United States Court of Appeals
For the First Circuit
No. 00-1971
ZEESHAN MANZOOR,
Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE, IMMIGRATION &
NATURALIZATION SERVICE
Respondents.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
Madeline G. Compton for petitioner.
Lyle D. Jentzer, Attorney, Office of Immigration Litigation, Civil
Division, with whom David W. Ogden, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Senior Litigation Counsel, Office of
Immigration Litigation, were on brief, for appellee.
June 26, 2001
LIPEZ, Circuit Judge. Zeeshan Manzoor petitions for relief
from the denial of his claims for asylum and withholding of
deportation. To qualify for asylum, an applicant must show that he or
she faces a well-founded fear of persecution. The Board of Immigration
Appeals (BIA or Board) found that Manzoor had experienced past
persecution in his native Pakistan on account of his political opinion,
giving rise to a statutory presumption of a well-founded fear of future
persecution. The burden then shifts to the Immigration and
Naturalization Service (INS) to rebut that presumption. Here the BIA
erred by imposing part of the INS's burden on the applicant. It did
so by requiring Manzoor to establish that his well-founded fear of
future persecution was country-wide after he had shown that he was
persecuted in a particular region, possibly with some involvement by
the federal government. Because of that legal error, we vacate the
judgment of the BIA and remand for further proceedings.
I.
We summarize Zeeshan Manzoor’s testimony, which the BIA
found credible. Manzoor is a 24-year-old native of Karachi, a city in
the Sindh province of Pakistan. He is an ethnic Mohajir, a group
defined as the native Urdu-speaking descendants of those who immigrated
to Pakistan when India was partitioned in 1947-48.
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Manzoor said that he is a member of the Mohajir Quami
Movement (MQM). According to reports by the U.S. State Department and
Amnesty International, the MQM was founded in 1984 by Mohajirs who felt
disadvantaged in relation to native Sindhis. The same reports explain
that a faction called the Haqiqi split off from the main MQM, now
sometimes called the MQM(A), in the early 1990s. Both the State
Department and Amnesty International say that relations between the
Haqiqi and MQM(A) are tense and have led to political violence and
killing.
Manzoor testified that Haqiqi workers kidnaped him in 1996
and again in October 1997 and that shots were fired at his father's
house. Manzoor said that his family did not report these incidents to
the Pakistani police because the police sometimes exchange information
with the Haqiqi. After Manzoor escaped from the second kidnaping, his
father arranged for him to leave Pakistan. Manzoor waited two months
for a visa. He said he had to cancel his departure three times because
the Pakistani police and immigration service had his name listed as an
active MQM(A) member. In February 1998, he paid a bribe to facilitate
his departure and left Pakistan. Manzoor traveled to Paris and the
Dominican Republic. On February 17, 1998, the U.S. Coast Guard caught
him trying to enter Puerto Rico illegally by boat.
After being caught, Manzoor told authorities that he would
be killed by Haqiqi members or members of the Pakistan People’s Party
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if he were returned to Pakistan. An asylum pre-screening officer
interviewed Manzoor and determined that his testimony was sufficiently
credible to warrant a hearing before an immigration judge. Manzoor was
also charged with being subject to removal from the United States under
8 U.S.C. § 118(a)(7)(A)(i)(I).1 At a hearing on July 22, 1998, Manzoor
admitted the allegations against him, conceded removability, and
requested asylum and withholding of removal. The immigration judge
found Manzoor removable as charged but granted him a continuance to
allow him to submit an asylum application. When Manzoor filed the
application, the judge forwarded it to the State Department for an
advisory opinion about conditions in Pakistan.
On October 22, 1998, after receiving the State Department's
country profile of Pakistan, the judge held a hearing on the merits of
Manzoor’s asylum petition. As recounted here, Manzoor testified about
his membership in the MQM, the kidnapings, and his flight from
Pakistan. The judge asked Manzoor if he had considered moving to a
different part of Pakistan. Manzoor said: "I could not go to another
area . . . . Because you, require identity card and I don't have
identity card, because if I go to Karachi by road, they have a check
post, and because I speak Urdu, they'll [turn me] over to MQM Haqiqi,
and they'll kill me." When the judge asked him if he could travel by
1The statute forbids entry to the United States when an applicant
for admission lacks a valid immigrant visa or entry document. See 8
U.S.C. § 118(a)(7)(A)(i)(I).
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airplane, Manzoor responded: "This is not possible . . . . Because on
airport there is police and then there is MQM Haqiqi people all [over]
airline station, so they'll get hold of us." The judge did not ask the
INS any questions about whether the persecution of MQM members is
limited to Sindh province.
In her oral decision of November 18, 1998, the judge denied
Manzoor's request for asylum and withholding of removal. The judge
said that Manzoor's testimony was "vague," "unpersuasive," not
corroborated, and inconsistent with the State Department country
profile. She found that Manzoor had not established persecution by the
Pakistani government or by a faction that the government could not
control. In addition, relying on the country profile of the State
Department, the judge said that there were no credible reports of
harassment and abuse of MQM members outside of Sindh province, and that
Manzoor could therefore relocate to a different part of Pakistan.
Manzoor appealed to the BIA, which issued its opinion in the
matter on July 10, 2000. The BIA said that the immigration judge "did
not explicitly find the respondent's testimony not to be credible," and
that it was thus "difficult to defer" to the judge's findings. The
Board said that after reviewing the transcript of Manzoor's testimony,
it could find no "support in the record for an adverse credibility
finding." Instead, the Board found Manzoor's account to be "detailed
and consistent," and said that his "testimony and supporting
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documentation, especially regarding the political climate in Pakistan
and the activities of the MQM vis-a-vis other political parties, are
consistent with the country profile prepared by the Department of
State." As a result, the BIA found Manzoor's testimony credible. The
BIA also said that it "agree[d] with the respondent's contention on
appeal that the Immigration Judge failed to fully consider the
documentary evidence provided by the respondent." In light of
Manzoor's testimony and supporting documentation, the BIA found that
Manzoor "was persecuted on account of his political opinion" and stated
that because Manzoor had "demonstrated past persecution, he is presumed
to have a well-founded fear of future persecution."
Despite these findings, the BIA denied Manzoor's request for
asylum and withholding of deportation on the ground that Manzoor failed
to show that the threat of persecution existed country-wide. A
majority of the panel found that "while the record clearly indicates
that conditions in Karachi continue to be dangerous for members of the
MQM, the record reflects that MQM members are able to live safely
outside of the Sindh province." A dissenting board member took a
different view of the evidence:
The record indicates that the MQM-Haqiqi are in
collusion with both the federal government and
the military in Pakistan. This cooperative
relationship, when coupled with the pervasive
military and police presence throughout
Pakistan, makes it unlikely that the respondent
will be able to return to a different location
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within Pakistan where he could successfully
avoid future persecution.
II.
Section 208(a) of the Immigration and Nationality Act
authorizes the Attorney General, in his or her discretion, to grant
asylum to an alien who is a "refugee." 8 U.S.C. § 1158(a); INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). The Act defines a refugee
as an alien who cannot or does not want to return to his home 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. § 1101(a)(42)(A). We
review the BIA's legal conclusions de novo, "with appropriate deference
to the agency's interpretation of the underlying statute in accordance
with administrative law principles." Gailius v. INS, 147 F.3d 34, 43
(1st Cir. 1998).
"To qualify for asylum, the applicant must show that he
actually fears persecution (a subjective issue), and that there is a
'reasonable possibility' that persecution would actually occur (an
objective issue)."2 Foroglou v. INS, 170 F.3d 68, 71 (1st Cir. 1999)
(quoting Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992)). No
2 To establish that he or she is entitled to withholding of
deportation, an applicant must demonstrate a "clear probability of
persecution." INS v. Stevic, 467 U.S. 407, 413 (1984). This standard
"requires a more rigorous showing" than the standard for an asylum
claim. Velasquez-Valencia v. INS, 244 F.3d 48, 50 n.1 (1st Cir. 2001).
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greater showing is required. See INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987) ("alien need not prove that it is more likely than not that
he or she will be persecuted in his or her home country"). We have
observed before that "Congress has not defined the term 'persecution,'
and the courts thus far have failed to achieve a general consensus on
its meaning and scope in this context." Aguilar-Solis v. INS, 168 F.3d
565, 569 (1st Cir. 1999). However, we can say that while persecution
is not restricted to "threats to life or freedom," it requires more
than "mere harassment or annoyance." Id. at 570 (citing INS v. Stevic,
467 U.S. 407, 428 n.22 (1984); Balazoski v. INS, 932 F.2d 638, 642 (7th
Cir. 1991)). Courts make case-by-case determinations of what
constitutes a well-founded fear of persecution within these "broad
margins." Id.
In this case, the BIA determined that Manzoor had suffered
past persecution on account of his political opinion. The Board based
this conclusion on Manzoor's testimony that the Haqiqi twice kidnaped
him because of his affiliation with MQM(A), and on the support for
Manzoor's description of the tension between the Haqiqi and MQM(A) in
the State Department country profile. A "finding of past persecution
triggers a regulatory presumption that the applicant has a well-founded
fear of future persecution, provisionally establishing the applicant's
refugee status and eligibility for asylum." Fergiste v. INS, 138 F.3d
14, 18 (1st Cir. 1998) (citing 8 C.F.R. 208.13(b)(1)(i) (1997)).
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The BIA recognized this principle. However, the Board then
said that "[a]n alien seeking to meet the definition of refugee must
have more than a well-founded fear of persecution in a particular place
within a country . . . rather he must show that the threat of
persecution exists country-wide." The Board thus placed an additional
burden on Manzoor to show that his fear was based on a threat of
country-wide persecution. After considering the applicant's testimony
and documentation and the State Department country profile, the Board
concluded that "the conditions in Pakistan, on a country-wide basis,
are not such that the respondent would have a well-founded fear of
returning there."
In support of its burden-of-proof allocation, the BIA cited
In Re C-A-L, 21 I. & N. Dec. 754 (BIA 1997). In that case, the BIA
denied an asylum claim because, among other things, the applicant
"ha[d] not provided any convincing evidence to suggest that his fear
of persecution would exist throughout Guatemala." C-A-L, 21 I. & N.
754. There are also other cases in which the Board has said that the
applicant has the burden of proof to show that his or her fear of
persecution is country-wide.3 See Matter of R , 20 I. & N. Dec. 621,
3 We note, however, that the facts in these cases are
distinguishable from the case at hand. In C-A-L, for example, the
asylum applicant was a Guatemalan soldier who had been captured by
guerrillas. The BIA found that the applicant's "problems were confined
to his hometown" on the basis of a State Department report that said
that the guerrillas were "concentrated in remote areas with large
Indian populations." 21 I. & N. Dec. 754. According to Manzoor's
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625 (BIA 1992); Matter of Acosta, 19 I. & N. Dec. 211, 235 (BIA 1985)
("an alien seeking to meet the definition of a refugee must do more
than show a well-founded fear of persecution in a particular place or
abode within a country--he must show that the threat of persecution
exists for him country-wide").
The BIA is correct that the applicant has the burden of
proof to show that he is a refugee. See 8 C.F.R. § 208.13(a) (1997);
Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992). But nothing in
the regulations that were in place when the BIA denied Manzoor's claims
supports the Board's determination that an applicant who has
established a well-founded fear of persecution must go on to prove that
the threat of persecution is country-wide. Instead, the regulations
provide that if an applicant suffered past persecution, then he or she
is presumed
also to have a well-founded fear of future
persecution unless a preponderance of the
evidence establishes that since the time the
persecution occurred conditions in the
applicant's country . . . have changed to such
an extent that the applicant no longer has a
well-founded fear of being persecuted if he were
to return.
8 C.F.R. § 208.13(b)(1)(i) (1997). The burden then is on the INS to
rebut the presumption by a preponderance of the evidence. In our view
this includes the burden on the INS to show that the applicant could
evidence, the Haqiqi were not rebels but rather operated with
government support.
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reasonably avoid persecution by relocating to another part of the
country. While we think that was the plain import of the law at the
time of the applicant’s hearing, a recent amendment to the regulations
appears to explicitly allocate the burden of proof to the INS.4 In
addition, two circuits have already made this point when the applicant
showed that the past persecution was by the government of the country.
See Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995); Abdel-Masieh
v. INS, 73 F.3d 579, 587 (5th Cir. 1996).
While the BIA's interpretation of the regulations is
entitled to "appropriate deference," Gailius, 147 F.3d at 43, that
deference cannot save an interpretation that is at odds with
"unambiguous provisions that permit of no conflicting interpretations."
Ilchert, 63 F.3d at 1510. The INS cannot impose an evidentiary burden
on the applicant that is not provided by and appears to be inconsistent
with the statute or regulation. We thus find that the BIA erred in
allocating the burden of proof to Manzoor to show that the threat of
persecution was country-wide. Under the regulations that were in place
when the BIA ruled, once an alien has shown that he has a well-founded
4The new regulations state: "In cases in which an applicant has
demonstrated past persecution . . . the Service shall bear the burden
of establishing by a preponderance of the evidence" that "[a]n
applicant does not have a well-founded fear of persecution if the
applicant could avoid persecution by relocating to another part of the
applicant's country of nationality . . . if under all the circumstances
it would be reasonable to expect the applicant to do so." 8 C.F.R. §
208.13(b)(1)(ii) and (b)(2)(ii) (2000).
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fear of persecution in his home country, the INS has the burden to
prove by a preponderance of the evidence that the threat is limited to
a particular region.
In this case, the INS submitted no evidence in support of
the claim that Manzoor's fear of the Haqiqi was based only on a threat
of persecution in Sindh province. Instead, the BIA relied on the State
Department country profile obtained by the immigration judge, which
said that "resettlement outside Sindh province is a viable alternative
for most MQM members except for those facing serious charges and where
enforcement of the arrest warrant is more likely." The Board found the
State Department's conclusion about the viability of resettlement to
be "uncontradicted by the respondent's testimony and documentation."
Citing its own precedent, Matter of T-M-B, 21 I. & N. Dec. 775, 779
(BIA 1997), the Board said the State Department opinion was owed
"'considerable deference' in the absence of contradictory evidence."
We have said, however, that "the advice of the State Department is not
binding, either on the service or on the courts." Gailius, 147 F.3d
at 46 (quoting Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir. 1997)).
"This is both because it is the Attorney General, not the Secretary of
State, whom Congress has entrusted with the authority to grant asylum
and because 'there is perennial concern that the [State] Department
softpedals human rights violations by countries that the United States
wants to have good relations with.'" Id. (quoting Gramatikov, 128 F.3d
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at 620); see also Hengan v. INS, 79 F.3d 60, 62-63 (7th Cir.
1996)(immigration officials may give greater weight to the views of
human rights organizations than to the State Department).
Moreover, contrary to the Board's conclusion, Manzoor
presented evidence contrary to the State Department country profile on
the possibility of persecution outside Sindh province. True, the
Amnesty International reports focus on Sindh province in describing
political conflict involving the MQM. But Amnesty International also
notes that "[d]eaths in custody and extrajudicial killings are reported
from other parts of the country as well." While there is no explicit
reference to killings of MQM members outside Sindh, it is clear from
the text as a whole that the report focuses on Sindh because "nowhere
have deliberate and arbitrary killings reached as massive a scale as
in Karachi" rather than because Amnesty International has ruled out the
possibility that MQM members face persecution in other parts of
Pakistan. The proper allocation of the burden of proof on the country-
wide issue is particularly important when there is contradictory or
ambiguous evidence about it.
Also, both Amnesty International and the State Department
describe government involvement in the political conflict that has led
to the deaths of MQM members. Indeed, as the dissenting panel member
recognized, Amnesty International cites collaboration between the
government and the Haqiqi that includes federal government officials
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as well as local and provincial officials in Sindh.5 Before us, the
INS contends that the collaboration between the Haqiqi and the
government is limited to Sindh province. That is not clear from the
record, however, and the issue can be explored on remand. In addition,
although we do not decide the issue, we note that the Fifth and Ninth
Circuits, as well as the BIA on one occasion, have found that evidence
of such government involvement in the persecution of a political group
weighs heavily against the conclusion that an alien's demonstrated
well-founded fear of persecution is not country-wide.6
III
5 The 1998 Amnesty International report states: "According to
many commentators in Pakistan, [the Haqiqi] faction was supported by
successive federal governments and the military to weaken the main
MQM." The 1996 report states: "The ongoing conflict in Karachi has
involved mainly two factions of the . . . MQM . . . [and] the federal
and the provincial governments of different complexions."
6 See Abdel-Masieh, 73 F.3d at 587 ("that an alien . . . might be
safe from persecution by the national government in other areas of the
nation . . . does not suffice to show that the alien lacks the
requisite fear of persecution"); Ilchert, 63 F.3d at 1511 ("This court
presumes that in a case of persecution by a governmental body such as
a national police force, the government has the ability to persecute
the applicant throughout the country."); Singh v. Moschorak, 53 F.3d
1031, 1034 (9th Cir. 1995) ("It has never been thought that there are
safe places within a nation when it is the nation's government that has
engaged in the acts of punishing opinion that have driven the victim to
leave the country."); In Re Kasinga, 21 I. & N. Dec. 357 (BIA 1996)
(finding applicant's fear of persecution to be country-wide in part
because the Togo police tolerate violence against women and the
government has a poor human rights record).
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For the reasons stated, the order of the BIA is vacated, and
the case is remanded to the BIA for further proceedings consistent with
this opinion.7
7 Because of our disposition of Manzoor's asylum claim, we do not
reach Manzoor's appeal of the denial of withholding of deportation.
Gailius, 147 F.3d at 47 n.9.
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