                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3283




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-3283


                         QUAZI MUSTAFA ZAHID ATIQUE,
                                          Petitioner

                                            v.

                           John Ashcroft, Attorney General of
                                   the United States,
                                                  Respondent*


              APPEAL FROM THE UNITED STATES IMMIGRATION
                     AND NATURALIZATION SERVICE
                         Agency No. A71-498-356


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 11, 2003


        Before: BARRY, ROSENN, Circuit Judges and POLLAK,** District Judge


                             (Opinion Filed: April 28, 2003)




   *
     John Ashcroft, as the Attorney General of the United States, rather than the
Immigration and Naturalization Service, is the proper respondent in a petition for review
of an order of removal. See 8 U.S.C. § 1252(b)(3)(A). The caption is ordered changed to
reflect the proper party.
   **
      The Honorable Louis H. Pollak, Senior District Judge, United States District Court
for the Eastern District of Pennsylvania, sitting by designation.
                                         OPINION


BARRY, Circuit Judge

       Petitioner Quazi M ustafa Zahid Atique, a citizen of Bangladesh, filed this timely

petition for review of a final order of removal issued by the Board of Immigration

Appeals, affirming without opinion the decision of the Immigration Judge (“IJ”). We

have jurisdiction under 8 U.S.C. § 1252(a), and will deny the petition.

       Because we write only for the parties, we will not recite the factual background of

this case, except as necessary to explain our decision. In this petition, Atique challenges

the IJ's finding that he had not been subject to past persecution and did not have a well-

founded fear of future persecution in Bangladesh because of his status as a former officer

in the Pakistani military. Atique fought on behalf of Pakistan in the civil war between

Pakistan and the current Bangladesh. Because the Board affirmed without opinion, and

Atique has not challenged the procedure by which it summarily affirmed, we review the

decision of the IJ as the final administrative determination.

       The Immigration and Nationality Act (“INA”) authorizes the Attorney General, in

his discretion, to grant asylum to an alien who is a “refugee” as defined in the Act, i.e., an

alien who is unable or unwilling to return to his or her home 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. §§ 1158(b)(1);

                                              2
1101(a)(42)(A). The IJ's determination that Atique was not eligible for asylum must be

upheld if it is “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” 8 U.S.C. § 1105a(a)(4). It can be reversed only if the evidence is

such that a reasonable factfinder would have to conclude that the requisite fear of

persecution existed. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Findings of fact,

including findings regarding “persecution” and “well-founded fear of persecution,” are

reviewed under the deferential substantial evidence standard. Abdille v. Ashcroft, 242

F.3d 477, 483 (3d Cir. 2001). Moreover, we may reject the interpretation of the

immigration laws only if it is “arbitrary, capricious, or manifestly contrary to the statute.”

Chang v. INS, 119 F.3d 1055, 1060 (3d Cir. 1997).

       In order to be entitled to withholding of deportation, an alien must satisfy the

stricter standard of showing “a clear probability of persecution.” INS v. Cardoza-

Fonseca, 480 U.S. 421, 430 (1987). “[T]he standard is that he must show that it is more

likely than not that he will face persecution if he is deported.” Lin v. INS 238 F.3d 239,

244 (3d Cir. 2001). Therefore, if an alien is unable to establish eligibility for asylum, he

is ineligible for withholding of deportation. See Cardoza-Fonseca, 480 U.S. at 443-44.

       Atique claims that he is eligible for asylum on the basis of his status as a former

member of the Pakistani military. The IJ found that Atique's past service in the Pakistani

air force is an immutable trait or belief, potentially constituting the basis for an asylum

claim based on persecution on account of political opinion or membership in a particular



                                              3
social group. The IJ determined, however, that there was no objective evidence that

Atique’s status as a former member of the Pakistani air force had resulted in past

persecution or would create a reasonable likelihood of future persecution.

       In order to show that he has a well-founded fear of persecution, Atique must show

both that he genuinely fears persecution if he returns to Bangladesh and that his fear is

objectively reasonable. Lin, 238 F.3d at 244. “For the government's action to constitute

persecution, it must amount to more than generally harsh conditions shared by many other

persons, but does include threats to life, confinement, torture, and economic restrictions

so severe that they constitute a real threat to life or freedom.” Id. at 243-44.

       Atique contends that several events constitute past persecution. The first is his

imprisonment in a Pakistani concentration camp for two years beginning in 1972. The

second is his alleged forcible recruitment into Bangladesh's air force following his release

from the Pakistani camp, and the concomitant harassment, which continued until 1981.

The third is alleged verbal and physical harassment by supporters of the Bangladesh

National Party (“BNP”) because of his prior support of the Jatiyo party and its leader,

General Ershad.

       The IJ's finding that there was no past persecution is supported by substantial

evidence. First, Atique's confinement by the Pakistan government does not support his

claim of persecution by the government of Bangladesh. Second, Atique's allegation of

forcible recruitment to Bangladesh's air force is not supported by the record. Atique



                                              4
testified at his immigration hearing only that he was “accepted” into the Bangladesh air

force–not that he was “forcibly recruited” into it, as he contends in his brief. (Petitioner's

Br. at 5; R. at 69.) Moreover, the harassment allegedly inflicted on Atique during his

service in the Bangladesh air force–providing him with inadequate practice hours to

maintain his flying skills and failing to consider his application to resign in a timely

fashion–does not rise to level of persecution. “‘[P]ersecution’ is an extreme concept that

does not include every sort of treatment our society regards as offensive.” Fatin v. INS,

12 F.3d 1233, 1243 (3d Cir. 1993).

       Third, and finally, the alleged continuous pressure by BNP supporters to force

Atique to resign from his civil government position, including the use of campaign

posters urging his ouster, does not constitute persecution. Substantial evidence supports

the IJ's finding that the physical assault in 1990 in Atique's office by BNP supporters,

which ended when they were apprehended by a security guard, was an isolated event that

occurred during a period of civil unrest throughout Bangladesh. The fact that Atique was

caught in the “generally high-level of violence associated with Bangladesh politics” does

not mean he was persecuted. (R. at 136-37, U.S. D EPARTMENT OF S TATE, B ANGLADESH:

P ROFILE OF A SYLUM C LAIMS & C OUNTRY C ONDITIONS (Feb. 1998).) Similarly, the

government's alleged failure to pay a pension to Atique's family, in the absence of

evidence that it was connected to his status as a former Pakistani air force officer, is not

evidence of persecution. In sum, the IJ's finding of no past persecution is supported by



                                              5
substantial evidence.

       In addition, the IJ found no objective evidence that Atique's subjective fear of

future persecution was well-founded. Atique's contention that he would suffer

persecution if he returned to Bangladesh is based on two theories. First, he fears future

persecution based on the past persecution he believes he experienced. Second, he fears

that he will be arrested immediately upon returning to Bangladesh because he did not

obtain permission to depart, permission which was required because he was a former

military officer.

       With regard to Atique's first contention, the regulatory presumption of future

persecution does not arise in this case given that substantial evidence supports the IJ's

finding of no past persecution. See Obianuju Ezeagwuna v. Ashcroft, 301 F.3d 116, 126

(3d Cir. 2002). In addition, substantial evidence supports the IJ's finding that conditions

in Bangladesh have, if anything, changed for the better with regard to Atique's situation

since his departure in 1991. In the 1996 election, which brought the Awami League to

power, the Jatiyo party won 30 seats in Parliament, Jatiyo party members were appointed

to cabinet appointments in the new government, and General Ershad was permitted to

take his seat in Parliament although he was formally still in custody on charges of graft.

There is no “evidence of systematic political repression on a scale that would make it

difficult for opposition party members to continue to live and take an active role in

politics in Bangladesh.” (R. at 136, U.S. D EPARTMENT OF S TATE, B ANGLADESH: P ROFILE



                                              6
OF A SYLUM C LAIMS &   C OUNTRY C ONDITIONS (Feb. 1998).)

       With regard to Atique's second contention, no objective evidence supports the

conclusion that he will be arrested upon his return to Bangladesh. More than his mere

say-so is required. Moreover, even if Atique does face arrest for violation of a publicized

law against unauthorized departure by former military personnel, he has not established

that a reasonable person in his position would fear persecution rather than mere

prosecution.

       In conclusion, because Atique failed to demonstrate either past persecution or a

well-founded fear of future persecution, the IJ's decision denying asylum will be upheld.1

In addition, because Atique does not qualify for asylum, the IJ correctly concluded that he

could not satisfy the more stringent standard for withholding of deportation.

       The petition for review will be denied.




TO THE CLERK OF COURT:

       Kindly file the foregoing opinion.


                                                 /s/ Maryanne Trump Barry
                                                        Circuit Judge




   1
    Atique claims that his petition arises in part under the Convention Against Torture
(“CAT”) and was denied by the IJ on that basis. The IJ does not appear to have denied
Atique relief under the CAT. However, because Atique has not raised this issue in his
brief to us, the argument is waived.

                                             7
