                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 10a0711n.06

                                           No. 09-3627
                                                                                       FILED
                            UNITED STATES COURT OF APPEALS                          Nov 15, 2010
                                 FOR THE SIXTH CIRCUIT                        LEONARD GREEN, Clerk

FAWAD ZIA KHAN,

          Petitioner,

v.                                                        ON PETITION FOR REVIEW OF AN
                                                          ORDER OF THE BOARD OF
ERIC H. HOLDER, JR., Attorney General,                    IMMIGRATION APPEALS

          Respondent.


                                                      /

Before:          MARTIN and McKEAGUE, Circuit Judges; LUDINGTON, District Judge.*

          BOYCE F. MARTIN, JR., Circuit Judge. Fawad Zia Khan seeks review of a Board of

Immigration Appeals decision affirming an immigration judge’s denial of his application for

withholding of removal under section 241 of the Immigration Nationality Act, 8 U.S.C. § 1231, and

relief under the Convention Against Torture. We find that the decisions of the Board and

immigration judge are supported by substantial evidence, and therefore DENY Khan’s petition for

review.

                                                 I.

          Fawad Zia Khan is a native and citizen of Pakistan who came to the United States in 1987

to attend college at the University of Toledo in Ohio. At college, Khan identified with his non-

Muslim classmates and enjoyed meeting new people who did not practice Islam. Khan stopped

          *
       The Honorable Thomas L. Ludington, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 09-3627
Khan v. Holder
Page 2

attending Muslim prayer services shortly after he arrived in the United States despite his Muslim

classmates’ repeated attempts to get Khan to accompany them to pray. Although Khan’s family is

Muslim, Khan renounced Islam and testified, “I just refuse to live like a Muslim, because I am not

a Muslim.” At one point, another student warned Khan that he should stop saying he renounced

Islam because members of a Muslim student association were threatening to kidnap and assault him

for his apostasy.

       Although Khan went to college to study engineering, he switched majors to Sociology. In

1992, Khan was forced to stop attending school because his father, who did not see the value in a

Sociology degree, would no longer pay the tuition. Khan then became homeless and lived on the

streets and with friends for several years. Eventually, Khan found a steady job and place to live, and

completed a correspondence course in computer programming.

       Khan was issued a Notice to Appear on February 21, 2003. At a master calendar hearing on

January 16, 2007, Khan appeared, admitted the factual allegations in the notice, and conceded

removability. Khan then petitioned for asylum, withholding of removal, and relief under Article 3

of the Convention Against Torture.

       Four of Khan’s friends who have known him since his time at the University of Toledo

appeared and testified at the hearing. These witnesses corroborated Khan’s testimony that he is no

longer a Muslim and that he fears returning to Pakistan because he believes he will be persecuted

and possibly killed.

       The immigration judge found that Khan’s petition for asylum, filed sixteen years after he had

arrived in the United States, was not timely. The immigration judge also denied withholding of
No. 09-3627
Khan v. Holder
Page 3

removal and relief under the Convention Against Torture. The immigration judge found that Khan

and his witnesses were genuinely credible, but concluded that Khan did not establish that his life or

freedom would, more likely than not, be threatened if he were returned to Pakistan. In reaching this

conclusion, the immigration judge assumed that apostates are persecuted in Pakistan, but found that

Khan was unlikely to be identified as an apostate and therefore unlikely to be persecuted.

       The Board affirmed the immigration judge’s decision and Khan timely sought review.

                                                 II.

       This Court has jurisdiction to review final orders of removal issued by the Board. See 8

U.S.C. § 1252(a) (2006); Urbina-Mejia v. Holder, 597 F.3d 360, 364 (6th Cir. 2010). When, as here,

the Board supplemented the immigration judge’s opinion, we review the “Board’s decision as the

final agency decision on issues which the Board actually addressed and the immigration judge’s

decision as final on those issues on which the Board made no findings.” Urbina-Mejia, 597 F.3d

at 364. However, because the Board did not materially add to the immigration judge’s decision

regarding whether Khan would be identified as an apostate, we refer primarily to the immigration

judge’s opinion.

       This Court reviews questions of law de novo. Id. The Board and the immigration judge’s

findings are reviewed under the substantial evidence standard and cannot be reversed merely because

we would have decided differently. Id. “These findings ‘are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.’” Shaya v. Holder, 586 F.3d 401, 405

(6th Cir. 2009) (quoting 8 U.S.C. § 1252(b)(4)(B)).
No. 09-3627
Khan v. Holder
Page 4

                                                 III.

       Khan did not file for asylum within one year of arriving in the United States, and the

immigration judge found that there were not sufficiently changed circumstances in Pakistan to permit

his untimely asylum application. The Board affirmed these findings, which Khan does not challenge

on appeal. Instead, Khan argues that the decisions of the immigration judge and the Board denying

withholding of removal and relief under the Convention Against Torture are not supported by

substantial evidence. There is no time limit for seeking relief under either of these provisions.

A.     Withholding of Removal

       Withholding of removal is mandatory if the alien establishes that his or her “life or freedom

would be threatened in the proposed country of removal on account of race, religion, nationality,

membership in a particular social group, or political opinion.” Khalili v. Holder, 557 F.3d 429, 435

(6th Cir. 2009) (citing 8 U.S.C. § 1231(b)(3)(a)). “Although the [immigration judge] may grant

withholding of removal based upon the same five grounds as a claim for asylum, the alien’s burden

of proof is different.” Berri v. Gonzales, 468 F.3d 390, 397 (6th Cir. 2006). To establish eligibility

for withholding of removal, the applicant must demonstrate that “there is a clear probability that he

will be subject to persecution if forced to return to the country of removal.” Singh v. Ashcroft, 398

F.3d 396, 401 (6th Cir. 2005). This means that the alien must show that it is “more likely than not”

that he or she would be persecuted on the basis of one of these five grounds if removed from this

country. INS v. Stevic, 467 U.S. 407, 424 (1984); see Urbina-Mejia, 597 F.3d at 365. The Board

has defined persecution as “the infliction of harm or suffering by a government, or persons a
No. 09-3627
Khan v. Holder
Page 5

government is unwilling or unable to control, to overcome a characteristic of the victim.” In re

Kasinga, 21 I. & N. Dec. 357, 365 (BIA 1996).

       Applicants may establish that they will face persecution on removal by showing past

persecution on a protected ground or a clear probability of future persecution. 8 C.F.R. § 208.16(b)

(2010); see Thap v. Mukasey, 544 F.3d 674, 681 (6th Cir. 2008). An alien need not show that he or

she will be individually singled out and persecuted in order to be eligible for asylum or withholding

of removal if the alien can show that a country has a pattern or practice of persecuting an identifiable

group that he or she belongs to. 8 C.F.R. § 208.16(b)(2). Because Khan did not renounce Islam

before coming to the United States, he cannot show past persecution. Instead, Khan argues that he

risks persecution in the future.

       Finding that Khan and his witnesses were genuinely credible, the immigration judge

necessarily concluded that Khan had renounced Islam and was now an atheist, or at least an apostate

from Islam. The immigration judge then assumed that apostasy is a form of blasphemy in Pakistan,

punishable by death, but concluded that Khan would not be identified as an apostate. Khan testified

that if he were removed to Pakistan he would be identified as an apostate based on his failure to

follow basic Islamic traditions. Alternatively, Khan also testified that he would be identified if he

ran into one of his college classmates who knew that he had renounced Islam. The immigration

judge agreed that Khan could be subject to persecution if he encountered one of his former

classmates, but found that situation was extremely unlikely to occur given the time that has elapsed,

the small number of students aware of his apostasy, and the size of Pakistan. This conclusion

appears to be supported by substantial evidence.
No. 09-3627
Khan v. Holder
Page 6

       Although the immigration judge did not explicitly address whether Khan would be identified

as an apostate based on his failure to follow Islamic traditions, because Khan only submitted minimal

evidence on this point, we cannot conclude that the immigration judge’s decision is not supported

by substantial evidence. At the hearing, Khan testified that even if he were returned to Pakistan he

still would not observe any Muslim rituals, would not go the mosque, and would not fast on

holidays. Khan also explained that in Pakistan, Muslims would be able to identify him as an apostate

once they observed him not following these basic Islamic rituals. To illustrate this point, during

cross-examination Khan recounted an incident when a Pakistani co-worker observed him eating

lunch on a day of fasting. The co-worker began asking questions and inquiring whether Khan was

going to the mosque to pray. Aside from seeing Khan eating, this individual did not know anything

about Khan’s religious beliefs. While this encounter arguably suggests that Khan might be identified

as an apostate based on his failure to observe Islamic rituals in Pakistan, the immigration judge did

not find it persuasive, and this one instance is not enough to compel a contrary conclusion on a

petition for review before this Court.

       Apart from this one event, that took place in the United States, Khan did not submit any other

evidence to show that he would be identified as an apostate in Pakistan based on his failure to fast,

attend prayer services, or follow other Islamic rituals. No other witnesses testified as to how a

person who renounced Islam would be identified in Pakistan. Khan did not point to any scholarship

or reports on this issue. Although a petitioner’s testimony may be enough in some circumstances

to meet his burden, in this case, we cannot conclude that this one event compels the conclusion that

Khan would more likely than not be subject to persecution. Khan had the weighty burden of
No. 09-3627
Khan v. Holder
Page 7

establishing before the immigration judge that he would “more likely than not” be persecuted if

returned to Pakistan. See Stevic, 467 U.S. at 424. Now, he has an even higher burden of proving

that the immigration judge’s decision is not supported by substantial evidence. Shaya, 586 F.3d at

405. Had Khan presented more evidence, from individuals with personal knowledge of present

country conditions in Pakistan, he may have been able to meet his burden and show that he would

be identified as an apostate. However, confined by our deferential standard of review and Khan’s

high burden of proof, we cannot conclude that the immigration judge’s decision is not supported by

substantial evidence.

       Because Khan did not present evidence sufficient to compel the conclusion that he would be

identified as an apostate, he cannot now rely on demonstrating that there is a pattern or practice of

persecuting similarly situated individuals. If an alien can show that there is a pattern or practice of

persecuting “persons similarly situated to the applicant on account of race, religion, nationality,

membership in a particular social group, or political opinion,” the alien need not show that he or she

will be individually singled out and persecuted in order to be eligible for asylum or withholding of

removal. 8 C.F.R. § 208.16(b)(2).

       It is unclear whether the Board would consider Khan, an apostate and atheist, to be a member

of a social group1 or a religion.2 However, assuming that Khan could avail himself of this provision,


       1
         Neither decision explains whether Khan is a member of a social group. The phrase
“membership in a particular social group” is not statutorily defined. This Circuit has adopted the
Board’s definition of a “social group” as “‘a group of persons all of whom share a common,
immutable characteristic.’” Rreshpja v. Gonzales, 420 F.3d 551, 555 (6th Cir. 2005) (quoting In re
Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985)); Castellano-Chacon v. INS, 341 F.3d 533, 546, 549
(6th Cir. 2003). “Whatever the common characteristic that defines the group, it must be one that the
members of the group either cannot change, or should not be required to change because it is
No. 09-3627
Khan v. Holder
Page 8

and would be entitled to withholding of removal if he showed that there was a pattern or practice of

persecuting others who are similarly situated, he still has not presented sufficient evidence to show

that he would be identified as a member. Although an alien does not need to establish that he or she

would be singled out under this provision, the alien still must show that it is “more likely than not”

that he or she would be persecuted based on membership in the group and that there is a “pattern or

practice” of persecuting similarly situated individuals. Id. Without demonstrating that he would be

identified as a member of a social group or religion subject to persecution, we cannot conclude that

Khan would, more likely than not, be persecuted even if other similarly situated individuals are.

       B.      Convention Against Torture

       Khan also argues that the immigration judge’s decision denying him relief under the

Convention Against Torture3 is not supported by substantial evidence. To be eligible for withholding



fundamental to their individual identities or consciences.” Id. (quoting Acosta, 19 I. & N. Dec. at
233). The Board’s construction is reasonable and entitled to deference. See INS v. Aguirre-Aguirre,
526 U.S. 415, 424 (1999) (citing Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837, 843 (1984)).
       2
         Neither the Board nor the immigration judge addressed whether the persecution that Khan
complained of for being an atheist and apostate could qualify as persecution on account of religion.
Because determining whether atheism and apostasy qualify as religions is a weighty policy decision,
we believe that it is better addressed by the Board in the first instance. Cf., e.g., INS v. Aguirre-
Aguirre, 526 U.S. 415, 425 (1999) (affording Chevron deference to Board decisions giving
“ambiguous statutory terms concrete meaning through a process of case-by-case adjudication”
(internal quotations omitted)); Berhane v. Holder, 606 F.3d 819, 824 (6th Cir. 2010) (recognizing
that the “Board, not the judiciary, is best suited to” determine what amounts to a “serious
nonpolitical crime”).
       3
       Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100-20, p. 20, 1465 U.N.T.S. 85; see 8 C.F.R.
§§ 1208.16-.18.
No. 09-3627
Khan v. Holder
Page 9

of removal under the Convention Against Torture, the implementing regulations provide that the

applicant must “establish that it is more likely than not that he or she would be tortured if removed

to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2); see Shkulaku-Purballori v. Mukasey,

514 F.3d 499, 503 (6th Cir. 2007). Relief under this section is quite similar to withholding of

removal under section 241(b)(3) of the Immigration and Nationality Act, but does not require that

the applicant link the harm he or she will face with any of the five protected grounds for

asylum—race, religion, nationality, membership in a particular social group, or political opinion.

See Castellano-Chacon v. I.N.S., 341 F.3d 533, 551-52 (6th Cir. 2003).

       Because we find that the immigration judge’s decision denying withholding of removal is

supported by substantial evidence, we also find that the decision denying relief under the convention

against torture is supported by substantial evidence.

                                                 IV.

       The Court is well aware of the hardships aliens face in removal proceedings such as this.

While Khan may have been able to produce credible evidence supporting his argument that he would

be identified as an apostate from his failure to follow basic Islamic traditions, he did not do so. It

is troubling that we must deny a petition for review and find that the immigration judge’s conclusion

is supported by substantial evidence in large part because the record was not fully developed.

However, because the record does not compel a contrary conclusion, we must conclude that the

immigration judge’s decision in this case was supported by substantial evidence and DENY Khan’s

petition for review.
