                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3709




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                                                               NOT PRECEDENTIAL
                                                                       AMENDED

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                                  Nos. 04-3709, 04-4647


                        RAFIQ AMJAD and ASTER AMJAD,
                                               Petitioners
                                       v.

                   ATTORNEY GENERAL OF THE UNITED STATES,
                                            Respondent


                           Petition for Review of the Order
                         of the Board of Immigration Appeals
                             (A95 467 602, A95 467 603)


                                 Argued October 24, 2005

                     Before: SLOVITER, FISHER, Circuit Judges,
                          and THOMPSON, District Judge *

                                (Filed: November 29, 2005)

Michael Morrone (Argued)
Bloomington, IN 47401

      Attorney for Petitioner

Peter D. Keisler
   Assistant Attorney General
Christopher C. Fuller
   Senior Litigation Counsel


*     Hon. Anne E. Thompson, United States District Judge for the District of New
      Jersey, sitting by designation.
Jonathan Potter
Jill Ptacek,   (Argued)
  Trial Attorney
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044

       Attorneys for Respondent

                                          OPINION

SLOVITER, Circuit Judge.

       Petitioners Rafiq Amjad 1 and his wife Aster Amjad seek review of the final order

issued by the Board of Immigration Appeals (“BIA”) affirming the determination of the

Immigration Judge (“IJ”) denying petitioners’ application for asylum, application for

withholding of removal to Pakistan, and request for relief under Article Three of the UN

Convention Against Torture (“CAT”). For the reasons that follow, we will deny the

petition for review.

                                            I.

      The Amjads are natives and citizens of Pakistan. They entered the United States on

June 31, 2001 on visitors visas, but overstayed their approved period of stay and filed for

asylum on May 17, 2002. On November 5, 2002, the INS issued Notices to Appear

(“NTA”) charging that the Amjads were removable aliens who had remained in the



                       1
                      Petitioners note that Mr. Rafiq’s first and last name have
             been reversed in the case caption and request that the caption be
             corrected if possible. (Pet. Br. 2) For purposes of this opinion, we
             will use the official case caption and refer to the male petitioner as
             “Mr. Amjad.”

                                                 2
United States without authorization. At the initial removal hearing on December 3, 2002,

the Amjads conceded removability but renewed their applications for asylum,

withholding of removal and CAT protection.

       At a hearing before an IJ, Mr Amjad testified that he and his wife fled Pakistan

because they were Christians living in a predominately Muslim country and, as such,

suffered persecution. Mr. Amjad stated that he was born and baptized a Christian in

Pakistan and that his parents and grandparents were also Christians. He further testified

that he had attended a Methodist Church in Pakistan and that he was ordained a Methodist

pastor in 1995 after attending pastoral training at the Methodist Independent School in

Pakistan. Mrs. Amjad also testified that she was born Christian and had attended a

Methodist Church in Pakistan.

       Mr. Amjad testified that he had worked as a Methodist pastor in Pakistan from

1995 to 2000, during which period Muslims had opposed and threatened him. He

testified that the leader of the mosque (i.e., “Iman”) 2 in a village where he served as a

full-time pastor told him “he could not use loud speakers and . . . should not hold Bible

studies,” and that on one occasion the same Iman and a group of individuals stopped him

on his way home from preaching and punctured his motorcycle tires. App. at 20.

       Mr. Amjad further testified that he was transferred to the city of Lahore because of

the problems he was facing, that his parents moved with him due to similar problems, and



                       2
                           In referring to the “Iman,” we use the spelling adopted by
             the IJ.

                                                  3
that while in Lahore he started a pre-school for young children in a building connected to

his church and a sewing school for young women that was run by his wife. He testified

that the sewing school enrolled twenty-eight girls, four of whom were Muslim, and that

the Muslim students told their parents that they were being forced to participate in

Christian ceremonies. Both Amjads testified that because of this, they started receiving

threatening phone calls and some Muslim boys had followed Mrs. Amjad home and tried

to attack her, which problems eventually escalated to the point that the Amjads were

forced to close both schools.

       At the conclusion of the testimony, the IJ issued an opinion finding that the

Amjads’ testimony was not credible. Although the IJ stated that “the court will take

administrative notice that during these times Christians are in a precarious position in

Pakistan,” she concluded that the Amjads had failed to establish that they were being

persecuted for being Christians and denied their applications for asylum, withholding of

removal and CAT protection.

       The IJ noted that the Amjads were basing their claim of past persecution and fear

of likely future persecution not just on the fact that they were Christians, but on the facts

that they faced greater persecution because Mr. Amjad was a Methodist pastor and that

they both played a visible role in the Methodist Church. The IJ was especially critical of

the Amjads’ perceived lack of knowledge about the Methodist Church in light of their

purported leadership roles.

       The IJ questioned Mr. Amjad during his testimony about various aspects of the


                                              4
Methodist faith. Mr. Amjad was unable to identify the founder of the Methodist Church,

the religion of Jesus Christ, or the most significant event in his favorite book of the Bible.

(App. 34-36) Based on the IJ’s view that Mr. Amjad had not satisfactorily answered

these and other questions, the IJ concluded that Mr. Amjad was “totally lacking in

knowledge about the Methodist Church,” App. at 35, and that when “one holds himself

out as a pastor, a leader, a scholar of a particular religion, one would expect this

individual to have at least a minimum amount of knowledge about the religion which they

[sic] profess to adhere to, and in this case the respondent’s lack of knowledge about the

church certainly is a reflection on his credibility.” App. at 37.

       The IJ pointed to many other discrepancies in the Amjads’ testimony to support her

adverse credibility determination. She noted that Mr. Amjad has a Muslim name and that

if he were born and baptized a Christian it would be “highly unlikely” that a Christian

family would give their child a Muslim name. App. at 35. She also pointed out that,

when questioned, Mr. Amjad’s knowledge of the Koran was greater than his knowledge

of Christianity, leading her to doubt whether he was even a Christian in Pakistan and to

suspect that his knowledge of Christianity may have come from attending church in the

United States.

       The IJ also discounted the testimony of witnesses who testified on behalf of the

Amjads. The witnesses who testified at the hearing were the Amjads’ brother-in-law and

a reverend from the church the Amjads were attending in the United States. The IJ

concluded that these witnesses were testifying only about what they were told by Mr.


                                              5
Amjad because they could not provide independent corroboration of the events in

Pakistan. (App. 41-42) Furthermore, the IJ gave little weight to letters presented by Mr.

Amjad, purportedly from a Methodist minister in Pakistan, stating that Mr. Amjad was a

pastor. The IJ concluded that the letters were “questionable” considering their

grammatical and spelling errors and that they were “self serving” at the very least. App.

at 36.

         On appeal, the BIA affirmed. The BIA noted that the Amjads were unable to

respond to basic questions about the Methodist faith, and concluded:

         The respondents’ claim for asylum is predicated upon their Christian religious
         beliefs, as such, the absence of knowledge regarding those beliefs goes to the very
         heart of their claim and supports the Immigration Judge’s determination.
         Consequently, we conclude that the respondents have failed to provide a plausible
         and coherent account of the basis of their fear.

App. at 7.

         The Amjads timely filed a petition for review with this court and moved for a stay

of removal pending review, which we granted on December 1, 2004.

                                              II.

         To qualify as a “refugee” who may receive asylum, an alien must establish that

s/he is unable or unwilling to return to his or her 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.” INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992) (citation omitted). The persecution alleged must be at the hands of

“the government or forces the government is either unable or unwilling to control.” Gao


                                              6
v. Ashcroft, 299 F.3d 266, 272 (3d. Cir. 2002) (citation omitted).

       To establish eligibility for asylum on the basis of past persecution, an applicant

must show: (1) an incident (or incidents) that constituted persecution; (2) that occurred on

account of one of the statutorily protected grounds; and (3) that was (or were) committed

by the government or forces the government is either unable or unwilling to control.

Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). The BIA and this court have

interpreted “persecution” to include conduct or conditions “so severe that they constitute

a threat to life or freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). Thus,

“persecution does not encompass all treatment that our society regards as unfair, unjust,

or even unlawful or unconstitutional.” Id. at 1240.

       Whether an applicant has demonstrated “persecution or a well-founded fear of

persecution” on account of a statutorily enumerated factor is a factual determination,

which this court reviews under the substantial evidence standard. Shardar v. Ashcroft,

382 F.3d 318, 323 (3d Cir. 2004). Under this highly deferential standard, the IJ’s finding

must be upheld unless “the evidence not only supports” a contrary conclusion, “but

compels it.” Elias-Zacarias, 502 U.S. at 481 n.1. Thus, the IJ’s determinations will be

upheld to the extent that they are “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” Id. at 481 (citation omitted).

       The Amjads contend that the IJ violated due process by failing to consider

objective evidence of Mr. Amjad’s status as a pastor in her finding this aspect of his

testimony incredible. The evidence presented by the Amjads that they claim the IJ failed


                                              7
to consider includes: photographs purporting to show Mr. Amjad in a leadership role

during a Christian ceremony; marriage and birth certificates indicating the Amjads are

Christian; passports which list their religion as Christian and Mr. Amjad’s occupation as a

pastor; and letters indicating that Mr. Amjad is a pastor and documenting his struggles

with Muslims. They assert that the IJ failed to consider this evidence because it was not

mentioned in her opinion.

       In removal proceedings, the IJ “shall consider evidence submitted by the applicant

together with his or her asylum application, as well as any evidence submitted by the

applicant before or at the interview.” 8 C.F.R. § 208.9(e). However, we have stated that

the IJ does not have to comment on every piece of evidence in the record. Liu v.

Ashcroft, 372 F.3d 529, 531 n.3 (3d Cir. 2004); see also, Chen v. Ashcroft, 376 F.3d 215

(3d Cir. 2004) (holding that evidence in the record considered as a whole was substantial

enough to support adverse credibility determination).

       The IJ focused on one primary inconsistency in the Amjads’ testimony when

finding them not credible. She questioned Mr. Amjad on the fundamental aspects of

Christianity and the Methodist Church and concluded that his inability to respond to these

questions seriously undermined his credibility given that he was alleging to be a pastor.

She further concluded that the Amjads’ knowledge of the Bible was inconsistent with

their testimony that they taught Bible studies in Pakistan.

       The Government argues that the inconsistencies relied upon by the BIA and the IJ

are not minor, but instead they go to the “heart of the Amjads’ asylum claims.”


                                              8
Respondent’s Br. at 22. The Amjads respond that the IJ’s credibility determination is not

supported by substantial evidence because the IJ’s reasoning is based upon her questions

about Christianity and the record contains no information about Christian doctrine.

       Rather than decide this case on the Amjads’ knowledge of Christianity in general

and the fundamentals of Methodist religion, we turn to a more striking deficiency in their

case – the lack of evidence that the Pakistani government was responsible for the

incidents on which they base their claim of persecution. We repeat that portion of their

brief verbatim:

              (1) recurring incidents in which [Mr. Amjad] was identified and warned to
              stop his pastoral work;

              (2) threats by Muslim fanatics to burn the church and school when he
              worked at St. Dominic school in 1995;

              (3) beating of Fr. Javaid at St. Dominic’s in 1995;

              (4) attacks, insults, threats during full-time pastoral work from 1996-2000,
              by Muslim fanatics who wanted Mr. Rafiq to stop his pastoral work;

              (5) in August 1997, a village mayor of sorts in one of the town’s he visited
              with some councilmen and used a tractor to knock over a church that one of
              his congregations was building;

              (6) In one of the towns, Mr. Rafiq had to end his pastoral work, because the
              Muslims who owned most of the businesses where the Christians work told
              the Christians that they would be fired if they went to the Christian services;

              (7) On December 20, 2000, at the church in Lahore, there was a scuffle at a
              church party, because some local Muslim men began to fight with some of
              the churchgoers who were having a Christmas party;

              (8) On December 22, 2000, rape charges were fabricated against one of the
              boys who attended the church (and who was a singer at the December 20 th


                                             9
              party). He was held in jail for two weeks, during which he was beaten. No
              charges were filed;

              (9) In April 2001, Mr. Rafiq and Ms. Amjad started a sewing school that
              included a mix of Christian and Muslim students. Two of the Muslim
              students complained that they heard Bible verses and that Muslims were
              being taught about Christianity. The girls’ parents told the Rafiqs they were
              committing Blasphemy;

              (10) Also in April, a Muslim boy stalked Ms. Amjad and threatened to harm
              Mr. [Amjad];

              (11) In April and May 2001, the threats escalated and culminated in a
              Muslim mob screaming and forcing them to close school.

Petitioners’ Brief at 7-8 (citations omitted).

       In response to this court’s request that the parties point to evidence in the record

that addresses whether past persecution set forth on pages 7 and 8 of Petitioners’ Brief

was committed by the Government of Pakistan or forces that the Government either is

unwilling or unable to control, counsel for the Petitioners responded that “the

Government of Pakistan is acquiescent and is in certain ways an active participant in

violence against Christians;” “violence against Christians is common place in Pakistan;”

Government officials are implicated in three of the listed incidents; and the Country

Conditions support Mr. Amjad’s testimony about the “fecklessness of notifying the police

about the violence and threats perpetrated by Muslims against him or his wife.”

Petitioners’ Response to the Court’s Supplementary Request at 1-2 (October 24, 2005).

We are not persuaded.

       As its response to this court’s inquiry, the Government notes that neither of the



                                                 10
Petitioners testified or suggested that they sought protection of the Government or that

such protection was not afforded them when it was sought. Although the Government

reports recognize that there were instances in which the Pakistani Government failed to

intervene in cases of societal violence directed at minority religious groups, the United

States Department of State Reports included in the Administrative Record states that the

Pakistani Government does not encourage sectarian violence. Of most significance in the

Government’s response is the statement that “none of the evidence presented directly

relating to the Amjads’ experiences in Pakistan compels the conclusion that the Amjads

have been, or will be, subjected to persecution by the government, or by private

individuals which the government is ‘unable to unwilling’ to control.” Respondent’s

Response to the Court’s Supplementary Request at 3 (October 21, 2005).

       As we noted earlier, the past persecution that will support a presumption of future

persecution is persecution at the hands of the government or forces the government is

either unable or unwilling to control. The evidence in this record does not support the

Amjads’ assertion that they have satisfied this requirement. Accordingly, we will deny

the Petition for Review.




                                             11
THOMPSON, District Judge, Dissenting.

       In addition to the arguments addressed in the majority opinion, Petitioners also

argued that the translator employed at their asylum hearing was not familiar with

Christian terminology and therefore interpreted words relating to Christianity poorly (e.g.,

translating “Genesis” as “the book of birth”). The BIA denied Petitioners’ request for an

evidentiary hearing, stating that it would not consider the translation issue because

counsel for Petitioners had failed to object to the poor translation at the asylum hearing.

The BIA has not responded to Petitioners’ subsequent requests for access to the audio

recording of the hearing.

       The substantial evidence standard requires a reviewing court to afford great

deference to an IJ’s credibility determinations because the IJ is best positioned to observe

and assess an asylum applicant’s testimony and demeanor. See Dia v. Ashcroft, 353 F.3d

228, 252 n.23 (3d. Cir 2003). That standard is strained, however, where the IJ’s

evaluation is based on a potentially inaccurate translation of the applicant’s testimony.

An adverse credibility determination based on potentially inaccurate information

stemming from poor translation is hardly more reliable than one based on speculation or

conjecture. See Dia, 353 F.3d at 249.

       Attorneys representing asylum applicants cannot reasonably be required to speak

the various languages of their clients and cannot be expected to know whether or not a

translation is objectionable without further investigation after the hearing. I would find

that the BIA was unreasonable to require Petitioners’ counsel to object to the translation


                                             12
problems during the asylum hearing and should have given Petitioners access to the audio

tapes of the hearing. Accordingly, I respectfully dissent.
