                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-2008

Hussain v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2576




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 06-2576
                                   ____________

                         MOHAMMED REZAUL HUSSAIN,

                                          Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                        Respondent
                                   ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A79 727 899)
                        Immigration Judge: Miriam K. Mills
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 January 7, 2008

           Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.

                              (Filed: January 9, 2008)
                                   ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      In this case we consider whether the Board of Immigration Appeals (BIA)

improperly neglected to address one of the grounds of appeal raised by Mohammed
Rezaul Hussain, who petitions for our review of the BIA’s dismissal of his appeal from

the order of the Immigration Judge (IJ) denying asylum, withholding of removal, and

relief under the Convention Against Torture (CAT). For the reasons that follow, we will

grant the petition for review in part and remand.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Hussain, a native and citizen of Bangladesh, entered the United States on

March 10, 2001. About a year later, Hussain was charged as removable for overstaying

his admission period. Hussain conceded removability and applied for asylum,

withholding of removal, and CAT relief, arguing that, if removed, he would be persecuted

on account of his political opinion. The IJ denied relief and ordered Hussain removed to

Bangladesh. The BIA dismissed his subsequent appeal in a written decision, explaining

in part that Hussain “does not challenge the [IJ]’s finding that [he] has not established

past persecution, and we find no error in the [IJ]’s conclusion that [he] has also failed to

establish a well-founded fear of persecution in Bangladesh on account of his political

opinion.” The instant petition for review followed.




                                              2
                                              II.

       We have jurisdiction to review a final order of the BIA pursuant to 8 U.S.C.

§ 1252(a)(1). “We must uphold the BIA’s factual findings if they are supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

Filja v. Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (internal quotation marks and citation

omitted). With respect to asylum:

       “A well-founded fear of persecution is the key to eligibility. 8 C.F.R.
       § 208.13(b). . . . If an applicant demonstrates past persecution on account
       of a protected ground there is ‘a rebuttable presumption of a well-founded
       fear of future persecution, as long as that fear is related to the past
       persecution.’ [Citation omitted]; 8 C.F.R. § 208.13(b)(1). This
       presumption may only be rebutted if the Government proves by a
       preponderance of the evidence that: (1) ‘[t]here has been a fundamental
       change in circumstances such that the applicant no longer has a
       well-founded fear of persecution’; or (2) ‘[t]he applicant could avoid future
       persecution by relocating to another part of the applicant’s country of
       nationality . . . and . . . it would be reasonable to expect the applicant to do
       so.’ 8 C.F.R. § 208.13(b)(1)(i).”

Shardar v. Attorney Gen., 503 F.3d 308, 312-13 (3d Cir. 2007).

       With respect to withholding of removal, a clear probability of future persecution,

not just a well-founded fear thereof, is required. Gabuniya v. Attorney Gen., 463 F.3d

316, 320-21 (3d Cir. 2006). However, similar to asylum, a demonstration of past

persecution entitles an applicant to a “presumption that his life or freedom will be

threatened if he returns.” Id. at 321 (citing 8 C.F.R. § 208.16(b)(1)). Again, so long as

the future threat is related to the past persecution, the burden shifts to the Government to




                                              3
rebut the presumption using one or both of the methods discussed in Shardar, as quoted

above. See 8 C.F.R. § 208.16(b)(1)(ii).

       In the case at bar, Hussain argues that the BIA incorrectly found that he did not

appeal the IJ’s findings regarding past persecution. We agree. As we previously have

held, “so long as an immigration petitioner makes some effort, however insufficient, to

place the [BIA] on notice of a straightforward issue being raised on appeal, a petitioner is

deemed to have exhausted her administrative remedies.” Joseph v. Attorney Gen., 465

F.3d 123, 126 (3d Cir. 2006) (quoting Wu v. Ashcroft, 393 F.3d 418, 422 (3d Cir. 2005)).

Our review of the record here reveals that in his brief before the BIA, Hussain recounted

a 1994 attack by members of the Bangladeshi ruling party on a meeting of his political

party, as well as his later arrest by Bangladeshi police, apparently when he reported the

political attack. He then specifically pointed out that a well-founded fear of persecution

can be based on past persecution. Therefore, Hussain has adequately raised the issue of

past persecution before the BIA.

       There remains the question whether we should decide the past persecution issue

presently. The answer is no, for “[w]here a matter requires determining the facts and

deciding whether the facts as found fall within a statutory term, the BIA, not a court of

appeals, should make the initial determination.” Cruz v. Attorney Gen., 452 F.3d 240,

248 (3d Cir. 2006) (internal quotation marks and citation omitted). Here, we cannot

review meaningfully the BIA’s decision because there is none: the BIA explicitly



                                             4
declined to address whether Hussain established past persecution, so it also did not

analyze whether the Government successfully rebutted, using one of the two methods

described in Shardar, the presumption of Hussain’s well-founded fear of future

persecution (for asylum) or clear probability of future persecution (for withholding of

removal). Accordingly, on remand the BIA must address the past persecution issue.1

                                            III.

       For the foregoing reasons, we will grant Hussain’s petition for review in part and

remand the matter to the BIA for further proceedings consistent with this opinion.




       1
        Our remand does not apply, however, to Hussain’s request for relief under the
CAT because past persecution does not establish any presumption that an applicant would
be tortured if he returns to the country of removal. See Gabuniya, 463 F.3d at 321; see
also 8 C.F.R. § 208.16(c)(2), (3)(i). Therefore, we have the ability to review
meaningfully the BIA’s conclusion under the CAT, and we conclude that it is supported
by substantial evidence because nothing that Hussain suffered during the 1994 attack –
even as described in his own terms – amounts to an “act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a person.” Gabuniya,
463 F.3d at 321 (quoting 8 C.F.R. § 208.18(a)(1)).

                                             5
