under the INA.⁵ S.App. at 46. The BIA affirmed. Later that year, the Government moved to reopen Samadov's case on the ground that it had obtained new, previously unavailable evidence, namely the files extracted from the shared computer, that supported a finding that he was a danger to the security of the United States.⁶

At the reopened hearing, the Government presented testimony only of Mark Olexa, an agent of the Department of Homeland Security (“DHS”) Joint Terrorism Task Force working out of Philadelphia, Pennsylvania. Agent Olexa was unable to translate the non-English writing superimposed on one of the videoclips or provide additional detail regarding the contents of several of the videos due to his lack of familiarity with the language.⁷ S.App. at 393–414. Olexa never interviewed Samadov about the materials or other evidence, and did not identify who had downloaded the files to the shared computer. He based his opinion that Samadov had engaged in “extremist activity” primarily on the allegations in the extradition request. S.App. at 408. After the hearing, IJ Sease found Samadov's testimony regarding the computer and his activities in this country to be “not credible.” Although the IJ held that he was ineligible for withholding of removal as a danger to national security, she found Samadov eligible for deferral under the CAT. In re Samadov, A 79–729–711, at 14–15 (IJ Dec. Aug. 2, 2005). In May 2006, the BIA affirmed.

In November 2004, in separate proceedings, IJ Walter A. Durling, who was presiding at Yusupov's hearing, found him to be credible and held that there were not reasonable grounds to believe he is a danger to national security. The IJ granted Yusupov's applications for withholding of removal and CAT relief.⁸ The IJ found it significant that the Government “did not produce any writing or correspondence pertaining to [Yusupov] that suggests any violent intentions or proclivities, nor has [it] suggested his collaboration or friendship with anyone in the United States considered of violent repute.” In re Yusupov, No. A 79–729–905, at 6 (IJ Dec. Nov. 19, 2004).

IJ Durling noted the Government's argument that its threshold for establishing a reason to believe an alien is a danger is “low.” Id. at 8. IJ Durling stated that even accepting that argument, this “requires at least a modicum of evidence,” and “some nexus between an alien's presence in the United States and his activities or beliefs which quantify him as a security risk,” which the Government failed to provide. Id. The IJ afforded the politically motivated extradition request no weight with regard to the allegations of criminal misconduct. Id. at 10. In August 2005, the BIA reversed the IJ's grant of withholding of removal on national security grounds but upheld the grant of deferral of removal for Yusupov under the CAT.

Yusupov and Samadov petitioned for review and this court consolidated the petitions.

B. Third Circuit Remand

In Yusupov I, this court did not comment regarding the sufficiency of the evidence as to whether either Petitioner falls within the national security exception. Rather, we limited our decision to an interpretation of the statutory language that provides...