                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1074




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"Rehman v. Atty Gen USA" (2006). 2006 Decisions. Paper 1227.
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                                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                      No. 05-1074


                                SYED ABDUL REHMAN,
                                               Petitioner

                                            v.

                *ATTORNEY GENERAL OF THE UNITED STATES

                      * (Amended Per the Clerk's Order of 4/28/05)


                            Petition for Review of an Order
                         of the Board of Immigration Appeals
                                     (A97-442-086)
                          Immigration Judge: Mirlande Tadal


                                  Argued March 2, 2006

        Before: SLOVITER, FUENTES, Circuit Judges, and RESTANI,* Judge

                                  (Filed April 25, 2006)


Mehreen Shah      (Argued)
Mona Shah & Silvers, P.C.
299 Broadway
Suite 1520
New York, New York 10007

      Attorney for Petitioner


                  *
                    Honorable Jane A. Restani, Chief Judge of the United
           States Court of International Trade, sitting by designation.
Mary Beth Buchanan
       United States Attorney
Stephen S. Stallings (Argued)
       Assistant United States Attorney
Office of United States Attorney
700 Grant Street
Suite 400
Pittsburgh, PA 15219

John M. McAdams Jr., Esq.
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Attorneys for Respondent


                                          OPINION


SLOVITER, Circuit Judge.

                                            I.

      Petitioner Syed Abdul Rehman, born in Saudi Arabia, is a citizen of Pakistan. His

parents and three of his siblings immigrated to the United States while he was working

toward a bachelor’s degree in pharmaceutical studies. From January 2003 to February

2004, after attaining this degree, Rehman worked as a pharmacist at Holy Family

Christian Missionary Hospital (“the Hospital”) in Karachi, Pakistan. During his tenure at

the hospital, Rehman was accepted into a masters’s degree program at Long Island

University (“LIU” or “the University”) in Brooklyn, New York. After the University


                                             2
informed him that he could begin attending classes on January 20, 2004, he applied for

and was issued an F-1 Visa from the U.S. Consulate in Karachi, Pakistan. Because he

did not receive the visa until January 31, 2004, LIU informed him that he would have to

delay enrollment until August 2004. Rehman intended to apply for a new visa, but the

events giving rise to this asylum claim interceded.

       As a pharmacist at the Hospital, Rehman dispensed medicine for mostly non-

Muslim patients. Rehman claims that from August 2003 to February 2004, a man whom

Rehman described as dressing and acting like a radical fundamentalist Muslim (wearing,

inter alia, a “Taliban cap”) approached Rehman at work several days a week in an effort

to convince him to take part in a terrorist attack against Christian employees and patrons

at the Hospital. In particular, the man urged him to distribute poison disguised as

pharmaceuticals to Christians on Easter, 2004. On February 21, 2004, the man arrived at

the hospital with four armed men, showed Rehman the poison pills, and threatened

Rehman’s life should he refuse to cooperate. Rehman refused and did not return to work

at the Hospital after that day.

       The only person with whom Rehman spoke about the threats was his father’s

friend, who advised Rehman not to report the events to the Pakistani authorities because

“the police and each and every law in our country ha[ve] not protected us . . . from these

radical groups.” App. at 116. Indeed, Rehman did not report the threats to Pakistani

authorities. Instead, he left Pakistan on March 1, 2004, fearing he would be killed for his

refusal to participate in the terrorist plot.

                                                3
       On March 2, 2004, Rehman attempted to enter the United States via Newark

Liberty International Airport and was detained by the Department of Homeland Security

following a determination that he had demonstrated a credible fear of persecution upon

return to Pakistan. On April 19, 2004, he submitted applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT) on grounds of

past persecution and fear of future persecution by radical fundamentalists in Pakistan.

       Following a hearing on August 3, 2004, the Immigration Judge (“IJ”) denied

Rehman’s request for relief. The IJ gave Rehman’s testimony “full-credence” and found

it “consistent with his asylum application and consistent on direct and on cross-

examination.” App. at 48. However, the IJ concluded that Rehman had failed to meet his

burden of establishing past persecution or a well-founded fear of persecution by the

Pakistani government or forces that government is unable or unwilling to control.

Accordingly, the IJ concluded that Rehman also had failed to meet the higher burdens

necessary for withholding of removal and CAT relief.

       The IJ based her conclusion on the grounds that (1) the profession of “pharmacist”

does not constitute a statutorily protected “social group,” and (2) the alleged persecution

in this case was not at the hands of the Pakistani government or forces the government

was unable or unwilling to control. On December 10, 2004, the BIA affirmed the IJ’s

decision. Rehman timely petitioned this Court for review.

                                             II.

       To qualify as a “refugee” who may receive asylum, an alien must establish that

                                             4
s/he is unable or unwilling to return to his or her country of nationality “because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. §

1101(a)(42)(A). To establish past persecution and entitlement to asylum, an applicant

must show that at least one incident (1) constituted persecution, (2) occurred on account

of one of the statutorily protected grounds, and (3) was committed by the government or

forces the government was either unable or unwilling to control. Berishaj v. Ashcroft,

378 F.3d 314, 323 (3d Cir. 2004). “[A]n alien who offers credible testimony regarding

past persecution is presumed to have a well-founded fear of future persecution.” Id.

       We review an IJ’s determination whether an applicant has demonstrated

persecution or a well-founded fear of persecution under the substantial evidence standard.

See, e.g., He Chun Chen v. Ashcroft, 376 F.3d 215, 223 (3d Cir. 2004). Under this

deferential standard, the IJ’s factual determinations will be upheld to the extent that they

are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” 8 U.S.C. § 1105a(a)(4). Where, as here, the BIA issues a short

opinion affirming and explicitly incorporating an IJ's decision, we review the IJ’s

decision. Konan v. Att’y Gen., 432 F.3d 497, 500 (3d Cir. 2005). In reviewing an

asylum application, “an IJ must consider the complete record,” Caushi v. Att’y Gen., 436

F.3d 220, 226 (3d Cir. 2006) (emphasis added), and the IJ’s conclusions must “flow in a

reasoned way from the evidence of record,” see Dia v. Ashcroft, 353 F.3d 228, 249 (3d

Cir. 2003) (en banc).

                                              5
       To qualify for asylum based on membership in a particular social group, the alien

must (1) identify the group which constitutes a “particular social group,” (2) establish that

s/he is a member of that group, and (3) show that s/he was persecuted or has a well-

founded fear of persecution based on that membership. Fatin v. I.N.S, 12 F.3d 1233,

1240 (3d Cir. 1993). Membership in a “social group” can be attributed either to those

who share an immutable characteristic or to those who possess a shared past experience

or some other common characteristic so fundamental to conscience and individual

identity that they should not be required to modify it. Id. at 1239-40.

       The IJ held that membership in the profession of “pharmacist” could not constitute

a protected social group. However, Rehman was not targeted for being a member of that

profession. Instead, Rehman was targeted for being part of a narrower group, namely:

professionals who have been targeted by terrorists because they were in positions of

authority and refused to use their positions to perpetrate a terrorist attack. This group is a

“particular social group” not because its members possess an immutable characteristic but

because they share the common past experience of having refused recruitment by

terrorists to abuse positions of authority. See Lukwago v. Ashcroft, 329 F.3d 157, 178

(3d Cir. 2003). Furthermore, the conviction not to use a position of authority to commit

terrorist attacks is clearly a matter of conscience. Id. at 171; Fatin, 12 F.3d at 1240.

       The IJ also held that Rehman failed to demonstrate persecution at the hands of the

Pakistani government or forces the government is unable or unwilling to control. In

particular, the IJ stressed that Rehman never reported any of the incidents to the

                                              6
authorities in Pakistan and that Rehman could not identify the particular terrorist

organization with which the threatening terrorist was affiliated.

       Rehman’s failure to report the threats to the Pakistani government is not fatal to his

claim. Rehman presented evidence, in the form of an affidavit from Dr. John Adams, an

expert on South Asian affairs, explaining that “[t]here would be a natural reluctance to

approach the police about [a threat from a terrorist group]” and that such reluctance

would be reasonable because “[i]n any case, the police could not act until a crime had

been committed, if they were even then inclined to do so.” App. at 181.

       We believe it significant that the IJ failed to acknowledge this evidence on the

record and did not cite any evidence to the contrary. Indeed, the IJ cites to a State

Department report using data from 2001 and 2002 to support the proposition that the

Pakistani government has been “attempting to address [the terrorist] situation,” but

“maybe not successfully.”1 App. at 55 (emphasis added). If anything, this evidence tends

to support Dr. Adams’s affidavit, showing that the Pakistani government may have been

unable to control terrorist groups despite its efforts to do so.



                    1
                        The U.S. State Department’s 2005 Country Report for
             Pakistan suggests that the Pakistani government has made little
             progress combating terrorism since the earlier report cited by the
             IJ. It states that “[i]n accordance with the Anti-Terrorist Act, the
             government banned the activities of and membership in several
             religious extremist and terrorist groups. However, many of the
             groups that the government banned still remained active.” U.S.
             Dep’t of State, Country Report on Human Rights Practices:
             Pakistan (2005).

                                               7
       Rehman’s inability to identify the particular terrorist group with which the man

who threatened him was affiliated also is not fatal to his petition for relief. The IJ did not

discuss any evidence that the Pakistani government’s lack of success in controlling

terrorist groups is limited to particular groups. Even if such evidence were extant,

Rehman’s lack of knowledge as to the man’s affiliation would not undermine the

reasonableness of Rehman’s failure to notify authorities because of the remaining

possibility that the man belonged to a group the government could not control.

       The IJ’s failure to consider evidence on the record directly supporting Rehman

constitutes error under the substantial evidence standard because the IJ failed to consider

“the complete record.” See Caushi, 436 F.3d at 226. Moreover, the IJ’s conclusions were

based on outdated government reports and do not “flow in a reasoned way from the

evidence of record.” Dia, 353 F.3d at 250.

                                             III.

       For the foregoing reasons, we will grant the petition for review, vacate the final

order of the BIA and remand to the BIA for further consideration of the record evidence

and the more recent Pakistan country conditions report. See supra note 1; see generally

Berishaj, 378 F.3d at 317 (decrying the use of stale administrative records).




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