Khan v. Holder

United States Court of Appeals
For the First Circuit

No. 13-1102

SIRAJ AHMAD KHAN,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.

William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Kelly J. Walls, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Leslie McKay, Assistant Director, Office of Immigration Litigation,
on brief for respondent.

August 9, 2013
 LYNCH, Chief Judge. On November 3, 2010, an immigration

judge (IJ) denied Siraj Ahmad Khan's application for asylum,

withholding of removal, and withholding under the Convention

Against Torture (CAT). The Board of Immigration Appeals (BIA)

affirmed this denial on December 18, 2012. Khan timely petitions

for review of the BIA's decision. We deny his petition.

I.

Khan is a native and citizen of Pakistan who entered the

United States on April 5, 2008 on a seaman crew visa that

authorized him to remain in the United States until May 4, 2008.

Khan had flown from Pakistan to Dubai and then to New York; his

purported ultimate destination was Bermuda, where he was to rejoin

the ship on which he worked. Khan remained in the United States in

New York instead.

On September 10, 2008, Khan filed an application for

asylum and for withholding of removal in which he also sought

protection under the CAT. Khan alleged that he was eligible for

relief based on claims he had and would suffer persecution because

of his political opinion and membership in a particular social

group. On July 14, 2009, Khan was issued a notice to appear (NTA)

which alleged that he was removable as an alien who had remained in

the United States beyond May 4, 2008 without authorization. Khan

conceded the allegations in the NTA and sought the relief

described.

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A. Khan's Hearing Before the IJ

On November 3, 2010, an IJ conducted a merits hearing in

Khan's removal proceedings, at which Khan testified. We describe

Khan's testimony and evidence.

Khan was born on December 24, 1958, in the village of

Shah Dheri, in the Swat district in Pakistan. Khan had a wife and

seven children who, at the time of the hearing, had remained in

Pakistan but no longer resided in Shah Dheri; instead, they lived

with relatives in other towns.

The Taliban became active in Khan's area of Pakistan in

2007, while Khan was away working on a ship. When Khan returned to

Shah Dheri in January 2008, he found that the Taliban were forcing

local residents to cut their hair and grow long beards, and that

they were "brainwashing young people" via radio broadcasts. Khan

also stated that the Taliban were kidnapping children to secure

ransom money from their families.

Khan testified that the Taliban in fact blew up his

daughter's school in January 2008. The Taliban believed that girls

should not attend school and that English should not be taught in

schools. Khan said that he "kn[e]w" the Taliban was responsible

for destroying this school because "there is no one else" who would

have done it. He conceded that the Taliban did not target his

daughter's school specifically because his daughter went there.

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Khan's view was that the Taliban's philosophy was "completely

wrong" and "very bad for the future generation."

Khan testified that after returning home in January 2008,

he started secretly urging his neighbors in the village "to make

sure not to lose your freedom to Taliban" and "not to allow your

children to be influenced by them." Khan also claimed that he went

to the local police station ten to twenty times to report Taliban

activities that community members described to him, and that the

police initially arrested Taliban members based on this

information, but later became ineffective.

Khan learned from a friend that the Taliban had held a

meeting in a mosque where they discussed plans to blow up the local

police station. Upon learning this information, Khan "informed to

the police and they thanked [him] polite[ly]"; the police then

called the army, which "put that area under surveillance and

secure[d] it." Khan conceded that the presence of the army

"improve[d] the situation in Shah Dheri," though he said the

Taliban remained secretly active.

Khan testified that after he disclosed this Taliban plot

to the police, someone threw a letter attached to a stone at his

house. Khan submitted this letter into evidence with a

translation; it stated:

From: Taliban
02/20/2008

Notice in the name of Siraj Ahmad . . .

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 You are getting informed by this notice and letter. That
you do not pay money to local Taliban nor do you feed
them for one time meal. And you speak against us. And
you are gathering with local police and army and spying
on us. Limit your actions, and quit that. If you did
not quit that we will bomb you and your children. Then
you will know. There is no need for writing more. That
is all.

FROM TALIBAN COMMANDER SHAH DHERAI

Khan testified that the Taliban had learned that he was speaking

against them through their "many spies," but also stated that he

was initially "careless" in his activities concerning the Taliban,

and became more secretive after receiving the letter. Khan took

the letter to the police, who attempted to investigate, but they

told Khan that without knowing who had sent the letter they could

not issue a bench warrant or take other action.

Khan claimed that he continued attempting to "unite the

people and . . . get a group against [the Taliban]," but that his

activities were ineffective because "the people" were afraid.

On the morning of March 7, 2008, someone threw a grenade

at Khan's house. Khan heard a noise, awoke, and found the

undetonated grenade, but it did not explode. Khan called the

police, who came to his home and collected the undetonated grenade.

Later that day, the police filed a report concerning the incident

that Khan submitted into evidence. The report recorded that a hand

grenade had been recovered from the veranda of Khan's house, and

that the grenade "was thrown by some unknown terrorists." The

report stated that the case had been "registered" and was "being

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investigated."1 Khan testified that the police took statements

from witnesses, but were ultimately unable to catch the perpetrator

of this attack because he remained unidentified.

Khan testified that after this incident, he concluded

that the "they [the Taliban] are not leaving me alone." He

testified that "over there once a person is a target that person is

gone, most of the targets are destroyed." Khan therefore decided

to rejoin the ship on which he worked, and left Pakistan on April

4, 2008. However, upon arriving in New York en route to rejoining

his ship in Bermuda, Khan said he "changed [his] mind" and decided

to stay in the United States because if he rejoined his ship, he

"would be with the ship for ten months and then [he] would go back

home and it would be the same situation." Khan admitted he left

his wife and children in Pakistan and came to the United States

less than a month after, by his account, his family was put at risk

by the undetonated grenade. He said he left because (1) the danger

to him was greater than the danger to his family, and (2) if he had

not left, his family would have "starved."

Khan has relatives living in Islamabad and Karachi. He

claimed, however, that even if he relocated within Pakistan, the

1
Khan also submitted into evidence a March 8, 2008 article
from a newspaper, "The News International," which stated that
"unidentified miscreants hurled a hand grenade at the house of one
Siraj Ahmah Khan in Shah Daray area" which "did not explode" and
"was later defused by the police disposal squad." The IJ stated
that this newspaper was "not a publication known to the Court and
therefore is not a reliable source."

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Taliban would find him because "[t]he entire Pakistan is in the

hand of the Taliban." When cross-examined about this statement,

Khan backtracked and admitted that the Taliban was "secretly

active" in places such as Islamabad and Karachi, but not in

control. He also conceded that the Taliban "cannot find [his

children]" because "they are with [his] other relatives" in

Islamabad.

As for Khan's wife, she was living with her brothers in

a village five kilometers away from Shah Dheri. Khan testified

that on one occasion, when his wife returned to their house in Shah

Dheri, callers identifying themselves as "commanders of the

Taliban" called the house four or five times and "told her you have

to give us money." He also testified that they "threaten[ed] her

that we would kidnap your kids." Khan stated that the objective of

these callers was "to get money." According to Khan, a couple

months later, the same people shot his house at night.2 Khan did

not explain how he knew who shot his house, and he had stated in an

affidavit only that his "wife found bullet holes on the outside

wall of [their] house." Khan also conceded that the area around

Shah Dheri was a "war zone."

Khan testified that after he left Pakistan, the Taliban

blew up the police station in Shah Dheri. However, he conceded

2
Khan did not testify that anyone was living in the house at
the time of the alleged shooting.

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that the Pakistani army took control of the Swat area in 2009 and

2010, where they were essentially at war with the Taliban, and that

the Taliban was only "secretly active staying in the mountains" in

the area. Khan also admitted that neither his wife nor his

children had been physically harmed by the Taliban since he had

left Pakistan.

Khan submitted, as corroborative evidence, a translated

letter from his wife which stated that the Taliban "want[ed] to

kill [Khan] very soon" and that they had threatened Khan's family

and several times "attacked . . . our home." Importantly, the

affidavit did not mention the grenade incident, any threatening

telephone calls, their house being shot at night, or that the

Taliban had blown up the local police station. Specifically, it

did not mention the threat supposedly made to Khan's wife to kidnap

her children. Khan attempted to excuse these omissions by claiming

that "the letter was written by the elderly people of the village

who know the situation at the area and [his wife] just signed it."

Khan also submitted his own affidavit in support of his

application, which failed to mention that the Taliban had blown up

the local police station.3

3
When confronted with the fact that his affidavit omitted
this fact, Khan incorrectly claimed that he "did write that the
Taliban bl[e]w up the police station."

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B. The IJ's Denial of Khan's Application, and the BIA's
Affirmance of the IJ's Decision on Appeal

On November 3, 2010, the IJ denied Khan's claims for

relief. The IJ declined to make an adverse credibility finding

regarding Khan, but noted concerns about his credibility.4 The IJ

did find that Khan's petition failed because of his failure to

provide corroborating evidence or acceptably explain why he had not

provided such evidence.5

The IJ also made independent findings to support denial.

The IJ noted that though Khan's application was purportedly based

on his membership in a particular social group, he had not

identified the social group to which he claimed to belong. To the

extent Khan's asylum application was based on membership in the

group of informants to the police, the IJ concluded that informants

do not constitute a particular social group. The IJ also concluded

that insofar as Khan's application was based on his anti-Taliban

political opinion, he had provided no evidence that the Taliban

knew he held this opinion.

4
The IJ noted that neither Khan's affidavit nor Khan's wife's
letter mentioned that the Taliban had blown up the Shah Dheri
police station, and that Khan's wife's letter did not mention the
grenade incident, the threatening phone calls, the threat to kidnap
the children, or the shooting of their house. The IJ was "not
satisfied" with Khan's explanation for these omissions, and
particularly refused to credit his explanation for why his wife's
letter did not mention the Taliban's "horrifying" threat to kidnap
their children.
5
The IJ noted that Khan had failed to provide sufficient
evidence corroborating that he was a police informant in Pakistan.

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 Importantly, the IJ's denial of Khan's application for

asylum, withholding of removal, and CAT protection was also based

on grounds independent of any concerns about Khan's credibility and

corroboration. The IJ's decision also went beyond the conclusion

that Khan had not shown his past or future mistreatment was or

would be on account of his political opinion or membership in a

particular social group.

The IJ found that "even if it credited the respondent's

testimony fully, it would find that he is not the victim of past

persecution." The IJ concluded that the threatening letter and the

undetonated grenade incidents had not resulted in any harm and did

not rise to the level of past persecution. In addition, the IJ

found that Khan was "victimized by the Taliban and not by the

government of Pakistan," and that "[t]he government does not appear

to have been unable or unwilling to control the Taliban."

As for Khan's alleged fear of future persecution, the IJ

found that Khan did "not have an objectively reasonable fear of

returning to Pakistan" even "[i]f his testimony had been credited

fully." The IJ noted that Khan's wife and children had remained in

Pakistan and had not been harmed. The IJ also stated that in 2009,

the Pakistani army had occupied the Swat valley, where Khan's

village was located, and that in any event neither Karachi nor

Islamabad was controlled by the Taliban, so that Khan could

relocate within Pakistan to avoid persecution. Finally, the IJ

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determined that there was no connection between Khan's fear of

future persecution and the Pakistani government. Because Khan's

claim for asylum failed, the IJ rejected his claim for withholding

of removal. The IJ also denied his CAT claim because "[h]is fear

extends only to the Taliban."

Khan appealed to the BIA, which dismissed his appeal on

December 18, 2012. The BIA affirmed the IJ's findings as to

credibility and corroboration, and the BIA also affirmed the IJ's

"determination that the respondent did not establish past

persecution or a well-founded fear of future persecution even

assuming that the respondent was credible." The BIA noted the

paucity of specific information about Khan's purported assistance

to the police and about the motive for any mistreatment by the

Taliban. It found that the threatening letter and undetonated

grenade thrown at Khan's house did not amount to past persecution,

given that Khan did not in response move out immediately, and that

Khan's fear of future persecution was not well-founded, since his

family continued to live in Pakistan and had not been harmed. The

BIA also found that "the record does not show that the respondent

would not be able to relocate in Pakistan or that the Pakistani

government would not assist or protect the respondent from the

Taliban." The BIA affirmed the denial of Khan's claims for asylum,

withholding of removal, and CAT protection.

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 II.

Where the BIA issues its own opinion, we review both that

opinion and any portion of the IJ's opinion that the BIA adopted.

Ouk v. Gonzales, 464 F.3d 108, 110 (1st Cir. 2006). We review the

BIA's determinations under the deferential substantial evidence

standard, id. at 111, which means we will uphold these

determinations unless "any reasonable adjudicator would be

compelled to conclude to the contrary," 8 U.S.C. § 1252(b)(4)(B).

To be eligible for asylum, an applicant must be a

"refugee," id. § 1158(b)(1)(A), who is unwilling or unable to

return to his home country due to "persecution or a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion," id.

§ 1101(a)(42)(A). A showing of past persecution creates a

rebuttable presumption of a well-founded fear of future

persecution. Nelson v. INS, 232 F.3d 258, 264 (1st Cir. 2000).

On petition for review, Khan argues that the BIA erred in

failing to accord him a rebuttable presumption of credibility, and

in rejecting his argument that his persecution was or would be on

account of his imputed anti-Taliban political opinion. As said,

the IJ's and BIA's decisions rested on alternate grounds as well,

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independent of these grounds, and we do not address these

arguments.6

Khan also argues that the BIA erred in concluding that:

(1) the Pakistani government could protect him from the Taliban;

(2) his past treatment did not rise to the level of persecution;

(3) his fear of future persecution was not well-founded; and (4) he

could reasonably relocate within Pakistan to avoid persecution.

Because we reject Khan's argument that the agency was compelled to

find a government nexus that could support a finding of

persecution, we need not address the agency's finding that Khan's

past treatment did not rise to the level of persecution. Though

the lack of a government connection also dooms Khan's claim of a

well-founded fear of future persecution, we conclude that the

agency's finding that no such fear existed was independently

supported by substantial evidence, including its determination that

6
Because Khan submitted his application for asylum,
withholding of removal, and protection under the CAT on September
10, 2008, the REAL ID Act of 2005 (which became effective on May
11, 2005) applies to his application. See 8 U.S.C. § 1158 note
(Effective Date of 2005 Amendment); Tay-Chan v. Holder, 699 F.3d
107, 111 n.4 (1st Cir. 2012). However, since we do not reach
Khan's arguments concerning credibility and corroboration, or
whether his alleged persecution was or will be on account of a
protected ground, the amendments introduced by the REAL ID Act are
not relevant to our analysis. See Guta-Tolossa v. Holder, 674 F.3d
57, 62 (1st Cir. 2012) (describing changes made by REAL ID Act to
law regarding credibility and the need for corroborating evidence);
Sompotan v. Mukasey, 533 F.3d 63, 69 n.3 (1st Cir. 2008)
(describing REAL ID Act's requirement that applicant show a
protected ground was a "central reason" for persecution).

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Khan had not demonstrated he could not reasonably relocate within

Pakistan.

A. The BIA's Determination That Khan Had Not Established the
Pakistani Government Would Not Assist or Protect Him

Khan's first argument is that no reasonable person could

find he had failed to meet his burden to show a connection between

his mistreatment in the Swat valley in 2008 and the Pakistani

government. Persecution "always implies some connection to

government action or inaction," Harutyunyan v. Gonzales, 421 F.3d

64, 68 (1st Cir. 2005), and "violence by private citizens . . .,

absent proof that the government is unwilling or unable to address

it, is not persecution," Butt v. Keisler, 506 F.3d 86, 92 (1st Cir.

2007). As we explained in Burbiene v. Holder, 568 F.3d 251 (1st

Cir. 2009), where a government is "making every effort to combat"

violence by private actors, and its "inability to stop the problem"

is not distinguishable "from any other government's struggles," the

private violence has no government nexus and does not constitute

persecution. Id. at 255-56 (internal quotation marks omitted). We

have been particularly unwilling to overturn a finding of no

government connection where the local authorities have

appropriately responded to incidents of violence. See

Ortiz-Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007).

Khan claims that he presented compelling evidence of

Pakistan's inability to protect him from the Taliban. In reality,

Khan testified that the Pakistani police responded to his

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information about Taliban activities by arresting Taliban members

and calling on the Pakistani army to secure the area, and he

conceded that this "improve[d] the situation." He also testified

that after the Taliban sent him a threatening letter and threw a

grenade, which did not detonate, at his house, the local police

wrote reports, took witness statements, and attempted to

investigate, but were stymied by the fact that the identities of

the perpetrators remained unknown. Khan also conceded that the

Pakistani army took control of the Swat valley, where his village

was located, in 2009 and 2010, and that the Taliban was no longer

openly active in the area.

Far from showing that Pakistan is "unwilling or unable to

pursue . . . lines of redress on [Khan's] behalf," Guaman-Loja v.

Holder, 707 F.3d 119, 124 (1st Cir. 2013) (quoting Castillo-Diaz v.

Holder, 562 F.3d 23, 28 (1st Cir. 2009)) (internal quotation mark

omitted), the evidence shows that the Pakistani government has

actively sought to protect Khan from the Taliban and that it has

been to some extent successful in controlling the Taliban in the

Swat valley, even if it has not eradicated the threat the Taliban

poses. Where, as here, the government "has experienced both

setbacks and successes in its fight," Burbiene, 568 F.3d at 255,

the BIA does not err in concluding that there is no government

connection to support a finding of past or future persecution.

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 This case is in contrast to Khattak v. Holder, 704 F.3d

197 (1st Cir. 2013), where petitioner was a prominent political

figure and special police officer engaged in anti-Taliban

activities. Id. at 200. The petitioner there, along with his wife

and children, sought asylum based on their fear of future

persecution by the Taliban in Pakistan. Id. at 199. They said

they would be specially targeted. Id. at 204 n.7.

We granted the petition for review and remanded the case

to the BIA. Id. at 208. We explained that the IJ and BIA stated

there was no corroborative evidence that persons in petitioner's

position could not be protected by the government, when there was

exactly such evidence. Id. at 206. We also held that the agency

had failed to "offer legally sufficient reasons for its decision."

Id. at 208 (quoting Mihaylov v. Ashcroft, 379 F.3d 15, 21 (1st Cir.

2004)) (internal quotation marks omitted). We explained that the

IJ found there was no government nexus because generally there was

"a war going on involving the Taliban," the Pakistani government

was "in fact taking on the Taliban," and "the government continues

to make inroads against the Taliban. Id. at 206 (internal

quotation marks omitted). However, the IJ did not "explain what

these 'inroads' were," and the BIA "added little to the IJ's

analysis." Id. We remanded for further explanation.

Here, neither the IJ nor the BIA mischaracterized the

evidence in the record concerning the Pakistani government's

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ability to protect Khan, and the IJ explained at some length why

Khan had not carried his burden of showing a government nexus:

The government does not appear to have been unable or
unwilling to control the Taliban at that time [of Khan's
mistreatment]. Indeed, the police investigated the
respondent's complaint, recovered evidence, specifically,
the grenade, wrote reports about the incident, took
witness statements, but did not catch the perpetrator,
not because it did not wish to, but because, as the
testimony establishes, the perpetrator was not
identified.

The IJ also explained that "in 2009 and 2010 the army of Pakistan

occupied the Swat Valley where the respondent's village is

located." The BIA adopted the IJ's findings on this point. The

agency here therefore offered legally sufficient reasons for its

findings, and this case is distinguishable from Khattak.

Our rejection of Khan's first argument by itself requires

his petition be denied. Nonetheless, we address his remaining

arguments as to whether he demonstrated a well-founded fear of

future persecution.

B. The BIA's Determination that Khan Could Reasonably
Relocate Within Pakistan and So Did Not Face a Well-
Founded Fear of Future Persecution

Khan's arguments regarding his fear of future persecution

are unavailing. As we have explained, "the fact that close

relatives continue to live peacefully in the alien's homeland

undercuts the alien's claim that persecution awaits his return."

Lobo v. Holder, 684 F.3d 11, 19 (1st Cir. 2012) (quoting Budiono v.

Mukasey, 548 F.3d 44, 50 (1st Cir. 2008)) (internal quotation marks

-17-
omitted). Khan also conceded that in 2009 and 2010 the army had

taken control of the Swat valley, where Shah Dheri was located, and

driven the Taliban into hiding.

Furthermore, because Khan was unable to demonstrate a

connection between his mistreatment and the Pakistani government,

he failed to show past persecution or that any persecution would be

by a government or government-sponsored. He therefore "bear[s] the

burden of establishing that it would not be reasonable for him

. . . to relocate." 8 C.F.R. § 208.13(b)(3)(i). Khan testified

that the Taliban was "secretly active" in Islamabad and Karachi,

and presented evidence that the Taliban had carried out attacks in

those cities. But he admitted that the Taliban did not control

Islamabad or Karachi, and that his children had safely resided in

Islamabad since he left Pakistan, despite his assertion that they

were Taliban targets. The BIA did not err in concluding that Khan

had not met his burden of showing he could not reasonably relocate

within Pakistan to avoid persecution, and that he did not face a

well-founded fear of future persecution.

This case is distinguishable from Khattak on this point,

as well. In that case, regarding the reasonableness of internal

relocation, we explained that "neither the IJ nor the BIA addressed

evidence in the record indicating that the Taliban's reach may

extend as far as Islamabad," in light of evidence that even in

Islamabad the petitioner faced a risk of being the subject of a

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targeted killing, as others had been. 704 F.3d at 207. Here, the

IJ explicitly noted Khan's "testimony that [the Taliban] continue

to be secretly active in" Islamabad and Karachi, but explained that

"[e]ven the respondent agreed that neither Islamabad nor Karachi is

controlled by the Taliban." The IJ also observed that Khan's

children had remained safe in Pakistan through internal relocation.

The BIA adopted the IJ's reasoning on these points. As with its

finding that Khan failed to demonstrate a government nexus, the

agency here offered legally sufficient reasons for its finding that

Khan had not carried his burden of showing the unreasonableness of

relocation within Pakistan.

The failure of Khan's asylum claim dooms his claim for

withholding of removal. Zheng v. Gonzales, 416 F.3d 97, 101 n.3

(1st Cir. 2005). Because Khan did not establish a connection

between his mistreatment and the Pakistani government, his CAT

claim likewise fails. See 8 C.F.R. § 1208.18(a)(1) (to constitute

torture, pain or suffering must be "inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity").

III.

Khan's petition for review is denied.

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