                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-19-2007

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Precedential or Non-Precedential: Precedential

Docket No. 06-1238




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT


                 No. 06-1238


       MOHAMMAD ARIF SHARDAR,

                                Petitioner

                      v.

ATTORNEY GENERAL OF THE UNITED STATES,

                                Respondent



     On Petition for Review of an Order of
       The Board of Immigration Appeals
  Immigration Judge: Honorable Annie S. Garcy
               (No. A72-779-408)


             Argued July 10, 2007
      Before: RENDELL and AMBRO, Circuit Judges,
                SHAPIRO,* District Judge

            (Opinion filed: September 19, 2007)

Alan M. Strauss, Esquire (Argued)
Law Office of Stanley H. Wallenstein
41–43 Beekman Street, 3rd Floor
New York, NY 10038
      Counsel for Petitioner

Peter D. Keisler
   Assistant Attorney General
  Civil Division
Alison M. Igoe
  Senior Litigation Counsel
Richard M. Evans, Esquire
Joan E. Smiley, Esquire
Lyle D. Jentzer, Esquire (Argued)
Ada E. Bosque, Esquire
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044

      Counsel for Respondent


      *
       Honorable Norma L. Shapiro, Senior District Judge for
the Eastern District of Pennsylvania, sitting by designation.

                             2
                  OPINION OF THE COURT


AMBRO, Circuit Judge

        Mohammad Arif Shardar seeks review of an order of the
Board of Immigration Appeals (“Board” or “BIA”) denying his
motion to reopen removal proceedings. Because we conclude
that the Board abused its discretion in denying the motion, we
grant the petition for review and remand with instructions to
reopen the proceedings.

           I. Factual and Procedural Background

       Shardar is a native of Bangladesh. He became a member,
and later a local leader, of the Jatiya Party. That political party
was formed by Army Chief of Staff General H.M. Ershad, who
seized power in a bloodless coup d’état in 1983 and ruled
Bangladesh until he was forced to resign in December 1990. In
1989, Shardar became Secretary of the Jatiya Party in Demra, a
suburb of the capital, Dhaka. In the wake of Ershad’s
resignation, there was violence directed against those associated
with Ershad and the Jatiya Party. In Demra, Jatiya Party
headquarters were ransacked by members of rival political
factions and Shardar’s life was threatened. One of the rival
political parties, the Bangladesh Nationalist Party (BNP), won
national elections in February 1991.

                                3
       In January 1992, Shardar participated in a political
demonstration in support of the Jatiya Party in Jatrabari Square
in Demra. During the demonstration, police dispersed the crowd
with tear gas and arrested Shardar and three others. Shardar was
charged with having weapons and explosives, but he testified in
removal proceedings that the demonstration was peaceful and
that the allegations against him were false.1 Following his


       1
            The following is the police report version of the
incident:
                [T]hey were delivering defamatory,
                detractive and slanderous slowgans [sic]
                against the present Gov[ernmen]t . . . . We
                then and there made an importunate [sic]
                entreaty to them not to deliver such types
                of slowgans[,] 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 brickbats
                on us. We[,] having found no other way[,]
                advanced with fortitute [sic] to arrest them
                and Md. Arif Sardar [sic] accused No. 1
                arrested by us, under whose Leadership
                this occurrence was occurred and the other
                skedaddled from the spot . . . . All the

                                  4
arrest, Shardar testified that he was severely beaten by police.
The police struck him with canes and kicked him. They also
told him that “Ershad time is over. Now is . . . BNP time.”
App. at A330. While in custody, Shardar was forced to confess
to the charges against him and to renounce the Jatiya Party in
order to stop the beating and save his life. After three days in
the police station and six days in a jail, Shardar appeared before
a judge and was released on bail. He was then taken by his
father to a private medical clinic for nine days to receive
treatment for the injuries he sustained while in police custody.

        Fearful of further police brutality and not confident in his
ability to get a fair trial, Shardar evaded the police who came
looking for him on several occasions. Eventually, a warrant was
issued for his arrest because of his failure to attend a hearing.
When the police discovered that he was hiding at a friend’s
house, Shardar decided to flee the country and procured a false
passport. He entered the United States in August 1992 and filed
an affirmative application for asylum in November of that year.

       After initially denying his asylum claim, the Government
began removal proceedings; Shardar requested asylum relief and



            accuseds [sic] are the members of Jatiyo
            [sic] Party, they are hideous, ferocious,
            turbulent, rampant and recalcitrant in
            nature.
App. at A441–42.

                                 5
withholding of removal. A hearing was held before an
Immigration Judge in February 1998, at which Shardar testified
and presented evidence. In July 1998, the IJ denied his claim
for asylum and for withholding of removal but allowed him to
depart the United States voluntarily. The IJ found Shardar
credible (“The respondent testified extremely credibly with
regard to his incarceration and the beatings that he suffered.”),
and specifically credited his testimony regarding the beatings he
had received at the hands of the police.

        Nevertheless, while conceding that Shardar could
arguably show past persecution, the IJ rejected his asylum claim
after concluding that he had not shown that his arrest was
pretextual or that he could not receive justice in the Bangladeshi
courts. The IJ insisted that Shardar feared prosecution, not
persecution. In rejecting Shardar’s contentions, the IJ
specifically relied on a 1997 State Department report, which
stated that Jatiya Party members who had been harassed by the
BNP “were able to defend themselves in court actions and have
the same judicial rights as other Bangladeshis.” App. at 419.
Without some evidence that the judicial system was corrupt, the
IJ concluded that Shardar could not sustain his burden of
showing a well-founded fear of persecution.

      In August 1998, Shardar appealed the IJ’s decision to the
Board, and on June 25, 1999, he moved to reopen removal
proceedings in order to seek relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or


                                6
Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S.
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. The Board
affirmed the IJ’s decision and denied his motion to reopen in
March 2003, stating that it had “no reason to conclude that the
prosecution [Shardar] 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.” Shardar
petitioned for review of the Board’s decision in our Court and,
based on the record before us at that time, we denied that
petition in August 2004. Shardar v. Ashcroft, 382 F.3d 318 (3d
Cir. 2004).

       Following our Court’s denial of his petition for review,
Shardar filed a motion before the Board in October 2004 to
reopen his removal proceedings based on changed country
conditions and new evidence. Specifically, Shardar presented
evidence that the re-emergence of the BNP as the ruling party in
Bangladesh in 20012 represented a change in country condition


       2
         Although not part of the record before us, we note that
it has been reported in the press that in November 2006 the
BNP’s term as ruling party ended. See, e.g., Somini Sengupta,
Bangladesh Says It Won't Let an Ex-Leader Re-enter the
Country, N.Y. Times, Apr. 19, 2007, at A4. Although
parliamentary elections were scheduled for January 2007, the
interim caretaker government backed by the army has postponed
elections under emergency powers. Id. This does not affect our
review of the Board’s decision but, of course, these and other
developments in Bangladeshi politics will need to be considered

                               7
and that his position as a former local leader of the Jatiya Party
made it likely that he would be persecuted if returned to
Bangladesh. The Board denied his motion to reopen in a three-
paragraph order, which concluded that Shardar had “not
adequately demonstrated that his situation is appreciably
different from the dangers faced by all his countrymen,” and that
he had “failed to establish [that] materially changed country
conditions exist in Bangladesh.”3 Shardar filed a timely petition
for review of the Board’s order.

           II. Jurisdiction and Standard of Review

       The BIA has jurisdiction over motions to reopen removal
proceedings under 8 C.F.R. § 1003.2(a). Our Court has
jurisdiction over Shardar’s petition for review under 8 U.S.C.
§ 1252. Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006)
(“Congress has explicitly granted federal courts the power to
review ‘any final order of removal’ under 8 U.S.C. § 1252(a)(1).
Implicit in this jurisdictional grant is the authority to review the
denial of a motion to reopen any such final order.”).

      “We review the BIA’s denial of a motion to reopen for
abuse of discretion . . . and review its underlying factual


upon reopening the removal proceedings.
       3
        The Board’s order is dated February 2005. However, it
reissued the order in December 2005 because of an “error in
administrative processing.”

                                 8
findings related to the motion for substantial evidence.” Filja v.
Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (internal citation
omitted). Its “denial of a motion to reopen may only be reversed
if it is ‘arbitrary, irrational, or contrary to law.’” Id. (quoting
Sevovian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002)).

                        III. Discussion

       A.     Introduction

        The resolution of this appeal turns on two related but
analytically distinct issues: (1) whether Shardar has presented
evidence of changed country conditions sufficient to allow him
to file a motion to reopen more than 90 days after the Board
rejected his claims; and (2) whether the new evidence Shardar
has presented and the prior evidence in the record together show
that he has a reasonable likelihood of prevailing on his asylum
claim, i.e., whether he has presented a prima facie case for
asylum.4 The first is a threshold question: does the new
evidence show a change in country conditions that would allow
the motion to reopen to be brought? The second then asks a
question about the merits: does the new and the old evidence
together make out a prima facie case for asylum? We conclude


       4
         Although Shardar seeks, in addition to asylum,
withholding of removal and CAT relief in his motion to reopen,
because we conclude that he has made a prima facie case for
asylum, we need not deal with these forms of alternative relief.

                                9
that the decision of the Board answering no to these two
questions is both irrational and arbitrary; thus it abused its
discretion. Furthermore, to the extent the Board’s decision is
grounded in a factual finding that Shardar’s “situation” is not
“appreciably different from the dangers faced by all his
countrymen,” that finding is not supported by substantial
evidence.

      B.     Governing Legal Standards

             1.     Asylum

       Under 8 U.S.C. § 1158(b), the Attorney General may
grant asylum to an alien who is a “refugee.” A “refugee” is
defined as

      any person who is outside any country of such
      person’s nationality . . . who is unable or
      unwilling to return to, and is unable or unwilling
      to avail himself or herself of the protection of,
      that country 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.A. § 1101(a)(42)(A). “An applicant bears the burden
of proving eligibility for asylum based on specific facts and
credible testimony.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d


                              10
Cir. 2004). A well-founded fear of persecution is the key to
eligibility. 8 C.F.R. § 208.13(b). Persecution includes “‘threats
to life, confinement, torture, and economic restrictions so severe
that they constitute a real threat to life or freedom.’” Lukwago
v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (quoting Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001)). “The persecution must
be committed by the government or forces the government is
unable or unwilling to control.” Vente v. Gonzales, 415 F.3d
296, 300 (3d Cir. 2005) (internal quotation marks omitted). To
qualify for asylum, the applicant must show that the persecution
is on account of one of the statutorily recognized grounds, i.e.,
race, religion, nationality, membership in a particular social
group, or political opinion. Lukwago, 329 F.3d at 167.

       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.” Id. at 174; 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).

       An applicant who fails to demonstrate past persecution


                               11
may still qualify for asylum if he shows that he has a well-
founded fear of future persecution on account of a protected
ground. Lukwago, 329 F.3d at 174. A well-founded fear
includes both a subjective and objective component. Id. at 175.
“An applicant must ‘show that he has a subjective fear of
persecution that is supported by objective evidence that
persecution is a reasonable possibility.’” Id. (quoting Abdille v.
Ashcroft, 242 F.3d 477, 496 (3d Cir. 2001)); see also 8 C.F.R.
§ 208.13(b)(2)(i).

              2.     Motions to Reopen

       There are both procedural and substantive hurdles that
must be overcome in a motion to reopen removal proceedings.
Under the governing regulations, “an alien may file only one
motion to reopen removal proceedings . . . and that motion must
be filed no later than 90 days after the date on which the final
administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2).
However, the “time and numerical limitations . . . shall not
apply” to motions to reopen that “apply or reapply for asylum or
withholding of deportation based on changed circumstances
arising in the country of nationality . . . if such evidence is
material and was not available and could not have been
discovered or presented at the previous hearing.”              §
1003.2(c)(3). Therefore, if the asylum applicant presents
material evidence of changed country conditions that could not
have been presented during the hearing before the IJ, his motion
can be considered, even if there has been a prior motion to


                               12
reopen or the motion is beyond the 90-day time limit for filing.
See Filja, 447 F.3d at 251–54.

        With regard to the substantive hurdle, “[a]s a general
rule, motions to reopen are granted only under compelling
circumstances.” Guo, 386 F.3d at 561. The Board has held that
in exercising its discretion to reopen proceedings “we have been
willing to reopen where the new facts alleged, when coupled
with the facts already of record, satisfy us that it would be
worthwhile to develop the issues further at a plenary hearing on
reopening.” In re L-O-G, 21 I. & N. Dec. 413, 419, 1996 WL
403255 (BIA June 14, 1996) (internal quotation marks omitted).
As noted, “[a] motion to reopen must establish prima facie
eligibility for [the relief sought].” Guo, 386 F.3d at 563. In
order to make a prima facie case, the applicant must “‘produce
objective evidence showing a “reasonable likelihood” that he
can establish [that he is entitled to relief].’” Id. (quoting
Sevovian, 290 F.3d at 175) (alteration in original). For an
asylum claim, this “means merely showing a realistic chance
that the petitioner can at a later time establish that asylum should
be granted.” Id. at 564. Facts presented in the motion to reopen
are “accepted as true unless inherently unbelievable.” Bhasin v.
Gonzales, 423 F.3d 977, 987 (9th Cir. 2005). That said, the
regulations provide that “[t]he Board has discretion to deny a
motion to reopen even if the party moving has made out a prima
facie case for relief.” 8 C.F.R. § 1003.2(a). But while the Board
has discretion to deny a motion to reopen notwithstanding a
prima facie showing, when it denies a motion to reopen on the


                                13
ground that the applicant has failed to make a prima facie
showing, we yet review that determination to ensure that it is
supported by substantial evidence and is not an abuse of
discretion. Sevovian, 290 F.3d at 174.

      C.     Changed Country Conditions

       Shardar brought his motion to reopen in October 2004,
more than 90 days after the Board’s “final administrative
decision was rendered” in March 2003. Therefore, because his
motion to reopen is untimely,5 it must be “based on changed
circumstances arising in the country of nationality” and be
supported by new evidence that was not available during his
hearing before the IJ. 8 C.F.R. § 1003.2(c)(3)(ii).

        To show changed country conditions, Shardar presented
evidence that since the BNP returned to power in 2001, the
situation for Jatiya Party supporters has become more
dangerous. When Shardar fled Bangladesh in 1992, the Jatiya
Party, in which he had been a local leader, had recently lost
power to the BNP. His beating by the police was a politically
motivated action by BNP supporters against Shardar because of

      5
        Shardar’s motion to reopen is also his second, as he
previously moved to reopen to seek relief under the CAT. In
any event, whether because he is outside the 90-day time limit
or because the motion is his second, he must show changed
country conditions to bring his current motion to reopen. 8
C.F.R. § 1003.2(c)(2)-(3).

                             14
his association with the Jatiya Party. See Shardar, 382 F.3d at
324 (“The evidence indicates these beatings were politically
motivated . . . .”). The BNP was in power in Bangladesh until
1996, at which time the Awami League became the ruling party.
In October 2001, the BNP returned to power. It was during the
time of the Awami League’s rule, in 1998, that the IJ decided
Shardar’s asylum claim. Thus, the evidence of changed country
conditions submitted by Shardar with his motion to reopen “was
not available and could not have been discovered or presented
at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).6

        As part of his motion to reopen, Shardar submitted a
detailed affidavit by Dr. John Adams, an expert in the society,
politics, and economics of South Asian countries. The
Government has not challenged Dr. Adams’s qualifications or
the reliability of his affidavit, which at this stage of the
proceedings we must accept as true. The affidavit states that,
while members of the Jatiya Party “remained under pressure”
during the rule of the Awami League, the re-emergence of the
BNP “caused a sharp change in country conditions, restoring the
context from which the applicant fled, but in a form that is more
intensive and predatory.” App. at A67–68. The affidavit


       6
        Although the BNP returned to power before the Board
had decided Shardar’s appeal, our Court has held that the
hearing before the IJ is “the previous hearing” referenced in the
regulatory requirement. See Filja, 447 F.3d at 252–54 (quoting
8 C.F.R. § 1003.2(c)(3)(ii)).

                               15
continued: “There is a consistent pattern of abuse of political
rights and political persecution for holding the [Jatiya Party’s]
political opinions, perpetrated by the BNP, the police forces
under its control, and the BNP’s allies, including radical Islamist
elements, which has intensified since October 2001, sufficiently
to represent a change in country conditions.” Id. at A67. As Dr.
Adams notes, following the BNP’s re-emergence “[t]he climate
for parties in opposition to the government is becoming
increasingly chilly in Bangladesh.” Id. at A69. State
Department documents cited in the Adams affidavit and
reporting on conditions after the BNP’s re-emergence state that
“police employed excessive, sometimes lethal, force in dealing
with opposition demonstrators, and the police routinely
employed physical and psychological torture during arrests and
interrogations.” Id. at A71. In addition, criminal laws are
frequently used as a pretext to punish and harass members of the
political opposition. Id.

        The re-emergence of the political party responsible for
the applicant’s prior persecution is the type of situation that
would constitute a change in country conditions. See Filja, 447
F.3d at 255–56. In Filja, we rejected the Government’s
argument that the applicants’ motion to reopen was not timely.
Although not essential to our holding (which rejected the legal
standard for timeliness applied by the Board), we suggested that
the Filjas could likely demonstrate changed country conditions
because, “[a]lthough at the time of the IJ hearing the Democratic
Party was in power . . . [, w]hen in 1997 the Socialist Party


                                16
returned to power the position of those supporting the
Democratic Party became more precarious.” Id. at 256.
Shardar’s situation is analogous: while the BNP was not in
power at the time of Shardar’s hearing before the IJ, its re-
emergence constitutes a material change in conditions for an
individual like Shardar, who was previously beaten by the BNP-
affiliated police force.

        Indeed, the Board itself has agreed that the re-emergence
of the BNP is a change in Bangladeshi country conditions for a
member of the Jatiya Party seeking asylum. In re Hossin, A70
907 367 (BIA Jan. 27, 2003) (unpublished). It specifically
concluded that “[c]onsidering the respondent’s political
affiliation [as a member of the Jatiya Party], the re-emergence
of the BNP in Bangladesh would qualify as changed country
circumstances warranting further review.” Id. When Shardar
cited this decision in his motion to reopen, the Board rejected its
relevance, concluding (1) that as an unpublished opinion it was
not precedential, and (2) that it was distinguishable because,
unlike Shardar, Hossin had moved to reopen after initially
abandoning his claim.

        The Board’s responses miss the mark. First, regardless
whether the Hossin decision is precedential, by reaching an
exactly contrary decision on a materially indistinguishable set of
facts, the Board acted arbitrarily. As we recognized in Cruz,
“[w]hile . . . unpublished BIA decisions . . . are not necessarily
in the category of ‘selected decisions . . . designated to serve as


                                17
precedents in all proceedings involving the same issue or
issues,’ 8 C.F.R. § 1003.1(g), agencies should not move away
from their previous rulings without cogent explanations.” 452
F.3d at 250; see also Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)
(“[A]dministrative agencies must apply the same basic rules to
all similarly situated supplicants.”).

        Second, the Board’s attempt to distinguish Hossin falls
short. That Hossin’s initial asylum claim was denied because it
was deemed abandoned, but that Shardar’s initial asylum claim
was denied on the merits, is of no relevance to whether the
BNP’s re-emergence constitutes a change in Bangladeshi
country conditions for a Jatiya Party member who is seeking to
reopen removal proceedings. Both situations are materially
indistinguishable regarding whether country conditions have
changed. Thus, we have little difficulty concluding that the
Board acted arbitrarily and abused its discretion, as it offered no
reasonable explanation for failing to follow its own decision.

       Moreover, the Board abuses its discretion when it fails to
“consider[] and appraise[] the material evidence before it.”
Sevovian, 290 F.3d at 177 (quoting Tipu v. INS, 20 F.3d 580,
583 (3d Cir. 1994)). Here, the Board offered no explanation for
not accepting the Adams affidavit concerning changed
circumstances in Bangladesh. The only explanation it provided
for why Shardar’s motion did not satisfy the regulatory
requirements for filing a motion after the 90-day time limit is the
following conclusory statement: “We further find that the


                                18
respondent has failed to establish [that] materially changed
country conditions exist in Bangladesh to overcome the
temporal limitations set forth in 8 C.F.R. § 1003.2(c)(2).”
Without any explanation for why Shardar failed to overcome the
“temporal limitations” in the regulations given the evidence he
presented, the Board’s conclusory handling of this issue was an
abuse of discretion. See Zhao v. Dep’t of Justice, 265 F.3d 83,
93 (2d Cir. 2001) (“An abuse of discretion may be found in
those circumstances where the Board’s decision provides no
rational explanation, inexplicably departs from established
policies, is devoid of any reasoning, or contains only summary
or conclusory statements; that is to say, where the Board has
acted in an arbitrary or capricious manner.” (internal citations
omitted)).

       D.     Eligibility for Asylum

              1.     The Board’s Decision

       The Board also rejected the merits of Shardar’s motion
to reopen in a similarly conclusory fashion: “Although the new
evidence presented by the respondent continues to show that the
current conditions in Bangladesh are turbulent, the respondent
has not adequately demonstrated that his situation is appreciably
different from the dangers faced by all his countrymen.” This
conclusion is puzzling. While it is correct that an asylum
applicant must make a showing of a particularized threat of
persecution, see Kotasz v. INS, 31 F.3d 847, 851–52 (9th Cir.


                               19
1996), Shardar presented significant evidence of just such a
particularized threat.

        First, the Adams affidavit repeatedly explained why
Shardar’s political beliefs and his position as a former local
leader of the Jatiya Party would be likely to result in persecution
by the BNP on that basis. It explained that following the BNP’s
rise to power in the early 1990s there were “countrywide attacks
on identified [Jatiya Party] workers,” as well as “[t]hreats and
violence . . . directed at [Jatiya Party] activists and their families
and properties.” App. at A68. In addition, “local leaders and
cadres [of the Jatiya Party] were increasingly exposed to threats
and violence.” Id. Since the decline of the Jatiya Party in the
early 1990s, its members “have attempted to form opportunistic
alliances with the BNP and AL [Awami League], but these have
been fleeting and have not insulated local [Jatiya Party] workers
from bullying, brutality, extortion and physical abuse.” Id. at
A70. Dr. Adams also stated that following the re-emergence of
the BNP in 2001,“[u]se of the local courts, which are an
administrative branch of the government, to harass [Jatiya Party]
adherents remains common.” Id. at A69. After chronicling
several specific acts of BNP violence against members of the
Jatiya Party since the BNP regained power in 2001, Dr. Adams
concluded with the specific prospects for Shardar in the then-
current climate in Bangladesh: “There is a high probability that
the applicant’s safety, person, and life will be in jeopardy should
he be compelled to return to Bangladesh. Memories are long in
Bangladesh and there is every reason to presume that, even after


                                 20
a dozen years, the return of the applicant would lead to a
resumption of previous threats and acts.” Id. at A76–A77. The
Adams affidavit is not simply evidence of general turbulence in
Bangladesh; instead it provides a detailed, cogent, and reasoned
explanation why Shardar would likely be the specific target of
persecution because of his Jatiya Party affiliation.

        Second, even more pertinent to the claim of
particularized persecution, Shardar presented an affidavit from
his brother in Bangladesh that stated that he (the brother) had
been recently threatened with a gun and beaten by “BNP goons”
for being a “collaborator of Jatiya Party,” and that the
perpetrators specifically asked about Shardar’s whereabouts. Id.
at A133. The brother’s affidavit is further supported by a
certification from a doctor who treated him and confirmed that
he received wounds consistent with a beating. This evidence,
which must be accepted as true at the motion-to-reopen stage,
shows a significant likelihood that Shardar would be subjected
to particularized persecution and does not simply concern itself
with general country conditions. Indeed, it is hard to believe
that a more particularized showing could be made: the brother’s
affidavit stated that individuals associated with the BNP had
targeted Shardar’s family members for persecution because of
their association with the Jatiya Party, and these individuals had
made a specific inquiry about Shardar.

     The Board’s conclusion that Shardar had not “adequately
demonstrated that his situation is appreciably different from the


                               21
dangers faced by all his countrymen” ignores or misconstrues
the evidence that Shardar presented, and thus constitutes an
abuse of discretion. See Sevovian, 290 F.3d at 177. We
previously rejected a similar attempt by the Board in Vente to
misconstrue an asylum seeker’s application. The Board rested
its rejection of Vente’s asylum claim on a finding that “the
general unrest in Columbia did not provide a basis for asylum.”
Vente, 415 F.3d at 301. We noted that “the record clearly shows
that Vente’s asylum claim is based not on allegations of general
social unrest in Columbia but on the specific threats that he
received.” Id. As such, we vacated and remanded the case to
the Board, noting that “the BIA’s findings . . . are wholly
unsupported by the record and essentially ignore the actual basis
of Vente’s asylum claim.” Id. at 302. Likewise, the Board’s
denial of Shardar’s motion to reopen “essentially ignore[s] the
actual basis of [his] asylum claim.” Id. While it is true that
“[t]he Board ‘is not required to write an exegesis on every
contention,’” it must “show that it has reviewed the record and
grasped the movant’s claims.” Sevovian, 290 F.3d at 178
(quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)).
It has not shown that here. By ignoring the evidence that
Shardar presented of the likelihood of particularized persecution
and by misconstruing his claims, the Board abused its discretion.


       Moreover, to the extent the Board’s conclusion rests on
a factual finding that Shardar’s “situation” is not “appreciably
different from the dangers faced by all his countrymen,” that


                               22
finding is wholly unsupported by the record. We will uphold
the Board’s factual findings that are “supported by ‘reasonable,
substantial, and probative evidence on the record considered as
a whole.’” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.
2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). But “[w]e will not accord the BIA deference where its
‘findings and conclusions are based on inferences or
presumptions that are not reasonably grounded in the record.’”
Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)).
Here, as already pointed out, the Board’s finding that Shardar’s
situation is not appreciably different from all other Bangladeshis
is not reasonably grounded in the record, which demonstrates a
likelihood of particularized persecution because of his political
affiliation. Thus, the Board’s conclusion, which fails to address
this relevant evidence, is not supported by substantial evidence.

              2.     Prima Facie Case

        When the evidence Shardar submitted is properly
considered, there is little doubt that he has presented a prima
facie case for asylum, i.e., a reasonable likelihood that he is
entitled to relief. As noted previously, when an applicant has
shown past persecution, a well-founded fear of future
persecution is presumed, absent a showing by the Government
by a preponderance of the evidence that conditions have
changed to make future persecution unlikely. Lukwago, 329
F.3d at 174. In this case, the IJ credited Shardar’s testimony
with regard to his being beaten by the police on account of his


                               23
political opinion and determined, albeit reluctantly, that he had
likely demonstrated past persecution. The IJ concluded,
however, that the Government had rebutted the presumption that
Shardar had a well-founded fear of future persecution because
conditions in Bangladesh had changed that allowed him to
receive justice from the judicial system. The crux of the IJ’s
decision was that Shardar had not presented sufficient evidence
to show that his criminal prosecution was pretextual and that his
rights could not be adequately protected by Bangladeshi courts.

        The new evidence Shardar presented in his motion to
reopen went directly to what the IJ believed was the primary
weakness in Shardar’s case. Dr. Adams’s affidavit states that
the “benign viewpoint” expressed in State Department reports
from 1997 and 1998, relied upon by the IJ for the conclusion
that the Bangladeshi court system was capable of giving Shardar
a fair trial, “was then, and is now, entirely inconsistent with
scholarly or independent human rights assessments, and has
been superseded by the Department of State’s successor
documents.” App. at A70. Those superseding State Department
documents and other sources noted by Dr. Adams indicated that
the court system in Bangladesh is corrupt and that criminal laws
are often used by authorities to oppress members of the political
opposition. Indeed, according to the Adams affidavit,
Transparency International has consistently ranked Bangladesh
as the most corrupt country in the world since 2000. Dr. Adams
summarized the situation this way:



                               24
       The local and middle tiers of the judiciary are
       highly corrupted and subject to influence and
       intimidation by government officials or by
       political activists. These judicial layers are
       governed by administrative appointment and
       judges at this level are highly attuned to the
       wishes of the party in power. . . . [I]t would be
       very improbable for the applicant to be in a
       position to depend upon the police or the courts
       for protection or remedy should he return to
       Bangladesh.

Id. at A72.

       Given that the IJ denied Shardar’s asylum claim primarily
based on a conclusion that he could get a fair trial in
Bangladesh, the Adams affidavit (the factual assertions in which
must be taken as true), when taken together with the evidence
already in the record, supports the conclusion that Shardar has
made a prima facie case for asylum. Indeed, the cumulative
evidence presented by Shardar demonstrates a reasonable
likelihood “that he has a subjective fear of persecution that is
supported by objective evidence that persecution is a reasonable
possibility.” Lukwago, 329 F.3d at 175 (internal quotation
marks omitted). The Board, which denied Shardar’s motion to
reopen because of a failure to establish a prima facie case, failed
to assess and consider the relevant evidence before it. Under
these circumstances, we conclude that the Board abused its


                                25
discretion.

       Finally, given our conclusion that Shardar has presented
a prima facie case for asylum and “in consideration of the
already protracted history of the case,” we conclude that it is
appropriate to direct the Board to reopen the removal
proceedings. Fadiga v. Att’y Gen., 488 F.3d 142, 163 (3d Cir.
2007); see also Malty v. Ashcroft, 381 F.3d 942, 948 (9th Cir.
2004) (remanding with directions to reopen when the applicant
had made a prima facie showing).

                       VI. Conclusion

        The Board abused its discretion in denying Shardar’s
motion to reopen his removal proceedings. Accordingly, we
grant the petition for review and remand the case with directions
to reopen the proceedings.




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