Malik Khalid v. Attorney General United State

Filing

NOT PRECEDENTIAL OPINION Coram: GREENAWAY JR., SHWARTZ and RENDELL, Circuit Judges. Total Pages: 8. Judge: SHWARTZ Authoring.

Case: 16-4204

Document: 003112678866

Page: 1

Date Filed: 07/20/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-4204
______________
MALIK NADEEM KHALID,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent

______________
On Petition for Review from the Board of Immigration Appeals
(B.I.A. No. A072-567-177)
Immigration Judge: Hon. Dorothy Harbeck
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 14, 2017
______________
Before: GREENAWAY, JR., SHWARTZ, and RENDELL, Circuit Judges.
(Filed: July 20, 2017)
______________
OPINION *
______________
SHWARTZ, Circuit Judge.
Malik Nadeem Khalid seeks review of a final order of removal issued by the

*

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

Case: 16-4204

Document: 003112678866

Page: 2

Date Filed: 07/20/2017

Board of Immigration Appeals (“BIA”). The BIA dismissed Khalid’s appeal from the
Immigration Judge’s (“IJ”) decision denying his application for protection under the
Convention Against Torture (“CAT”). The record does not compel a conclusion that it is
more likely than not that Khalid will be tortured by, at the instigation of, or with the
consent or acquiescence of a public official or other person acting in an official capacity
upon returning to Pakistan. Therefore, we will deny Khalid’s petition to review the
BIA’s order.
I
Khalid, a citizen of Pakistan, attempted to enter the United States in 1991 without
documentation and was placed in exclusion proceedings. He requested asylum and was
paroled into the United States. Khalid withdrew his asylum application and filed an
application for adjustment of status based on his marriage to a United States citizen.
Khalid returned to Pakistan briefly in 1997 and was paroled back into the United States to
continue his application for adjustment of status. The application was denied, but Khalid
remained in the United States. In 2008, the Department of Homeland Security charged
him as an alien without valid travel documents. Khalid submitted a new application for
asylum, withholding of removal, and CAT protection.
At the hearing on his application, Khalid testified that he came to the United States
to flee persecution stemming from his involvement with the Pakistan People’s Party
(“PPP”), the party of then-Prime Minister Benazir Bhutto. Khalid testified that after
Bhutto was replaced as prime minister in 1990, Khalid was arrested and taken to a police
2

Case: 16-4204

Document: 003112678866

Page: 3

Date Filed: 07/20/2017

station where he was beaten for twelve hours because of his affiliation with the PPP.
App. 1335. Khalid testified that, a few months later, police officers stopped him, beat
him, and took him to a cell where he was held overnight. Khalid testified that he was
beaten and arrested again several months later. His father bribed a police officer to
secure his release, and shortly thereafter Khalid came to the United States.
Khalid further testified that in 1997 he returned to Pakistan to see his ailing mother
and, during the visit, men from the army came to his home and pressured him to turn over
his travel documents. An army captain intervened and prevented the men from taking the
documents. Khalid testified that he had no other problems while in Pakistan and that he
returned to the United States several weeks later.
Khalid testified that in 2000, his family joined the PML-Q political party and that
in 2008, his brother and father were arrested in Pakistan on false criminal charges. At the
time of the 2009 hearing before the IJ, that criminal case was still pending, but Khalid
testified that the PML-N, the PML-Q’s rival party, wanted to harm his brother and father
and he feared that the party also wanted to hurt him. Khalid said that Pakistani officials
brought charges against his brother and father in order to compel Khalid to return to
Pakistan.
Following the hearing, the IJ granted Khalid’s claim for withholding of removal
and so did not address Khalid’s CAT claim. On appeal, the BIA reversed the IJ’s
decision and denied Khalid’s claim for withholding of removal and dismissed his CAT
claim as waived. Khalid filed a petition for review and we: (1) denied review of the
3

Case: 16-4204

Document: 003112678866

Page: 4

Date Filed: 07/20/2017

BIA’s denial of Khalid’s claim for withholding of removal based in part on our view that
substantial evidence supported the BIA’s findings that Khalid could not establish that
authorities arrested his father and brother in order to compel his return, and that Khalid
would not be harmed based on his political affiliation; (2) granted review of the BIA’s
dismissal of Khalid’s CAT claim because the IJ never made a determination on it, so
Khalid never had reason to challenge it before the BIA; and (3) remanded the case to the
BIA. The BIA, in turn, remanded the case to the IJ so the IJ could adjudicate Khalid’s
application for CAT protection.
At the hearing before the IJ, Khalid testified that the PML-N would torture him if
he returned to Pakistan because of his family’s affiliation with the PML-Q. He offered
new testimony about his brother’s participation in a contested election in 2005 as a
member of the PML-Q, and his brother’s and father’s arrest in 2008. He also claimed
that his nephew was shot in the leg in 2013 because members of the PML-N wanted his
family to change political parties. Khalid further testified that terrorists would target him
in Pakistan because he has lived in the United States for many years and he is
Americanized. In addition, he submitted documentation concerning terrorism and
political unrest in Pakistan.
The IJ denied Khalid’s request for CAT relief because Khalid did not demonstrate
that there is a clear probability that government forces will torture him if he returns to
Pakistan. The IJ found that the only past incident that had any bearing on the likelihood
of future torture at the hands of the PML-N was the 2008 arrest and beating of Khalid’s
4

Case: 16-4204

Document: 003112678866

Page: 5

Date Filed: 07/20/2017

father and brother. Nevertheless, the IJ found that there was no evidence that Khalid’s
family had been targeted or harmed by the PML-N since that 2008 incident or that the
PML-N would impute the political affiliation of his family members to Khalid.
Regarding the incident with Khalid’s nephew, the IJ rejected Khalid’s claim that the 2013
shooting was politically-motivated because the “police report . . . state[d] that the ‘cause
of enmity’ between [Khalid’s] nephew and the shooter was a quarrel from a few days
prior.” App. 60. The IJ also concluded that the record does not support Khalid’s fear that
terrorists target Americanized Pakistanis.
Khalid appealed the IJ’s decision, which the BIA dismissed. The BIA found that
Khalid had not shown that it is “more likely than not” that he will be subjected to torture
in Pakistan. App. 4. The BIA acknowledged Khalid’s fears that he will be targeted by
the PML-N based on his family’s political activities and by terrorists because he has
become Americanized, but found that there is insufficient evidence to establish that
anyone in Pakistan is motivated to harm him. The BIA also noted that Khalid had sought
to add several online news articles to the record with his appellate brief, but declined to
consider this evidence because the BIA is an appellate body that reviews the record that
is created before the IJ. The BIA further held that even if Khalid had sought remand to
expand the record, such a motion would have been denied because the additional
evidence would likely not alter its decision on whether Khalid is entitled to CAT relief.
Khalid petitions for review.

5

Case: 16-4204

Document: 003112678866

Page: 6

Date Filed: 07/20/2017

II 1
To qualify for CAT protection, the applicant “must establish that it is more likely
than not that he or she would be tortured if removed to the proposed country of removal.”
Kibinda v. Att’y Gen., 477 F.3d 113, 123 (3d Cir. 2007) (internal quotation marks and
citations omitted); see 8 C.F.R. § 208.16(c). “Torture” under the CAT “is an extreme
form of cruel and inhuman treatment” that is inflicted by or with the acquiescence of a
public official and is “specifically intended to inflict severe physical or mental pain or
suffering.” 8 C.F.R. § 208.18(a)(1), (2), (5).
Khalid argues that the IJ and the BIA erred in concluding that the facts do not
support Khalid’s claim that he is eligible for CAT protection. First, he argues that we
should grant his petition because the BIA ignored evidence—five unauthenticated online
news articles—demonstrating that members of the PML-N commit violence against
members of the PML-Q. The BIA properly declined to consider this evidence because
Khalid submitted it for the first time on appeal. As an appellate body, the BIA is not

1

The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15, and we
have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). See Garcia v. Att’y Gen., 665 F.3d
496, 502 n.4 (3d Cir. 2011). We review legal questions de novo and the BIA’s and IJ’s
factual findings under an “extraordinarily deferential standard,” where “findings of fact
will be upheld if they are supported by reasonable, substantial, and probative evidence on
the record considered as a whole.” Id. at 502 (alteration, internal quotation marks and
citation omitted). We may decline to uphold factual findings, including whether an
applicant has demonstrated persecution or a likelihood of torture, “only if the evidence
compels a contrary conclusion.” Jarbough v. Att’y Gen., 483 F.3d 184, 191 (3d Cir.
2007) (internal quotation marks and citation omitted); see Kibinda v. Att’y Gen., 477
F.3d 113, 119, 123 (3d Cir. 2007) (applying the “compels a contrary conclusion”
standard to CAT claim).
6

Case: 16-4204

Document: 003112678866

Page: 7

Date Filed: 07/20/2017

permitted to engage in fact-finding or to consider evidence not presented to the IJ. See 8
C.F.R. § 1003.1(d)(3). If Khalid believed this additional evidence demonstrated his
entitlement to CAT relief, then he should have filed a motion to remand the matter to the
IJ for further fact finding, which he did not do. See 8 C.F.R. § 1003.1(d)(3)(iv) (“A party
asserting that the [BIA] cannot properly resolve an appeal without further fact finding
must file a motion for remand.”). Furthermore, even if the evidence were properly before
the BIA, the articles report that there are political tensions and incidents of violence
between PML-N and PML-Q members, but do not indicate that individuals related to
PML-Q members are being targeted for torture. Thus, there is nothing in the articles to
suggest that it is more likely than not that Khalid will be tortured if he returns to Pakistan.
Second, Khalid argues that the BIA ignored evidence that his family continues to
be targeted in Pakistan for its political involvement. To the contrary, the BIA specifically
acknowledged Khalid’s fear “that members of the ruling [PML-N] will seek to harm him
based on his family’s involvement with the [PML-Q].” App. 4. Nonetheless, the BIA
ultimately concluded that his claims were “highly speculative, founded upon a chain of
suppositions and a fear of what might happen to him in a worst-case scenario, rather than
upon hard evidence that meets his burden of demonstrating that it is more likely than not
that he will be tortured in Pakistan.” App. 5. The BIA additionally concluded that
Khalid’s claim that the PML-N targeted his family was tenuous based on Khalid’s
“mother, siblings, wife and child . . . all remain[ing] in Pakistan without harm despite
their familial relationship” to members of the PML-Q. App. 4. The IJ also discussed the
7

Case: 16-4204

Document: 003112678866

Page: 8

Date Filed: 07/20/2017

evidence that Khalid added to the record during the remand hearings regarding the 2008
arrests of his father and brother, and the 2013 shooting of his nephew. The IJ found that
neither of these events supported a claim for CAT protection because Khalid failed to
provide any evidence that his family members had been harassed by the PML-N since
2008, and the police reports suggested that the shooting of his nephew was not politically
motivated. The IJ and the BIA correctly assessed the record and there is substantial
evidence supporting the decision that Khalid is not entitled to CAT protection based on
his family’s involvement in the PML-Q.
Third, Khalid argues that he will be tortured by terrorists if he returns to Pakistan
because he will be perceived as Americanized. The BIA acknowledged this argument but
concluded that “there [was] no evidence [in the record] that those perceived as
‘Americanized’ have been targeted by terrorists or that anti-American sentiment has been
the motive for any terrorist attacks in Pakistan.” App. 4. The BIA is correct. The record
includes no evidence that compels a conclusion that Khalid is likely to be tortured in
Pakistan due to his Americanization. See 8 C.F.R. § 1208.18(a)(1).
Because the record does not compel the conclusion that it is more likely than not
that Khalid will be tortured by or at the instigation of a public official or other person
acting in an official capacity upon returning to Pakistan, he is ineligible for CAT relief.
III
For these reasons, we will deny Khalid’s petition for review.

8