                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                       No. 16-1431
                                      _____________

                                 MOHAMMAD ISRAIL,
                                              Petitioner
                                       v.

              ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                   Respondent
                            ______________

                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                             (Agency No. A088-646-866)
                      Immigration Judge: Honorable Philip Verrillo
                                   ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 20, 2016
                                  ______________

         Before: SMITH, Chief Judge, McKEE and SHWARTZ, Circuit Judges.

                               (Opinion filed: June 8, 2017)

                               _______________________

                                       OPINION*
                                ______________________




*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge

       Mohammad Israil seeks review of the Board of Immigration Appeal’s decision

affirming the Immigration Judge’s dismissal of Israil’s claims for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). For the reasons that

follow, we will dismiss Israil’s petition for asylum, but grant Israil’s petition for review

on his withholding of removal and CAT claims.

                                              I.1

       Israil is a 58-year-old citizen of Pakistan who entered the United States on

February 17, 2006. Before the Immigration Judge, Israil testified that he is a member of

the Awami National Party (“ANP”), a leftist political party that openly opposes the

Taliban. In 2003, Israil became the General Secretary for the ANP in Kabal. In December

2005, Taliban members came to Israil’s home when he was not there and instructed

Israil’s brother to tell Israil that he should leave the ANP and remove his children from

school or the Taliban would not “leave [him] alive.”2 Israil reported the threats to the

local police but did not receive any assistance. Shortly thereafter, Israil received a letter

from the Taliban stating he would be killed if he did not leave the ANP. In response, he

fled with his family to Peshawar. There, they relocated several times over a three month

period out of fear of being found by the Taliban.

       Israil then came to the United States in 2006. His family has remained in


1
  Because we write for the parties who are familiar with the factual and procedural
history of this case, we provide only the background necessary to our conclusions.
2
  A.R. 142.

                                               2
Pakistan, but Israil testified that they continue to move frequently based on a belief that

the Taliban would retaliate against them for Israil’s flight. Israil testified that between

2005 and 2014 his wife and children lived in Swat, Peshawar, Karachi, Nagar, Mardan,

Deri, and Kabul, sometimes moving several times within the same city or region. His

children have been unable to attend school in part because of fear that the Taliban would

kidnap them in order to coerce them into disclosing Israil’s whereabouts. Their fear of the

Taliban targeting Israil was corroborated on or about June 30, 2009, when Israil’s name

was broadcast on a Taliban-run radio station and he was identified as someone the

Taliban wanted to find. Israil also testified that the Taliban came to his home in Tal in

2011 and 2012 and threatened his wife during the brief periods when she returned to

check on their home.

       On August 20, 2008, Israil filed an application for asylum, withholding of

removal, and withholding under CAT. His filing was beyond the one year time bar for

asylum applications, but Israil claimed that the application should still be considered

based on changed circumstances in Pakistan. The IJ denied Israil all relief. Specifically,

the IJ found that Israil failed to show changed circumstances in Pakistan sufficient to

excuse his untimely petition. The IJ also found that Israil had not established the past

persecution and possible future persecution necessary for withholding of removal, and

that he had not established the likelihood of torture that would qualify for protection

under the CAT if he returned to Pakistan. The BIA subsequently affirmed and this

petition for review followed.
                                            II.3

       We first address Israil’s application for asylum and his claim that changed

circumstances in Pakistan should excuse the untimeliness of his petition.4 Israil argues

that his untimely application should be excused under 8 U.S.C. § 1158(a)(2)(D) because

conditions in Pakistan have changed since he arrived in the United States. However, 8

U.S.C. § 1158(a)(3) limits our jurisdiction to reviewing constitutional claims and

questions of law.5 We do not have authority to review the BIA’s discretionary findings

of fact in determining whether country conditions had sufficiently changed to justify a

late filing.6 Here, the BIA found that conditions in Pakistan had not changed such that

Israil’s petition’s untimeliness could be excused. Israil challenges only the factual

underpinnings of the IJ and BIA’s determination, arguing that conditions have changed.7

However, he does not assert any legal or constitutional challenges to the BIA’s




3
  We have jurisdiction to review the IJ and BIA’s findings regarding Israil’s application
for withholding of removal and protection under CAT. 8 U.S.C. § 1252(a). We review
using the substantial evidence standard. Tarrawally v. Ashcroft, 338 F.3d 180, 184 (3d.
Cir. 2003). Accordingly, we will not disturb the BIA’s findings if “a reasonable fact
finder could make a particular finding on the administrative record.” Dia v. Ashcroft, 353
F.3d 228, 249 (3d Cir. 2003); see also 8 U.S.C. § 1252(b)(4)(B). However, as is
discussed fully below, we lack jurisdiction to review the conclusion that Israil’s untimely
filing of his asylum application is not excused due to changed country conditions.
4
  8 U.S.C. § 1158(a)(2)(D) allows consideration of an untimely petition if “the alien
demonstrates to the satisfaction of the Attorney General . . . the existence of changed
circumstances which materially affect the applicant’s eligibility for asylum.”
5
  8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D). See also Sukwanputra v. Gonzales, 434 F.3d
627, 634 (3d Cir. 2006).
6
  Sukwanputra, 434 F.3d at 633.
7
  Pet’r’s Br. 21–25.
determination. Accordingly, we do not have jurisdiction to review the dismissal of Israil’s

asylum petition.

       Israil next argues that the IJ and BIA improperly denied his application for

withholding of removal. To be eligible for withholding of removal, an applicant must

establish either past persecution or a well-founded fear of experiencing persecution in the

future upon removal to their home country, and the persecution must be “on account of,”

among other things, “membership in a particular social group, or political opinion.”8 A

withholding of removal claim may be properly denied if the evidence demonstrates that

future persecution could be avoided if the alien relocated to a different part of his home

country.9

       We have held that a lack of physical harm, and threats that were not highly

imminent in nature did not constitute past persecution.10 Here, Israil left the country

following threats he received from Taliban members through his brother and a letter in

the mail. Because Israil was never directly threatened or given a deadline to comply, the

threats he received were not sufficiently imminent to constitute past persecution.11 We



8
  8 C.F.R. § 1208.16(b).
9
  8 C.F.R. § 1208.16(b)(2).
10
   See Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 341 (“[W]e have limited the types of
threats constituting persecution to only a small category of cases, and only when the
threats are so menacing as to cause significant actual suffering or harm.”)
11
   See Gomez-Zuluaga, 527 F.3d at 336, 341–42 (holding that incidents where the
petitioner was “rounded up” at gunpoint without physical injury or robbery were “oblique
and not imminent” and did not constitute persecution); Li v. Att’y Gen., 400 F.3d 157,
164 (3d Cir. 2005) (concluding that in determining whether a petitioner experienced past
persecution “threats standing alone constitute persecution in only a small category of
therefore conclude that the record supports the BIA’s determination that those threats did

not rise to the level of past persecution.

        Accordingly, Israil is only eligible for withholding of removal if he can

demonstrate the threat of future persecution by “establish[ing] that it is more likely than

not that he . . . would be persecuted on account of . . . [his] political opinion upon

removal to that country.”12 There is no question that the Taliban is opposed to the

ideology and mission of Israil’s political party, the ANP, and have assassinated hundreds

of the parties’ members, including Israil’s wife’s cousin. Additionally, “[U]nfulfilled

threats [that] fall within that category of past experience [are] more properly viewed as

indicative of the danger of future persecution.”13 Before he left Pakistan, Israil received

two threats from the Taliban demanding he leave the ANP or be killed. A full three years

after Israil left Pakistan, the Taliban broadcast that they were still looking for him.

Moreover, the Taliban visited his home in Tal in 2011 and 2012 to relay threats to his

wife.

        Nevertheless, the government asserts that Israil may safely relocate to a different

part of Pakistan and thus he is unable to make out a claim of a reasonable fear of future

persecution.14 The IJ reasoned that relocation was reasonable because the Pakistani

government is making efforts to target the Taliban. However, government attempts to


cases” and that “unfulfilled threats must be of a highly imminent and menacing nature in
order to constitute persecution”).
12
   8 C.F.R. § 1208.16(b)(2).
13
   Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997).
14
   Respondent’s Br. 21–24.
control terrorist activity do not equate with actual success in controlling terrorist

activity,15 and the record contains more than enough to establish the Pakistani

government’s inability to control Taliban forces.

       The government also points to the fact that Israil’s family has remained in the

country unharmed as evidence that Israil may safely return, but this conclusion glosses

over the reason behind the frequent movement of Israil’s family and the nature of the

family’s continuing flight. Israil’s wife and children have lived in at least seven different

regions of Pakistan, for periods ranging from three months to approximately two years,

fleeing each area when they had reason to believe that they were no longer safe from the

Taliban and that the Taliban would retaliate against them for Israil leaving the country.

The mere fact that his wife and children have not been physically harmed during this time

does not suggest that Israil may safely rejoin his family in Pakistan. Rather, it shows that

the Taliban has thus far focused its vengeance only on Israil and not his family.

Additionally, the multitude of different regions of Pakistan where Israil’s wife and

children have fled only to have to flee again strongly supports Israil’s fear that he cannot

safely return to a different region of Pakistan other than his hometown of Tal.16



15
   Rehman v. Att’y Gen., 178 F. App’x 126, 129 (3d Cir. 2006) (noting that though the
Pakistani government was attempting to address the terrorist situation, it was “maybe not
[doing so] successfully”).
16
   The First Circuit recently reached a similar conclusion while considering the
reasonableness of an ANP member relocating within Pakistan. Khattak v. Holder, 704
F.3d 197 (1st Cir. 2013) (granting asylum petition for Pakistani member of the ANP and
finding that the IJ had failed to consider evidence that ANP members were “major targets
of attack” and the Taliban’s reach extended outside the Khyber Pakhtunkhwa province).
       Finally, when assessing the reasonableness of relocation, the adjudicator “should

consider . . . ongoing civil strife within a country.”17 The government concedes that “the

family moves to avoid generalized conditions of violence and civil strife.”18 The evidence

supports Israil’s fear of future persecution, as well as the unreasonableness of forcing

Israil to relocate to a different area of Pakistan.19 Accordingly, we hold that Israil

succeeded in proving the likelihood of future persecution.

       Last, Israil challenges the denial of relief under the CAT. For relief under the

CAT, Israil must establish that “it is more likely than not that he . . . would be tortured if

removed to the proposed country of removal.”20 “Torture” under CAT “is an extreme

form of cruel and inhuman treatment” that is inflicted by or with the acquiescence of a

public official.21 The “acquiescence” component can sometimes be established where the

government is willfully blind to torture by nongovernment actors.22 Although there is

evidence in the record that the government of Pakistan has made some efforts to curb the

Taliban’s terrorist activities, this evidence does not foreclose the need to examine the


17
   8 C.F.R. § 1208.16(b)(3).
18
   Respondent’s Br. 23.
19
   The government argues that Israil’s future persecution claim is weakened by his family
members remaining in Pakistan “unharmed.” Respondent’s Br. 18, 22. However, this
Court has held that a claim of future persecution is only weakened if the petitioner’s
family “remain safely” in the country and “there is no individualized showing that
petitioner would be singled out for persecution.” Lie v. Ashcroft, 396 F.3d 530, 537 (3d
Cir. 2005) (emphasis added).
20
   8 C.F.R. § 1208.16(c)(2).
21
   8 C.F.R. § 208.18(a)(1), (2).
22
   See Myrie v. Att’y Gen., 855 F.3d 509, 516 (3d Cir. 2017); Pieschacon-Villegas v. Att’y
Gen., 671 F.3d 303, 311 (3d Cir. 2011); Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 65 (3d
Cir. 2007).
record to determine whether there is governmental acquiescence to allow for relief under

CAT.23 Because Israil’s CAT claim stems from the same underlying facts as his

withholding of removal claim, we also vacate the BIA’s dismissal of his CAT claim for

the reasons discussed above.

                                             III.

       For the reasons set forth above, we will grant Israil’s petition for review in part.

We dismiss Israil’s petition as to his asylum claim but grant it as to his withholding of

removal and CAT claims. We remand to the Board of Immigration Appeals for further

proceedings consistent with this opinion.




23
  See Myrie, 855 F.3d at 516 (“Circumstantial evidence may establish acquiescence to
targeted acts of violence even when the government has an official policy or is engaged
in a campaign of opposition against the entity the applicant fears.”); Pieschacon-Villegas,
671 F.3d at 311 (“[A] government’s ability to control groups engaged in torturous
activities may be relevant to, but not dispositive of, an assessment of willful blindness.”).
