NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 17-3008
PERWAISH, a/k/a Perwaish Lnu, a/k/a Perwaish Khan,
a/k/a Perwaish Hadi Khan, a/k/a Fnu Perwaish,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review from an Order of the
Board of Immigration Appeals
(BIA No.: A205-235-513)
Immigration Judge: Honorable John B. Carle
Submitted under Third Circuit L.A.R. 34.1(a)
on April 17, 2018
Before: GREENAWAY, JR., RENDELL and FUENTES, Circuit Judges
(Opinion filed: July 3, 2018)
O P I N I O N*
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
RENDELL, Circuit Judge:
Petitioner Perwaish, a native and citizen of Pakistan, seeks our review of the
Board of Immigration Appeals (“BIA”)’s order denying his application for asylum,
withholding of removal, and protection under the Convention Against Torture (“CAT”).
Because substantial evidence supported the agency’s conclusions, we will deny the
petition for review.
I. BACKGROUND
A. Facts
Perwaish is a Pakistani citizen from the Swat region, currently residing in the
United States. He is married with eight children, and his wife and children, sister, and
parents all still live in the Swat Valley. Until 2010, Perwaish worked as a crewman and a
farmer. In 2009, Perwaish began supporting the Pakistani army in its efforts to drive the
Taliban out of the Swat Valley region. He carried supplies and ammunition to the army
and provided information about the Taliban’s whereabouts.
In 2009, Taliban supporters kidnapped Perwaish at gunpoint when he was at a
market. He was bound and forced to walk for two hours, then held in a dark room for
two days, and then relocated to another room for four days. The attackers repeatedly
asked him why he was supporting the Pakistani army. They beat and kicked him, and he
sustained bruises from kicks to his lower back. He still has a visible rope-burn mark on
his arm from the kidnapping. He was released after his father paid a ransom of
US$15,000. The kidnappers warned him not to assist the Pakistani army any longer or he
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would be killed. Perwaish spent two days in a hospital after his release, but he did not
report the incident to the police or the army.
Perwaish stayed at his house in Swat for a week and a half, but then went on to
live in Mardan, Peshawar, and Karachi. He experienced no harm in these locations, but
he testified that he felt unsafe. In late 2009, he moved his family back to Swat but made
plans to leave Pakistan. He continued to aid the Pakistani army, but others in the
community warned him that the Taliban were looking for him. However, he did not
experience any harm. He left Pakistan in April 2011 and was admitted to the United
States on a non-immigrant visa, authorized for one month. He overstayed his visa
without authorization, which resulted in the present proceedings.
Perwaish’s family remains in Pakistan, in the same home. He maintains that they
have not experienced harm because they did not assist the Pakistani army. But he
believes he faces harm by supporting the army. He testified that he only remains in the
United States because he fears he will be harmed if he returns, and that he misses his
home and life in Pakistan.
When asked why he thinks the Taliban are looking for him, he testified that they
have a “strong network” and they “would find him.” A.R. 79. On cross-examination,
Perwaish testified that people in Pakistan are “safer in their own area” and that “his
family would be safer in their village than in Karachi.” Id.
B. Procedural History
The Department of Homeland Security (“DHS”) charged Perwaish with
removability under 8 U.S.C. § 1227(a)(1)(B), as an alien who had remained in the United
3
States for a time longer than permitted. Represented by counsel, Perwaish appeared
before an Immigration Judge (“IJ”) and conceded his removability as charged.
Perwaish applied for the following relief from removal: asylum, withholding of
removal, and CAT protection. He was the only witness who testified at his merits
hearing. The parties submitted background documents describing conditions in Pakistan,
including the UK’s 2014 report on Pakistan and the State Department’s 2015 Human
Rights Report on Pakistan.1
Although the IJ made a positive credibility finding, he denied Perwaish’s
application for asylum, withholding of removal, and CAT protection. Regarding asylum,
the IJ found that Perwaish did not suffer harm rising to the level of past persecution. But
even assuming he had, DHS rebutted the presumption of a well-founded fear of future
persecution by showing that Perwaish could safely relocate to another part of Pakistan
and that it would be reasonable to do so. Based on his finding of ineligibility for asylum,
the IJ also determined Perwaish was necessarily ineligible for withholding of removal,
which carries stricter requirements. Finally, the IJ found that Perwaish was ineligible for
CAT protection because he failed to show that he would more likely than not be tortured
by the Pakistani government or by a private individual with the government’s
acquiescence.
Perwaish appealed to the BIA. The Board dismissed the appeal, agreeing that
Perwaish was ineligible for relief, but affirming the IJ’s alternate holding that Perwaish
1
References to the State Department Report are styled as “Exh. A,” because while the IJ
took judicial notice of the updated report, a printed copy was not included in the
administrative record.
4
“could reasonably relocate within Pakistan.” A.R. 4. The BIA also held that the IJ’s
factual finding that Taliban control of Pakistan is limited to certain areas of the country
was not clearly erroneous.
This petition for review followed.
II. DISCUSSION
We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. §
1252. When the BIA issues its own opinion, we review both that opinion and any portion
of the IJ’s opinion that the BIA adopted. Sandie v. U.S. Att’y Gen., 562 F.3d 246, 250
(3d Cir. 2009). We review the agency’s factual determinations under the “deferential
substantial evidence standard,” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006),
and will uphold those determinations unless “any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the IJ’s
and BIA’s legal determinations de novo. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d
Cir. 2006).
In his petition for our review of the BIA’s ruling, Perwaish argues that the BIA
erred in affirming the IJ’s denial of his application for asylum and withholding of
removal, and his application for CAT relief. Because his arguments are unavailing, we
will deny his petition for review.
A. Asylum Petition
The Attorney General may grant asylum to an alien who can establish “refugee”
status. 8 U.S.C. § 1158(b)(1)(A). To prove he is a refugee, an alien must show he is
unable or unwilling to return to his home country “because of persecution or a well-
5
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1101(a)(42)(A). A showing of past
persecution gives rise to a rebuttable presumption of a well-founded fear of future
persecution. 8 C.F.R. § 1208.13(b)(1). One way the Government may rebut that
presumption is by showing that “the applicant could avoid future persecution by
relocating to another part of the applicant's country of nationality,” and “under all the
circumstances, it would be reasonable to expect the applicant to do so.” Id. §
1208.13(b)(2)(ii). Factors the agency may consider when determining whether relocation
would be reasonable include: “whether the applicant would face other serious harm in
the place of suggested relocation; any ongoing civil strife within the country;
administrative, economic, or judicial infrastructure; geographical limitations; and social
and cultural constraints, such as age, gender, health, and social and familial ties.” Id. §
1208.13(b)(3).
On appeal, Perwaish contends that the IJ and BIA erroneously determined that he
could not establish past or future persecution. We disagree. Even if he could establish
past persecution2 and therefore gain the benefit of a presumption of a well-founded fear
of future persecution, the Government rebutted this presumption by demonstrating he
could safely relocate to another part of Pakistan. The BIA affirmed the IJ’s finding that
Perwaish and his family had suffered no harm in Pakistan after the kidnapping, and
2
The BIA did not address the IJ’s conclusion that Perwaish’s “abduction was an isolated
incident and does not warrant a finding of past persecution.” A.R. 64. It is therefore not
properly before us on this appeal. See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
6
indeed had safely relocated several times. This conclusion was supported by substantial
evidence.
We agree with the BIA that there is sufficient support for the IJ’s alternative
finding that the Government rebutted any presumption of Perwaish’s well-founded fear
of persecution. The IJ pointed to record evidence showing that Perwaish successfully
relocated within Pakistan for seven months following the kidnapping. Moreover,
Perwaish’s employment as a crewman took him away from Sirsinai for extended periods,
and the ships he worked on departed from Karachi and other major cities. No evidence
was submitted suggesting that Perwaish had any health or economic constraints rendering
relocation unreasonable. See id. § 1208.13(b)(3).
Perwaish contends that the BIA improperly ignored favorable evidence in
evaluating whether he could reasonably relocate. In particular, he avers that the BIA and
IJ ignored Perwaish’s family members’ affidavits stating that the family was in danger
and his testimony that the Taliban has a “strong network” throughout Pakistan, thus
rendering any area of the country perilous. A.R. 163.
While the IJ and the BIA did not specifically refer to his family’s affidavits, the IJ
made clear that he had “considered all admitted evidence regardless of whether the Court
specifically mentions it in this decision.” A.R. 57. Although the agency “may not ignore
evidence favorable to the alien” or “cherry-pick a few pieces of evidence,” we do not
require the BIA to “discuss every piece of evidence mentioned by an asylum applicant.”
Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010). An IJ’s statement that he
considered all record evidence—absent a showing that wide swaths of evidence were
7
ignored, as in Huang—“is all that is required.” Green v. Att’y Gen., 694 F.3d 503, 509
(3d Cir. 2012). Unlike in Huang, where the agency ignored the petitioner’s significant
evidence that she would be forcibly sterilized upon removal to China, 620 F.3d at 388,
here it was reasonable for the IJ not to credit the affidavits’ vague and at times identical
language.3 Further, these statements directly contradicted Perwaish’s own testimony that
his family did not have any problems when they went to Mardan and Pershawar. He
stated that his family was not threatened when he left to work on the shipping crew, nor
was he personally threatened when he returned in September 2010.
As to Perwaish’s claim that the Taliban “would be able to locate him anywhere,”
Pet’r Br. at 22, the IJ pointed to record evidence showing that changes in the Pakistani
government had mitigated the Taliban’s power and reach throughout the country and that
urban areas are safer than rural ones. Moreover, Perwaish himself testified that he safely
returned to Sirsinai for seven months following the kidnapping. Given our highly
deferential standard of review, we cannot conclude that the IJ’s determination lacks
support in the record. On the contrary, substantial evidence supported the agency’s
determination that Perwaish could reasonably avail himself of internal relocation.4
B. CAT Relief
3
For example, Perwaish’s mother’s affidavit said “their threats never end, [and they]
suffer a lot and [their] family shift[s] from one city to [an]other.” A.R. 323. And his
father’s and wife’s affidavits used the same sentence, that “they [follow] [them]
everywhere where [they] went.” A.R. 326, A.R. 329.
4
As we conclude that substantial record evidence supports the agency denial of
Perwaish’s asylum request, it follows that his application for withholding of removal,
relief, which involves a “more stringent applicable standard,” was also properly denied.
See Mudric v. Att’y Gen., 469 F.3d 94, 102 n. 8 (3d Cir. 2006).
8
Under the regulations implementing the Convention Against Torture, the Attorney
General may not remove an alien to a country where it is “more likely than not” that he
will be “tortured.” 8 C.F.R. § 1208.16(c)(2). Torture is defined as “pain and suffering”
inflicted by or “with the consent or acquiescence of a public official or other person
acting in an official capacity.” Id. § 1208.18(a)(1). An alien bears the burden of proving
she is eligible for CAT relief, id. § 1208.16(c)(2), but need not show a nexus between a
particular characteristic and the torture. Matter of S-V-, 22 I & N Dec. 1306, 1311 (BIA
2000).
Here, the BIA affirmed the IJ’s determination that Perwaish was ineligible for
CAT relief because he failed to show that a public official would acquiesce to his torture
by the Taliban. A public official acquiesces if she participates in the torture, colludes
with the torturer, or is “willfully blind.” Silva-Rengifo v. U.S. Att’y Gen., 473 F.3d 58, 70
(3d Cir. 2007). The BIA affirmed the IJ’s finding that the Pakistani government is
“taking specific steps to combat terrorism by the Taliban.” A.R. 4. Before the agency,
Perwaish and the Government offered conflicting reports as to the Pakistani
government’s success in eradicating terrorist groups, and the prevalence of extrajudicial
killings and torture across the country. But Perwaish did not present evidence that the
Pakistani government would collude with the Taliban or remain willfully blind to torture.
The record therefore does not compel us to conclude that the IJ erred in denying CAT
relief.
III. CONCLUSION
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We see no reason to disturb the BIA’s reasoned ruling. Accordingly, we will deny
Perwaish’s petition.
10