[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 12, 2010
No. 09-10627 JOHN LEY
Non-Argument Calendar CLERK
________________________
Agency No. A099-989-621
RAZA ALI KHAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(March 12, 2010)
Before EDMONDSON, BIRCH and ANDERSON, Circuit Judges.
PER CURIAM:
Raza Ali Khan, a native and citizen of Pakistan proceeding pro se, petitions
us for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing
his appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum
and withholding of removal under the Immigration and Nationality Act (“INA”), 8
U.S.C. §§ 1158, 1231(b)(3), and relief under the United Nations Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(“CAT”), 8 C.F.R. § 208.16(c).1 After careful review, we DENY the petition.
I. BACKGROUND
On 5 October 2006, Khan filed an application for asylum, withholding of
removal, and CAT relief. Administrative Record (“AR”) at 300-12. The
government subsequently issued Khan a notice to appear (“NTA”), charging him
with removability pursuant to INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B) as an
alien who remained in the United States for a time longer than permitted. Id. at
726-27. Khan admitted the allegations in the NTA and conceded removability. Id.
at 69, 720. In his application and declaration, Khan alleged that he had been
persecuted in Pakistan on account of his religious beliefs because he opposed his
young son’s association with a religious school (“madrasah”) that was run by
Islamic fundamentalists and led by Mir Alam Shah, a well-known extremist
1
Khan does not challenge the denial of CAT relief in his petition for review and thus we
deem this claim abandoned. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th
Cir. 2005) (per curiam).
2
wanted by the Pakistani and U.S. governments for his ties to terrorist
organizations. Id. at 304-05, 318.
At his September 2007 removal hearing, Khan testified that he worked until
2005 as an electrical engineer in Saudi Arabia and first learned his son was
attending the madrasah when he returned to Pakistan in the summer of 2003. Id. at
83-86, 93-94. Not wanting his son to attend a fundamentalist religious school,
Khan, a self-described “liberal Muslim,” met with Shah on 7 December 2003 and
asked Shah to release his son from the madrasah. Id. at 84, 96-98, 126-27, 131.
Shah refused, telling Khan that Khan was the enemy of Islam and that he and his
son would be killed. Id. at 100-01. Two days after this meeting, on 9 December
2003, Shah was killed during a raid of the madrasah by Pakastani defense forces.
Id. at 103-04. Khan remained in Pakistan for about three weeks after Shah was
killed, but returned to Saudi Arabia before the new year. Id. at 132-33.
Khan testified that Shah’s followers attacked Khan’s family’s home in
February 2004 while he was in Saudi Arabia. Id. at 104, 133-34. Khan learned
from his wife and brother that men armed with rifles entered the home, fired a few
rounds, beat his son, and searched the home for Khan. Id. The men said Shah had
been killed because of Khan and that they knew Khan had received a large sum of
money from the Pakistani government. Id. Khan’s family reported the incident
but the police did not conduct an investigation. Id. at 105-06.
3
Khan’s brother relocated Khan’s family to Hasan Abdal some time in
February 2004, before Khan returned to Pakistan in March 2004.2 Id. at 136-37.
Shah’s followers came to Khan’s family’s new home in Hasan Abdal on 24 or 26
February, threatened Khan’s family, demanded the money they believed Khan had
received from the government, and stole some gold and cash. Id. at 107, 109, 111,
137. Khan further stated that the men forced Khan’s son to take off his clothes and
“abus[ed] him.” Id. at 109.
Khan testified that he returned to Pakistan once more in October 2004 to
move his family to Lahore. Id. at 112-14. They remained in Lahore for a short
period before moving again to Karachi in December 2004. Id. at 114, 116, 118.
Khan returned to Saudi Arabia but was terminated from his job in December 2005
for returning to Pakistan so frequently to attend to family matters. Id. at 128.
Khan admitted on cross-examination and that he had not had any encounters with
Shah’s followers during any of the times he traveled back into Pakistan from Saudi
Arabia following Shah’s death, and that his family has not been directly harmed or
threatened by Shah’s followers since he moved them to Karachi in 2004. Id. at
152-53, 158-59.
2
Khan initially testified on direct examination that he returned to Pakistan in early March
2004 to relocate his family to Hasan Abdal. Id. at 106-07. He later clarified that the second
attack occurred in February, before he had returned to Pakistan, and that his brother, not he, had
relocated the family to Hasan Abdal. Id. at 136-37.
4
At the second hearing, the IJ heard the testimony of Dr. Richard Barnett, an
Associate Professor at the University of Virginia and expert in Pakistani history,
who testified that, after speaking to Khan and reviewing all the materials in the
case, including Khan’s asylum application, his own teaching notes, and documents
from Amnesty International, it was his opinion that “conditions in Pakistan are
extremely risky for Mr. Khan and his family.” Id. at 175, 192-93. Dr. Barnett
noted that Khan had been “systematically hounded by violent jihadist elements, not
just in the Northwest Frontier, but also in other parts of Pakistan,” and that “that
process will accelerate” if Khan, who has been branded an “unbeliever,” returns.
Id. at 193. Dr. Barnett admitted that Pakistani authorities occasionally take
“concrete steps” against jihadist elements, but “strongly doubt[ed]” that Khan
would be protected by Pakistani authorities if he returned to Pakistan, noting that
the police are “infiltrated by” and “colluding episodically with the Taliban and
jihadists.” Id. at 199. When asked why he believed Khan would still be a target
after not having lived in Pakistan for the last four and a half years, Dr. Barnett
stated that “[f]our years is nothing to them. That’s like yesterday to them. They
have a very green memory of what he did, what they allege he did.” Id. at 246.
Dr. Barnett further explained that Khan, a secular Muslim with his own businesses
and land, is “a wonderful target of opportunity.” Id. at 200. According to Dr.
5
Barnett, paying off Khan’s persecutors would not prevent further harassment,
however, because the jihadists
don’t operate by the rules of civil society. It’s . . . a matter of religious
campaigning . . . . [Khan] has been declared a kaffir, an unbeliever. He
is fair game for anything. Extortion, kidnaping, violence, threats, calls
in the middle of the night, people gathering outside his house and
shooting off their kalishnakovs. Anything is likely to happen if he goes
back.
Id. at 200-01. Dr. Barnett stated that while the relationship between Khan and
Shah’s followers could be described as a personal vendetta, it was “more than
that . . . . This is a religious crusade . . . . [that] will not cease until Islamic law has
been established in Pakistan.” Id. at 201. With respect to Khan’s family’s safety
in Karachi, Dr. Barnett opined that they would be in danger if their location were
to be discovered because the Taliban “roam freely” in Karachi and have access to
both the police and the ISI, Pakistan’s intelligence agency. Id. at 203.
Specifically, Khan and his family will be targets for violence, extortion, and
kidnapings. Id. at 201.
Dr. Barnett admitted that Khan had gone to Saudi Arabia several times after
Shah’s death and that nothing had happened to him any of the times he returned to
Pakistan. Id. at 237. Dr. Barnett further admitted that neither Khan nor any
members of his family had been confronted by Shah’s followers since Khan’s
6
family left the Northwest Province, but noted that Khan’s family had been in
hiding that entire time.3 Id. at 240, 247-48.
At the close of the evidence, the IJ issued a written decision denying Khan’s
application for asylum, withholding of removal, and relief under the CAT. Id. at
37. Although the IJ found that Khan was not credible,4 she addressed the merits of
his claims and concluded that Khan was not eligible for relief from removal
because he had not demonstrated that he was persecuted in the past or will be
persecuted in the future on account of a protected ground. Id. at 60.
Khan appealed the IJ’s decision to the BIA, arguing, inter alia, that the IJ
erred in finding him incredible; in focusing Dr. Barnett’s testimony on the
particulars of Khan’s claim, rather than the general country conditions in Pakistan;
and in finding that there was no nexus between Khan’s alleged persecution and his
religious beliefs. Id. at 18-22, 30-32. Khan further asserted that the IJ was
3
Dr. Barnett also made a written declaration, which was submitted into evidence,
concluding that “the unique circumstances of Mr. Khan’s case, coupled with chronic country
conditions in Pakistan, make it extremely likely that he will persecuted and even tortured if he is
forced to return to Pakistan.” Id. at 436-55.
4
In making this determination, the IJ found that Khan failed to overcome his lack of
credibility with sufficient corroborating evidence, noting specifically that Dr. Barnett was “not
an expert in current Pakistani affairs” and had “no independent information to corroborate”
Khan’s specific claims. Id. at 54-55. The BIA held on appeal that the IJ did not err in giving
limited weight to Dr. Barnett’s testimony because the IJ explained her reasons for doing so and
“[i]ssues regarding the weight of testimony are within the province of the factfinder.” Id. at 3
n.2.
7
predisposed to denying his application and that he was deprived of “a fair judicial
hearing.” See id. at 21-22.
The BIA affirmed the IJ’s adverse credibility determination, but held in the
alternative that, even assuming the credibility of Khan’s testimony, Khan’s claims
failed on the merits because the incidents of harm Khan alleged did not rise to the
level of past persecution and because Khan had not established a well-founded fear
of future persecution. Id. at 3. With respect to the latter determination, the BIA
noted, inter alia, that the objective reasonableness of Khan’s alleged fear was
undermined by the fact that his family remains in Pakistan and has not been
threatened or harmed by Shah’s followers since 2004. Id. This petition for review
followed.
II. DISCUSSION
When the BIA issues a decision, we review only that decision, except to the
extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Aschroft, 257
F.3d 1262, 1284 (11th Cir. 2001). “Insofar as the [BIA] adopts the IJ’s reasoning,
we . . . review the IJ’s decision as well.” Id. Because the BIA rendered its own
decision and did not expressly adopt the IJ’s reasoning, we review only the BIA’s
decision.
We review legal conclusions de novo and factual findings under the
substantial evidence test, which requires us to affirm the BIA’s decision if it is
8
“supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir.
2005) (quotation marks and citation omitted). Under this highly deferential
standard, we view the record in the light most favorable to the BIA’s decision and
are bound by that decision unless a reasonable adjudicator would be compelled to
conclude to the contrary. See Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th
Cir. 2004) (en banc). Accordingly, “even if the evidence could support multiple
conclusions, we must affirm the agency’s decision unless there is no reasonable
basis for that decision.” Id. at 1029.
On appeal, Khan argues that the IJ’s adverse credibility determination was
erroneous, that “current affairs” in Pakistan support his claims for relief, and that
the IJ deprived him of a fair hearing by “vicious[ly]” prolonging his case for the
purpose of “breaking [his] back and pocket[s],” refusing to allow him to provide
his own translator, and rejecting Dr. Barnett’s opinion. See AR at 4-8, 10.5 We
do not consider Khan’s claims that the IJ improperly prolonged his case and
refused to allow him to provide his own translator because he did not raise them
5
Although Khan appears also to challenge the IJ’s finding that there was no nexus
between the alleged persecution and Khan’s religious beliefs, the BIA did not accept, let alone
rely upon, this finding in rendering its decision and it is thus not subject to review. See Al
Najjar, 257 F.3d at 1284.
9
before the BIA. See Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-
51 (11th Cir. 2006) (per curiam).
We also need not address the IJ’s and BIA’s adverse credibility
determinations because we agree with the BIA’s alternative holding that, even if
credible, Khan failed to demonstrate past persecution or a well-founded fear of
future persecution. To establish eligibility for asylum, the applicant bears the
burden of proving, with credible evidence, that he was (1) persecuted in the past on
account of race, religion, nationality, membership in a particular social group, or
political opinion; or (2) has a well-founded fear of future persecution on account of
a statutorily-protected ground. See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.
§ 208.13(a), (b); see also Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.
2006) (per curiam).6
Although the INA does not define “persecution,” we have held that it is “an
extreme concept, requiring more than a few isolated incidents of verbal harassment
or intimidation” and that “mere harassment does not amount to persecution.”
Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353 (11th Cir. 2009) (quotation
6
To establish eligibility for withholding of removal under the INA, an applicant must
demonstrate that it is “more likely than not” that she will be persecuted upon returning to her
home country on account of a protected ground. Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218
(11th Cir. 2002) (per curiam) (quotation marks and citation omitted). Because “[t]his standard is
more stringent than the well-founded fear of future persecution required for asylum,” Tan v. U.S.
Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (quotation marks and citation omitted), an
applicant who fails to establish eligibility for asylum is generally precluded from qualifying for
withholding of removal, see Al Najjar, 257 F.3d at 1292-93.
10
marks and citation omitted). Khan testified that he was threatened by Shah and
that on two separate occasions, Shah’s followers, armed with rifles, came to
Khan’s family’s home in Pakistan, demanded money, and stole cash and jewelry.
On one occasion, Shah’s followers humiliated Khan’s son by forcing him to
remove his clothes. Khan, who was in Saudi Arabia during both incidents, was
never physically harmed by his alleged persecutors. This evidence simply does not
compel a finding that Khan suffered past persecution on account of his religious
beliefs or any other protected ground. See, e.g., Djonda v. U.S. Att’y Gen., 514
F.3d 1168, 1171, 1174 (11th Cir. 2008) (finding no persecution where alien was
detained for thirty-six hours and beaten by police officers but suffered only minor
injuries); Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290-91 (11th Cir. 2006) (per
curiam) (finding no persecution where alien was detained for five days, forced to
watch reeducation videos, stand in the sun for two hours, and sign a pledge to no
longer practice his religion); Barreto-Claro v. U.S. Att’y Gen., 275 F.3d 1334,
1340 (11th Cir. 2001) (finding no persecution where alien lost his job and was
forced to take menial work but was never physically harmed, arrested, or detained).
An applicant who has not demonstrated past persecution may be eligible for
asylum by establishing a well-founded fear, based on specific, detailed facts, that
he will be singled out for persecution on account of a protected ground if he is
returned to his country of origin. See 8 C.F.R. § 208.13(b)(2); Al Najjar, 257 F.3d
11
at 1287. The applicant’s fear must be both subjectively genuine and objectively
reasonable. Al Najjar, 257 F.3d at 1289.
Substantial evidence supports the BIA’s determination that Khan did not
establish a reasonable possibility that he will be persecuted on account of his
religious beliefs if returned to Pakistan. We agree with the BIA that the fact that
neither Khan nor his family has had any encounters with Shah’s followers since
2004 demonstrates that Khan’s fear of persecution, even if subjectively genuine, is
not objectively reasonable. See id. Finally, Khan’s argument that the IJ
improperly dismissed Dr. Barnett’s testimony is likewise unavailing. As the BIA
correctly noted, the IJ was entitled to assign as much or as little weight to Dr.
Barnett’s testimony as she deemed appropriate, and there is nothing in the record to
suggest that the IJ’s decision with regard to how much weight to give Dr. Barnett’s
testimony was clearly erroneous.
In sum, the record does not compel the conclusion that Khan suffered past
persecution or has a well-founded fear of future persecution. Inasmuch as Khan
has failed to establish eligibility for asylum, he cannot meet the more stringent
standard required for withholding of removal or CAT relief. See id. at 1292-93.
12
III. CONCLUSION
Khan petitions us for review of the BIA’s decision dismissing his appeal
from the IJ’s denial of asylum, withholding of removal, and CAT relief. For the
foregoing reasons, we DENY the petition.
PETITION DENIED.
13