Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
3-4-2009
Taseem Ahmed Malik v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2320
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2320
TASEEM AHMED MALIK,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A79-681-291
(U.S. Immigration Judge: Honorable Miriam K. Mills)
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 25, 2009
Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges.
(Filed: March 4, 2009)
OPINION OF THE COURT
PER CURIAM
Petitioner Taseem Ahmed Malik, a native and citizen of Pakistan, was admitted to
the United States on November 9, 2000 as a non-immigrant visitor, with authorization to
remain until March 15, 2002. On March 20, 2003, the Department of Homeland Security
served him with a Notice to Appear, charging that he was removable under Immigration
& Nationality Act (“INA”) § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B), as an overstay. At a
master calendar hearing, he admitted the factual allegations and conceded that he was
removable as charged. On June 27, 2005, Malik filed an application for asylum under
INA § 208(a), 8 U.S.C. § 1158(a), and withholding of removal under INA § 241(b)(3), 8
U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R.
§§ 1208.16(c), 1208.18, claiming a fear of persecution. In his asylum application, Malik
asserted that he is a member of the small Hindko-speaking community in Karachi. The
political party in power, the Mutahida Quami Movement (“MQM”), terrorizes them. He
was an opponent of MQM in medical school. A couple of times he was threatened by
them and also he was beaten once. In addition, he is a Sunni physician, and Shi’a
extremists have been killing Sunni physicians in great numbers.
Malik’s June 21, 2006 removal hearing testimony was largely consistent with his
asylum application, except that he neglected to mention having been beaten once by
MQM supporters. He is a licensed physician and a Sunni. He came to the United States
to train for his medical residency. He testified that he did not get a residency and that is
why he did not get the J-1 visa he wanted. He is afraid to return to Pakistan because
physicians have been targeted and killed in great numbers on the basis of their religion
and profession. Malik was born and raised in Karachi. His parents, three brothers, and
one sister reside in Pakistan. One of his brothers is a doctor, another is a dentist, and the
2
third is studying law. Malik explained that he was unable to obtain corroboration of his
claims from his brothers because, in October 2005, a tremendous earthquake hit the
northern part of Pakistan, killing twenty-four members of his extended family, which
traumatized his siblings.
Malik was questioned about his fear of MQM supporters, and he explained that he
was asked to join the group during medical school, but refused to do so. He was “very
vocal” against MQM’s ideologies. A.R. 145. MQM is now “one of the biggest gangs in
Karachi.” A.R. 143. According to Malik, the MQM is also “in the government right now
and their workers are everywhere in Karachi.” A.R. 143. MQM supporters have
acquired government positions, and will harm him if he returns to Pakistan. A.R. 146.
MQM is “very ruthless” and he fears being targeted by them based on “his history” with
them. Id.
The Immigration Judge placed into evidence the State Department 2005 Country
Report for Pakistan, the 2005 International Religious Freedom Report for Pakistan, and
various articles about Pakistan taken from the internet.
Following the merits hearing, the IJ denied relief. She concluded that the asylum
application was not timely filed because it was filed nearly five years after Malik’s entry
into the United States. Malik did not qualify for a waiver of the one-year deadline,
because his background evidence did not establish that conditions for Sunni physicians in
3
Pakistan had worsened.1 On the contrary, in the 1990's, there were 60 murders of Shi’a
physicians and 9 murders of Sunni physicians who probably were mistaken for Shi’a.
The high number of murders of physicians to which Malik alluded occurred in the 1990's
up through 2001, and, thus, there was no excuse for his delay until 2005 in filing the
asylum application.
The IJ further concluded that Malik had not met his burden of proof with respect to
withholding of removal, because his contentions of persecution were contradicted by his
background evidence. Malik’s background evidence indicated that Shi’a physicians, and
not Sunni physicians, had been targeted by Sunni extremists.2 There was no evidence that
Sunni extremists were targeting physicians on the basis of their profession, and there was
no evidence that Malik would be mistaken for a Shi’a. The General Secretary of the
Pakistan Medical Association opined that the doctors killed were targeted because of their
Shi’a religion and not because they were doctors. Furthermore, the IJ pointed to page 12
of the 2005 Religious Report, which indicated that “Shi’a leaders claimed that the
targeted assassinations of professional members of their communities, particularly in
1
If the alien can establish “either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing the application," failure to file the application within the one
year period may be excused. 8 U.S.C. § 1158(a)(2)(D).
2
The IJ assumed for purposes of Malik’s application that physicians might constitute a
particular social group because of their social visibility. See generally Matter of C-A-, 23
I. & N. Dec. 951 (BIA 2006) (“The social visibility of the members of a claimed social
group is an important consideration in identifying the existence of a ‘particular social
group’ for the purpose of determining whether a person qualifies as a refugee.”)
4
Karachi, virtually ended over the last year. They attributed this to Shi’a participation in
the MMA and a generally improved relationship with Sunni sects.” A.R. 141; see also
A.R. 168.3 Therefore, it was not likely that Malik, as a Sunni physician, would be
targeted for murder. Further undermining Malik’s claim of a well-founded fear of future
persecution was the fact that his two brothers – one a dentist and the other a physician –
remain in Pakistan and have suffered no harm since Malik’s departure. The IJ concluded
that Malik gave no reasonable explanation for his failure to corroborate his claims
through these family members, who share his religion and social group. The IJ denied the
CAT claim for lack of evidence, and ordered Malik removed to Pakistan.4
Malik appealed to the Board of Immigration Appeals, contending that the IJ
overlooked the fact that he was beaten once by MQM supporters while in medical school,
but the Board adopted and affirmed the IJ’s decision on April 9, 2008. The Board agreed
that Malik was statutorily ineligible for asylum, and agreed that he did not establish a
clear probability that he would be persecuted on account of an enumerated ground, or
tortured. With respect to the alleged beating, the Board noted that Malik made no
reference to it while testifying. He only briefly mentioned it in his asylum application.
Therefore, “in light of the vagueness of [Malik’s] reference to this event, and in light of
3
The MMA, or Muttahida Majlis-i-Amal, is a coalition of Islamic political parties.
4
Malik did not argue the CAT issue in his brief on appeal and thus the issue is waived.
See Laborers' Int'l Union of N. America. v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994).
5
his lack of testimony or detailed evidence regarding the alleged event and its implications
for his claims for relief, we see no error in the Immigration Judge’s conclusion that the
respondent failed to meet the relevant burdens of proof.” A.R. 2. Malik has timely
petitioned for review of this decision.
We will deny the petition for review. We have jurisdiction generally to review
final orders of removal pursuant to 8 U.S.C. § 1252(a)(1), and, here, to the extent that the
Board deferred to the IJ’s reasoning in part, we review the Board’s decision but consider
the IJ’s as well as a matter of logic. See Abdulrahman v. Ashcroft, 330 F.3d 587, 591 (3d
Cir. 2003). The determination that Malik delayed too long in applying for asylum, and
that he did not show changed circumstances which materially affected his eligibility for
asylum or extraordinary circumstances relating to the delay in filing the application, is
unreviewable. 8 U.S.C. § 1158(a)(3); Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d
Cir. 2006). The existence of these exceptions is a factual and discretionary determination
over which we lack jurisdiction. See Chen v. U.S. Attorney Gen., 491 F.3d 100, 105 (3d
Cir. 2007).5
The standard for withholding of removal under INA § 241(b)(3)(A), 8 U.S.C. §
1231(b)(3)(A), is: “the Attorney General may not remove an alien to a country if the
Attorney General decides that the alien's life or freedom would be threatened in that
country because of the alien's race, religion, nationality, membership in a particular social
5
Malik has not challenged the untimeliness determination on appeal in any event.
6
group or political opinion.” The withholding of removal standard is more exacting than
the asylum standard and requires the alien to show by a “clear probability” that his life or
freedom would be threatened on account of a protected ground in the proposed country of
removal. Immigration & Naturalization Serv. v. Stevic, 467 U.S. 407 (1984). See also
Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)
(“would be threatened” standard has no subjective component). The Board’s findings of
fact in this regard “are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration &
Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this deferential
standard, the petitioner must establish that the evidence does not just support a contrary
conclusion but compels it. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
Malik contends that he fears persecution should he return to Pakistan, because he
is a Sunni physician and Shi’a extremists have murdered Sunni physicians in large
numbers. As explained by the IJ, however, his background evidence establishes that,
during the time period when physicians were being murdered by extremists, the murderers
were Sunni, and not Shi’a, extremists. In one article titled “Doctors Under Fire,”
published in August 2001, the author reported that the Pakistan Medical Association
(“PMA”) had stated that 70 physicians had been assassinated in Karachi in the preceeding
ten years. A.R. 175. In 2001, four doctors were murdered during a six-week period. Id.
The PMA acknowledged, however, that the murders were caused by sectarian strife.
7
Malik asserts, as he did before the Board, that there were more than 125 deaths from
sectarian violence caused by the terrorist group Lashkar-i-Jhnagvi, but he neglects to
mention that this is a Sunni terrorist group. A.R. 178. Thus, substantial evidence
supports the IJ’s determination, as affirmed and adopted by the Board, that the
withholding of removal standard has not been met with respect to Malik’s allegations
involving both religion and a “particular social group.” Elias-Zacarias, 502 U.S. at 481.
Malik also contended that he is a Hindko-speaking, vocal opponent of MQM.
(The MQM is an Urdu-speaking party.) Nevertheless, Malik’s testimony concerning his
opposition to MQM was vague, and he alleged only some minor threats and one beating
on account of his status as a Hindko-speaking minority in Karachi. This is insufficient to
establish persecution. See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (single
beating that does not result in a serious physical injury does not compel reversal of the
Board's decision that alien did not suffer past persecution). In his brief Malik cites to the
Country Report and points to various incidents of sectarian violence in Pakistan, but this
evidence does not support his claim that MQM will harm him. Evidence of sectarian
violence affecting all citizens is insufficient to establish persecution. Cf. Raza v.
Gonzales, 484 F.3d 125, 129 (1st Cir. 2007) (addressing an asylum application involving
sectarian violence in Pakistan). Again, substantial evidence supports the conclusion that
Malik failed to show a clear probability that his life or freedom would be threatened on
account of his political views if he returned to Pakistan.
8
The IJ concluded that Malik gave no reasonable explanation for his failure to
corroborate his claims through his family members. Although the applicant's credible
testimony “may be sufficient to sustain the burden of proof without corroboration,” the
Board may hold a failure to corroborate against an alien when (1) it is reasonable to
expect corroboration and (2) the alien lacks a satisfactory explanation for not
corroborating. Abdulai v. Ashcroft, 239 F.3d 542, 552-53 (3d Cir.2001). Malik’s
removal hearing took place on June 11, 2006, within the first year after the most
devastating earthquake to hit Pakistan in many years. Malik testified that his brothers
were depressed and fearful, and often away at the Northwest Frontier, and could not send
affidavits because his family lost 24 members when his home town was destroyed by the
earthquake. A.R. 132-33. We thus doubt that Malik’s explanation that his brothers were
too busy and too depressed to help him at that time was insufficient. Nevertheless,
although the IJ may have erred in declaring Malik’s explanation insufficient, the fact
remains that his proof was insufficient to show a clear probability that his life or freedom
would be threatened if he returned to Pakistan, and he still has not submitted anything
from family members to corroborate any aspect of his claim.6
6
Finally, we note that the administrative record contains documents pertaining to the
attorney disciplinary proceedings brought against Malik’s former counsel. A.R. 5-28. On
November 8, 2007, that attorney was suspended from practicing law before the Board and
immigration courts for a term of sixty days, and was reinstated to practice on February 8,
2008. A.R. 6, 28. It does not appear that Malik’s former counsel was suspended from
practicing law when she represented him, and Malik raises no argument regarding the
representation provided by his former counsel.
9
For the foregoing reasons, we will deny the petition for review.
10