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


6-1-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2136




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 03-2136
                                    ____________

                             HAMIDUL HAQUE KHAN;
                                 NADIA KHAN;
                              RABIYA HAQUE KHAN,

                                          Petitioners

                                          v.

                                JOHN ASHCROFT,
                              ATTORNEY GENERAL,

                                         Respondent
                                    ____________

                     On Petition for Review from an Order of the
                           Board of Immigration Appeals
              (Board Nos. A72-018-638, A72-797-275 and A72-797-276)
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 28, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN,* Circuit Judges.

                                 (Filed June 1, 2004)
                                   ____________

                             OPINION OF THE COURT
                                  ____________


      *
        The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
FISHER, Circuit Judge.

       Because we write only for the parties who are familiar with the facts and issues

presented for review, we will not recite them except as necessary to the discussion.

Hamidul Haque Kahn, Nadia Kahn and Rabiya Kahn, citizens of Bangladesh, petition for

our review of a final order of deportation issued by an Immigration Judge (“IJ”) and

summarily affirmed by the Board of Immigration Appeals (“BIA”). The Kahns contend

that the adverse credibility findings made by the IJ, and the IJ’s finding that Mr. Kahn did

not suffer past persecution, were not supported by substantial evidence. They also

contend that the matter must be remanded to the BIA given the BIA’s failure to address

their claim for relief under the Convention Against Torture, which claim was first raised

in the appeal to the BIA after regulations implementing the Convention were enacted.

For the reasons that follow, we will deny the petition as to the claims that the adverse

credibility findings and finding of no past persecution were not supported by substantial

evidence and grant the petition for remand to the BIA solely for the purpose of

considering the Convention claim.

       Mr. Kahn arrived in the United States in 1991, with his wife and daughter arriving

in 1993. Deportation proceedings were commenced against the Kahns in December

1996. They applied for asylum and withholding of removal under the Immigration and

Nationality Act (the “Act”) given Mr. Kahn’s political activity. Their claims were denied

by the IJ on December 11, 1998. The Kahns appealed that determination to the Board of

                                             2
Immigration Appeals (“BIA”) on December 31, 1998, with briefs submitted on

September 27, 1999. But, on March 29, 1999, the Department of Justice Interim Rule

Implementing the Convention Against Torture became effective. See 64 Fed. Reg. 8479

(Feb. 19, 1999) amending 8 C.F.R. § parts 3, 103, 208, 235, 238, 240, 241, 253 and 507.

Consequently, in their brief to the BIA, the Kahns asserted the newly available claim

under the Convention, requesting a remand to the Immigration Court for a hearing on that

claim. The BIA issued its summary affirmance of the IJ’s decision on March 26, 2003,

without mention of the Convention claim. These Petitions followed.

       The Act authorizes the Attorney General in his discretion to grant asylum to a

deportable alien who is deemed to be a “refugee” within the meaning of section

1101(a)(42)(A) of the Act. 8 U.S.C. § 1158(b)(1) (2003). To obtain refugee status, an

alien must establish that he is unable or unwilling to return to his country of nationality

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. §

1101(a)(42)(A). That persecution must be inflicted either by government or by forces that

the government is unable or unwilling to control. Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002). A well founded fear of persecution is established when an alien demonstrates

a subjective fear of persecution with objective evidence that a reasonable person in his

circumstances would also fear persecution. Abdille v. Ashcroft, 242 F.3d 477, 494-96 (3d

Cir. 2001).



                                              3
       The Kahns bear the burden of supporting their asylum and withholding of removal

claim through credible testimony. Gao, 299 F.3d at 271-72. We review the agency’s

finding under the substantial evidence standard, in which we uphold credibility

determinations that are supported by reasonable, substantial, and probative evidence on

the record considered as a whole. Abdille, 242 F.3d at 483. Only discrepancies that

impact the heart of the asylum claim can support an adverse credibility finding. Gao, 299

F.3d at 272. Adverse credibility determinations should be supported by a specific, cogent

reason for the disbelief in petitioner’s testimony. Balasubramanrim v. INS, 142 F.3d 157,

162 (3d Cir. 1998).

       We conclude that the IJ’s determination that Mr. Kahn’s testimony was not

credible is supported by substantial evidence in the record and that the IJ provided

specific cogent reasons for her determination. The IJ found that Mr. Kahn’s testimony at

the hearing that he left Bangladesh a few days after his arrest differed drastically from the

eight months he related two years earlier to an asylum officer at the interview for his

asylum application. The IJ discredited Mr. Kahn’s explanation that the variance was

because he focused on his case and discussed it with family members after his asylum

interview. This was a material difference on an important date.

       As to Mr. Kahn’s assertion of past persecution, the IJ properly found that even if

Mr. Kahn’s testimony were credible, he failed to establish the objective component for

past persecution. The IJ found that every time Mr. Kahn was arrested, there was a



                                              4
legitimate basis for that arrest. The first and second arrests involved property damage to

vehicles and windows, with the third arrest involving harm to individuals, including

partial paralysis. The IJ concluded that any other harassment Mr. Kahn experienced was

due to personal animosity, and that he could relocate to another part of Bangladesh to

ensure his safety from those with a personal vendetta against him.

       When the BIA summarily affirms the IJ’s decision, the decision we review is that

of the IJ. Dia v. Ashcroft, 353 F.3d 228 (3d Cir. 2003). However, the timing of this case

in light of the passage of the regulations implementing the Convention prevented the IJ

from reviewing the Kahns’ Convention claim. In this context -- where the BIA

summarily affirmed when a new issue was raised before it that was not raised or

considered by the IJ -- we must remand solely for the BIA’s consideration of the merits of

the Kahns’ Convention claim.1

       We have considered all of the contentions raised by the parties and conclude that

no further discussion is required. The petitions for review will be denied for the reasons

stated herein except that we remand solely for the BIA’s consideration of the merits of the

Convention claim.




       1
       The Attorney General concedes remand solely for the purpose of permitting the
BIA to consider the Convention claim.

                                             5
