NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-4017
MOHAMMAD SUHAIL BUTT;
MUSTAFA BUTT,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
(Nos. A098-493-362 & A098-493-363)
Submitted pursuant to Third Circuit LAR 34.1(a)
Friday January 28, 2011
Before: McKEE, Chief Judge, SMITH, Circuit Judge,
and STEARNS,* District Judge
(Opinion filed: February 18, 2011)
OPINION
McKEE, Chief Judge.
Mohammad Suhail Butt petitions for review of an order of the Board of
Immigration Appeals denying his motion to reopen his immigration proceedings to apply
*
Honorable Richard G. Stearns, District Court Judge, District of Massachusetts, sitting
by designation.
for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under Article
III of the Convention Against Torture. For the reasons that follow, we will grant the
petition and remand to the BIA.1
I.
Since we are writing primarily for the parties, we need only briefly summarize as
much of the factual and procedural background as will clarify our discussion.
Mohammad Suhail Butt is a Pakistani citizen and Shia Muslim. His last
administrative hearing before the Immigration Judge was in 2006 when his motion for a
continuance pending adjudication of a labor certification was denied. His subsequent
appeals, including a prior motion to reopen proceedings, related to his attempts to obtain
an adjustment of status by way of a labor certification. Each of those appeals was denied
and exhausted by 2009. See App. 000129, and Butt v. Att’y Gen. of the U.S., 327 F.
App‟x 367 (3d Cir. 2009). In July 2009, he filed the current motion with the BIA to
reopen proceedings in order to apply for asylum, withholding of removal, and relief
under the Convention Against Torture. The BIA denied his motion in a decision dated
September 21, 2009, and Butt filed the instant petition for review to challenge that denial.
II.
We review the BIA's denial of a motion to reopen for an abuse of discretion. Guo
v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). In order to succeed on a petition for
1
Since Butt filed a timely petition for review, we have jurisdiction to review the BIA‟s
final order of removal under 8 U.S.C. § 1252.
2
review, Butt must show that the BIA‟s discretionary decision was arbitrary, irrational, or
contrary to law. See Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994).
Although a party may normally file only one motion to reopen, there is a statutory
exception to that limitation based on changed country conditions in the country of
nationality. See 8 U.S.C. § 1229a(c)(7)(C)(ii), and 8 C.F.R. § 1003.2(c)(3), and the
motion to reopen at issue here is based upon changed country conditions. Butt primarily
argues that the evidence supports his claim that there has been a fundamental change in
Pakistan‟s country conditions and that he now faces persecution on account of being a
Shia Muslim.2 Butt claims that the BIA abused its discretion in denying his motion to
reopen because it failed to properly analyze the evidence of changed country conditions
he submitted, some of which post-dated his original removal hearing.
The BIA may deny a motion to reopen on three independent grounds: 1) failure
to make out a prima facie case for relief; 2) failure to introduce previously available
material evidence; or 3) even if the first two grounds were met, the BIA has discretion to
identify another reason why the movant is not entitled to relief. See I.N.S. v. Abudu, 485
U.S. 94, 104-05 (1988).
2
Butt makes several other arguments in support of his petition, including: 1) the BIA
erred by failing to distinguish between “general violence and persecution in the context
of general violence”; 2) that the BIA failed to review all of the evidence he presented
with his motion to reopen, and 3) that the BIA failed to provide a reasoned analysis when
it determined that he is unlikely to be targeted as an “American agent” upon his return to
Pakistan. However, those arguments are, for the most part, subsumed in his overarching
claim that changed circumstances justify reopening his petition for asylum.
3
The BIA denied Butt‟s motion to reopen on the second ground primarily because
it concluded that the evidence accompanying Butt‟s motion predated the 2006 hearing
and was not shown to have been previously unavailable. See 8 C.F.R. § 1003.2(c)(1).3
The Board also concluded that the evidence provided with the motion did not establish
materially changed conditions in Pakistan, but rather an “incremental increase in general
violence.” App. 000003. We disagree.
Although some of the evidence accompanying the motion to reopen does predate
Butt‟s 2006 hearing, the majority of it consists of post-2006 reports pertaining to violent
acts inflicted upon Shia Muslims in Pakistan. That evidence includes a March 19, 2009
report from an international news service, “Press TV,”4 which includes the following
report:
This is while extremists groups have embarked on an „ominous
mission‟ to „eliminate‟ Shia elites across Pakistan – which became a
safe haven for pro-Taliban and al-Qaeda-linked militants after the US-
led invasion of Afghanistan in 2001.
They have killed hundreds of Shia medical doctors, university
professors, lawyers and police officers across the violence-wracked
country during the past few years.
App. 000030.
In addition, Butt‟s motion to reopen includes a petition imploring officials to stop
what can best be described as unrelenting acts of violence directed against Shias. See
3
The BIA explained: “Much of the evidence accompanying or incorporated within the
respondent‟s motion to reopen predates the respondent‟s last hearing . . . on September
26, 2006, and has not been shown to have been unavailable . . . therefore failing to meet
the requirements for a motion to reopen. See 8 C.F.R. § 1003.2(c)(1).” App. 000003.
4
Press TV can be accessed via the internet at: http://www.presstv.ir/
4
App. 000031-34. Contrary to the Board‟s conclusion, each of the numerous incidents
that are alleged in that petition purportedly occurred in 2009 – well after the 2006
decision was filed. Id. The following allegation is typical of the atrocities cited in the
petition: “Muslims in Pakistan. Hundreds of Shias have been killed in the last one year
alone in various attacks of terrorism by the Taliban, Al Qaeda, . . . and other sectarian
and jihadi groups in Pakistan.” App. 000031.5
Furthermore, Butt‟s petition has directed our attention to a July 14, 2009 BIA
decision filed in a different proceeding in Houston, Texas approximately two months
before the Board denied Butt‟s motion.6 See Pet‟r‟s Br., Ex A. In the Houston
Adjudication, another Shia Muslim and Pakistani citizen, whose last administrative
hearing was also in 2006, made the same argument in support of a motion to reopen filed
with the BIA: changed conditions in Pakistan with respect to Shia persecution. There,
the Board granted the motion, concluding:
While the background evidence indicates the existence of general
civil strife, it also demonstrates that Shia Muslims are being targeted
in violent attacks. Such evidence is material to the respondents‟ claim
5
We have no way of knowing the accuracy of the statements set forth in that petition and
we do not cite them as evidence of fact. Rather, we cite the petition and the violence it
alleges merely to illustrate the analytical weakness of the BIA‟s conclusion that the
materials Butt presented predated the 2006 decision. Moreover, the issue in an asylum
claim is whether the alien can demonstrate a “subjective fear [that is] objectively
reasonable.” Sun Wen Chen v. Att’y Gen. of the U.S., 491 F.3d 100, 105 (3d Cir. 2007).
These materials are clearly relevant to that determination absent some explanation to the
contrary.
6
The filed copy of the Board‟s decision contained in the Appendix does not include the
name of the petitioner in that case. Accordingly, we will refer to it simply as “The
Houston Adjudication.”
5
of a fear of future threats to their lives or freedom on account of their
religion and/or their requests for protection under the Convention
Against Torture.
Id.
We are therefore at a loss to understand how the Board could conclude that the
materials of changed country conditions that Butt submitted reflect “simply an
incremental increase in general violence,” rather than a “material change in country
conditions.” App. 000003. Moreover, as Butt argues, an increase in general violence
does not negate the existence of persecution. Butt cites Matter of Villalta, 20 I&N Dec.,
142 (BIA 1990), to argue: “persecution can and often [does] take[] place in the context of
general violence.” Pet‟r‟s Br. at 10. We agree. Indeed, history teaches that festering
religious, political and ethnic objectives of persecutors often surface concomitantly with a
general increase in societal violence. In fact, common sense supports the conclusion that
it is far more difficult to perpetrate acts of ethnic and religious hatred during times of
calm and social order.
The government attempts to refute Butt‟s reliance on Matter of Villalta by arguing
that that case “involved an alien whose case was on direct appeal from the immigration
judge‟s denial of his asylum and withholding claims …” and by claiming that “Villalta
established that he and his immediate family were singled out by [the persecutors]. . . .” .
See Resp‟t Br. at 10. However, the procedural difference does not distinguish the legal
principles that apply to the adjudication of the motion. Furthermore, we are at a loss to
understand the relevance of the fact that Villalta and his family were singled out. Butt
does not have to show that he was “singled out,” because he is relying on a pattern or
6
practice of persecution of a group that he is a member of. See 8. C.F.R. § 208.13(b)(2)
(“[T]he asylum officer or immigration judge shall not require the applicant to provide
evidence that there is a reasonable possibility he or she would be singled out individually
for persecution if: . . . there is a pattern or practice . . . of persecution of a group of
persons similarly situated . . . and the applicant establishes his . . . identification with,
such group . . . such that his . . . fear of persecution upon return is reasonable.”). See also
Guo, 386 F.3d at 564. We therefore conclude that the Board acted arbitrarily in refusing
to reopen Butt‟s application for relief.
The Board also rejected Butt‟s claim that he would be persecuted on account of
having been born in India and having resided in the United States for several years; as
well as his claim that he would be targeted because he is a doctor. The former claims
were rejected because the Board failed to find materially changed country conditions.
Since we conclude that the Board‟s analysis was arbitrary and will remand on that basis,
the Board should consider these additional claims on remand to the extent that Butt can
establish these claims based upon the materials submitted with his motion.
The Board explained its rejection of any claim based on Butt‟s status as a doctor
as follows: “To the extent that [Butt] asserts that he would be targeted because he is a
doctor, apparently arguing membership in a particular social group or imputed political
opinion, he has failed to cite any cases which would recognize such as a cognizable
particular social group or imputed political opinion.” App. 000004. Nevertheless, the
materials that Butt submitted do refer to elites being singled out for persecution in
7
Pakistan. Although absence of favorable decisions is certainly a factor that can be
considered in rejecting any claim, it is not at all clear that the Board or any appellate
court has ever been asked to decide whether doctors or elites in Pakistan constitute a
particular social group under asylum law given the prevailing conditions at the relevant
time. Thus, the absence of prior decisions should not have automatically precluded Butt
from raising such a claim here. Accordingly, on remand, if the Board considers that such
a claim is not foreclosed as a matter of law, the Board should consider whether the record
would support such a claim here.
III.
For the reasons set forth above, we find that the Board‟s rejection of Butt‟s motion
to reopen was an abuse of discretion and we will therefore grant the petition for review
and remand to the Board for additional proceedings consistent with this opinion.
8