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


8-24-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-2110




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                                                                 PRECEDENTIAL

  UNITED STATES COURT OF
         APPEALS
   FOR THE THIRD CIRCUIT                                  OPINION


            No. 03-2110                     STEPHEN A. TRAYLOR
                                            Traylor & Traylor
                                            20 Nassau Street
 MOHAMMAD ARIF SHARDAR,                     Suite 204
                                            Princeton, NJ 08542
                  Petitioner
                 v.
                                                         Counsel for Petitioner
  JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES
                                            PETER D. KEISLER
                  Respondent
                                            Assistant Attorney General
                                            Civil Division
                                            LINDA S. WENDTLAND
On Petition for Review of an Order of
                                            Assistant Director
 the Board of Immigration Appeals
                                            Office of Immigration Litigation
         (No. A72-779-408)                  MICHELLE R. THRESHER
                                            Attorney
                                            Office of Immigration Litigation
 Submitted Under Third Circuit LAR          Civil Division
       34.1(a) June 24, 2004                U.S. Department of Justice
                                            P.O. Box 878, Ben Franklin Station
                                            Washington, D.C. 20044
  Before: NYGAARD, McKEE and
    CHERTOFF, Circuit Judges.
                                                         Counsel for Respondent

      (Filed: August 24, 2004)




                                        1
CHERTOFF, Circuit Judge.                            demonstration in Jatrabari Square1 in
                                                    Bangladesh. Shardar was arrested and
       Mohammad Arif Sardar appeals the
                                                    charged with having weapons and
decision of the Board of Immigration
                                                    explosives, allegations that Shardar stated
Appeals (BIA), affirming the Immigration
                                                    were “[c]ompletely false.” A.R. at 174.
Judge’s (IJ) denial of his application for
                                                    Shardar testified that following his arrest,
asylum and withholding of deportation,
                                                    he was held in jail and beaten with canes
and denying his motion to reopen the
                                                    and kicked in the face. While he was
proceedings for consideration under
                                                    beaten his interrogators shouted, “Ershad
Article 3 of the United Nations
                                                    time is over. Now is, is BNP time.” Id. at
Convention Against Torture (CAT). For
                                                    168. Shardar claimed he was forced to
the reasons elaborated below, we will
                                                    confess that he had weapons and
deny the petition for review in its entirety.
                                                    explosives, and to proclaim that he would
                                                    never be with the party again, in order to
                                                    stop the beatings and “save [his] life.” Id.
                     I.
                                                    at 169.
       Shardar is a native and citizen of
                                                            After three days in the police
Bangladesh who entered the United States
                                                    station and almost six days in jail, Shardar
on August 26, 1992, using a false
                                                    went before a judge. Shardar’s father paid
passport. Shardar applied for asylum in
                                                    for a lawyer. The judge, whom Shardar
1992, alleging he was persecuted on the
                                                    described as “pretty nice,” id. at 170,
basis of his political opinion for his
                                                    released him on bail of 50,000 local taka,
membership in the Jatiyo political party.
                                                    which his father paid. Following his
Jatiyo is the party of Army Chief of Staff
                                                    release, Shardar’s father took him to a
General H.M. Ershad, who seized power
                                                    private medical clinic for nineteen days.
and declared himself President in
December 1983.          In the face of                     Shardar then went to work for a
widespread opposition, Ershad was forced            Chinese restaurant in Dhaka, Bangladesh.
to resign in December 1990, and in a                He testified that the police came looking
February 1991 election the Bangladesh               for him on several occasions, and
Nationalist Party (BNP) won a                       therefore he “had to leave the job,” his
parliamentary plurality and formed the              home, and his wife. Id. at 171. Shardar
government.
      The primary basis for Shardar’s
                                                           1
asylum claim stems from events                              While the Petitioner’s brief refers
surrounding his participation, on January           to the location as “Jatrabi Square,” this
6, 1992, in an allegedly peaceful                   appears to be an error. We adhere to the
                                                    spelling—“Jatrabari”—used in the
                                                    Government’s brief and police report
                                                    (discussed below).

                                                2
conceded, however, that the police came                   Many padestrians [sic] were
after a warrant was issued for his arrest                 lethally injured. We to
because of his failure to appear in court.                control this predicament
Id. at 176-77.                                            [sic] situation used tear gas
                                                          to disperse them but they
        In addition to Shardar’s testimony,
                                                          became more furious and
documentary evidence was introduced,
                                                          begun [sic] to throw brick-
including a police report and “charge
                                                          bats on us.      We having
sheet” pertaining to his arrest, the record
                                                          found no other way
of proceedings in the Court of Chief
                                                          advanced with fortitute [sic]
Metropolitan Magistrate, and an arrest
                                                          to arrest them and Md. Arif
warrant issued on May 20, 1992,
                                                          Sardar [sic] accussed No. 1
providing that Shardar “after having
                                                          arrested by us, under whose
[posted] bail[,] . . . abscond[ed],” id. at
                                                          Leadership this occurrence
284. Shardar also submitted letters from
                                                          was occurred and the other
the clinic where he was treated following
                                                          skedaddled from the spot . .
his release, his lawyer, an associate from
                                                          ..
the Jatiyo Party, and an accounting firm.
See id. at 274-77.                                 Id. at 279-80.
       Of particular relevance is the police              On July 22, 1998,2 the Immigration
report, which characterizes the protestors         Judge (IJ) denied Shardar’s application for
as violent and suggests Shardar was a
leader in the hostile activities. The report
explains, in pertinent part:                              2
                                                          The IJ outlined the reason for the
       [T]hey were delivering                      delay between the 1992 application for
       defamatory, detractive and                  asylum and the issuance of the decision:
       slanderous slowgans [sic]
       a g a i n st t h e p r e s e n t                   He applied for asylum . . . in
       Gov[ernment] . . . . We                            1992.     The application,
       then and there made an                             however, was not granted
       importunate entreaty to                            and instead was referred to
       them not to deliver such                           this Court for a decision,
       types of slowgans [sic] for                        along with a Notice to
       which they got infuriated                          Appear issued on October
       and being armed with                               17, 1997, almost five years
       deadly weapons made a                              later. The Notice to Appear
       sudden invasion on us.                             was addressed on the record
       They exploded some bombs                           on December 23, 1997.
       at the spot one after another.
                                                   A.R. at 83.

                                               3
asylum and withholding of removal, while                   1991 and 1996. These
granting the application for voluntary                     individuals were able to
departure.      The IJ concluded that                      defend themselves in court
“although the respondent is credible, he                   actions and have the same
has in no way met his burden of proof.”                    judicial rights as other
Id. at 89. The IJ explained that “[t]here is               Bangladeshis.          The
a complete grand canyon of difference                      harassment experienced by
between persecution and a fear of                          some high level Jatiyo party
prosecution.” Id. The IJ rejected the                      members is not sufficient to
suggestion that “the only reason he was                    justify the conclusion that
arrested was because he was a supporter of                 Jatiyo Party membership in
the Jatiya Party.” Id. at 91. Rather, the IJ               itself accounted for severe
pointed to the documentary evidence that                   mistreatment.
the demonstration was violent. Noting
                                                    Id. at 257.
that Shardar had failed to file newspaper
articles or other objective evidence                        The IJ concluded that while
supporting his account of the                       arguably Shardar was persecuted in the
demonstration, the IJ explained that “[i]t is       past when he was beaten at the police
equally plausible, in fact more plausible           station, “the changed circumstances . . .
than not given the evidence supplied by             rebut or defeat any potential presumption
the respondent, that the respondent had             of a well-founded fear of future
been involved in inciting a demonstration           persecution.” Id. at 97. The IJ elaborated
that turned violent and that the police were        that “[t]he obvious and evident changed
mad as could be.” Id. at 92.                        circumstances are that the respondent was
                                                    released on a bond and obviously the
        The IJ noted that Shardar did not
                                                    police did respect the respondent and left
provide evidence that the judicial process
                                                    him alone . . . . The fact that the police
might be corrupted; rather, the State
                                                    came by later in time looking for the
Department report indicates that members
                                                    respondent . . . is clearly all because the
of the Jatiyo Party enjoy the same judicial
                                                    respondent failed to appear in court and
rights as other Bangladeshis. The State
                                                    the police were executing a warrant . . . .”
Department’s 1997 Bangladesh Profile of
                                                    Id. The IJ also referenced the “1997 State
Asylum Claims and Country Conditions
                                                    Department Profile” for the proposition
(“1997 State Department Profile”)
                                                    that “country conditions for people who
provides, in pertinent part:
                                                    are in the Jatiya Party have radically
       There is some evidence that                  changed.” Id. at 95.3
       prominent Jatiyo Party
       members and/ or supporters
       . . . were harassed by the                          3
                                                             The “1997 State Department
       BNP Government between                       Profile” outlines many of the favorable

                                                4
       On March 21, 2003, the Board of                  that he would be unable to
Immigration Appeals (BIA), exercising                   establish his c laimed
jurisdiction under 8 C.F.R. § 1003.1(b),                innocence.
affirmed the IJ’s decision. The BIA
                                                Id. at 2.
explained that Shardar had failed to meet
the burden of proof for establishing                   Moreover, the BIA denied
asylum because                                  Shardar’s request to reopen the proceeding
                                                for consideration under the CAT,
       [w]hile . . . violence is a
                                                concluding that he had “failed to establish
       feature of the political
                                                prima facie eligibility for relief under the
       process in Bangladesh, we
                                                Convention.” Id. However, the BIA
       have no reason to conclude
                                                agreed that Shardar should be entitled to
       that the prosecution the
                                                voluntarily depart. Id. at 3.
       respondent may face if he
       returns to Bangladesh is                        This Court has jurisdiction pursuant
       politically motivated, and               to 8 U.S.C. § 1252(a)(1). We conclude
       there is no reason to find               that the BIA properly denied (1) the
                                                petition for asylum; and (2) the petition to
                                                remand the proceedings for consideration
changes for the Jatiyo Party:                   under the CAT.

       A Jatiyo Party member of
       parliament is serving as                                     II.
       M i n i s t e r         o f
       Communications and a                            Shardar argues that the BIA erred
       number of other Jatiyo party             in denying his application for political
       members are also serving in              asylum, particularly since the IJ found his
       the Cabinet. Although still              testimony credible. The Attorney General
       formally held in custody,                has discretion to grant asylum if the
       Ershad took his seat in the              petitioner demonstrates that he meets the
       n ew P a r liament and                   Immigration and Nationality Act’s (INA)
       participated in its                      definition of “refugee”—that he is unable
       deliberations. He was freed              or unwilling to return to his home country
       on bail in January 1997. In              “because of persecution or a well-founded
       the summer of 1997, the                  fear of persecution on account of race,
       government issued Ershad a               religion, nationality, membership in a
       passport and permitted him               particular social group, or political
       to travel to Europe and the              opinion.” 8 U.S.C. § 1101(a)(42)(A); see
       United States.                           Dia v. Ashcroft, 353 F.3d 228, 234 n.1 (3d
                                                Cir. 2003).
A.R. at 255.

                                            5
       “A showing of past persecution             2001).
gives rise to a rebuttable presumption of a
                                                          The fact that, as here, a petitioner’s
well-founded fear of future persecution.”
                                                  testimony is deemed credible is not
Mulanga v. Ashcroft, 349 F.3d 123, 132
                                                  determinative. The BIA “may require
(3d Cir. 2003) (citing 8 C.F.R. §
                                                  documentary evidence to support a claim,
208.13(b)(1); Abdulrahman v. Ashcroft,
                                                  even from otherwise credible applicants,
330 F.3d 587, 592 (3d Cir. 2003)). The
                                                  to meet their burden of proof.” Gao, 299
presumption, however, is rebutted where
                                                  F.3d at 272 (citing Abdulai v. Ashcroft,
the Government “establishes by a
                                                  239 F.3d 542, 554 (3d Cir. 2001)). In this
preponderance of the evidence that the
                                                  case, the IJ did not merely deny Shardar’s
applicant could reasonably avoid
                                                  claim because of the absence of
persecution by relocating to another part
                                                  corroborating evidence.          Rather, the
of his or her country or that conditions in
                                                  documentary evidence that was presented
the applicant’s country have changed so as
                                                  conflicted with Shardar’s contention that
to make his or her fear no longer
                                                  the demonstration was peaceful.
reasonable.” Abdulrahman, 330 F.3d at
592 n.3.                                                  As the IJ noted, there is a
                                                  distinction between persecution and
        Whether a petitioner has
                                                  prosecution. “As a general matter, . . .
demonstrated past persecution or a
                                                  fear of prosecution for violations of ‘fairly
well-founded fear of future persecution is
                                                  administered laws’
a factual question that is reviewed by this
Court under a substantial evidence                 does not itself qualify one as a ‘refugee’
standard, and will be upheld to the extent        or make one eligible for withholding of
it is supported by “reasonable, substantial       deportation.” Chang v. I.N.S., 119 F.3d
and probative evidence on the record              1055, 1060 (3d Cir. 1997) (citations
considered as a whole.” Kayembe v.                omitted). However, fear of prosecution,
Ashcroft, 334 F.3d 231, 234 (3d Cir.              even under generally applicable laws, may
2003) (citing Gao v. Ashcroft, 299 F.3d           constitute grounds for asylum or
266, 272 (3d Cir. 2002)). The scope of            withholding of removal. See id. “[I]f the
review is narrow. “[T]he administrative           prosecution is motivated by one of the
findings of fact are conclusive unless any        enumerated factors, such as political
reasonable adjudicator would be                   opinion, and if the punishment under the
compelled to conclude to the contrary.” 8         law is sufficiently serious to constitute
U.S.C. § 1252(b)(4)(B). That is, “[u]nder         persecution, then the prosecution under
the substantial evidence standard, the            the law of general applicability can justify
BIA’s findings must be upheld unless the          asylum or withholding of deportation.” Li
evidence not only supports a contrary             Wu Lin v. I.N.S., 238 F.3d 239, 244 (3d
conclusion, but compels it.” Abdille v.           Cir. 2001) (citing Chang, 119 F.3d at
Ashcroft, 242 F.3d 477, 483-84 (3d Cir.           1061); see also Fisher v. I.N.S., 79 F.3d


                                              6
955, 962 (9th Cir. 1996) (explaining that          conclusion that even if this treatment rises
there are “ two exceptions to the general          to the level of past persecution, the
rule that prosecution does not amount to           circumstances have changed such that the
persecution—disproportionately severe              presumption of a well-founded fear of
punishment and pretextual prosecution”).           future persecution is rebutted. Shardar
                                                   was released on bail from custody, and
                                                   there is no evidence suggesting that if he
       In this case, there was substantial
                                                   returns for prosecution he will be
evidence to support the conclusion that
                                                   persecuted on the basis of his political
Shardar has not met his burden of proof
                                                   opinion. Moreover, the “1997 State
for establishing eligibility for asylum.
                                                   Department Profile” provides substantial
Rather, the evidence supports the
                                                   evidence in support of the conclusion that
conclusion that Shardar was not
                                                   the country conditions have changed in
persecuted on account of his political
                                                   Bangladesh, specifically noting that Jatiyo
opinion; rather, he was legitimately
                                                   Party members are able to “defend
prosecuted for participation in a violent
                                                   themselves in court actions and have the
political demonstration.         Moreover,
                                                   same judicial righ ts as oth er
Shardar failed to establish that the system
                                                   Bangladeshis.” A.R. at 257.
is so corrupt that if he is prosecuted after
returning to Bangladesh, he will be unable                Having concluded substantial
to receive fair adjudication and                   evidence supports the BIA’s denial of
punishment. In fact, even his own                  asylum, we conclude that withholding of
testimony suggests that thus far the               removal was also properly denied. “The
proceedings against him have been                  standard for withholding of removal is
conducted in a fair manner.                        higher than, albeit similar to, the standard
                                                   for asylum. . . . If [a petitioner] is unable
        Shardar’s strongest claim in support
                                                   to satisfy the standard for asylum, he
of asylum is his testimony, substantiated
                                                   necessarily fails to meet the standard for
by the hospital report, that he was severely
                                                   withholding of removal under [the INA].”
beaten while in police custody. The
                                                   Lukwago v. Ashcroft, 329 F.3d 157, 182
evidence indicates these beatings were
                                                   (3d Cir. 2003).
politically motivated—the perpetrators
yelling, “Ershad time is over. Now is, is
BNP time.” A.R. at 168. Such treatment
                                                                       III.
is, to say the least, extremely troubling.
Nevertheless, this evidence alone does not                In the alternative, Shardar
undermine the conclusion that there was            maintains that the fact that he has
substantial evidence to support the denial         established that he was severely beaten in
of his application for asylum.                     prison and the documentary evidence in
                                                   the record that shows this is a common
        We cannot disagree with the IJ’s
                                                   practice in Bangladesh prisons should be

                                               7
sufficient to justify, at the very least, a       discretion.” Sevoian v. Ashcroft, 290
grant of withholding of removal under the         F.3d 166, 172 (3d Cir. 2002). We
CAT. On June 23, 1999, Shardar filed a            conclude that the BIA did not abuse its
motion to remand, requesting that the BIA         discretion.
remand his case to the IJ for consideration
                                                          “An applicant for relief on the
under the CAT, which having been passed
                                                  merits under the Convention Against
in 1999 was not effective when the IJ
                                                  Torture bears the burden of establishing
rendered his decision in July 1998. We
                                                  ‘that it is more likely than not that he or
conclude that the IJ properly denied the
                                                  she would be tortured if removed to the
motion for reconsideration.
                                                  proposed country of removal.’” Id. at
       “We review the BIA’s denial of the         174-75 (quoting 8 C.F.R. § 208.16(c)(2)).5
motion to reopen [or remand4 ] for abuse of
discretion, ‘mindful of the “broad”
                                                         5
deference that the Supreme Court would                       “Torture” is defined as follows:
have us afford.’” Ezeagwuna v. Ashcroft,
325 F.3d 396, 409 (3d Cir. 2003) (quoting                Torture is defined as any act
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.               by which severe pain or
2001) (citing I.N.S. v. Abudu, 485 U.S.                  suffering, whether physical
94, 108 (1988)). “Motions to reopen                      or mental, is intentionally
implicate important finality concerns even               inflicted on a person for
when they seek to raise an underlying                    such purposes as obtaining
claim for relief, such as relief under the               from him or her or a third
Convention Against Torture, that is not                  person information or a
committed to the Attorney General’s                      confession, punishing him
                                                         or her for an act he or she or
                                                         a t h ird p e r s o n h as
       4
          We treat the motion styled as a                committed or is suspected
“motion to remand” as a motion to reopen                 of having committed, or
since it requires reopening the                          intimidating or coercing him
proceedings. Notably, the BIA decision                   or her or a third person, or
characterizes Shardar’s motion as                        for any reason based on
requesting that the “proceedings be                      discrimination of any kind,
reopened.” A.R. at 2. Cf. 8 C.F.R. §                     when such pain or suffering
1003.2(c)(4) (explaining that “a motion to               is inflicted by or at the
reopen a decision rendered by an                         instigation of or with the
Immigration Judge or Service officer that                consent or acquiescence of a
is pending when an appeal is filed, or that              public official or other
is filed when an appeal is pending before                person acting in an official
the Board, may be deemed a motion to                     capacity.
remand”).

                                              8
Thus, “the prima facie case standard for a
motion to reopen under the Convention
requires the applicant to produce objective
evidence showing a ‘reasonable
likelihood,’ that he can establish that he is
more likely than not to be tortured.” Id. at
175 (quoting In re S-V-, Int. Dec. 3430,
2000 WL 562836, at *3 (BIA May 9,
2000) (en banc)).
        In this case, the BIA did not abuse
its discretion in determining that Shardar
had not met this standard. As outlined
above, substantial evidence supports the
conclusion that Shardar faces legitimate
prosecution, rather than persecution, if he
returns to Bangladesh. The evidence does
suggest that Shardar suffered beatings in
the past. However, the BIA did not abuse
its discretion in determining that this
treatment did not rise to the level of
“torture,” or that there is not a reasonable
likelihood that Shardar can establish that
it is more likely than not he will be
tortured if removed.


                   ****
       For the foregoing reasons, we will
deny Shardar’s petition for review of the
decision of the BIA.




8 CFR § 208.18(a)(1).

                                                9
