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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-14182
Non-Argument Calendar
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Agency No. A026-686-648
SHEHZA KHAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(July 21, 2021)
Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Shehza Khan, a native and citizen of Pakistan, petitions this Court for review
of the Board of Immigration Appeals’ final order affirming the immigration judge’s
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denial of his application for deferred removal based on the Convention Against
Torture. He argues that the BIA and the immigration judge failed to give reasoned
consideration to evidence in the record showing that it was more likely than not that
he would be tortured if he were removed to Pakistan. We disagree and deny the
petition.
I.
Khan entered the United States in 1984 as a nonimmigrant. In 2016, the
Department of Homeland Security served him with a notice to appear and charged
him with removability following multiple convictions, including several for drug-
trafficking offenses.
Khan initially appeared pro se, but the immigration judge found that he was
not competent to represent himself. Khan’s new counsel admitted the factual
allegations against Khan, and the immigration judge found that Khan was removable
as charged.
Khan then filed an application for withholding of removal under the CAT. See
8 C.F.R. §§ 1208.16(d)(2), 1208.17(a). He submitted several documents in support
of his application, including articles explaining that Pakistani law enforcement
engaged in widespread torture to obtain confessions from people in custody and
articles that detailed Pakistan’s denial of mental illness and that described a lack of
access to mental health care in the country. He also attached an excerpt from the
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State Department’s “Pakistan 2017 Human Rights Report,” which discussed torture
and prison conditions in the country.
Khan also testified in support of his application. He stated that he had no
friends or family in Pakistan, that he feared he would be homeless if removed to
Pakistan because he would not have access to needed medications, and that he was
scared of being tortured by Pakistani officials because he had monitored radical
Muslims for U.S. law enforcement. He also stated that he expected to be imprisoned
in Pakistan because he would be a criminal deportee and would be targeted because
he would be perceived as mentally ill.
After hearing Khan’s testimony, the immigration judge first noted that Khan’s
counsel “conceded that [Khan] was only eligible for deferral of removal under” the
CAT and explained that Khan was ineligible for withholding of removal because he
had been convicted of a “particular serious crime.” He then concluded that the record
did not establish that Khan was more likely than not to be tortured in the future if
returned to Pakistan and issued an oral decision denying Khan’s request for deferral
of removal. Khan administratively appealed. The BIA agreed that Khan was eligible
only for deferral of removal, but remanded the case to the immigration judge with
instructions to make specific findings regarding the likelihood that: (1) Khan would
not have access to his medication in Pakistan; (2) he would engage in behavior that
would bring him to the attention of Pakistani officials; (3) he would disclose his
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activities on behalf of western law enforcement to Pakistani officials (or that the
information would be otherwise discovered by Pakistani officials); and (4) that
information would lead to his torture. The BIA also directed the immigration judge
to clarify whether it had found that Khan in fact cooperated with western law
enforcement or whether it merely accepted his testimony as true for purposes of its
analysis.
At a second hearing before a new immigration judge, Khan testified consistent
with his statements from the first hearing. He also offered an article discussing
Pakistan’s mental health issues, which outlined a program that provides mentally ill
Pakistani citizens with medications and treatments for $20-$30 per year. But he
testified that he did not take medication for his delusional disorder because he knew
for a fact that he was not delusional.
But the psychiatric evaluation that he offered into evidence disagreed. In it,
the psychiatrist diagnosed him with a “[d]elusional disorder, grandiose type,
continuous” and an “[a]djustment disorder with mixed anxiety and a depressed
mood.” The evaluation also noted that Khan was able to work but may refuse to do
so due to his “grandiosity,” which leads him to believe that he is above taking on
what he considers to be unimportant work. And it stated that, if deported to Pakistan,
it was more likely than not that his delusional disorder would directly cause him to
engage in behavior that would draw the attention of Pakistani officials and, if
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confronted, would compel him to discuss his belief that he had previously worked
as a confidential informant for various United States agencies.
In his decision, the immigration judge stated that he would “assume that
[Khan was] sincere in his belief that he fears he would be tortured due to his alleged
past work with U.S. law enforcement agencies” but noted “the absence of reliable
corroboration” for his alleged work as a confidential informant. The immigration
judge also stated that he had “considered all the documentary and testimonial
evidence in this case” and that his “failure to comment on a specific exhibit or
particular testimony” did not mean that he had failed to consider it.
The immigration judge also addressed each of the four suppositions that the
BIA identified. First, he acknowledged that the record showed shortages of
medication in Pakistan and that Khan would not have family or friends to support
him there. But he cited the report that Khan produced establishing that the mentally
ill in Pakistan could obtain medication for $20 to $30 per person per year and that
Khan’s psychiatrist had determined that he was capable of working to support
himself. Accordingly, the immigration judge found that Khan had not demonstrated
that he would more likely than not lack access to his medication in Pakistan.
Second, the immigration judge found that it was more likely than not that
Khan would engage in behavior that would bring him to the attention of Pakistani
officials. And, third, he found that it was more likely than not that Khan would
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disclose his activities on behalf of western law enforcement to Pakistani officials.
But the immigration judge nonetheless found that Khan had not demonstrated that it
was more likely than not that information about his alleged work with U.S. law
enforcement agencies would lead to his torture. Instead, the immigration judge found
that “the greater weight of the evidence indicates that the torture by the Pakistani
government is primarily inflicted upon perceived political opponents, religious
minorities, and suspected terrorists.” And Khan did not fall into any of those
categories.
In support, the immigration judge noted that the State Department’s Human
Rights Report did not comment on whether the Pakistani government tortured
individuals suspected of cooperating with U.S law enforcement. And the
immigration judge concluded that, in any event, “it [was] more likely that Pakistani
authorities would dismiss [Khan] as a mentally ill individual than that he would be
deemed a person of interest from whom the authorities would want to extract
information.” Finally, the immigration judge found that Khan had failed to show that
any mistreatment of the mentally ill was “borne out of a specific intent to harm
mentally ill individuals.” Accordingly, the immigration judge denied Khan’s request
for deferral of removal.
Khan appealed to the BIA again. The BIA adopted and affirmed the
immigration judge’s decision, noting the specific findings that the immigration judge
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made on remand. It explained that Khan had not demonstrated clear error in the
immigration judge’s finding that the record lacked evidence regarding torture of
Pakistanis suspected of cooperating with U.S. law enforcement. And it rejected his
argument that the immigration judge’s finding that Khan lacked a clear probability
of being tortured was based solely on his lack of inclusion in the three groups most
likely to be tortured. Finally, it cited to the regulations defining the term “torture,”
stated that Khan had not shown clear error in the immigration judge’s findings that
any potential mistreatment would not amount to torture, and noted that “[h]arm
inflicted due to lack of resources or misunderstanding of the nature of mental illness
does not fall within the scope of the protection offered by the [CAT].” Khan’s
petition for review by this Court timely followed.
II.
When the BIA issues a decision expressly adopting the immigration judge’s
decision, we review both decisions. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302,
1308 (11th Cir. 2013). The BIA reviews an immigration judge’s findings of fact
under a “clearly erroneous standard” and questions of law de novo. 8 C.F.R.
§ 1003.1(d)(3)(i)–(ii).
We review de novo whether the BIA afforded a petitioner’s claims reasoned
consideration. Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). If we are
not convinced that the BIA evaluated the entire evidentiary record before reaching a
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decision, we will remand for lack of reasoned consideration and will not analyze the
BIA’s legal or factual conclusions. Id. Otherwise, we review the BIA’s legal
conclusions de novo and its factual findings for substantial evidence. See id. Under
the highly deferential substantial-evidence test, we may not reweigh the evidence
from scratch. See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006).
Instead, we must view the record evidence in the light most favorable to the agency
and draw all reasonable inferences in favor of its decision. See id.
The BIA fails to give reasoned consideration to a claim when it (1) “misstates
the contents of the record, [(2)] fails to adequately explain its rejection of logical
conclusions, or [(3)] provides justifications for its decision which are unreasonable
and which do not respond to any arguments in the record.” Ali, 931 F.3d at 1334.
The BIA must consider all of the applicant’s evidence and issues and “announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374
(11th Cir. 2006) (quoting Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992)).
But the BIA does not need to specifically address each piece of evidence presented.
Ali, 931 F.3d at 1333. Instead, it must discuss only the evidence in “the record [that]
would compel a different outcome, absent the discussion of [that] evidence.” Id. at
1334.
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Protection under the CAT may be granted in the form of either withholding
of removal or deferral of removal. 8 C.F.R. § 208.16(c)(4). An alien who has been
convicted of a “particularly serious crime” is ineligible for withholding of removal
under the CAT. 8 C.F.R. § 208.16(d)(2)–(3). But such an alien can still receive
deferral of removal if the alien establishes that “it is more likely than not that he or
she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §
208.16(c)(2); see 8 C.F.R. § 208.17(a). To constitute torture, an act must be
specifically intended to inflict severe physical or mental pain or suffering. 8 C.F.R.
§ 208.18(a)(5). And that act must be committed by the proposed country of
removal’s government or the government must be aware of the torture and fail to
intervene. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004)
(quoting 8 C.F.R. § 208.18(a)(1)).
After a thorough review of the record, we are satisfied that the BIA and
immigration judge gave reasoned consideration to all of the evidence and issues that
Khan put forth. Both accurately stated the contents of the record, adequately
explained their rejection of Khan’s conclusions, and provided reasonable and
responsive justifications for their decisions. See Ali, 931 F.3d at 1334. The
immigration judge explicitly considered Khan’s testimony, psychiatric evaluation,
and article on the treatment of mental illness in Pakistan as well as the State
Department report. Based on evidence that Khan produced, he determined that Khan
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had not established that it was more likely than not that he would not have access to
his medication in Pakistan. But he agreed with Khan that he had established that it
was more likely than not that he would engage in behavior that would bring him to
the attention of Pakistani officials and would disclose his activities on behalf of U.S.
law enforcement agencies. Still, the immigration judge determined that Khan had
not established that it was more likely than not that information about his activities
would lead to his torture based on the lack of evidence in the record that the Pakistani
government tortures individuals who have assisted United States law enforcement
agencies. Accordingly, both the immigration judge and the BIA gave reasoned
consideration to both the evidence and Khan’s arguments.
Further, substantial evidence supports the BIA and immigration judge’s
factual findings, and we agree with their legal conclusions. Khan did produce
evidence that it is more likely than not that he would garner the attention of Pakistani
officials and be unable to stop himself from disclosing his alleged activities on behalf
of U.S. law enforcement agencies. But he did not produce any evidence that the
Pakistani government tortures individuals based on such activities. And he failed to
establish a likelihood that he will be tortured for that or any other reason if removed
to Pakistan. Accordingly, we deny the petition.
PETITION DENIED.
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