Javed v. Holder

United States Court of Appeals
For the First Circuit

No. 12-1657

MOHAMMAD ILYAS JAVED,

Petitioner,

v.

ERIC H. HOLDER, JR.,
Attorney General of the United States,

Respondent.

PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Stahl, and Lipez,
Circuit Judges.

Randy Olen on brief for petitioner.
Edward C. Durant, Attorney, Office of Immigration Litigation,
Civil Division, Stuart F. Delery, Principal Deputy Assistant
Attorney General, and Holly M. Smith, Senior Litigation Counsel, on
brief for respondent.

May 24, 2013
 STAHL, Circuit Judge. Mohammad Ilyas Javed petitions for

review of a decision by the Board of Immigration Appeals (BIA or

Board) affirming the denial of his applications for withholding of

removal and protection under the Convention Against Torture (CAT).

Because the BIA's withholding-of-removal decision is contrary to

the evidence, we grant the petition in part and remand the case for

further proceedings.

I. Background

Javed was born in 1962 in Gujrat, a district of Punjab

Province, in Pakistan. He attended high school and then studied

business administration and accounting in Gujrat. He went on to

earn degrees in commerce and law from the University of Karachi,

completing his studies in 1987. He worked for a Karachi accounting

firm until 1990 and then returned to Batore, his home village in

Gujrat. Upon his return, he joined a law firm there.

While at the law firm, Javed was assigned to a case

stemming from a conflict between rival political factions: the

Batore group and the Hunj group (each named after its home

village). These groups were "subsidiaries" of the ruling Pakistan

Muslim League and the Pakistan People's Party, respectively.

(Javed was not a member of either party.) Some members of the Hunj

group had been injured in a shooting that resulted from a dispute

over an apparently rigged election in October 1990. Javed and his

firm represented the Hunj group in their efforts to prosecute the

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case in court. In Pakistan, private parties can, through their

attorneys, initiate criminal cases (although there are public

prosecutors as well). For that process to begin, the police must

file a particular document; Javed and his law firm were eventually

able to persuade the police to do so, but not before he and others

were arrested during a protest. Javed was held by the local police

for "a few days" and then released. Thereafter, the court case

commenced, but was prolonged by repeated adjournments. The local

police, apparently seeking to shelter the Batore group from

punishment, were complicit in these delays.

While the case was slowly proceeding, Javed came under

pressure from the Batore group, which was based in his home village

of Batore. After hearing about his role representing the Hunj

group in the case, the Batore group began to threaten Javed, and,

on "many" occasions, members of the group "got[] hold of [him] and

beat [him] up." They threatened to kill him if he did not stop

representing the Hunj. As Javed described it, "the Batore group

thought that [he] was affiliated with the Hunj group and they

thought of [him] as their enemy."

In 1991, Javed left the law firm and started his own

practice. He opened an office in a small building near the local

courthouse. The local government, however, under the "control" of

the Batore group, demolished the office building.

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 In 1993, as a result of the threats against him, Javed

fled Pakistan. The Hunj-Batore litigation was still ongoing when

he left, but apparently ended in 1998. Javed moved to South Africa

and worked in a supermarket. His wife and two children remained in

Pakistan; he returned to visit them twice but avoided his village,

instead staying with a relative elsewhere and having his family

come meet him there. Javed's wife passed away in early 1999, after

which he came to the United States. His two children (now in their

late teens and early twenties, respectively) still live in

Pakistan; he supported them during his absence by sending them

money from abroad.

Javed entered the United States as a non-immigrant

visitor in February 1999. He remained in the country beyond the

time authorized, and was thus served with a Notice to Appear in

March 2002. In 2005, Javed appeared before the Immigration Judge

(IJ), conceded removability, and applied for withholding of removal

and CAT protection. He offered various materials in support of his

applications and testified to the events described above. He also

testified that the threats against him continue even in his

absence. His friends in Pakistan report that the Batore

continually tell them: "[W]henever [Javed] returns over here we are

not going to leave him alive." He also expressed concern that he

would be even less safe in Pakistan now than when he left because

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the Hunj group has ceased to exist politically and because of the

prevalence of contract killings.

The IJ denied Javed's applications. He found that Javed

was a credible witness and had given testimony that was both

internally consistent and consistent with the record. He

concluded, however, that Javed had not established that he had

experienced persecution "as a result of an immutable

characteristic."1 Rather, the IJ concluded that the threats and

violence Javed experienced were the result of "his involvement in

litigation with a violent and politically influential

organization." The IJ also believed that the passage of time had

likely "removed, or greatly lessened, any threat to" Javed's

safety. He therefore found that Javed was not eligible for

withholding of removal. As to Javed's application for CAT

protection, the IJ found no "mention" of torture in Javed's

testimony or affidavit. The IJ noted that Javed had been detained

by the local police for several days, but pointed out that he had

apparently not suffered any abuse during that period. Thus, the IJ

denied the CAT application as well.2

1
As Javed points out, the phrase "immutable
characteristic" refers to the statutory term "particular social
group," and not to the other protected grounds of race, religion,
nationality, and political opinion. Mayorga-Vidal v. Holder, 675
F.3d 9, 14 (1st Cir. 2012). Insofar as the IJ used it as short-
hand for all of the protected grounds, that usage was misleading.
2
The IJ also denied a motion by the government to
pretermit the proceedings on the ground that Javed had filed

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 The BIA affirmed. It agreed with the IJ that Javed "was

targeted because of his involvement as an attorney in litigation,

which does not establish a nexus between the harm [he experienced]

and a protected ground." The Board also found that Javed had not

experienced harm that rose to the level of "persecution" within the

meaning of the statute, in part because he was, in the Board's

view, embroiled in a purely private dispute. And the Board noted

that Javed's family had apparently remained in Pakistan without

incident since his departure, which it believed undermined his

argument that he would face persecution if repatriated. Finally,

the Board agreed with the IJ that Javed had not been tortured and

that the record did not establish a sufficient likelihood of future

torture. Accordingly, it affirmed the denial of both applications.

II. Discussion

The BIA's "findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary." 8 U.S.C. § 1252(b)(4)(B). Thus, we will "accept the

BIA's findings so long as they are 'supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.'" Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir. 2009)

(quoting Sharari v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005)).

We review the BIA's legal interpretations de novo. See id. Where,

fraudulent supporting materials; the IJ found insufficient evidence
to support the conclusion that Javed's application was fraudulent
or frivolous.

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as here, the BIA affirms and elaborates on the IJ's findings, we

review both decisions. Chanthou Hem v. Mukasey, 514 F.3d 67, 69

(1st Cir. 2008).

We begin with Javed's application for withholding of

removal. Withholding "protects an otherwise removable alien from

removal to a country where '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 group, or political

opinion.'" Tay-Chan v. Holder, 699 F.3d 107, 111 (1st Cir. 2012)

(quoting 8 U.S.C. § 1231(b)(3)(A)). To be eligible for this

remedy, a petitioner must make one of two showings: (i) that he has

suffered past persecution on account of one of the enumerated

grounds, which creates a rebuttable presumption of future

persecution; or (ii) that future persecution on account of one of

these grounds is more likely than not to occur. Id.; see 8 C.F.R.

§ 1208.16(b)(1)-(2). Under the REAL ID Act of 2005, persecution is

"on account of" a protected ground if that ground "was or will be

at least 'one central reason' for [the] persecution." Tay-Chan,

699 F.3d at 111.

Javed challenges the BIA's withholding determination on

two grounds. First, he contends that the record showed that he

experienced past persecution, entitling him to a presumption that

he had a well-founded fear of future persecution (which he did not

receive). Second, he attacks the conclusion that his troubles

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stemmed from his litigation activities rather than any protected

ground; he says that the record reveals that his representation of

the Hunj group caused the Batore group to impute a political

opinion to him.

In deciding that Javed had not suffered past persecution,

the Board concluded (with scant explanation) that the threats and

violence he experienced did not rise to the level of persecution,

which requires harm that goes beyond mere harassment, unfairness,

or unpleasantness. See Attia v. Gonzales, 477 F.3d 21, 23 (1st

Cir. 2007). The Board also seemed to conclude that Javed had not

shown any government involvement in the threats and beatings. See

Nikijuluw v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005)

(persecution requires "government action, government-supported

action, or government's unwillingness or inability to control

private conduct"). It is true that a single, vague threat or even

a number of non-specific threats, "unaccompanied by any significant

physical abuse and any government involvement," will be unlikely to

constitute persecution. Badache v. Holder, 492 F. App'x 124, 125

(1st Cir. 2012) (Souter, J.) (quoting Abdelmalek v. Mukasey, 540

F.3d 19, 22 (1st Cir. 2008)) (internal quotation mark omitted).

But credible, specific threats can amount to persecution if they

are severe enough. Id.; see Sok v. Mukasey, 526 F.3d 48, 54-55

(1st Cir. 2008). "[T]hreats of murder" fit squarely within this

rubric. Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007);

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see also Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005); Un v.

Gonzales, 415 F.3d 205, 210 (1st Cir. 2005). And the addition of

physical violence, although not required, makes a threat more

likely to constitute persecution. See Gilca v. Holder, 680 F.3d

109, 115 (1st Cir. 2012). Here, the record compels the conclusion

that Javed was subjected to threats and violence that rose to the

level of past persecution.

To begin with, the Board was wrong to say that the

threats and beatings Javed experienced were part of a purely

private conflict. See Nikijuluw, 427 F.3d at 121; cf. Hussain v.

Holder, 576 F.3d 54, 58 (1st Cir. 2009). Javed testified that the

local authorities condoned or participated in the attacks on him,

including by demolishing his office building. He was also arrested

and detained by local police. He further testified that the police

and local officials protected the Batore, apparently at the behest

of the ruling national political party, with which the Batore group

was affiliated. In light of this credible and uncontested

testimony, the Board's unelaborated conclusion that this dispute

lacked government involvement is wholly unsupported by the record.

Likewise, the record squarely contradicts the Board's

determination that Javed experienced mere unpleasantness that did

not rise to the level of persecution. As noted above, specific,

credible threats, especially when bolstered by violence, can

constitute persecution. See Badache, 492 F. App'x at 125. And

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"threats of murder" go well beyond the "ordinary harassment" that

does not qualify. Hincapie, 494 F.3d at 217. Here, Javed

testified -- credibly, according to the IJ -- that the Batore group

threatened to kill him on "many" occasions. These threats

continued, via intermediaries, even after he fled Pakistan. And

the threats were accompanied by violence. Although the Board and

the IJ said (somewhat euphemistically) that Javed was "manhandled"

by the Batore, Javed testified that he was "beat . . . up" "many"

times. And then there was his arrest and detention by the police

as a result of his protests on behalf of the Hunj. See Sok, 526

F.3d at 54 (finding that a three-day detention after a protest

rally, in conjunction with an assault and serious death threats,

suggested past persecution). The demolition of Javed's office by

the Batore-controlled local government only added to this pattern.

Finally, we must be mindful that the genesis of these events was an

incident in which the same group that threatened to kill Javed shot

people with whom he was associated. This is not a case in which

the petitioner was threatened, but was "never in serious danger."

See Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010). Nor were

these isolated incidents. Cf. Tasya v. Holder, 574 F.3d 1, 5 (1st

Cir. 2009). In sum, the record, considered as a whole, compels us

to find that Javed experienced past persecution. Cf. Sok, 526 F.3d

at 53-55; Iffat v. Gonzales, 126 F. App'x 862, 864 (9th Cir. 2005)

(specific death threats, arson of petitioner's home, and the

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attempted abduction of her daughter cumulatively constituted past

persecution). Accordingly, Javed was entitled to a presumption of

future persecution, Tay-Chan, 699 F.3d at 111, which he did not

receive.

Nevertheless, the Board and the IJ's shared error as to

past persecution would be harmless if they were correct that the

persecution Javed experienced was not "on account of" a protected

ground. But they were not correct. Both the Board and the IJ

concluded that Javed "was targeted because of his involvement as an

attorney in litigation," and not on the basis of any protected

ground. To be sure, the record reflects that Javed's involvement

in the Hunj-Batore litigation was a catalyst for his persecution.

But Javed also testified that, as a result of his representation,

"the Batore group thought that [he] was affiliated with the Hunj

group and they thought of [him] as their enemy." He went on to

explain that, in the political and social climate in Gujrat,

assisting a rival political party was tantamount to joining that

party. In fact, in his case, it was apparently perceived as an

egregious betrayal, since Javed was from Batore village, and thus

would have been expected to support the political group that

carried the village's name. As he put it, "whoever belongs to that

village has to go along with [the village's ruling party] and

anybody who tries to do something against them is considered their

enemy." The essence of Javed's testimony was that the Batore group

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attacked Javed because they thought, mistakenly, that his

representation of the Hunj revealed him to be their political

opponent. Put another way, they perceived his legal advocacy as a

manifestation of his political beliefs. The fact that this

testimony came amidst a discussion of Javed's political

affiliations bolsters that conclusion. See Mayorga-Vidal v.

Holder, 675 F.3d 9, 18 (1st Cir. 2012) ("Political persecution may

be grounded on an imputed political opinion, whether or not the

opinion is correctly or incorrectly attributed to the alien."); see

also Manzur v. U.S. Dep't of Homeland Sec., 494 F.3d 281, 294 (2d

Cir. 2007) (cautioning against "an impoverished view" of what

constitutes persecution on account of a political opinion).

We think this factual testimony about the political

implications of Javed's representation is different from a

petitioner's conclusory assertion as to his persecutor's motives,

which we need not accept. See Ali v. Gonzales, 190 F. App'x 13, 15

(1st Cir. 2006). Javed's credible, factual testimony amply

established that his persecutors imputed a political opinion to him

(albeit incorrectly), and that this opinion was at least a "central

reason" for their attacks on him. Cf. Manzur, 494 F.3d at 294

(faulting the IJ for concluding that a petitioner's efforts to have

a soldier suspected of assassinating her husband prosecuted could

not have resulted in persecution on the basis of imputed political

opinion); Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995)

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(finding that the petitioner was persecuted on the basis of imputed

political opinion when authorities abused him because of his

association with political dissidents). The Board and IJ's

contrary conclusion is not supported by the record.

At this point, we could find these dual errors harmless

only "if the record compelled a finding that any presumption of

future threats was rebutted by 'a fundamental change in

circumstances such that [petitioner's] life or freedom would not be

threatened.'" Un, 415 F.3d at 210 (quoting 8 C.F.R.

§ 1208.16(b)(1)(i)(A)). But "[t]he government has not made this

argument, addressing only the converse issue (which assumes that

petitioner bore the burden of proof) of whether there was

substantial evidence supporting the . . . finding that petitioner

failed to establish the likelihood of [future] harm." Id.

Consequently, we must remand the case. See id. On remand, Javed

should have the benefit of the presumption of future persecution,

and the government should have the opportunity to attempt to rebut

that presumption.

In closing, we address Javed's CAT-protection claim. To

avoid removal under the CAT, a petitioner must show that he will

more likely than not face torture upon repatriation, with the

consent or acquiescence of the government then in power. Mariko v.

Holder, 632 F.3d 1, 7 (1st Cir. 2011); Ahmed v. Holder, 611 F.3d

90, 98 (1st Cir. 2010). "Torture is . . . any act by which severe

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pain or suffering, whether physical or mental, is intentionally

inflicted on a person" for various reasons. 8 C.F.R.

§ 208.18(a)(1). In other words, it is "an extreme form of cruel

and inhuman treatment." Id. § 208.18(a)(2).

On this issue, the IJ and BIA's determination is

supported by the record. There is no evidence of past torture, and

Javed does not argue otherwise. Nor does documentary evidence of

the general use of torture by Pakistani authorities suffice,

without more, to establish that Javed himself is more likely than

not to be tortured there. It is true that Javed's persecutors were

associated with the ruling political party, but we cannot, on that

basis alone, make the inferential leap he suggests, which is that

he is therefore likely to be tortured by the national government.

Beyond these cursory points, Javed has not offered any other basis

to disturb the Board's and IJ's CAT rulings. Therefore, we will

deny his petition insofar as it seeks review of the denial of his

CAT application.

III. Conclusion

For the foregoing reasons, we grant in part and deny in

part Javed's petition for review, and remand this case to the BIA

for further proceedings consistent with this opinion.

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