                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-13-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2183




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                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-2183
                                      ___________

                              MOHAMAD ALI BALOCH,
                                                Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES

                      ____________________________________

                       On Petition for Review of Order of the
                           Board of Immigration Appeals
                              (Agency No. 98-580-084)
                    Immigration Judge: Honorable Miriam K. Mills
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  AUGUST 13, 2008

           Before: SLOVITER, STAPLETON and COWEN, Circuit Judges

                            (Opinion filed : August 13, 2008)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      The petitioner, a citizen of Pakistan, seeks review of a final order of the Board of

Immigration Appeals (“BIA”). For the following reasons, we will grant the petition for

review.
                                             I.

       Mohamad Ali Baloch entered the United States on September 13, 2003, on a non-

immigrant visa. He filed a timely application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”),1 claiming that he had been

persecuted for his membership and role in the Pakistan People’s Party (“PPP”).

       At his removal proceedings, Baloch testified that he was a mid-ranking member of

the PPP, and part of the Asif Ali Zardari committee, which supported prison release of

Zardari—the husband of Benizar Bhutto, the former prime minister and head of the PPP.

Baloch testified that he was arrested in June 2002 at his apartment in Karachi. He stated

that the police did not have a warrant—or First Information Report (“FIR”)—and that he

has never seen the FIR, which the police claimed was at the police station.2 Baloch was

taken to a police station and interrogated. When he refused to make a statement against

Zardari, the police officers beat him with a baton—fracturing his wrist and injuring his

ear. The police tortured him for the next three days by forcing him to wear only his

underwear and lay on blocks of ice, and by shining bright lights directly into his eyes.



   1
      United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, implemented in
the United States by the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C.
§ 1231.
   2
        Baloch also testified that the attorney who represented him in Pakistan (whom he
has never met) has unsuccessfully requested to see the FIR. There was also apparently a
warrant for him in Pangjur, Pakistan, where he has another home. In his affidavit, Baloch
stated that his PPP associates had obtained a copy of that warrant. (A.R. 211.)

                                             2
Baloch was then moved to a different jail, where he was detained for two months. He

was eventually released after a judicial hearing. Baloch testified that his detention and

release were documented in two newspapers. Although Baloch did not submit either of

the newspapers as evidence, he introduced a picture of his release that he claimed was

taken by a photo-journalist.

       The day after Baloch was released from jail, he was approached by a group of men

who threatened to kill him. He believed that the men were members of the Muttahida

Quami Movement (“MQM”)3 because their car was decorated with the MQM flag and

decals. Baloch went into hiding for a year and then came to the United States. After

arriving in the United States, he applied to extend his visa, and then applied for asylum

after learning that two of his friends and PPP colleagues had been killed. He believed and

continues to believe that it would be dangerous for him to return to Pakistan.

       To support his testimony, Baloch submitted, among other things, an affidavit, a

1995 article from a Pakistani newspaper detailing his early political career, two letters

from PPP officials describing his party activities, arrest and detention, a letter regarding

the murders of his colleagues, country reports, and numerous photographs. Baloch’s

attorney represented that he had unsuccessfully tried to obtain his medical records from

Pakistan.




   3
      Baloch asserted that the MQM, a rival political party, has a long-standing
animosity against the PPP and is aligned with the government.

                                              3
       The Immigration Judge (“IJ”) denied Baloch all relief except for voluntary

departure. She determined that he had “failed to establish his eligibility for relief because

he failed to reasonably explain why he had produced no corroboration of the most

significant underlying events of his claim as the Court would reasonably have expected

him to do.” (A.R. 55.) Specifically, she questioned his failure to obtain his medical

records, arrest records, and newspaper reports corroborating his claim that his release

from jail was the subject of two articles. The opinion later stated that “[r]espondent’s

own testimony was too weak and further rendered incredible in light of his failure to

produce corroboration.” The IJ never made an express credibility determination.

       The BIA affirmed on March 28, 2007 based on Baloch’s failure to substantiate his

testimony with sufficient evidence. The BIA did not make a credibility finding, nor did it

reference any such finding by the IJ. Rather, it found that Baloch did not submit copies of

his medical records, or “explain why he has not been examined by a physician in the

U.S.,” and stated that “although the police reportedly had an arrest warrant when they

took [Baloch] into custody, and his incarceration and release from prison was reported by

the media, [Baloch] has failed to submit a copy of the [FIR] or any newspaper articles

confirming his political activity or incarceration.” (A.R. 2, 3.)

       Through counsel, the petitioner filed a petition for review in this Court seeking

review of the determinations that he was ineligible for relief.




                                              4
                                             II.

       Baloch seeks review of the BIA’s order dismissing his appeal from the IJ’s denial

of his claim for asylum. We have jurisdiction to review a final order of removal under 8

U.S.C. § 1252(a)(1). Because the BIA conducted an independent examination of the

record and did not adopt any part of the IJ’s opinion or announce that it was deferring to

the IJ’s findings, we review its decision only. See Abdulai v. Ashcroft, 239 F.3d 542, 549

n.2 (3d Cir. 2001).

       We will uphold the BIA’s findings to the extent they are “supported by reasonable,

substantial and probative evidence on the record as a whole.” Kayembe v. Ashcroft, 334

F.3d 231, 234 (3d Cir. 2003). Because the BIA did not make any credibility finding, we

proceed as if Baloch’s testimony was credible. Id. at 235. A credible applicant may be

required to corroborate his testimony, but before denying relief on this basis, the BIA

must engage in the following three-part inquiry: (1) “an identification of facts for which it

is reasonable to expect corroboration; (2) the presence or absence of corroboration in the

record; and (3) the adequacy of the applicant’s explanation for its absence.” Toure v.

Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006); Abdulai, 239 F.3d at 554. If the BIA does

not engage in this inquiry, its findings regarding corroboration must be vacated and the

case remanded.4 See Abdulai, 239 F.3d at 554-55.


   4
       The REAL ID Act of 2005, which was adopted on May 11, 2005, Pub. L. No. 109-
13, 119 Stat. 231, et seq., created new standards to guide factfinders in determining when
corroborating documents are necessary in proceedings involving removal proceedings.

                                             5
       The BIA’s decision is not supported by substantial evidence in the record. First, it

mischaracterized the record. See Chavarria v. Gonzales, 446 F.3d 508, 517-18 (3d Cir.

2006) (finding that because the BIA mischaracterized the evidence supporting the

petitioner’s claims, its factual findings were not supported by substantial evidence).

Although the BIA found otherwise, there was no evidence that the police had an FIR

when they arrested Baloch in Karachi. In fact, Baloch testified that the police did not

have one, which is consistent with his affidavit that states that he has never seen the FIR.

(A.R. 98, 211.) Baloch also testified that his attorney in Pakistan unsuccessfully

attempted to obtain the FIR.5 (A.R. 101-102.) The BIA then determined that Baloch did

not submit any newspaper articles “confirming his political activity.” This statement is

also incorrect, as Baloch submitted a June 22, 1995 article from the Pakistani newspaper,

The Daily Bolan, which discusses his early political activity. (A.R. 233-35.) While there

are no articles from a Pakistani newspaper detailing his later political activity, there are

two letters from PPP officials stating that he was involved in the party after his detention.

(A.R. 229, 230.) By mischaracterizing a credible applicant’s testimony and evidence, the

BIA “succeeded in reaching a conclusion not supported by substantial evidence.” See


See REAL ID Act of 2005 § 101(a)(3), (c), and (d), 119 Stat. at 303-04. However, these
new standards apply only to applications made after the effective date of the Act and do
not apply to this case. See Chen v. Gonzales, 434 F.3d 212, 216 n.2 (3d Cir. 2005).
   5
       As evidence of his arrest, in addition to his credible testimony, he presented an
affidavit from his servant, and two letters from PPP officials. (A.R. 191, 229, 230.)
Although the IJ gave little weight to these documents because she did not believe that
Baloch had provided a foundation, they were admitted.

                                               6
Chavarria, 336 F.3d at 518.

       Second, the BIA failed to engage in a complete Abdulai analysis. See 239 F.3d at

554. Although the BIA’s opinion implies that Baloch needed to corroborate all of the

facts that underlay his claim, it did not address Baloch’s explanations for not submitting

this evidence. For example, Baloch stated that he had never seen the Karachi FIR, and

that his Pakistani attorney had been unable to obtain it. (A.R. 98, 101-02, 211)

Additionally, Baloch’s attorney stated that he had requested the medical records from

Pakistan, but had not received them. (A.R. 104-06.) We make no finding as to whether

these explanations are sufficient, but the BIA was required to address them. See Abdulai,

239 F.3d at 554-55.

       Because it mischaracterized the evidence and failed to engage in the Abdulai

analysis, we cannot say that the BIA’s opinion in supported by substantial evidence.

Accordingly, we will grant the petition for review, vacate the BIA’s order, and remand

for further proceedings.




                                             7
