                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1097




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                    No. 06-1097
                                   ____________

                               IMRAN HABIB KHAN,

                                          Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,

                                        Respondent
                                   ____________

                           On Petition for Review from an
                      Order of the Board of Immigration Appeals
                               (Board No. A96 427 028)
                       Immigration Judge: Alberto J. Riefkohl
                                    ____________

                     Submitted Under Third Circuit LAR 34.1(a)
                                February 13, 2007

    Before: SMITH and FISHER, Circuit Judges, and DIAMOND,* District Judge.

                              (Filed: February 16, 2007)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Gustave Diamond, United States District Judge for the Western
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.

       Imran1 Habib Khan seeks review of the order of the Board of Immigration Appeals

(“BIA”) denying his applications for withholding of removal and protection pursuant to

the Convention Against Torture (“CAT”). For the reasons set forth below, we will deny

the petition.

                                             I.

       Because we write only for the parties, who are familiar with the factual and legal

background of this case, we will recite only those facts necessary to our review. Khan, a

native and citizen of Bangladesh, has been in the United States since 1993, initially as a

tourist and then on a student visa. After he left school for financial reasons, Khan was

placed in removal proceedings on June 12, 2003, for failure to comply with the conditions

of the nonimmigrant status under which he was admitted. At his September 24, 2004

hearing, Khan admitted the factual allegations and conceded removability. However, he

sought withholding of removal and protection under the CAT.

       At his hearing, Khan argued that he had previously faced persecution in

Bangladesh and would more likely than not be persecuted again upon his return. He

premised this argument on several troubling incidents in Bangladesh. Khan stated that he

had returned to Bangladesh in 1997 to get married. While there, he received two or three



       1
         Khan’s name is spelled at least three different ways in the papers accompanying
his petition. Our review of the proceedings suggest the proper spelling is Imran.
Therefore we will use that spelling.

                                             2
threatening phone calls from Muslim fundamentalists, who were part of a political party

known as Jama’at-e-Islam, warning that he would be killed for being an atheist. Khan did

nothing to respond to the calls. Khan returned to Bangladesh in 1999. He testified that

during the two-month period he was there, he was cursed at on the street, was refused

service in stores in his neighborhood, and received as many as three or four phone calls a

day threatening his life. He again claimed that the calls came from members of Jama’at-

e-Islam. On one occasion, someone threw a rock at Khan. He was not injured. After he

returned to the United States, his parents received two or three threatening calls for him,

calls which stopped when Khan’s parents informed the callers that Khan was no longer

staying with them. Since his return to the United States, Jama’at-e-Islam has regained

power in Bangladesh as part of a coalition with the Bangladesh Nationalistic Party. Khan

claimed before the Immigration Judge (“IJ”) and now claims before us that if he is

returned to Bangladesh, he will eventually be tortured or killed by Jama’at-e-Islam for

being an atheist.

       At Khan’s September 24 hearing, the IJ determined that Khan had not met the

requirements for withholding of removal or protection under the CAT.2 While the IJ

found that throwing rocks can result in substantial injury, the single instance of rock

throwing did not amount to sufficient evidence for withholding of removal. Similarly, the

IJ determined that Khan had not addressed the issue but that, if he had, there was


       2
       Khan could not claim asylum as he had not filed for asylum within the one-year
time period. 8 U.S.C. § 1158. He does not appeal this determination.

                                              3
insufficient evidence to support a claim that Khan would be tortured if returned to

Bangladesh. This timely petition for review followed.

                                             II.

       We have jurisdiction to review the BIA’s order under 8 U.S.C. § 1252(a)(1). Our

review of a decision of the BIA is for substantial evidence, considering whether the

decision is “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)

(internal citations omitted). We will overturn the BIA’s factual findings only where any

reasonable finder of fact would be compelled to conclude otherwise. Abdille v. Ashcroft,

242 F.3d 477, 483 (3d Cir. 2001). Where, as here, the BIA has adopted wholesale the

reasoning of the IJ, we review the IJ’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549

n.2 (3d Cir. 2001).

       Under the withholding of removal provision of the Immigration and Nationality

Act (“INA”), “the Attorney General may not remove an alien to a country if the Attorney

General decides that the alien’s life or freedom would be threatened in that country

because of the alien’s race, religion, nationality, membership in a particular social group,

or political opinion.” 8 U.S.C. § 1231(b)(3). In order to qualify for withholding of

removal, an alien must establish by a “clear probability” that his freedom would be

threatened if he returned to his country of nationality. Zubeda v. Ashcroft, 333 F.3d 463,

469 (3d Cir. 2003). In other words, an alien must show that it is more likely than not that,

if returned, he would be subject to persecution. Toussaint v. Att’y General, 455 F.3d 409,

                                              4
413 (3d Cir. 2006) (internal citations omitted). If an alien proves that he has suffered past

persecution, there is a rebuttable presumption that he will suffer future persecution.

Chavarria v. Gonzales, 446 F.3d 508, 520 (3d Cir. 2006).

       Khan argues that the threats he received when in Bangladesh coupled with the

rock-throwing incident are sufficient to prove past persecution. We have previously held

that threats are sufficient to prove past persecution only in a very narrow set of

circumstances. “Threats standing alone . . . constitute persecution in only a small

category of cases, and only when the threats are so menacing as to cause significant actual

suffering or harm.” Li v. Att’y General, 400 F.3d 157, 164 (3d Cir. 2005) (internal

quotation marks and citations omitted). For example, in Li we determined that threats of

sterilization and physical violence were insufficient to form a basis for past persecution

where the threats were unfulfilled and were not particularly imminent or menacing.

       Khan attempts to distinguish his case by arguing that, while the death threats may

have been unfulfilled, the incident where a rock was thrown at him proved that the threats

had escalated into violence. Based on this, he claims past persecution or, at least, fear of

future persecution should he return to Bangladesh. While we have held that unfulfilled

threats are properly addressed when considering whether an alien has a fear of future

persecution, id. at 165, the threats aimed at Khan and the rock-throwing incident are

insufficiently imminent and menacing to constitute past persecution or to create a fear of

future persecution. In Chavarria, for example, we found that death threats coupled with

an incident where the men who threatened the petitioner forced him into the trunk of his

                                              5
car at gun and knife point and told him if they ever saw him again he “wouldn’t live to

tell about it,” was sufficient to prove persecution. 446 F.3d at 518. Here, while the

threats against Khan and the rock-throwing incident are reprehensible, they do not fall

within the “small category of cases” where the threats “are so menacing as to cause

significant actual suffering or harm.” Li, 400 F.3d at 164 (internal quotation marks and

citations omitted). See also Lim v. INS, 224 F.3d 929, 932-33 (9th Cir. 2000) (holding

that threats were insufficient to rise to the level of persecution where petitioner, with

police protection, lived six years in the Philippines after receiving death threats and

seeing colleagues being murdered one by one); Boykov v. INS, 109 F.3d 413, 417-18 (7th

Cir. 1997) (holding that threats did not rise to the level of persecution where petitioner

faced repeated threats by the communist party, petitioner’s friend was found murdered,

and the police told him that “now . . . it would be much easier for them to get rid of” him).

Therefore, the IJ did not err when determining that Khan had failed to prove fear of future

persecution.




                                              6
                                             III.

       Alternatively, Khan argues that he should be allowed protection under the CAT.3

In order to qualify for protection under the CAT, an alien must prove that it is more likely

than not that he will be tortured if returned to his country of nationality. 8 C.F.R.

§ 208.16(c)(2); Gabuniya v. Att’y General, 463 F.3d 316, 321 (3d Cir. 2006). Torture is

defined as:

       any act by which severe pain or suffering, whether physical or mental, is
       intentionally inflicted on a person for such purposes as obtaining from him
       or her or a third person information or a confession, punishing him or her
       for an act he or she or a third person has committed or is suspected of
       having committed, or intimidating or coercing him or her or a third person,
       or for any reason based on discrimination of any kind, when such pain or
       suffering is inflicted by or at the instigation of or with the consent or
       acquiescence of a public official or other person acting in an official
       capacity.

8 U.S.C. § 208.18(a)(1); Gabuniya, 463 F.3d at 321.

       Again, while the rock-throwing incident and the threats against Khan are

reprehensible, they are not sufficient to prove that it is more likely than not that Khan will

be tortured if returned to Bangladesh. Without more, Khan’s claims of unfulfilled threats,


       3
         Although the IJ stated that Khan had not addressed a CAT claim, Khan included
discussion of the CAT in his initial application for withholding of removal. In addition,
as evidenced by the BIA’s inclusion of Khan’s CAT claim in its short opinion, Khan’s
passing reference to protection under a torture convention in his brief to the BIA was
sufficient to alert the BIA to the fact that he was appealing the IJ’s CAT determination.
Joseph v. Att’y General, 465 F.3d 123, 125 (3d Cir. 2006) (“Under the liberal exhaustion
policy outlined in Bhiski [v. Ashcroft, 373 F.3d 363 (3d Cir. 2004),] and Yan Lan Wu [v.
Ashcroft, 393 F.3d 418 (3d Cir. 2005)], an alien need not do much to alert the Board that
he is raising an issue.”). This is sufficient for us to retain jurisdiction over Khan’s CAT
claim.

                                              7
a single rock-throwing incident that did not injure him, and dirty looks on the street do

not constitute torture under the CAT.4 Therefore, there is substantial evidence to support

the IJ’s decision that it is not more likely than not that Khan will be tortured upon

returning to Bangladesh.

                                             IV.

       For the reasons set forth above, we will deny Khan’s petition for review.




       4
        The case on which Khan relies, In re O-Z & I-Z, 22 I & N Dec. 23 (BIA 1988), is
distinguishable, as the petitioner in that case was not simply threatened, but suffered
repeated beatings, had his apartment vandalized and personal property destroyed, and had
a son who was physically assaulted twice.

                                              8
