                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUL 19 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

SAIFUL ISLAM,                                   No.    15-71214

                Petitioner,                     Agency No. A206-271-936

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted February 9, 2018
                               Pasadena, California

Before: CALLAHAN and NGUYEN, Circuit Judges, and BATAILLON,**
District Judge.

      Saiful Islam petitions for review of a Board of Immigration Appeals (BIA)

decision affirming the denial of his applications for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). We have



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

      1. We may grant the petition on due process grounds only if “(1) the

proceeding was so fundamentally unfair that [the petitioner] was prevented from

reasonably presenting his case, and (2) [he] demonstrates prejudice, which means

that the outcome of the proceeding may have been affected by the alleged

violation.” Ibarra-Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2011) (as

amended) (internal citation and quotation marks omitted). Even if, as Islam

alleges, the immigration judge (IJ) violated his due process rights by failing to

“scrupulously and conscientiously probe into, inquire of, and explore for all the

relevant facts,” Jacinto v. INS, 208 F.3d 725, 733-34 (9th Cir. 2002), Islam has

failed to show prejudice. Islam has not made a plausible showing that, in a full and

fair hearing, he would be able to show that his feared future persecution would be

“committed by the government or forces the government is either unable or

unwilling to control.” Knezevic v. Ashcroft, 367 F.3d 1206, 1211 (9th Cir. 2004).1

Because Islam has not shown that he could meet one of the requirements for

asylum and withholding of removal, he cannot show a “plausible scenario[] in


1
  Members of the Awami League party are not necessarily government actors for
the purposes of the asylum analysis. Cf. Ahmed v. Keisler, 504 F.3d 1183, 1196
(9th Cir. 2007) (characterizing the Awami League as “an entity that the
government fails to control,” and not as the government itself). Islam has also not
persuasively shown that he could demonstrate the government’s inability or
unwillingness to protect him from harm, considering that the police assisted him on
several occasions.

                                          2
which the outcome of the proceedings would have been different.” See Tamayo-

Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (quoting Morales-Izquierdo

v. Gonzales, 486 F.3d 484, 496 (9th Cir. 2007) (en banc)).

      2. The record does not compel the conclusion that Islam is entitled to

asylum or withholding of removal. See Afriyie v. Holder, 613 F.3d 924, 931 (9th

Cir. 2010) (“We grant the petition only if the evidence compels a contrary

conclusion from that adopted by the BIA.”). Although Islam assuredly suffered

past harm in Bangladesh, including a beating and threats, his experiences “do not

evince actions so severe as to compel a finding of past persecution.” Hoxha v.

Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). Islam also did not meet his burden

of proving a well-founded fear of persecution, as he has not shown a “reasonable

possibility” that he would suffer persecution on account of a protected ground

without protection from the government. 8 C.F.R. § 1208.13(b)(2)(i). Inevitably,

he also did not show “by objective evidence that it is more likely than not” he “will

be subject to persecution” if removed. INS v. Cardoza-Fonseca, 480 U.S. 421, 430

(1987). Therefore, we deny the petition as to his applications for asylum and

withholding of removal.

      3. We also deny the petition as to Islam’s request for relief under the CAT.

The record does not compel the conclusion that Islam would more likely than not

suffer torture in Bangladesh “at the instigation of or with the consent or


                                          3
acquiescence of a public official or other person acting in an official capacity.” 8

C.F.R. § 1208.18(a)(1).

      PETITION DENIED.




                                          4
                                                                       FILED
Islam v. Sessions, No. 15-71214
                                                                        JUL 19 2018

BATAILLON, District Judge, dissenting:                              MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS


      I respectfully dissent from the majority’s opinion. Saiful Islam, a native and

citizen of Bangladesh, petitions for review of the Board of Immigration Appeals'

(BIA) denial of asylum, withholding of removal, and protection under the

Convention Against Torture. Islam fears harm by his uncle due to their political

differences and by the Awami League (AL) due to his political opinion.

      The BIA issued a decision on March 23, 2015. The BIA reviewed the findings

of fact for clear error and all other issues de novo. The BIA, following the path of

the immigration judge (IJ), found that the IJ’s findings are not clearly erroneous.

The basis of this finding revolved around the BIA’s assumption that the real reason

Islam was targeted was because of a land dispute with his uncle. However, I note

that the BIA did not discuss the primary and central reason for this application, that

this request for asylum is based on Islam’s belief that he is being targeted by the

party in control of Bangladesh. The IJ and the BIA focused most exclusively on

what Islam failed to establish.

      The standard of review of the BIA's decision that an alien has not established

eligibility for asylum is whether it is supported by substantial evidence. Wang v.

Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir. 2003). Although the standard of review

is deferential, an adverse credibility determination must be supported by ‘‘specific,


                                          1
cogent reason[s].’’ Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (internal

quotation marks and citations omitted). Hoque v. Ashcroft, 367 F.3d 1190, 1195

(9th Cir. 2004) (finding that IJ’s determination that applicant was not credible was

not supported by substantial evidence).

      The record is clear that Islam, born and raised in Bangladesh, became involved

in the Bangladesh Nationalist Party (BNP) as a college student and served as an

active member for many years. He participated in demonstrations against the AL.

The BNP was in power prior to 2008. The AL has held power since 2008, and the

BNP is its primary political opposition. Islam’s uncle, Abdus Sattar, is a leader of

AL. Sattar’s brother is a local police commander. Islam requested refuge in the

United States in February, 2013. The IJ determined that Islam’s petition should be

denied, and the BIA agreed and dismissed his appeal. Islam contends the IJ acted as

a partisan advocate and failed to help him develop his claims.

      The record shows that in November of 2011, Islam was assaulted by six men

who were known members of AL. In March of 2012, a group of AL members

frequented Islam’s store. Islam was asked to display AL literature and materials.

He refused. Islam contends there was an attempted attack on him at that time. He

states he called the police who arrived a long time after the attempted attack. On

May 25, 2012, Islam was physically attacked by a group of AL members. He

suffered injuries and the members of the group threatened to kill him. He indicates


                                          2
the police refused to take a report, since the attack was conducted by the AL. He

then went to Dhaka, Bangladesh were the police there took the report. It is his belief

that the attack occurred because of both his political alliance and because his uncle

wanted to take the land Islam inherited from his father. Islam testified that he had

to live in many places in Bangladesh, until he fled the country in October of 2012.

He lived in Brazil, was sent back to Bangladesh, and ultimately, although the facts

regarding how and why are not entirely clear, was granted permanent residence in

Mexico. 1 On February 13, 2014, he requested asylum in the United States.

      Although ably represented by counsel on appeal, Islam appeared pro se at his

immigration hearing. It is clear that during the immigration hearing, the IJ focused

his questioning, almost exclusively, on all the issues dealing with the land dispute

between Islam and his uncle. The immigration judge did not focus on or sufficiently

develop the record for the important political claims alleged by Islam. For this

reason, I believe Islam’s due process rights were violated.             "Immigration

proceedings, although not subject to the full range of constitutional protections, must

conform to the Fifth Amendment's requirement of due process." Salgado-Diaz v.

Gonzales, 395 F.3d 1158, 1162 (9th Cir. 2005).




1
 According to Islam, he did not apply for permanent residency in Mexico. It is
possible that a priest may have applied on his behalf.
                                          3
      The first issue in need of further development is whether the AL is really the

government or a quasi-government organization. If the answer is yes, it appears that

Islam has alleged sufficient persecution for his attacks. It is my belief that the IJ

failed to develop the record with regard to the claims in this case. It is also clear that

the IJ developed very little of the record as to Islam’s fear of persecution, finding

there was not harm from the government. The IJ viewed this as more of a domestic

dispute over land between Islam and his uncle. When an alien appears pro se, "it is

critical that the IJ scrupulously and conscientiously probe into, inquire of, and

explore for all the relevant facts." Pangilinan v. Holder, 568 F.3d 708, 709 (9th Cir.

2009) (internal quotation marks and citation omitted); see also Jacinto v. INS, 208

F.3d 725, 732-33 (9th Cir. 2000).

      The IJ gave Islam 6 months prior to the adjudication hearing to find an

attorney. Islam was unable to do so.2 Even so, the duty to develop the record lies

with the IJ. See Tawadrus v. Ashcroft, 364 F.3d 1099, 1105 (9th Cir. 2004) (quoting

Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985)). The IJ must “scrupulously

and conscientiously probe into, inquire of, and explore for all the relevant facts.”

Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2002), quoting Key v. Heckler, 754 F.2d

1545, 1551 (9th Cir. 1985); see also Agyeman v. INS, 296 F.3d 871, 877 (9th Cir.



2
  This case is now part of the BIA pro bono appeal project, and Islam is now
represented by legal counsel.
                                            4
2002). The IJ asked virtually no questions regarding the political motivations, even

though the IJ asked the question “So the problem in your life is your uncle who wants

the property?” Islam replied that the “[m]ain problem is the political problem.” The

IJ asked no questions regarding Islam’s uncle’s party work and affiliation or

involvement with the party. The IJ never followed up with why Islam had to hide

in many different places. On the contrary, the IJ at times chastised Islam when

answering the questions, used numerous leading questions, in addition to failing to

develop the record.

       Further, Islam contends that the IJ failed to act as a neutral fact-finder, but

instead acted as a partisan adjudicator.         Based on this record, I agree.        The

immigration judge cannot prejudge the case or act as a partisan in the matter, instead

of serving as an impartial fact-finder. See Colmenar v. INS, 210 F.3d 967, 971 (9th

Cir. 2000) (remanding asylum case for a new hearing where IJ did not act as neutral

fact finder but as partisan adjudicator); Castro-Cortez v. INS, 239 F.3d 1037, 1049

(9th Cir. 2001) (“A neutral judge is one of the most basic due process protections.”)

“If the prejudice to the alien is sufficiently great, denial of the right to a full and fair

hearing may violate the constitutional guarantee of due process.” Campos-Sanchez

v. INS, 164 F.3d 448, 450 (9th Cir. 1999). For example after intense questioning

about why Islam did not return to Brunei, the IJ stated: “Well, you had a say in it.

It strikes me that you weren’t looking for help. You were looking to get to the United


                                             5
States. Because you had a place of refuge right near Bangladesh. You didn’t have

to travel all of the way around the world.” The IJ then questioned Islam as to why

he did not go to India, although it was relatively clear that Islam had no ties to India.

He then questioned Islam at length about his travels to 15 countries over four months,

and then concluded that Islam spent more time in Mexico than he disclosed, which

the IJ interpreted to mean that Islam had resettled in Mexico and was therefore not

eligible for asylum. The IJ also questioned him extensively about his attempt to get

into Brazil and Brazil’s refusal to grant him asylum and his return to Bangladesh.

After asking a series of questions, the IJ then asked: “That was not my question.

You need to listen to the question because when you don’t answer the question, I

wonder if you’re hiding an answer. All right? So pay attention. My question was

what happened to you in the beginning, in the first place that prompted you to leave?

There are similar admonishments found in the record after a series of sometimes

disjointed questions and answers from the obviously language challenged Islam.

      I believe that such a failure to develop the record and failure to provide

appropriate guidance to Islam, and if anything, directing him away from the relevant

inquiry, is a violation of Due Process. See Agyeman, 296 F.3d at 884. When viewing

the cumulative incidents (two in 2012 and one in 2011), all of which involved the

AL, it appears Islam incurred persecution. Further, Islam filed at least two police




                                           6
reports which substantiate his claims. Islam also testified that he has had some

difficulty getting the police to take reports of his persecution.

      Having determined that there is in fact a due process claim, I must also

determine if prejudice exists. I agree with the majority that such a violation must

cause him prejudice, “[b]ecause aliens appearing pro se often lack the legal

knowledge to navigate their way successfully through the morass of immigration

law, and because their failure to do so successfully might result in their expulsion

from this country, it is critical that the IJ ‘scrupulously and conscientiously probe

into, inquire of, and explore for all the relevant facts.’” Dent v. Holder, 627 F.3d

365, 373-74 (9th Cir. 2010). However, from a review of the record, I believe “the

proceeding was so fundamentally unfair that [he] was prevented from reasonably

presenting his case, and (2) [he] demonstrates prejudice, which means that the

outcome of the proceeding may have been affected by the alleged violation.” Ibarra-

Flores v. Gonzales, 439 F.3d 614, 620-21 (9th Cir. 2011). I likewise believe the IJ

and BIA ignored much of Islam’s testimony. See Afriyie v. Holder, 613 F.3d 924,

933 (9th Cir. 2010) (wherein the Ninth Circuit found that the BIA “ignored or

misstated critical, individual evidence”).

      However, I cannot conclude lack of prejudice on this record, because the

record is not fully developed. I would remand this case to the immigration judge

(IJ) to determine if the Bangladesh government is or is not willing and able to protect


                                             7
him from AL assaults. I would also order the immigration court to develop the

record on whether Islam suffered past persecution at the hands of the AL (through

his uncle or otherwise) or that he had a legitimate fear of persecution in the future.

The argument that Islam failed to show prejudice in this case, is a circular one. It is

difficult to show prejudice with an undeveloped record.

      As stated herein, I believe the proceeding was fundamentally unfair, and Islam

was unable to present his case.        Because the development of the record is

insufficient, it is difficult to determine if prejudice in fact exists. Islam should have

been afforded a better opportunity to prove his past persecution and his fear that he

would be persecuted in the future on account of a protected ground. See 8 U.S.C. §

1101(a)(42)(A). Although there might be two reasons or motives for Islam’s

persecution, he need only show that the political one is “one central reason”. 8

U.S.C. § 1158(b)(1)(B)(i). Persecution is “an extreme concept, marked by the

infliction of suffering or harm . . . in a way regarded as offensive.” Li v. Ashcroft,

356 F.3d 1153, 1158 (9th Cir. 2004) (en banc) (internal quotation marks omitted).

Islam has experienced physical harm on more than one occasion and has been

victimized over a period of a few years. See, e.g., Quan v. Gonzales, 428 F.3d 883,

888 (9th Cir. 2005) (noting that persecution may be found “even where there are no

long-term effects and the prisoner does not seek medical attention.”); Ahmed v.

Keisler, 504 F.3d 1183, 1194 (9th Cir. 2007). Islam experienced at least three


                                           8
incidents of threatening and harmful behavior. The Ninth Circuit has previously

found that three incidents can constitute the level of persecution necessary to show

persecution. See e.g., Bondarenko v. Holder, 733 F.3d 899, 908-909 (9th Cir. 2013)

(finding three detentions and one severe beating to constitute past persecution).

Further, it is not necessary for the petitioner to establish that persecution in the future

is a certainty, or even a probability. Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th

Cir. 2003). Only a ten percent chance of persecution will suffice in some cases to

establish a well-founded fear of future persecution. Al-Harbi v. INS, 242 F.3d 882,

888 (9th Cir. 2001).

      ACCORDINGLY, I would remand this case to the IJ to:

      1. Fully develop the record;

      2.    Allow the petitioner the opportunity present evidence sufficient to

determine whether the AL is an arm of the government or a quasigovernment actor;

      3. Determine, based on the additionally developed record, if Islam suffered

past persecution on the account of his political beliefs and/or political alignment;

      4. Determine, based on the additionally developed record, if Islam has a well-

founded fear of future persecution.




                                            9
