Javed v. Holder

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Norman H. Stahl, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [12-1657]

Case: 12-1657

Document: 00116533893

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Date Filed: 05/24/2013

Entry ID: 5736060

United States Court of Appeals
For the First Circuit
No. 12-1657
MOHAMMAD ILYAS JAVED,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before
Torruella, Stahl, and Lipez,
Circuit Judges.

Randy Olen on brief for petitioner.
Edward C. Durant, Attorney, Office of Immigration Litigation,
Civil Division, Stuart F. Delery, Principal Deputy Assistant
Attorney General, and Holly M. Smith, Senior Litigation Counsel, on
brief for respondent.

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STAHL, Circuit Judge. Mohammad Ilyas Javed petitions for
review of a decision by the Board of Immigration Appeals (BIA or
Board) affirming the denial of his applications for withholding of
removal and protection under the Convention Against Torture (CAT).
Because the BIA's withholding-of-removal decision is contrary to
the evidence, we grant the petition in part and remand the case for
further proceedings.
I.

Background

Javed was born in 1962 in Gujrat, a district of Punjab
Province, in Pakistan.

He attended high school and then studied

business administration and accounting in Gujrat.

He went on to

earn degrees in commerce and law from the University of Karachi,
completing his studies in 1987. He worked for a Karachi accounting
firm until 1990 and then returned to Batore, his home village in
Gujrat.

Upon

his

return,

he

joined

a

law

firm

there.

While at the law firm, Javed was assigned to a case
stemming from a conflict between rival political factions: the
Batore

group

village).

and

the

Hunj

group

(each

named

after

its

home

These groups were "subsidiaries" of the ruling Pakistan

Muslim League and the Pakistan People's Party, respectively.
(Javed was not a member of either party.)

Some members of the Hunj

group had been injured in a shooting that resulted from a dispute
over an apparently rigged election in October 1990.

Javed and his

firm represented the Hunj group in their efforts to prosecute the
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case in court.

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In Pakistan, private parties can, through their

attorneys, initiate criminal cases (although there are public
prosecutors as well).

For that process to begin, the police must

file a particular document; Javed and his law firm were eventually
able to persuade the police to do so, but not before he and others
were arrested during a protest.

Javed was held by the local police

for "a few days" and then released.

Thereafter, the court case

commenced, but was prolonged by repeated adjournments.
police,

apparently

seeking

to

shelter

the

Batore

The local
group

from

punishment, were complicit in these delays.
While the case was slowly proceeding, Javed came under
pressure from the Batore group, which was based in his home village
of Batore.

After hearing about his role representing the Hunj

group in the case, the Batore group began to threaten Javed, and,
on "many" occasions, members of the group "got[] hold of [him] and
beat [him] up."

They threatened to kill him if he did not stop

representing the Hunj.

As Javed described it, "the Batore group

thought that [he] was affiliated with the Hunj group and they
thought of [him] as their enemy."
In 1991, Javed left the law firm and started his own
practice.
courthouse.

He opened an office in a small building near the local
The local government, however, under the "control" of

the Batore group, demolished the office building.

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In 1993, as a result of the threats against him, Javed
fled Pakistan.

The Hunj-Batore litigation was still ongoing when

he left, but apparently ended in 1998.
and worked in a supermarket.

Javed moved to South Africa

His wife and two children remained in

Pakistan; he returned to visit them twice but avoided his village,
instead staying with a relative elsewhere and having his family
come meet him there.

Javed's wife passed away in early 1999, after

which he came to the United States.

His two children (now in their

late

respectively)

teens

and

early

twenties,

still

live

in

Pakistan; he supported them during his absence by sending them
money from abroad.
Javed

entered

visitor in February 1999.

the

United

States

as

a

non-immigrant

He remained in the country beyond the

time authorized, and was thus served with a Notice to Appear in
March 2002.

In 2005, Javed appeared before the Immigration Judge

(IJ), conceded removability, and applied for withholding of removal
and CAT protection. He offered various materials in support of his
applications and testified to the events described above.

He also

testified

in

absence.

that the
His

threats

friends

against

in

Pakistan

him

continue even

report

that

the

his

Batore

continually tell them: "[W]henever [Javed] returns over here we are
not going to leave him alive."

He also expressed concern that he

would be even less safe in Pakistan now than when he left because

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the Hunj group has ceased to exist politically and because of the
prevalence of contract killings.
The IJ denied Javed's applications.

He found that Javed

was a credible witness and had given testimony that was both
internally

consistent

and

consistent

with

the

record.

He

concluded, however, that Javed had not established that he had
experienced

persecution

characteristic."1

"as

a

result

of

an

immutable

Rather, the IJ concluded that the threats and

violence Javed experienced were the result of "his involvement in
litigation

with

organization."

a

violent

and

politically

influential

The IJ also believed that the passage of time had

likely "removed, or greatly lessened, any threat to" Javed's
safety.

He therefore found that Javed was not eligible for

withholding

of

protection,

the

removal.
IJ

As

found

testimony or affidavit.

no

to

Javed's

"mention" of

application
torture

in

for

CAT

Javed's

The IJ noted that Javed had been detained

by the local police for several days, but pointed out that he had
apparently not suffered any abuse during that period. Thus, the IJ
denied the CAT application as well.2

1

As
Javed
points
out,
the
phrase
"immutable
characteristic" refers to the statutory term "particular social
group," and not to the other protected grounds of race, religion,
nationality, and political opinion. Mayorga-Vidal v. Holder, 675
F.3d 9, 14 (1st Cir. 2012). Insofar as the IJ used it as shorthand for all of the protected grounds, that usage was misleading.
2

The IJ also denied a motion by the government to
pretermit the proceedings on the ground that Javed had filed
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The BIA affirmed.

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It agreed with the IJ that Javed "was

targeted because of his involvement as an attorney in litigation,
which does not establish a nexus between the harm [he experienced]
and a protected ground."

The Board also found that Javed had not

experienced harm that rose to the level of "persecution" within the
meaning of the statute, in part because he was, in the Board's
view, embroiled in a purely private dispute.

And the Board noted

that Javed's family had apparently remained in Pakistan without
incident since his departure, which it believed undermined his
argument that he would face persecution if repatriated.

Finally,

the Board agreed with the IJ that Javed had not been tortured and
that the record did not establish a sufficient likelihood of future
torture. Accordingly, it affirmed the denial of both applications.
II.

Discussion

The BIA's "findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary."

8 U.S.C. § 1252(b)(4)(B).

Thus, we will "accept the

BIA's findings so long as they are 'supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.'"

Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009)

(quoting Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005)).
We review the BIA's legal interpretations de novo. See id.

Where,

fraudulent supporting materials; the IJ found insufficient evidence
to support the conclusion that Javed's application was fraudulent
or frivolous.
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as here, the BIA affirms and elaborates on the IJ's findings, we
review both decisions.

Chanthou Hem v. Mukasey, 514 F.3d 67, 69

(1st Cir. 2008).
We begin with Javed's application for withholding of
removal.

Withholding "protects an otherwise removable alien from

removal to a country where 'the alien's life or freedom would be
threatened in that country because of the alien's race, religion,
nationality, membership in a particular social group, or political
opinion.'"

Tay-Chan v. Holder, 699 F.3d 107, 111 (1st Cir. 2012)

(quoting 8 U.S.C. § 1231(b)(3)(A)).

To be eligible for this

remedy, a petitioner must make one of two showings: (i) that he has
suffered past persecution on account of one of the enumerated
grounds,

which

creates

a

rebuttable

presumption

of

future

persecution; or (ii) that future persecution on account of one of
these grounds is more likely than not to occur.

Id.; see 8 C.F.R.

§ 1208.16(b)(1)-(2). Under the REAL ID Act of 2005, persecution is
"on account of" a protected ground if that ground "was or will be
at least 'one central reason' for [the] persecution."

Tay-Chan,

699 F.3d at 111.
Javed challenges the BIA's withholding determination on
two grounds.

First, he contends that the record showed that he

experienced past persecution, entitling him to a presumption that
he had a well-founded fear of future persecution (which he did not
receive).

Second, he attacks the conclusion that his troubles

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stemmed from his litigation activities rather than any protected
ground; he says that the record reveals that his representation of
the Hunj group caused the Batore group to impute a political
opinion to him.
In deciding that Javed had not suffered past persecution,
the Board concluded (with scant explanation) that the threats and
violence he experienced did not rise to the level of persecution,
which requires harm that goes beyond mere harassment, unfairness,
or unpleasantness.
Cir. 2007).

See Attia v. Gonzales, 477 F.3d 21, 23 (1st

The Board also seemed to conclude that Javed had not

shown any government involvement in the threats and beatings.
Nikijuluw

v.

(persecution

Gonzales,
requires

427

F.3d

"government

115,

121

action,

(1st

Cir.

See

2005)

government-supported

action, or government's unwillingness or inability to control
private conduct").

It is true that a single, vague threat or even

a number of non-specific threats, "unaccompanied by any significant
physical abuse and any government involvement," will be unlikely to
constitute persecution.

Badache v. Holder, 492 F. App'x 124, 125

(1st Cir. 2012) (Souter, J.) (quoting Abdelmalek v. Mukasey, 540
F.3d 19, 22 (1st Cir. 2008)) (internal quotation mark omitted).
But credible, specific threats can amount to persecution if they
are severe enough.
(1st Cir. 2008).
rubric.

Id.; see Sok v. Mukasey, 526 F.3d 48, 54-55
"[T]hreats of murder" fit squarely within this

Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007);

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see also Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005); Un v.
Gonzales, 415 F.3d 205, 210 (1st Cir. 2005).

And the addition of

physical violence, although not required, makes a threat more
likely to constitute persecution.
109, 115 (1st Cir. 2012).

See Gilca v. Holder, 680 F.3d

Here, the record compels the conclusion

that Javed was subjected to threats and violence that rose to the
level of past persecution.
To begin with, the Board was wrong to say that the
threats and beatings Javed experienced were part of a purely
private conflict.

See Nikijuluw, 427 F.3d at 121; cf. Hussain v.

Holder, 576 F.3d 54, 58 (1st Cir. 2009).

Javed testified that the

local authorities condoned or participated in the attacks on him,
including by demolishing his office building. He was also arrested
and detained by local police. He further testified that the police
and local officials protected the Batore, apparently at the behest
of the ruling national political party, with which the Batore group
was

affiliated.

In

light

of

this

credible

and

uncontested

testimony, the Board's unelaborated conclusion that this dispute
lacked government involvement is wholly unsupported by the record.
Likewise, the record squarely contradicts the Board's
determination that Javed experienced mere unpleasantness that did
not rise to the level of persecution.
credible

threats,

especially

constitute persecution.

when

As noted above, specific,

bolstered

by

violence,

See Badache, 492 F. App'x at 125.

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can
And

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"threats of murder" go well beyond the "ordinary harassment" that
does not qualify.

Hincapie, 494 F.3d at 217.

Here, Javed

testified -- credibly, according to the IJ -- that the Batore group
threatened

to

kill

him

on

"many"

occasions.

These

threats

continued, via intermediaries, even after he fled Pakistan.
the threats were accompanied by violence.

And

Although the Board and

the IJ said (somewhat euphemistically) that Javed was "manhandled"
by the Batore, Javed testified that he was "beat . . . up" "many"
times.

And then there was his arrest and detention by the police

as a result of his protests on behalf of the Hunj.

See Sok, 526

F.3d at 54 (finding that a three-day detention after a protest
rally, in conjunction with an assault and serious death threats,
suggested past persecution).

The demolition of Javed's office by

the Batore-controlled local government only added to this pattern.
Finally, we must be mindful that the genesis of these events was an
incident in which the same group that threatened to kill Javed shot
people with whom he was associated.

This is not a case in which

the petitioner was threatened, but was "never in serious danger."
See Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010).
these isolated incidents.
Cir. 2009).

Nor were

Cf. Tasya v. Holder, 574 F.3d 1, 5 (1st

In sum, the record, considered as a whole, compels us

to find that Javed experienced past persecution. Cf. Sok, 526 F.3d
at 53-55; Iffat v. Gonzales, 126 F. App'x 862, 864 (9th Cir. 2005)
(specific death threats, arson of petitioner's home, and the

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attempted abduction of her daughter cumulatively constituted past
persecution).

Accordingly, Javed was entitled to a presumption of

future persecution, Tay-Chan, 699 F.3d at 111, which he did not
receive.
Nevertheless, the Board and the IJ's shared error as to
past persecution would be harmless if they were correct that the
persecution Javed experienced was not "on account of" a protected
ground.

But they were not correct.

Both the Board and the IJ

concluded that Javed "was targeted because of his involvement as an
attorney in litigation," and not on the basis of any protected
ground.

To be sure, the record reflects that Javed's involvement

in the Hunj-Batore litigation was a catalyst for his persecution.
But Javed also testified that, as a result of his representation,
"the Batore group thought that [he] was affiliated with the Hunj
group and they thought of [him] as their enemy."

He went on to

explain that, in the political and social climate in Gujrat,
assisting a rival political party was tantamount to joining that
party.

In fact, in his case, it was apparently perceived as an

egregious betrayal, since Javed was from Batore village, and thus
would have been expected to support the political group that
carried the village's name. As he put it, "whoever belongs to that
village has to go along with [the village's ruling party] and
anybody who tries to do something against them is considered their
enemy." The essence of Javed's testimony was that the Batore group

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attacked

Javed

because

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they

Date Filed: 05/24/2013

thought,

mistakenly,

Entry ID: 5736060

that

his

representation of the Hunj revealed him to be their political
opponent.

Put another way, they perceived his legal advocacy as a

manifestation
testimony

of

came

affiliations

his

political

amidst

bolsters

beliefs.

a

discussion

that

conclusion.

The
of

fact

Javed's

See

that

this

political

Mayorga-Vidal

v.

Holder, 675 F.3d 9, 18 (1st Cir. 2012) ("Political persecution may
be grounded on an imputed political opinion, whether or not the
opinion is correctly or incorrectly attributed to the alien."); see
also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 294 (2d
Cir. 2007) (cautioning against "an impoverished view" of what
constitutes persecution on account of a political opinion).
We think this factual testimony about the political
implications

of

Javed's

representation

is

different

from

a

petitioner's conclusory assertion as to his persecutor's motives,
which we need not accept.
(1st

Cir.

2006).

See Ali v. Gonzales, 190 F. App'x 13, 15

Javed's

credible,

factual

testimony

amply

established that his persecutors imputed a political opinion to him
(albeit incorrectly), and that this opinion was at least a "central
reason" for their attacks on him.

Cf. Manzur, 494 F.3d at 294

(faulting the IJ for concluding that a petitioner's efforts to have
a soldier suspected of assassinating her husband prosecuted could
not have resulted in persecution on the basis of imputed political
opinion); Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995)

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(finding that the petitioner was persecuted on the basis of imputed
political opinion when authorities abused him because of his
association

with

political

dissidents).

The

Board

and

IJ's

contrary conclusion is not supported by the record.
At this point, we could find these dual errors harmless
only "if the record compelled a finding that any presumption of
future

threats

was

rebutted

by

'a

fundamental

change

in

circumstances such that [petitioner's] life or freedom would not be
threatened.'"

Un,

415

§ 1208.16(b)(1)(i)(A)).

F.3d

at

210

(quoting

8

C.F.R.

But "[t]he government has not made this

argument, addressing only the converse issue (which assumes that
petitioner

bore

the

burden

of

proof)

of

whether

there

was

substantial evidence supporting the . . . finding that petitioner
failed to establish the likelihood of [future] harm."
Consequently, we must remand the case.

See id.

Id.

On remand, Javed

should have the benefit of the presumption of future persecution,
and the government should have the opportunity to attempt to rebut
that presumption.
In closing, we address Javed's CAT-protection claim.

To

avoid removal under the CAT, a petitioner must show that he will
more likely than not face torture upon repatriation, with the
consent or acquiescence of the government then in power. Mariko v.
Holder, 632 F.3d 1, 7 (1st Cir. 2011); Ahmed v. Holder, 611 F.3d
90, 98 (1st Cir. 2010).

"Torture is . . . any act by which severe

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pain or suffering, whether physical or mental, is intentionally
inflicted

on

a

§ 208.18(a)(1).

person"

various

reasons.

8

C.F.R.

In other words, it is "an extreme form of cruel

and inhuman treatment."
On

for

this

Id. § 208.18(a)(2).

issue,

the

IJ

and

BIA's

determination

is

supported by the record. There is no evidence of past torture, and
Javed does not argue otherwise.

Nor does documentary evidence of

the general use of torture by Pakistani authorities suffice,
without more, to establish that Javed himself is more likely than
not to be tortured there.

It is true that Javed's persecutors were

associated with the ruling political party, but we cannot, on that
basis alone, make the inferential leap he suggests, which is that
he is therefore likely to be tortured by the national government.
Beyond these cursory points, Javed has not offered any other basis
to disturb the Board's and IJ's CAT rulings.

Therefore, we will

deny his petition insofar as it seeks review of the denial of his
CAT application.
III.

Conclusion

For the foregoing reasons, we grant in part and deny in
part Javed's petition for review, and remand this case to the BIA
for further proceedings consistent with this opinion.

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