                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-22-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2110




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                      No. 03-2110


           MOHAMMAD ARIF SHARDAR,

                                Petitioner

                           v.

      JOHN ASHCROFT, ATTORNEY GENERAL
            OF THE UNITED STATES,

                                Respondent


        On Petition for Review of an Order of the
            Board of Immigration Appeals
                   (No. A72-779-408)



       Submitted Under Third Circuit LAR 34.1(a)
                    June 24, 2004

Before: NYGAARD, McKEE and CHERTOFF, Circuit Judges.

                 (Filed: July 22, 2004)



                       OPINION




                            1
CHERTOFF, Circuit Judge.

        Mohammad Arif Shardar appeals the decision of the Board of Immigration

Appeals (BIA), affirming the Immigration Judge’s (IJ) denial of his application for

asylum and withholding of deportation, and denying his motion to reopen the

proceedings for consideration under Article 3 of the United Nations Convention Against

Torture (CAT). For the reasons elaborated below, we will deny the petition for review in

its entirety.



                                             I.

        Because we write only for the parties, we abbreviate our recitation of the facts.

Shardar is a native and citizen of Bangladesh who entered the United States on August

26, 1992, using a fake passport. Shardar applied for asylum in 1992, alleging he was

persecuted on the basis of his political opinion for his membership in the Jatiyo political

party. Jatiyo is the party of Army Chief of Staff General H.M. Ershad, who seized power

and declared himself President in December 1983. In the face of widespread opposition,

Ershad was forced to resign in December 1990, and in a February 1991 election the

Bangladesh Nationalist Party (BNP) won a parliamentary plurality and formed the

government.

        The primary basis for Shardar’s asylum claim stems from events surrounding his

participation, on January 6, 1992, in an allegedly peaceful demonstration in Jatrabari


                                              2
Square1 in Bangladesh. Shardar was arrested and charged with having weapons and

explosives, allegations that Shardar stated were “[c]ompletely false.” A.R. at 174.

Shardar testified that following his arrest, he was held in jail and beaten with canes and

kicked in the face. While he was beaten his interrogators shouted, “Ershad time is over.

Now is, is BNP time.” Id. at 168. Shardar claimed he was forced to confess that he had

weapons and explosives, and to proclaim that he would never be with the party again, in

order to stop the beatings and “save [his] life.” Id. at 169.

       After three days in the police station and almost six days in jail, Shardar went

before a judge. Shardar’s father paid for a lawyer. The judge, whom Shardar described

as “pretty nice,” id. at 170, released him on bail of 50,000 local taka, which his father

paid. Following his release, Shardar’s father took him to a private medical clinic for

nineteen days.

       Shardar then went to work for a Chinese restaurant in Dhaka, Bangladesh. He

testified that the police came looking for him on several occasions, and therefore he “had

to leave the job,” his home, and his wife. Id. at 171. Shardar conceded, however, that

the police came after a warrant was issued for his arrest because of his failure to appear

in court. Id. at 176-77.

       In additional to Shardar’s testimony, documentary evidence was introduced,


       1
         While the Petitioner’s brief refers to the location as “Jatrabi Square,” this appears
to be an error. We adhere to the spelling—“Jatrabari”—used in the Government’s brief
and police report (discussed below).
                                              3
including a police report and “charge sheet” pertaining to his arrest, the record of

proceedings in the Court of Chief Metropolitan Magistrate, and an arrest warrant issued

on May 20, 1992, providing that Shardar “after having [posted] bail[,] . . . abscond[ed],”

id. at 284. Shardar also submitted letters from the clinic where he was treated following

his release, his lawyer, an associate from the Jatiyo Party, and an accounting firm. See

id. at 274-77.

       Of particular relevance is the police report, which characterizes the protestors as

violent and suggests Shardar was a leader in the hostile activities. The report explains, in

pertinent part:

       [T]hey were delivering defamatory, detractive and slanderous slowgans
       [sic] against the present Gov[ernment] . . . . We then and there made an
       importunate entreaty to them not to deliver such types of slowgans [sic] for
       which they got infuriated and being armed with deadly weapons made a
       sudden invasion on us. They exploded some bombs at the spot one after
       another. Many padestrians [sic] were lethally injured. We to control this
       predicament [sic] situation used tear gas to disperse them but they became
       more furious and begun [sic] to throw brick-bats on us. We having found
       no other way advanced with fortitute [sic] to arrest them and Md. Arif
       Sardar [sic] accussed No. 1 arrested by us, under whose Leadership this
       occurrence was occurred and the other skedaddled from the spot . . . .

Id. at 279-80.

       On July 22, 1998,2 the Immigration Judge (IJ) denied Shardar’s application for

       2
        The IJ outlined the reason for the delay between the 1992 application for asylum
and the issuance of the decision:

       He applied for asylum . . . in 1992. The application, however, was not
       granted and instead was referred to this Court for a decision, along with a
       Notice to Appear issued on October 17, 1997, almost five years later. The
                                             4
asylum and withholding of removal, while granting the application for voluntary

departure. The IJ concluded that “although the respondent is credible, he has in no way

met his burden of proof.” Id. at 89. The IJ explained that “[t]here is a complete grand

canyon of difference between persecution and a fear of prosecution.” Id. The IJ rejected

the suggestion that “the only reason he was arrested was because he was a supporter of

the Jatiya Party.” Id. at 91. Rather, the IJ pointed to the documentary evidence that the

demonstration was violent. Noting that Shardar had failed to file newspaper articles or

other objective evidence supporting his account of the demonstration, the IJ explained

that “[i]t is equally plausible, in fact more plausible than not given the evidence supplied

by the respondent, that the respondent had been involved in inciting a demonstration that

turned violent and that the police were mad as could be.” Id. at 92.

       The IJ noted that Shardar did not provide evidence that the judicial process might

be corrupted; rather, the State Department report indicates that members of the Jatiyo

Party enjoy the same judicial rights as other Bangladeshis. The State Department’s 1997

Bangladesh Profile of Asylum Claims and Country Conditions (“1997 State Department

Profile”) provides, in pertinent part:

       There is some evidence that prominent Jatiyo Party members and/ or
       supporters . . . were harassed by the BNP Government between 1991 and
       1996. These individual were able to defend themselves in court actions
       and have the same judicial rights as other Bangladeshis. The harassment


       Notice to Appear was addressed on the record on December 23, 1997.

A.R. at 83.
                                             5
       experienced by some high level Jatiyo party members is not sufficient to
       justify the conclusion that Jatiyo Party membership in itself accounted for
       severe mistreatment.

Id. at 257.

       The IJ concluded that while arguably Shardar was persecuted in the past when he

was beaten at the at the police station, “the changed circumstances . . . rebut or defeat any

potential presumption of a well-founded fear of future persecution.” Id. at 97. The IJ

elaborated that “[t]he obvious and evident changed circumstances are that the respondent

was released on a bond and obviously the police did respect the respondent and left him

alone . . . . The fact that the police came by later in time looking for the respondent . . . is

clearly all because the respondent failed to appear in court and the police were executing

a warrant . . . .” Id. The IJ also referenced the “1997 State Department Profile” for the

proposition that “country conditions for people who are in the Jatiya Party have radically

changed.” Id. at 95.3

       On March 21, 2003, the Board of Immigration Appeals (BIA), exercising

       3
         The “1997 State Department Profile” outlines many of the favorable changes for
the Jatiyo Party:

       A Jatiyo Party member of parliament is serving as Minister of
       Communications and a number of other Jatiyo party members are also
       serving in the Cabinet. Although still formally held in custody, Ershad
       took his seat in the new Parliament and participated in its deliberations. He
       was freed on bail in January 1997. In the summer of 1997, the government
       issued Ershad a passport and permitted him to travel to Europe and the
       United States.

A.R. at 255.
                                               6
jurisdiction under 8 C.F.R. § 1003.1(b), affirmed the IJ’s decision. The BIA explained

that Shardar had failed to meet the burden of proof for establishing asylum because


        [w]hile . . . violence is a feature of the political process in Bangladesh, we
        have no reason to conclude that the prosecution the respondent may face if
        he returns to Bangladesh is politically motivated, and there is no reason to
        find that he would be unable to establish his claimed innocence.

Id. at 2.

        Moreover, the BIA denied Shardar’s request to reopen the proceeding for

consideration under the CAT, concluding that he had “failed to establish prima facie

eligibility for relief under the Convention.” Id. However, the BIA agreed that Shardar

should be entitled to voluntarily depart. Id. at 3.

        This Court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). We conclude that

the BIA properly denied (1) the petition for asylum; and (2) the petition to remand the

proceedings for consideration under the CAT.



                                              II.

        Shardar argues that the BIA erred in denying his application for political asylum,

particularly since the IJ found his testimony credible. The Attorney General has

discretion to grant asylum if the petitioner demonstrates that he meets the Immigration

and Nationality Act’s (INA) definition of “refugee”—that he is unable or unwilling to

return to his home country “because of persecution or a well-founded fear of persecution


                                               7
on account of race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A); see Dia v. Ashcroft, 353 F.3d 228, 234

n.1 (3d Cir. 2003).

       “A showing of past persecution gives rise to a rebuttable presumption of a

well-founded fear of future persecution.” Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d

Cir. 2003) (citing 8 C.F.R. § 208.13(b)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 592

(3d Cir. 2003)). The presumption, however, is rebutted where the Government

“establishes by a preponderance of the evidence that the applicant could reasonably avoid

persecution by relocating to another part of his or her country or that conditions in the

applicant’s country have changed so as to make his or her fear no longer reasonable.”

Abdulrahman, 330 F.3d at 592 n.3.

       Whether a petitioner has demonstrated past persecution or a well-founded fear of

future persecution is a factual question that is reviewed by this Court under a substantial

evidence standard, and will be upheld to the extent it is supported by “reasonable,

substantial and probative evidence on the record considered as a whole.” Kayembe v.

Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003) (citing Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002)). The scope of review is narrow. “[T]he administrative 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). That is, “[u]nder the substantial evidence standard,

the BIA’s findings must be upheld unless the evidence not only supports a contrary


                                             8
conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001).

       The fact that, as here, a petitioner’s testimony is deemed credible is not

determinative. The BIA “may require documentary evidence to support a claim, even

from otherwise credible applicants, to meet their burden of proof.” Gao, 299 F.3d at 272

(citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001)). In this case, the IJ did

not merely deny Shardar’s claim because of the absence of corroborating evidence.

Rather, the documentary evidence that was presented conflicted with Shardar’s

contention that the demonstration was peaceful.

       As the IJ noted, there is a distinction between persecution and prosecution. “As a

general matter, . . . fear of prosecution for violations of ‘fairly administered laws’

does not itself qualify one as a ‘refugee’ or make one eligible for withholding of

deportation.” Chang v. I.N.S., 119 F.3d 1055, 1060 (3d Cir. 1997) (citations omitted).

However, fear of prosecution, even under generally applicable laws, may constitute

grounds for asylum or withholding of removal. See id. “[I]f the prosecution is

motivated by one of the enumerated factors, such as political opinion, and if the

punishment under the law is sufficiently serious to constitute persecution, then the

prosecution under the law of general applicability can justify asylum or withholding of

deportation.” Li Wu Lin v. I.N.S., 238 F.3d 239, 244 (3d Cir. 2001) (citing Chang, 119

F.3d at 1061); see also Fisher v. I.N.S., 79 F.3d 955, 962 (9th Cir. 1996) (explaining that

there are “ two exceptions to the general rule that prosecution does not amount to


                                              9
persecution—disproportionately severe punishment and pretextual prosecution”).

       In this case, there was substantial evidence to support the conclusion that Shardar

has not met his burden of proof for establishing eligibility for asylum. Rather, the

evidence supports the conclusion that Shardar was not persecuted on account of his

political opinion; rather, he was legitimately prosecuted for participation in a violent

political demonstration. Moreover, Shardar failed to establish that the system is so

corrupt that if he is prosecuted after returning to Bangladesh, he will be unable to receive

fair adjudication and punishment. In fact, even his own testimony suggests that thus far

the proceeding against him have been conducted in a fair manner.

       Shardar’s strongest claim in support of asylum is his testimony, substantiated by

the hospital report, that he was severely beaten while in police custody. The evidence

indicates these beatings were politically motivated—the perpetrators yelling, “Ershad

time is over. Now is, is BNP time.” A.R. at 168. Such treatment is, to say the least,

extremely troubling. Nevertheless, this evidence alone does not undermine the

conclusion that there was substantial evidence to support the denial of his application for

asylum.

       We cannot disagree with the IJ’s conclusion that even if this treatment rises to the

level of past persecution, the circumstances have changed such that the presumption of a

well-founded fear of future persecution is rebutted. Shardar was released on bail from

custody, and there is no evidence suggesting that if he returns for prosecution he will be


                                             10
persecuted on the basis of his political opinion. Moreover, the “1997 State Department

Profile” provides substantial evidence in support of the conclusion that the country

conditions have changed in Bangladesh, specifically noting that Jatiyo Party members are

able to “defend themselves in court actions and have the same judicial rights as other

Bangladeshis.” A.R. at 257.

       Having concluded substantial evidence supports the BIA’s denial of asylum, we

conclude that withholding of removal was also properly denied. “The standard for

withholding of removal is higher than, albeit similar to, the standard for asylum. . . . If

[a petitioner] is unable to satisfy the standard for asylum, he necessarily fails to meet the

standard for withholding of removal under [the INA].” Lukwago v. Ashcroft, 329 F.3d

157, 182 (3d Cir. 2003).



                                             III.

       In the alternative, Shardar maintains that the fact that he has established that he

was severely beaten in prison and the documentary evidence in the record that shows this

is a common practice in Bangladesh prisons should be sufficient to justify, at the very

least, a grant of withholding of removal under the CAT. On June 23, 1999, Shardar filed

a motion to remand, requesting that the BIA remand his case to the IJ for consideration

under the CAT, which having been passed in 1999 was not effective when the IJ

rendered his decision in July 1998. We conclude that the IJ properly denied the motion


                                             11
for reconsideration.

       “We review the BIA’s denial of the motion to reopen [or remand4 ] for abuse of

discretion, ‘mindful of the “broad” deference that the Supreme Court would have us

afford.’” Ezeagwuna v. Ashcroft, 325 F.3d 396, 409 (3d Cir. 2003) (quoting Lu v.

Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001) (citing I.N.S. v. Abudu, 485 U.S. 94, 108

(1988)). “Motions to reopen implicate important finality concerns even when they seek

to raise an underlying claim for relief, such as relief under the Convention Against

Torture, that is not committed to the Attorney General’s discretion.” Sevoian v.

Ashcroft, 290 F.3d 166, 172 (3d Cir. 2002). We conclude that the BIA did not abuse its

discretion.

       “An applicant for relief on the merits under the Convention Against Torture bears

the burden of establishing ‘that it is more likely than not that he or she would be tortured

if removed to the proposed country of removal.’” Id. at 174-75 (quoting 8 C.F.R. §

208.16(c)(2)).5 Thus, “the prima facie case standard for a motion to reopen under the

       4
          We treat the motion styled as a “motion to remand” as a motion to reopen since
it requires reopening the proceedings. Notably, the BIA decision characterizes Shardar’s
motion as requesting that the “proceedings be reopened.” A.R. at 2. Cf. 8 C.F.R. §
1003.2(c)(4) (explaining that “a motion to reopen a decision rendered by an Immigration
Judge or Service officer that is pending when an appeal is filed, or that is filed when an
appeal is pending before the Board, may be deemed a motion to remand”).
       5
           “Torture” is defined as follows:

       Torture is defined as any act by which severe pain or suffering, whether
       physical or mental, is intentionally inflicted on a person for such purposes
       as obtaining from him or her or a third person information or a confession,
                                              12
Convention requires the applicant to produce objective evidence showing a ‘reasonable

likelihood,’ that he can establish that he is more likely than not to be tortured.” Id. at 175

(quoting In re S-V-, Int. Dec. 3430, 2000 WL 562836, at *3 (BIA May 9, 2000) (en

banc)).

       In this case, the BIA did not abuse its discretion in determining that Shardar had

not met this standard. As outlined above, substantial evidence supports the conclusion

that Shardar faces legitimate prosecution, rather than persecution, if he returns to

Bangladesh. The evidence does suggest that Shardar suffered beatings in the past.

However, the BIA did not abuse its discretion in determining that this treatment did not

rise to the level of “torture,” or that there is not a reasonable likelihood that Shardar can

establish that it is more likely than not he will be tortured if removed.



                                            ****

       For the foregoing reasons, we will deny Shardar’s petition for review of the

decision of the BIA.




       punishing him or her for an act he or she or a third person has committed or
       is suspected of having committed, or intimidating or coercing him or her or
       a third person, or for any reason based on discrimination of any kind, when
       such pain or suffering is inflicted by or at the instigation of or with the
       consent or acquiescence of a public official or other person acting in an
       official capacity.

8 CFR § 208.18(a)(1).
                                              13
14
