Shaghil v. Holder

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

Nos. 09-3416/10-2483
___________

Tarique Majeed Shaghil, *
*
Petitioner, *
* Petitions for Review of
v. * Orders of the Board
* of Immigration Appeals.
Eric H. Holder, Jr., United States *
Attorney General, *
*
Respondent. *
___________

Submitted: September 23, 2010
Filed: April 14, 2011
___________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.
___________

RILEY, Chief Judge.

Tarique Majeed Shaghil petitions for review of two Board of Immigration
Appeals (BIA or Board) decisions. In Case No. 09-3416, Shaghil requests relief from
the BIA’s affirmance of an immigration judge’s (IJ) order denying Shaghil asylum,
withholding of removal, and relief under the Convention Against Torture (CAT). In
Case No. 10-2483, Shaghil seeks relief from the BIA’s denial of his motion to reopen
immigration proceedings to enable him to adjust his status, pursuant to 8 U.S.C.
§ 1255(a), based upon Shaghil’s marriage to a United States citizen. We dismiss
Shaghil’s petition in Case No. 09-3416 as it relates to his asylum claim, and deny the
remainder of both petitions.

I. BACKGROUND1
Shaghil was born and raised as a Suni Moslem in Karachi, Pakistan. In 1991,
Shaghil entered the United States to attend the University of South Alabama. In 1995,
he married Monica Rodriguez, an American citizen, and filed for adjustment of his
immigration status. While married, Shaghil identified himself as a Christian and
attended Catholic and Protestant Christian churches. In his testimony, the IJ noted
Shaghil “displayed only a marginal knowledge of Christian tenants [sic]” and could not
describe his conversion.

In 1998, Shaghil returned to Pakistan for four and a half months. During his
visit to Pakistan, Shaghil’s friends and family criticized his marriage to Rodriguez
because of her Christian faith. He was involved in a fight outside a mosque when he
argued with people about his Christian church attendance. Also during the trip,
Shaghil’s “father told him that he ‘needed to change his faith back.’” Shaghil admits,
however, “he has never been harmed or arrested or tortured by the government in
Pakistan during either the time he grew up there or when he returned later.”

After September 11, 2001, Shaghil began making critical comments about
Islamic tenets “that he stated supported terrorism.” Shaghil believes his business of

1
This factual statement incorporates information from both the merits hearing
transcript and the decision and order of the IJ. Shaghil argues the IJ’s written opinion,
which was reviewed by the BIA, is fundamentally flawed because it relies upon the
IJ’s review of a hearing transcript which includes several instances of indiscernible
testimony. As discussed in Part II.C below, although the transcript is flawed, Shaghil
fails to point to any missing evidence or any incorrect fact finding in the IJ’s written
opinion which prejudiced him. Accordingly, our review includes reference to the IJ’s
written opinion.

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selling prepaid telephone calling cards predominantly to Moslems in the United States
suffered because he was “pro-American” and “opposed the terrorists.” During this
time period, Shaghil and Rodriguez stopped living together and his then-pending
application for adjustment of status was denied. Shaghil and Rodriguez divorced in
July or August 2006 and Shaghil has not heard from Rodriguez in several years.

Shaghil believes, if returned to Pakistan, “he would be tortured by the police in
jail and eventually killed because of his religious faith.” As the IJ explained, Dr.
Nargis Virani, Assistant Professor of Arabic Islamic Studies at Washington University
in St. Louis, testified at Shaghil’s hearing that “it would be more likely than not that
[Shaghil] would be persecuted if he were returned to Pakistan.” The IJ recognized Dr.
Virani

later testified that “perhaps” [Shaghil] would be persecuted. She also
stated that it was “possible” that the respondent’s family would be
targeted because of his conversion. She stated that she believed there had
been violence directed against Christians in Pakistan, but noted that
recent terrorist acts in that country had not been targeted against
Christians, but against civilians of all faiths. She also indicated
knowledge that Moslems regularly target each other for acts of harm and
violence. She stated a belief that Christians only have low-end jobs in
Pakistan, but on cross-examination, stated that she obtained this
information from [Shaghil].

The United States Department of State International Religious Freedom Report
2004 (country report) is part of the record. Referring to the country report, the IJ noted
the Pakistani constitution provides for freedom of religion, with limits; approximately
96% of Pakistanis are Moslem and less than 2% are Christian; the Roman Catholic
Diocese of Karachi estimates 120,000 Catholics live in Karachi; and religion (Moslem
or non-Moslem) is indicated on Pakistani passports. The country report notes speaking
in opposition to Islam is illegal in Pakistan. Although there is no law instituting the
death penalty for apostates (converts from Islam to other religions), “social pressure

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against conversion is so powerful that most convergence [sic] reportedly takes place
in secret.” Notwithstanding, foreign missionaries operate in Pakistan, and
proselytizing is generally permitted. The country report notes 90% of Pakistan’s
Christians live in Punjab Province, and that Christians are the largest religious minority
there. The Roman Catholic Church and the Church of Pakistan (Protestants associated
with the Anglicans) report that links with co-religionists in other countries are
maintained relatively easily. The country report also supports Shaghil’s view that
“Christians have difficulty finding jobs other than those involving menial labor.”

On January 16, 2001, Shaghil received a notice to appear before the immigration
court. Shaghil failed to appear at the hearing on May 3, 2001, was found removable
and ordered removed. For reasons unrelated to this appeal, the IJ later granted
Shaghil’s motion to reopen proceedings. Shaghil applied for asylum, withholding of
removal, and CAT relief. Before Shaghil’s merits hearing, the IJ found Shaghil
ineligible for asylum because Shaghil failed to apply within one year of his arrival in
the United States and no changed or extraordinary circumstances excused his tardiness.

After the merits hearing, the IJ found Shaghil “generally credible” and Dr.
Virani’s testimony credible. However, the IJ found the evidence insufficient to show
Shaghil would be persecuted because of his religion if he were returned to Pakistan,
and denied Shaghil’s claim for withholding of removal. Similarly, the IJ was “not
convinced that [Shaghil] is more likely than not to be tortured if he were removed to
Pakistan at this time.” The IJ therefore ordered Shaghil removed from the United
States.

On September 21, 2009, the Board dismissed Shaghil’s appeal. The Board
agreed with the IJ that Shaghil had presented insufficient evidence to excuse the
untimely filing of his asylum application, because although Shaghil claims he was
persecuted in 1998, he did not file his asylum application until 2003 and made no
showing of cause. The Board rejected Shaghil’s argument that, upon an earlier

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remand, the IJ erred by improperly listening to audio recordings of Shaghil’s merits
hearing, rather than allowing him to present additional evidence. The Board confirmed
the IJ’s finding that Shaghil failed to meet his burden of proving a clear probability of
future persecution on his withholding of removal claim. Finally, the Board agreed
Shaghil had not shown he would be tortured if returned to Pakistan.

On October 19, 2009, Shaghil petitioned this court for relief from the removal
order. On December 16, 2009, while Shaghil’s petition for review of the removal order
was pending, Lorraine A. Campos, a United States citizen, filed a petition for alien
relative with the United States Citizenship and Immigration Services on behalf of
Shaghil. On December 18, 2009, Shaghil moved the BIA to reopen his case based
upon his asserted marriage to Campos, attaching (1) the petition for alien relative and
a notice of its receipt, (2) an application for adjustment of status and related biographic
information, and (3) a series of wedding photographs.

The BIA found “no other evidence that [Shaghil] and his wife maintained a
relationship at any time” and denied the motion to reopen. On July 2, 2010, Shaghil
petitioned this court for review of the BIA’s denial of his motion to reopen. On July
19, 2010, this court consolidated Shaghil’s petitions for oral argument and submission
purposes. We have jurisdiction over final orders of removal pursuant to 8 U.S.C.
§ 1252(a).

II. DISCUSSION
A. Standard of Review
This court reviews the BIA’s ruling, but to the extent the BIA adopts the finding
or reasoning of the IJ, the court also reviews the IJ’s decision. See Ismail v. Ashcroft,
396 F.3d 970, 974 (8th Cir. 2005). “[A]dministrative findings of fact are conclusive

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unless any reasonable adjudicator would be compelled to conclude to the contrary,”2
8 U.S.C. § 1252(b)(4)(B), while conclusions of law are reviewed de novo, “with
substantial deference to [the agency’s] interpretations of statutes and regulations
administered by the agency,” Villanueva v. Holder, 615 F.3d 913, 915 (8th Cir. 2010).
We review motions to reopen for an abuse of discretion. See INS v. Doherty, 502 U.S.
314, 323 (1992).

B. Denial of Asylum, Withholding of Removal, and CAT Relief
1. Asylum
“The Secretary of Homeland Security or the Attorney General may grant asylum
to an alien who has applied for asylum in accordance with the requirements and
procedures established . . . under this section if the Secretary . . . or the Attorney
General determines that such alien is a refugee within the meaning of section
1101(a)(42)(A) of this title.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is a person who
“is unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of” his or her 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.” § 1101(a)(42)(A).

Shaghil argues he is entitled to asylum because he both suffered past persecution
and has a well-founded fear of future persecution. Shaghil concedes this court lacks
jurisdiction to review the BIA’s decision that his application for asylum is time-barred
because he did not file it within one year of his arrival in the United States. See
§§ 1158(a)(2)(B) (barring asylum applications of aliens who fail to file within one year
of arrival), (3) (“No court shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).”). Lacking jurisdiction, we dismiss Shaghil’s
appeal with respect to his asylum claim.

2
This is identical to the substantial evidence standard of review. See Menendez-
Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004).

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 2. Withholding of Removal
The Attorney General generally must grant withholding of removal if Shaghil
proves his “life or freedom would be threatened” in Pakistan on account of his religion
or political opinion. See §1231(b)(3)(A). The test is forward looking. However, if
Shaghil establishes he suffered past persecution on account of his religion or political
opinion, he is entitled to a rebuttable presumption of future persecution. See 8 C.F.R.
§ 1208.16(b)(1)(i); Beck v. Mukasey, 527 F.3d 737, 739 (8th Cir. 2008). Without a
showing of past persecution, it is Shaghil’s burden to demonstrate “a clear probability
of future persecution” in order to obtain withholding of removal. Beck, 527 F.3d at
739. A clear probability of future persecution is a higher standard than the “well-
founded fear of persecution” standard utilized in asylum proceedings. See Ladyha v.
Holder, 588 F.3d 574, 579 (8th Cir. 2009). “In the absence of a statutory definition for
persecution, we have held that it is an ‘extreme concept’ that involves the infliction or
threat of death, torture, or injury to one’s person or freedom, on account of a protected
characteristic.” Malonga v. Holder, 621 F.3d 757, 764 (8th Cir. 2010) (quoting Sholla
v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007)).

We agree with the Board that Shaghil did not adduce sufficient evidence to show
past persecution. The only purported evidence of past persecution Shaghil cites is the
1998 beating incident outside the Karachi mosque. “It is a well-established principle
that minor beatings and brief detentions . . . do not amount to political persecution.”
Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004). In addition, “persecution”
is a harm that is “inflicted either by the government of [a country] or by persons or an
organization that the government was unable or unwilling to control.” Menjivar v.
Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting Valioukevitch v. I.N.S., 251 F.3d
747, 749 (8th Cir. 2001)). Any harm Shaghil suffered was at the hands of five
neighbors, not the Pakistani government. And although Pakistani “police at times
refuse to prevent such abuses or refuse to charge persons who commit such acts,”
Shaghil never reported the matter to the police. There is no evidence the government
was unable or unwilling to control Shaghil’s assailants in this case, and generalized

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evidence of occasional police failures, without more, is insufficient to show futility.
Cf. Ngengwe v. Mukasey, 543 F.3d 1029, 1035-36 (8th Cir. 2008) (remanding an
asylum case where the IJ and BIA failed to address petitioner’s evidence that seeking
police assistance would be futile, instead citing only the fact petitioner did not contact
the police). Substantial evidence supports the IJ’s finding that there was no past
persecution, and Shaghil is not entitled to any presumption that he will be persecuted
in the future.

Shaghil contends “even if he did not suffer past persecution, [he] has done many
other things in the U.S. which increase the likelihood that he will be persecuted in
Pakistan should he be deported now.” Shaghil asserts he would be persecuted if
returned to Pakistan because he: (1) “believes women can work outside of the home
and remain independent from men,” (2) thinks “the fighting between Muslims and
Jews in the Middle East is wrong,” (3) changed his name from Tarique to Shawn,
(4) anticipates the police would fail to help him, (5) “would be unable to work, own
a business or get married if he returned,” and (6) asserts conditions in Pakistan have
worsened since September 11, 2001.

None of these additional facts compel the conclusion that it is more likely than
not Shaghil will be persecuted if he returns to Pakistan.3 Shaghil offers no evidence

3
Nor does the IJ’s finding that Dr. Virani was credible compel us to grant the
petition. “Persecution” is a legal term of art, and Dr. Virani’s opinion regarding
whether Shaghil would be subject to persecution is not binding on the Board. In any
event, Dr. Virani’s testimony is not addressed to the “extreme concept” of persecution
that our cases envision:

Q. . . . Would he, more likely than not, do you believe, face
persecution in Pakistan if he were to return?
A. Of some sort, he would, especially if he’s very vocal about his
belief.

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he would be subject to death, torture, or injury to his person or freedom on account of
his new political beliefs. Nor is there evidence his use of an American name makes
religious persecution more likely than the bare fact of his Christian faith. Shaghil’s
remaining assertions evidence nothing more than a subjective and speculative fear of
persecution, an unpersuasive showing in the entirely objective withholding of removal
analysis.4 See Malonga, 621 F.3d at 767-68.

Substantial evidence supports the BIA’s conclusion that Shaghil failed to meet
his burden of proving a clear probability of future persecution. Although Pakistan is
undoubtedly a less hospitable place for Christians than the United States, the country
report states that although there is social pressure against apostasy, missionaries are
present and generally allowed to proselytize. There are also at least two million, and
perhaps as many as four million, Christians living in Pakistan without being
persecuted. Christians are the largest religious minority in Punjab Province, Pakistan’s
largest province. See, e.g., Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir. 2005)
(concluding substantial evidence supported the BIA’s denial of withholding of removal
where there were some locations within the country where members of the minority
could live more safely).

(Emphasis added.) Because the only “sort” of persecution relevant to this case is that
defined by immigration law, we find Dr. Virani’s statement vague, fundamentally
irrelevant, and insufficient to overcome our highly deferential standard of review.
4
The dissent suggests our holding cannot be reconciled with the IJ’s findings
that Shaghil and Dr. Virani were credible. See Post at 13 & 15-16. But Dr. Virani
never testified Shaghil would be persecuted in the sense our cases require—either by
government persecution or because the government would refuse or be unable to
protect him. Although Shaghil may subjectively believe the government will torture
him if he is removed, no objective evidence supports this assertion.

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 Because the record supports the BIA’s finding that Shaghil failed to meet his
burden, we are unable to say any reasonable adjudicator would be compelled to
conclude the contrary. Shaghil’s petition for withholding of removal is denied.

3. CAT Relief
To be eligible for withholding of removal under the CAT, it was Shaghil’s
burden to prove, by a preponderance of the evidence, he would be tortured if removed
to Pakistan. See 8 C.F.R. 208.16(c)(2). Torture is:

Any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from
him or her or a third person information or a confession, punishing him
or her for an act he or she or a third person has committed or is suspected
of having committed, or intimidating or coercing him or her or a third
person, or for any reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of or with the consent
or acquiescence of a public official or other person acting in any official
capacity.

8 C.F.R. § 208.18(a)(1). Even if Shaghil were subjected to severe pain or suffering in
the 1998 beating by neighbors, as discussed above, there is no evidence of any nexus
between the pain or suffering and the Pakistani government. Shaghil’s petition for
CAT relief must be denied.

C. Due Process
Shaghil argues the BIA violated his Fifth Amendment right to due process of
law when it failed to (1) make audio recordings of his merits hearing available to him,
and (2) allow him to introduce evidence following an earlier remand. In order “to
demonstrate a violation of due process, an alien must demonstrate both a fundamental
error and that the error resulted in prejudice.” Lopez v. Heinauer, 332 F.3d 507, 512
(8th Cir. 2003). “In this context, prejudice means a showing that the outcome of the
proceeding may well have been different had there not been any procedural

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irregularities.” Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007). As the BIA
correctly stated, Shaghil “makes a conclusory statement that the [IJ] did not have an
accurate transcript, but fails to specify how it was inaccurate.” Shaghil also does not
explain how the errors he alleges were in the transcript would have altered the result
of his proceeding.

Shaghil’s argument that he can show prejudice because of the BIA’s withholding
of the recordings from him is unavailing. Shaghil was present at his hearings and
contends in his brief “that what is missing from the original hearing transcript is vital
to his case,” yet he does not offer any evidence, or even identify in his brief, what vital
information is missing.

As to Shaghil’s suggestion that, on remand from the BIA, the IJ should have
allowed Shaghil to offer further evidence at a hearing, rather than simply listen to the
audio recordings of the first hearing and make corrections to the written order, we find
no due process violation. The Board’s order “remanded to the [IJ] for further
proceedings and for the issuance of a new decision.” The order identified two specific
errors in the IJ’s written opinion and indicated Shaghil was concerned the IJ did not
fully comprehend his testimony and allegations of “past harm and fear of future harm.”
The IJ corrected the errors and “listened to the tapes of the hearing which he had
personally conducted, to insure that he did not misunderstand the testimony in reaching
his initial decision.” And, as the BIA stated in Shaghil’s second appeal, Shaghil “does
not specify any additional areas where the [IJ] allegedly failed to hear crucial
testimony.” It was Shaghil’s burden to prove fundamental error and prejudice.
Because he fails to show either, we reject his due process argument.

D. Motion to Reopen Proceedings
Lastly, Shaghil suggests the BIA should have granted his motion to reopen.

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 [A] properly filed motion to reopen may be granted, in the exercise of
discretion, to provide an alien an opportunity to pursue an application for
adjustment where the following factors are present: (1) the motion is
timely filed; (2) the motion is not numerically barred by the regulations;
(3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA
1996), or on any other procedural grounds; (4) the motion presents clear
and convincing evidence indicating a strong likelihood that the
respondent’s marriage is bona fide; and (5) the Service either does not
oppose the motion or bases its opposition solely on Matter of Arthur, [20
I&N Dec. 475 (BIA 1992)].

Matter of Velarde-Pacheco, 23 I&N Dec. 253, 256 (BIA 2002). The Board affirmed
the IJ’s denial of Shaghil’s motion because it found Shaghil had not presented clear
and convincing evidence the marriage was bona fide within the meaning of the fourth
element above. Shaghil argues his motion to reopen should have been granted because
the Board’s factual finding was wrong. Shaghil suggests the Board overlooked the fact
he and Campos lived together “almost a year and a half before their marriage and over
one year before the original decision of the BIA in this case.” Shaghil also believes the
Board erred in stating the photographs of his wedding ceremony were undated and this
error betrays a lack of sufficient consideration of the evidence.

The Board did not abuse its discretion in denying Shaghil’s motion. The fact
Campos had a child with another man while she was living with Shaghil undermines
Shaghil’s argument that he and Campos’s cohabitation proves they had a genuine
romantic relationship. Under these circumstances, we cannot say the Board abused its
discretion in finding the marriage was not bona fide. And while we agree with Shaghil
that the Board erred in referring to his and Campos’s wedding photographs as
unlabeled and undated, we find the error harmless because the Board’s ruling was not
based upon its mistaken view regarding the pictures, but rather upon its unfulfilled
expectation “that [Shaghil and Campos] would file evidence of the bona fide nature of
their relationship at a later date.” They did not.

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III. CONCLUSION
We dismiss Shaghil’s petition as it relates to asylum relief in No. 09-3416 and
deny petitions Nos. 09-3416 and 10-2483 in all other respects.

MELLOY, Circuit Judge, concurring in part and dissenting in part.

I concur in the opinion of the Court except with respect to whether Shaghil has
presented sufficient evidence of future persecution.5 In this case, the IJ and the BIA
credited Shaghil's evidence of future persecution but found it insufficient to prove a
clear probability of persecution under the governing statute. In my view, a reasonable
fact finder cannot make both findings because, if believed, Shaghil's evidence is
compelling—he will be severely persecuted if he returns to Pakistan because of his
political and religious views. Accordingly, I would reverse the decision of the BIA.

"The standard for withholding of removal is a clear probability of persecution
. . . ." Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008). An alien may not be
removed if he can show that it is more likely than not that "his life or freedom would
be threatened upon removal because of his 'race, religion, nationality, membership in
a particular social group, or political opinion.'" Thu v. Holder, 596 F.3d 994, 999 (8th
Cir. 2010) (quoting 8 U.S.C. § 1231(b)(3)(A)). "A threat of future persecution can be
established by demonstrating either an individualized risk or a pattern of persecution
of similarly situated persons based on one of the five grounds." Id.

5
For the same reasons I believe Shaghil has presented sufficient evidence of
persecution, I also believe that he has met his more-rigorous burden of proof under the
Convention Against Torture. I focus my comments only on persecution because
"'persecution' for the purposes of withholding of removal may encompass abuse that
is less severe than 'torture' for the purposes of the CAT." Malonga v. Mukasey, 546
F.3d 546, 555 (8th Cir. 2008).

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 "Persecution has been defined by this court as 'the infliction or threat of death,
torture, or injury to one's person or freedom, on account of race, religion, nationality,
membership in a particular social group, or political opinion.'" Litvinov v. Holder, 605
F.3d 548, 553 (8th Cir. 2010) (quoting Davila-Mejia v. Mukasey, 531 F.3d 624, 628
(8th Cir. 2008)). While this Court reviews an adverse finding on the existence of
persecution deferentially, this Court has stated that it will vacate such a finding when
"the evidence [is] so compelling that no reasonable fact finder could fail to find the
requisite fear of persecution." Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir.
2008) (internal quotation marks omitted). In making this determination, this Court
should conclusively presume that all factual findings made below are accurate "unless
any reasonable adjudicator would be compelled to conclude to the contrary." Id.
(internal quotation marks omitted).

Here, Shaghil presented substantial evidence in the form of his own testimony,
testimony from an expert on Pakistan, and a State Department Report that he would be
tortured or killed on account of his religious and political beliefs should he return to
Pakistan. Shaghil testified that, based upon his experiences growing up in Karachi,
Pakistan and his knowledge of the community, he would likely be tortured or killed for
his newfound political and religious beliefs at either the behest of the government or
with the government's acquiescence. He testified in part, after describing some of the
violence religious minority groups experience at both the hands of the community and
the police:

Q. Okay. Do you believe if you returned to Pakistan that you would be
tortured?
A. 100 percent.
Q. Okay. Do you believe you would be killed?
A. Well, of course, they're going to torture me and then maybe I'm not
going to survive.

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Likewise, his expert, Dr. Verani, testified that, based upon her expert knowledge of the
"social and political circumstances" in Pakistan and her interview with Shaghil,
Shaghil should fear for his life and well-being if he were to return to Pakistan. She
specifically stated: "I think from the area that he comes and the family background that
he shared with me, yes, he should have reasonable fear [of persecution]. In addition,
with all the other political turmoil that's going on in Pakistan . . . he should have some
reasonable fear about his life and his, his well-being there." Later, after opining that
it was more likely than not Shaghil would face persecution "of some sort," Dr. Virani
further stated:

Q. –and the definition there [in the Convention Against Torture] would
be that it would be more likely than not that he would face torture were
he to return to his country. Are you able to form an opinion and to offer
an opinion on that regard?
A. With regard to specific torture or persecution of some sort, depending
on whether it is opportunities again, depending on what part of Karachi
he lived in, depending on how many people would be there to protect
him, I think that, yeah, there would be some level of persecution. It is
possible that his family may also be targeted and I think for that reason,
if he did choose to stay here or if he has applied to stay here, I think that
that would be reasonable, reasonable fear about persecution.

Finally, a State Department Report on Pakistan strongly indicated that Shaghil,
as a convert away from Islam, could easily face severe persecution, stating in part:

While there is no law instituting the death penalty for apostates (those
who convert from Islam), social pressure against conversion is so
powerful that most conversions reportedly take place in secret.
According to missionaries, police and other local officials harass villagers
and members of the poorer classes who convert. Reprisals and threats of
reprisals against suspected converts are common.

Since the BIA and the IJ credited all of Shaghil's evidence of persecution and since the
government failed to present any evidence on this issue, I believe that Shaghil has

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carried his burden of proof. Indeed, I cannot discern how a reasonable adjudicator can
give credence to Shaghil's evidence and still conclude that he has not shown a clear
probability of persecution.

The majority holds to the contrary, discounting both the testimony of Dr. Virani
and Shaghil. The majority disregards Dr. Virani's testimony as "vague, fundamentally
irrelevant, and insufficient to overcome our highly deferential standard of review"
because "persecution" is a term of art for the courts to decide and because Dr. Virani's
testimony does not establish the "extreme concept" that is persecution. For support,
the majority cites Dr. Virani's statement that Shaghil would face persecution "of some
sort" in Pakistan. However, a fair reading of Dr. Virani's entire testimony belies the
majority's conclusion. Dr. Virani opined that Shaghil should fear for his life and well-
being should he return to Pakistan. Dr. Virani further spoke of torture in a similar
manner to persecution, thereby indicating that Dr. Virani's conception of persecution
was far more than mere intimidation and low-level harassment, which this Court has
found insufficient. Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007). As the
preceding excerpts indicate, Dr. Virani never equivocated on whether Shaghil would
face severe mistreatment if he were to return to Pakistan. At most, Dr. Virani waffled
on whether Shaghil's family would also be targeted, stating it was "possible."6 Thus,

6
As cited by the majority, the IJ quotes Dr. Virani as testifying that "perhaps"
Shaghil would be persecuted. However, a close reading of the transcript reveals that
Dr. Virani used the word only once to describe whether Shaghil's outspokenness
would further increase the already-existing probability that Shaghil would be
persecuted. More specifically, she testified regarding Shaghil:

Q. Okay. And, in fact, even since we've had the last hearing, there has
been additional turmoil within the Moslem world over a (indiscernible).
Are you familiar with that situation?
A. Yes, I am.
Q. Are you familiar with what he has endured himself in that regard?
A. He hasn't shared with me, but, but he is really vocal about his views,
so he may be.

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Dr. Virani's testimony, as an unchallenged expert opinion credited by both the IJ and
the BIA, should alone present a material hurdle to dismissing Shaghil's petition for
withholding.

The majority also discounts Shaghil's testimony. The majority characterizes his
testimony as mere assertions, unsupported by evidence in the record and incapable of
proving an objective likelihood of persecution. However, Shaghil's testimony is
corroborated both by the expert opinion of Dr. Virani and by the State Department's
report on Pakistan. Further, Shaghil's testimony regarding his fear of persecution is
based upon his own extensive knowledge of and experience in Pakistan, all of which
constitutes evidence when, as here, the fact finders fully credit his testimony. See
Osonowo, 521 F.3d at 927 ("A credibility determination is a finding of fact, which
should be accepted unless any reasonable adjudicator would be compelled to conclude
to the contrary." (internal quotation marks omitted)). For example, Shaghil testified
that his fear of persecution is based in part on his knowledge of how individuals in
similar circumstances were treated, stating:7

Q. And would that make things even more extreme to this date?
A. Well, in the present mindedness of the statement, perhaps that would,
yeah. . . .

7
Shaghil also testified on cross examination:

Q. And where in all of this record can you show me that the government
of Pakistan seeks out people who have changed their faith? Did you see
any documents in any of this? Are you aware of any news stories that
the government has persecuted or harmed people who have simply
changed their faith?
A. Yes, sir –
Q. Oh.
A. –they do over there.
Q. Okay. What happens?
A. Well, those people, if they're – first of all, they are tortured . . .

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 Q. Have you read news stories? You've read –
A. Yes, I
Q. Okay.
A. –that's the newspaper (indiscernible).
Q. Okay. And do you know what has happened to those people like you?
A. They, you're going to find the dead body on that street somewhere and
it's not going to be –
Q. Has that been in the news?
A. Yes.

While Shaghil did not provide many personal accounts of the persecution of religious
and political minorities in Pakistan, his general knowledge of the conditions in
Pakistan should not be dismissed out-of-hand when the IJ finds all of his testimony
credible. Accordingly, to give meaning to the administrative findings of fact in this
case, I believe the Court should conclude that Shaghil presented sufficient evidence to
prove a clear probability of persecution.

For the foregoing reasons, I concur in part and dissent in part.
______________________________

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