Shardar v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

8-24-2004

Shardar v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-2110

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 PRECEDENTIAL

UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT OPINION

No. 03-2110 STEPHEN A. TRAYLOR
Traylor & Traylor
20 Nassau Street
MOHAMMAD ARIF SHARDAR, Suite 204
Princeton, NJ 08542
Petitioner
v.
Counsel for Petitioner
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES
PETER D. KEISLER
Respondent
Assistant Attorney General
Civil Division
LINDA S. WENDTLAND
On Petition for Review of an Order of
Assistant Director
the Board of Immigration Appeals
Office of Immigration Litigation
(No. A72-779-408) MICHELLE R. THRESHER
Attorney
Office of Immigration Litigation
Submitted Under Third Circuit LAR Civil Division
34.1(a) June 24, 2004 U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Before: NYGAARD, McKEE and
CHERTOFF, Circuit Judges.
Counsel for Respondent

(Filed: August 24, 2004)

1
CHERTOFF, Circuit Judge. demonstration in Jatrabari Square1 in
Bangladesh. Shardar was arrested and
Mohammad Arif Sardar appeals the
charged with having weapons and
decision of the Board of Immigration
explosives, allegations that Shardar stated
Appeals (BIA), affirming the Immigration
were “[c]ompletely false.” A.R. at 174.
Judge’s (IJ) denial of his application for
Shardar testified that following his arrest,
asylum and withholding of deportation,
he was held in jail and beaten with canes
and denying his motion to reopen the
and kicked in the face. While he was
proceedings for consideration under
beaten his interrogators shouted, “Ershad
Article 3 of the United Nations
time is over. Now is, is BNP time.” Id. at
Convention Against Torture (CAT). For
168. Shardar claimed he was forced to
the reasons elaborated below, we will
confess that he had weapons and
deny the petition for review in its entirety.
explosives, and to proclaim that he would
never be with the party again, in order to
stop the beatings and “save [his] life.” Id.
I.
at 169.
Shardar is a native and citizen of
After three days in the police
Bangladesh who entered the United States
station and almost six days in jail, Shardar
on August 26, 1992, using a false
went before a judge. Shardar’s father paid
passport. Shardar applied for asylum in
for a lawyer. The judge, whom Shardar
1992, alleging he was persecuted on the
described as “pretty nice,” id. at 170,
basis of his political opinion for his
released him on bail of 50,000 local taka,
membership in the Jatiyo political party.
which his father paid. Following his
Jatiyo is the party of Army Chief of Staff
release, Shardar’s father took him to a
General H.M. Ershad, who seized power
private medical clinic for nineteen days.
and declared himself President in
December 1983. In the face of Shardar then went to work for a
widespread opposition, Ershad was forced Chinese restaurant in Dhaka, Bangladesh.
to resign in December 1990, and in a He testified that the police came looking
February 1991 election the Bangladesh for him on several occasions, and
Nationalist Party (BNP) won a therefore he “had to leave the job,” his
parliamentary plurality and formed the home, and his wife. Id. at 171. Shardar
government.
The primary basis for Shardar’s
1
asylum claim stems from events While the Petitioner’s brief refers
surrounding his participation, on January to the location as “Jatrabi Square,” this
6, 1992, in an allegedly peaceful appears to be an error. We adhere to the
spelling—“Jatrabari”—used in the
Government’s brief and police report
(discussed below).

2
conceded, however, that the police came Many padestrians [sic] were
after a warrant was issued for his arrest lethally injured. We to
because of his failure to appear in court. control this predicament
Id. at 176-77. [sic] situation used tear gas
to disperse them but they
In addition to Shardar’s testimony,
became more furious and
documentary evidence was introduced,
begun [sic] to throw brick-
including a police report and “charge
bats on us. We having
sheet” pertaining to his arrest, the record
found no other way
of proceedings in the Court of Chief
advanced with fortitute [sic]
Metropolitan Magistrate, and an arrest
to arrest them and Md. Arif
warrant issued on May 20, 1992,
Sardar [sic] accussed No. 1
providing that Shardar “after having
arrested by us, under whose
[posted] bail[,] . . . abscond[ed],” id. at
Leadership this occurrence
284. Shardar also submitted letters from
was occurred and the other
the clinic where he was treated following
skedaddled from the spot . .
his release, his lawyer, an associate from
..
the Jatiyo Party, and an accounting firm.
See id. at 274-77. Id. at 279-80.
Of particular relevance is the police On July 22, 1998,2 the Immigration
report, which characterizes the protestors Judge (IJ) denied Shardar’s application for
as violent and suggests Shardar was a
leader in the hostile activities. The report
explains, in pertinent part: 2
The IJ outlined the reason for the
[T]hey were delivering delay between the 1992 application for
defamatory, detractive and asylum and the issuance of the decision:
slanderous slowgans [sic]
a g a i n st t h e p r e s e n t He applied for asylum . . . in
Gov[ernment] . . . . We 1992. The application,
then and there made an however, was not granted
importunate entreaty to and instead was referred to
them not to deliver such this Court for a decision,
types of slowgans [sic] for along with a Notice to
which they got infuriated Appear issued on October
and being armed with 17, 1997, almost five years
deadly weapons made a later. The Notice to Appear
sudden invasion on us. was addressed on the record
They exploded some bombs on December 23, 1997.
at the spot one after another.
A.R. at 83.

3
asylum and withholding of removal, while 1991 and 1996. These
granting the application for voluntary individuals were able to
departure. The IJ concluded that defend themselves in court
“although the respondent is credible, he actions and have the same
has in no way met his burden of proof.” judicial rights as other
Id. at 89. The IJ explained that “[t]here is Bangladeshis. The
a complete grand canyon of difference harassment experienced by
between persecution and a fear of some high level Jatiyo party
prosecution.” Id. The IJ rejected the members is not sufficient to
suggestion that “the only reason he was justify the conclusion that
arrested was because he was a supporter of Jatiyo Party membership in
the Jatiya Party.” Id. at 91. Rather, the IJ itself accounted for severe
pointed to the documentary evidence that mistreatment.
the demonstration was violent. Noting
Id. at 257.
that Shardar had failed to file newspaper
articles or other objective evidence The IJ concluded that while
supporting his account of the arguably Shardar was persecuted in the
demonstration, the IJ explained that “[i]t is past when he was beaten at the police
equally plausible, in fact more plausible station, “the changed circumstances . . .
than not given the evidence supplied by rebut or defeat any potential presumption
the respondent, that the respondent had of a well-founded fear of future
been involved in inciting a demonstration persecution.” Id. at 97. The IJ elaborated
that turned violent and that the police were that “[t]he obvious and evident changed
mad as could be.” Id. at 92. circumstances are that the respondent was
released on a bond and obviously the
The IJ noted that Shardar did not
police did respect the respondent and left
provide evidence that the judicial process
him alone . . . . The fact that the police
might be corrupted; rather, the State
came by later in time looking for the
Department report indicates that members
respondent . . . is clearly all because the
of the Jatiyo Party enjoy the same judicial
respondent failed to appear in court and
rights as other Bangladeshis. The State
the police were executing a warrant . . . .”
Department’s 1997 Bangladesh Profile of
Id. The IJ also referenced the “1997 State
Asylum Claims and Country Conditions
Department Profile” for the proposition
(“1997 State Department Profile”)
that “country conditions for people who
provides, in pertinent part:
are in the Jatiya Party have radically
There is some evidence that changed.” Id. at 95.3
prominent Jatiyo Party
members and/ or supporters
. . . were harassed by the 3
The “1997 State Department
BNP Government between Profile” outlines many of the favorable

4
 On March 21, 2003, the Board of that he would be unable to
Immigration Appeals (BIA), exercising establish his c laimed
jurisdiction under 8 C.F.R. § 1003.1(b), innocence.
affirmed the IJ’s decision. The BIA
Id. at 2.
explained that Shardar had failed to meet
the burden of proof for establishing Moreover, the BIA denied
asylum because Shardar’s request to reopen the proceeding
for consideration under the CAT,
[w]hile . . . violence is a
concluding that he had “failed to establish
feature of the political
prima facie eligibility for relief under the
process in Bangladesh, we
Convention.” Id. However, the BIA
have no reason to conclude
agreed that Shardar should be entitled to
that the prosecution the
voluntarily depart. Id. at 3.
respondent may face if he
returns to Bangladesh is This Court has jurisdiction pursuant
politically motivated, and to 8 U.S.C. § 1252(a)(1). We conclude
there is no reason to find that the BIA properly denied (1) the
petition for asylum; and (2) the petition to
remand the proceedings for consideration
changes for the Jatiyo Party: under the CAT.

A Jatiyo Party member of
parliament is serving as II.
M i n i s t e r o f
Communications and a Shardar argues that the BIA erred
number of other Jatiyo party in denying his application for political
members are also serving in asylum, particularly since the IJ found his
the Cabinet. Although still testimony credible. The Attorney General
formally held in custody, has discretion to grant asylum if the
Ershad took his seat in the petitioner demonstrates that he meets the
n ew P a r liament and Immigration and Nationality Act’s (INA)
participated in its definition of “refugee”—that he is unable
deliberations. He was freed or unwilling to return to his home country
on bail in January 1997. In “because of persecution or a well-founded
the summer of 1997, the fear of persecution on account of race,
government issued Ershad a religion, nationality, membership in a
passport and permitted him particular social group, or political
to travel to Europe and the opinion.” 8 U.S.C. § 1101(a)(42)(A); see
United States. Dia v. Ashcroft, 353 F.3d 228, 234 n.1 (3d
Cir. 2003).
A.R. at 255.

5
 “A showing of past persecution 2001).
gives rise to a rebuttable presumption of a
The fact that, as here, a petitioner’s
well-founded fear of future persecution.”
testimony is deemed credible is not
Mulanga v. Ashcroft, 349 F.3d 123, 132
determinative. The BIA “may require
(3d Cir. 2003) (citing 8 C.F.R. §
documentary evidence to support a claim,
208.13(b)(1); Abdulrahman v. Ashcroft,
even from otherwise credible applicants,
330 F.3d 587, 592 (3d Cir. 2003)). The
to meet their burden of proof.” Gao, 299
presumption, however, is rebutted where
F.3d at 272 (citing Abdulai v. Ashcroft,
the Government “establishes by a
239 F.3d 542, 554 (3d Cir. 2001)). In this
preponderance of the evidence that the
case, the IJ did not merely deny Shardar’s
applicant could reasonably avoid
claim because of the absence of
persecution by relocating to another part
corroborating evidence. Rather, the
of his or her country or that conditions in
documentary evidence that was presented
the applicant’s country have changed so as
conflicted with Shardar’s contention that
to make his or her fear no longer
the demonstration was peaceful.
reasonable.” Abdulrahman, 330 F.3d at
592 n.3. As the IJ noted, there is a
distinction between persecution and
Whether a petitioner has
prosecution. “As a general matter, . . .
demonstrated past persecution or a
fear of prosecution for violations of ‘fairly
well-founded fear of future persecution is
administered laws’
a factual question that is reviewed by this
Court under a substantial evidence does not itself qualify one as a ‘refugee’
standard, and will be upheld to the extent or make one eligible for withholding of
it is supported by “reasonable, substantial deportation.” Chang v. I.N.S., 119 F.3d
and probative evidence on the record 1055, 1060 (3d Cir. 1997) (citations
considered as a whole.” Kayembe v. omitted). However, fear of prosecution,
Ashcroft, 334 F.3d 231, 234 (3d Cir. even under generally applicable laws, may
2003) (citing Gao v. Ashcroft, 299 F.3d constitute grounds for asylum or
266, 272 (3d Cir. 2002)). The scope of withholding of removal. See id. “[I]f the
review is narrow. “[T]he administrative prosecution is motivated by one of the
findings of fact are conclusive unless any enumerated factors, such as political
reasonable adjudicator would be opinion, and if the punishment under the
compelled to conclude to the contrary.” 8 law is sufficiently serious to constitute
U.S.C. § 1252(b)(4)(B). That is, “[u]nder persecution, then the prosecution under
the substantial evidence standard, the the law of general applicability can justify
BIA’s findings must be upheld unless the asylum or withholding of deportation.” Li
evidence not only supports a contrary Wu Lin v. I.N.S., 238 F.3d 239, 244 (3d
conclusion, but compels it.” Abdille v. Cir. 2001) (citing Chang, 119 F.3d at
Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 1061); see also Fisher v. I.N.S., 79 F.3d

6
955, 962 (9th Cir. 1996) (explaining that conclusion that even if this treatment rises
there are “ two exceptions to the general to the level of past persecution, the
rule that prosecution does not amount to circumstances have changed such that the
persecution—disproportionately severe presumption of a well-founded fear of
punishment and pretextual prosecution”). future persecution is rebutted. Shardar
was released on bail from custody, and
there is no evidence suggesting that if he
In this case, there was substantial
returns for prosecution he will be
evidence to support the conclusion that
persecuted on the basis of his political
Shardar has not met his burden of proof
opinion. Moreover, the “1997 State
for establishing eligibility for asylum.
Department Profile” provides substantial
Rather, the evidence supports the
evidence in support of the conclusion that
conclusion that Shardar was not
the country conditions have changed in
persecuted on account of his political
Bangladesh, specifically noting that Jatiyo
opinion; rather, he was legitimately
Party members are able to “defend
prosecuted for participation in a violent
themselves in court actions and have the
political demonstration. Moreover,
same judicial righ ts as oth er
Shardar failed to establish that the system
Bangladeshis.” A.R. at 257.
is so corrupt that if he is prosecuted after
returning to Bangladesh, he will be unable Having concluded substantial
to receive fair adjudication and evidence supports the BIA’s denial of
punishment. In fact, even his own asylum, we conclude that withholding of
testimony suggests that thus far the removal was also properly denied. “The
proceedings against him have been standard for withholding of removal is
conducted in a fair manner. higher than, albeit similar to, the standard
for asylum. . . . If [a petitioner] is unable
Shardar’s strongest claim in support
to satisfy the standard for asylum, he
of asylum is his testimony, substantiated
necessarily fails to meet the standard for
by the hospital report, that he was severely
withholding of removal under [the INA].”
beaten while in police custody. The
Lukwago v. Ashcroft, 329 F.3d 157, 182
evidence indicates these beatings were
(3d Cir. 2003).
politically motivated—the perpetrators
yelling, “Ershad time is over. Now is, is
BNP time.” A.R. at 168. Such treatment
III.
is, to say the least, extremely troubling.
Nevertheless, this evidence alone does not In the alternative, Shardar
undermine the conclusion that there was maintains that the fact that he has
substantial evidence to support the denial established that he was severely beaten in
of his application for asylum. prison and the documentary evidence in
the record that shows this is a common
We cannot disagree with the IJ’s
practice in Bangladesh prisons should be

7
sufficient to justify, at the very least, a discretion.” Sevoian v. Ashcroft, 290
grant of withholding of removal under the F.3d 166, 172 (3d Cir. 2002). We
CAT. On June 23, 1999, Shardar filed a conclude that the BIA did not abuse its
motion to remand, requesting that the BIA discretion.
remand his case to the IJ for consideration
“An applicant for relief on the
under the CAT, which having been passed
merits under the Convention Against
in 1999 was not effective when the IJ
Torture bears the burden of establishing
rendered his decision in July 1998. We
‘that it is more likely than not that he or
conclude that the IJ properly denied the
she would be tortured if removed to the
motion for reconsideration.
proposed country of removal.’” Id. at
“We review the BIA’s denial of the 174-75 (quoting 8 C.F.R. § 208.16(c)(2)).5
motion to reopen [or remand4 ] for abuse of
discretion, ‘mindful of the “broad”
5
deference that the Supreme Court would “Torture” is defined as follows:
have us afford.’” Ezeagwuna v. Ashcroft,
325 F.3d 396, 409 (3d Cir. 2003) (quoting Torture is defined as any act
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. by which severe pain or
2001) (citing I.N.S. v. Abudu, 485 U.S. suffering, whether physical
94, 108 (1988)). “Motions to reopen or mental, is intentionally
implicate important finality concerns even inflicted on a person for
when they seek to raise an underlying such purposes as obtaining
claim for relief, such as relief under the from him or her or a third
Convention Against Torture, that is not person information or a
committed to the Attorney General’s confession, punishing him
or her for an act he or she or
a t h ird p e r s o n h as
4
We treat the motion styled as a committed or is suspected
“motion to remand” as a motion to reopen of having committed, or
since it requires reopening the intimidating or coercing him
proceedings. Notably, the BIA decision or her or a third person, or
characterizes Shardar’s motion as for any reason based on
requesting that the “proceedings be discrimination of any kind,
reopened.” A.R. at 2. Cf. 8 C.F.R. § when such pain or suffering
1003.2(c)(4) (explaining that “a motion to is inflicted by or at the
reopen a decision rendered by an instigation of or with the
Immigration Judge or Service officer that consent or acquiescence of a
is pending when an appeal is filed, or that public official or other
is filed when an appeal is pending before person acting in an official
the Board, may be deemed a motion to capacity.
remand”).

8
Thus, “the prima facie case standard for a
motion to reopen under the Convention
requires the applicant to produce objective
evidence showing a ‘reasonable
likelihood,’ that he can establish that he is
more likely than not to be tortured.” Id. at
175 (quoting In re S-V-, Int. Dec. 3430,
2000 WL 562836, at *3 (BIA May 9,
2000) (en banc)).
In this case, the BIA did not abuse
its discretion in determining that Shardar
had not met this standard. As outlined
above, substantial evidence supports the
conclusion that Shardar faces legitimate
prosecution, rather than persecution, if he
returns to Bangladesh. The evidence does
suggest that Shardar suffered beatings in
the past. However, the BIA did not abuse
its discretion in determining that this
treatment did not rise to the level of
“torture,” or that there is not a reasonable
likelihood that Shardar can establish that
it is more likely than not he will be
tortured if removed.

****
For the foregoing reasons, we will
deny Shardar’s petition for review of the
decision of the BIA.

8 CFR § 208.18(a)(1).

9