FILED United States Court of Appeals Tenth Circuit
July 6, 2018 UNITED STATES COURT OF APPEALSElisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
A.B., * Petitioner,
v. No. 17-9554 (Petition for Review) JEFFERSON B. SESSIONS III, United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
We hereby GRANT Petitioner’s June 25, 2018 motion to expedite this case
and proceed to decide this appeal on the merits.
In 2005, Petitioner, a native and citizen of Bangladesh, applied for asylum,
* In light of Petitioner’s recent deportation to Bangladesh and concerns about his safety there, we use fictitious initials to protect his identity. See Starkey v. Boulder Cty. Soc. Servs., 569 F.3d 1244, 1244 n.* (10th Cir. 2009). ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without oral argument. withholding of removal, and protection under the Convention Against Torture.
He mentioned his status as a religious minority in his application, but he sought
relief based mainly on his actual or imputed political opinion. His application
was denied. In 2017, Petitioner filed a motion to reopen based on changed
country conditions in Bangladesh. Specifically, he contended that treatment of
religious minorities in Bangladesh has deteriorated significantly in recent years
and that the increased persecution of religious minorities puts him at risk due to
his actual or imputed religious beliefs. 1 The Board of Immigration Appeals
(“BIA”) denied his motion to reopen. Petitioner now seeks review of that
decision.
We review the BIA’s denial of Petitioner’s motion to reopen for an abuse
of discretion. See Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013).
“The BIA abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Id. (internal quotation marks
omitted). Moreover, “[c]ommitting a legal error or making a factual finding that
is not supported by substantial record evidence is necessarily an abuse of
discretion.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 n.9 (10th Cir. 2004).
The BIA held that Petitioner had not submitted persuasive evidence of
1 Out of concerns for Petitioner’s safety, we will not discuss his religious beliefs or identity in this opinion.
-2- materially changed country conditions in Bangladesh because (1) his own
statements were speculative and largely not based on personal knowledge, nor
were they sworn to; (2) the background evidence he submitted, “in conjunction
with evidence previously in the record, reflects at most a continuation of political
violence in Bangladesh and discrimination against religious minorities that
existed prior to [Petitioner’s 2005] hearing”; and (3) “the voluminous background
evidence of Islamist militant violence in Bangladesh, which has been directed at
various groups of individuals, including foreigners, does not prima facie
demonstrate that [Petitioner] faces an individualized risk of persecution or that he
would be subject to a pattern or practice of persecution based on his actual or
perceived religious beliefs,” since “[e]vidence of violence and civil unrest in
Bangladesh does not demonstrate that [Petitioner] has fears that differ from the
populace as a whole.” (R. at 3.)
We first briefly address the BIA’s holding that Petitioner’s “statements”
were insufficient to sustain his motion to reopen because they were speculative,
unsworn to, and largely not based on personal knowledge. These statements
consist primarily of Petitioner’s own summaries of the documentary evidence he
submitted in support of his motion to reopen. Because the documents themselves
were submitted into evidence, there was no need for the BIA, and there is no need
for us, to determine whether Petitioner’s summaries of these documents would be
sufficient to sustain his motion to reopen. Rather, we will decide this case on the
-3- basis of the documents themselves.
We turn then to the BIA’s holding that the background evidence submitted
by Petitioner did not show a material change in country conditions because there
has always been political violence and religious discrimination in Bangladesh.
This reasoning runs directly contrary to our precedential opinion in Qiu v.
Sessions, 870 F.3d 1200 (10th Cir. 2017), which was published six weeks before
the BIA denied Petitioner’s motion to reopen in this case. As we held in Qiu, “a
significant increase in the level of persecution constitutes a material change in
country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and . . . the BIA
abuses its discretion when it fails to assess and consider a petitioner’s evidence
that the persecution of others in his protected category has substantially worsened
since the initial application.” Id. at 1204–05. All of the evidence in this record
shows such a significant increase in the level of persecution here.
Petitioner submitted numerous exhibits—newspaper reports, British
Parliamentary minutes, government documents, reports of non-governmental
organizations, and so forth—which all painted a consistent picture of a significant
increase in the persecution of religious minorities in Bangladesh since about
2013. Several newspapers have reported on recent attacks on religious minorities,
particularly Hindus and Christians. For instance, in 2014, “Catholic media
reported that an armed mob of fifty to sixty men broke into the Catholic convent,”
where they committed robbery and attempted rape of the nuns. (R. at 757.) This
-4- was reportedly “the first time the nuns have been targeted.” (R. at 774.) In 2016,
there was “a fivefold surge” of violence from the previous year (R. at 764); in just
one incident, “a mob of at least 100 Muslims violently attacked a Hindu village”
in “a preplanned effort to push Hindus out of the area” (R. at 735). In that same
year, leaders of the Bangladeshi Hindu community “alleged that Hindus are being
forced to leave the country,” asked the government of India to intervene to put an
end to violence against Hindus in Bangladesh, and reported “that the situation in
the capital is ‘very bad’ for the religious minorities,” with Hindus stopping
previous religious practices and making changes to their attire to conceal their
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals Tenth Circuit
July 6, 2018 UNITED STATES COURT OF APPEALSElisabeth A. Shumaker Clerk of Court TENTH CIRCUIT
A.B., * Petitioner,
v. No. 17-9554 (Petition for Review) JEFFERSON B. SESSIONS III, United States Attorney General,
Respondent.
ORDER AND JUDGMENT **
Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
We hereby GRANT Petitioner’s June 25, 2018 motion to expedite this case
and proceed to decide this appeal on the merits.
In 2005, Petitioner, a native and citizen of Bangladesh, applied for asylum,
* In light of Petitioner’s recent deportation to Bangladesh and concerns about his safety there, we use fictitious initials to protect his identity. See Starkey v. Boulder Cty. Soc. Servs., 569 F.3d 1244, 1244 n.* (10th Cir. 2009). ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2)(C); 10th Cir. R. 34.1(G). This case is therefore ordered submitted without oral argument. withholding of removal, and protection under the Convention Against Torture.
He mentioned his status as a religious minority in his application, but he sought
relief based mainly on his actual or imputed political opinion. His application
was denied. In 2017, Petitioner filed a motion to reopen based on changed
country conditions in Bangladesh. Specifically, he contended that treatment of
religious minorities in Bangladesh has deteriorated significantly in recent years
and that the increased persecution of religious minorities puts him at risk due to
his actual or imputed religious beliefs. 1 The Board of Immigration Appeals
(“BIA”) denied his motion to reopen. Petitioner now seeks review of that
decision.
We review the BIA’s denial of Petitioner’s motion to reopen for an abuse
of discretion. See Maatougui v. Holder, 738 F.3d 1230, 1239 (10th Cir. 2013).
“The BIA abuses its discretion when its decision provides no rational explanation,
inexplicably departs from established policies, is devoid of any reasoning, or
contains only summary or conclusory statements.” Id. (internal quotation marks
omitted). Moreover, “[c]ommitting a legal error or making a factual finding that
is not supported by substantial record evidence is necessarily an abuse of
discretion.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 n.9 (10th Cir. 2004).
The BIA held that Petitioner had not submitted persuasive evidence of
1 Out of concerns for Petitioner’s safety, we will not discuss his religious beliefs or identity in this opinion.
-2- materially changed country conditions in Bangladesh because (1) his own
statements were speculative and largely not based on personal knowledge, nor
were they sworn to; (2) the background evidence he submitted, “in conjunction
with evidence previously in the record, reflects at most a continuation of political
violence in Bangladesh and discrimination against religious minorities that
existed prior to [Petitioner’s 2005] hearing”; and (3) “the voluminous background
evidence of Islamist militant violence in Bangladesh, which has been directed at
various groups of individuals, including foreigners, does not prima facie
demonstrate that [Petitioner] faces an individualized risk of persecution or that he
would be subject to a pattern or practice of persecution based on his actual or
perceived religious beliefs,” since “[e]vidence of violence and civil unrest in
Bangladesh does not demonstrate that [Petitioner] has fears that differ from the
populace as a whole.” (R. at 3.)
We first briefly address the BIA’s holding that Petitioner’s “statements”
were insufficient to sustain his motion to reopen because they were speculative,
unsworn to, and largely not based on personal knowledge. These statements
consist primarily of Petitioner’s own summaries of the documentary evidence he
submitted in support of his motion to reopen. Because the documents themselves
were submitted into evidence, there was no need for the BIA, and there is no need
for us, to determine whether Petitioner’s summaries of these documents would be
sufficient to sustain his motion to reopen. Rather, we will decide this case on the
-3- basis of the documents themselves.
We turn then to the BIA’s holding that the background evidence submitted
by Petitioner did not show a material change in country conditions because there
has always been political violence and religious discrimination in Bangladesh.
This reasoning runs directly contrary to our precedential opinion in Qiu v.
Sessions, 870 F.3d 1200 (10th Cir. 2017), which was published six weeks before
the BIA denied Petitioner’s motion to reopen in this case. As we held in Qiu, “a
significant increase in the level of persecution constitutes a material change in
country conditions for purposes of 8 U.S.C. § 1229a(c)(7)(C) and . . . the BIA
abuses its discretion when it fails to assess and consider a petitioner’s evidence
that the persecution of others in his protected category has substantially worsened
since the initial application.” Id. at 1204–05. All of the evidence in this record
shows such a significant increase in the level of persecution here.
Petitioner submitted numerous exhibits—newspaper reports, British
Parliamentary minutes, government documents, reports of non-governmental
organizations, and so forth—which all painted a consistent picture of a significant
increase in the persecution of religious minorities in Bangladesh since about
2013. Several newspapers have reported on recent attacks on religious minorities,
particularly Hindus and Christians. For instance, in 2014, “Catholic media
reported that an armed mob of fifty to sixty men broke into the Catholic convent,”
where they committed robbery and attempted rape of the nuns. (R. at 757.) This
-4- was reportedly “the first time the nuns have been targeted.” (R. at 774.) In 2016,
there was “a fivefold surge” of violence from the previous year (R. at 764); in just
one incident, “a mob of at least 100 Muslims violently attacked a Hindu village”
in “a preplanned effort to push Hindus out of the area” (R. at 735). In that same
year, leaders of the Bangladeshi Hindu community “alleged that Hindus are being
forced to leave the country,” asked the government of India to intervene to put an
end to violence against Hindus in Bangladesh, and reported “that the situation in
the capital is ‘very bad’ for the religious minorities,” with Hindus stopping
previous religious practices and making changes to their attire to conceal their
religious identity. (R. at 930.) In 2017, the Washington Post reported: “In recent
years within Bangladesh . . . , radical Islam has been on the ascent and the Hindu
community within the country has borne the brunt of this horrific reality. Hindus
make up around 9.5 percent of the Bangladeshi population, but some analysts fear
that if the present situation continues, in about 20 years there will be almost no
Hindus left.” (R. at 424.) And “minorities appear to be losing hope” that the
government will do anything to stop the increased violence against them; in 2016,
“the general secretary of the Bangladesh Hindu Buddhist Christian Unity Council
stat[ed] that ‘the sudden acceleration in the murderous attacks shows that the
killers are taking advantage of the situation of impunity prevailing in the
country.’” (R. at 747 (brackets omitted).)
In 2016, a Member of the British Parliament made remarks in Parliament on
-5- the “deteriorating human rights situation in Bangladesh,” and particularly “the
persecution of minority religious groups.” (R. at 826.) Another Member of
Parliament then reported she had conducted an inquiry into this situation,
“tak[ing] evidence from both politicians and human rights activities from
Bangladesh,” and this evidence “confirmed the overall picture that my
hon[orable] Friend has painted of escalating violence and increasing concern
about the protection offered to religious and political minorities, including by the
state authorities” (R. at 832). The second M.P. reported that “[t]he threat against
minority groups and foreign nationals has intensified” recently in Bangladesh,
with a rise in attacks against religious minorities that “run[s] counter to
Bangladeshi traditions of mutual respect and peaceful coexistence.” (R. at 837.)
Likewise, in 2016 the U.S. Commission on International Religious Freedom—“an
independent, bipartisan U.S. government entity that monitors religious freedom
violations globally and makes policy recommendations to the President, the
Secretary of State, and Congress,” Qiu, 870 F.3d at 1203—reported:
“Historically, Bangladesh, while having some longstanding religious freedom
issues, was not afflicted with widespread domestic and transnational extremist
and terrorist organizations that targeted religious communities or the government.
However, beginning in late 2014, Bangladesh began to experience an increasing
number of violent attacks by such groups,” which targeted “religious minorities,
secular bloggers, intellectual, and foreigners.” (R. at 734–35.) Although these
-6- attacks “raised fears among all Bangladesh,” the “religious minority communities
are especially fearful.” (R. at 735.) The United Nations High Commissioner for
Human Rights also reportedly expressed concern in 2016 about the increased
persecution of religious and other minorities in Bangladesh, stating, “I am very
concerned about the dramatic increase in [the] number of brutal murders in
Bangladesh that target freethinkers, liberals, religious minorities and LGBT
activists.” (R. at 952.)
NGOs (non-governmental organizations) have likewise reported that the
recent rise of Muslim extremism in Bangladesh has caused a corresponding
“increase in violence towards religious minorities.” (R. at 780.) In 2016,
Minority Rights Group International reported that the rise of extremist
organizations in Bangladesh since 2013 “has been accompanied by a spate of
brutal attacks particularly targeting Hindus, Christians, Buddhists, Ahmadis, Shi’a
Muslims and a variety of other groups, including atheists, LGBT (lesbian, gay,
bisexual and transgender) activists and foreigners.” (R. at 1156.) This “recent
wave of violence” is “undoubtedly connect[ed] . . . with the deep-seated
discrimination that religious minorities in Bangladesh have struggled with for
decades,” but “the difficulties experienced by Bangladesh’s religious minorities
have intensified” since 2013. (R. at 1157.) “The precarious situation of religious
minorities in the country was further undermined by the 2014 elections, the most
violent in Bangladesh’s history, with religious minorities specifically targeted in
-7- many parts of the country.” (R. at 1157.) Another NGO likewise reported that
there has been an “outbreak of targeted attacks and communal violence” on
religious minorities in Bangladesh since 2013 and that the government has
“singularly failed” to protect its religious minorities in the wake of this increased
violence. (R. at 1011.) According to a recent Amnesty International press
release, “[t]he Hindu community in Bangladesh is at extreme risk” and “appear to
be targeted simply for their religion” (R. at 899); another NGO has reported that
“[t]he cascade of Hindu persecution seems only to be gaining momentum” (R. at
871). Likewise, another NGO reported in 2017 that the persecution of Christians
has risen “sharply” in Bangladesh with the spread of ISIS. (R. at 731.)
The BIA did not cite, and we have not found, any evidence to refute these
numerous reports of increased persecution of religious minorities in Bangladesh
in the past few years. Although there is evidence that religious minorities in
Bangladesh have always been at risk of some level of discrimination and
violence, nothing in the record disproves Petitioner’s voluminous evidence that
the level of violence and persecution has increased substantially since he filed his
application for immigration relief in 2005. Thus, the BIA abused its discretion in
disregarding all of this evidence of a significant increase in the persecution of
religious minorities in Bangladesh. See Qiu, 870 F.3d at 1204–05.
The BIA also abused its discretion by holding, without any record evidence
for support, that Petitioner has not shown that he faced a higher risk of
-8- persecution than “the populace of the whole” because Islamist militants have
targeted “various groups of individuals” and everyone in Bangladesh is at risk of
“violence and civil unrest.” (R. at 3.) In Bangladesh, religious minorities
constitute only a small—and ever-decreasing—part of the population. According
to the U.S. Commission, as of 2011, approximately 90 percent of the population
in Bangladesh is Sunni Muslim, 9.5 percent is Hindu, and “all other faiths,
including Christians and Buddhists, make up the remaining 0.5 percent.” (R. at
734.) And all of the evidence in the record indicates that the 10 percent of
Bangladeshis who are not Sunni Muslims face a higher risk of violence and
persecution than the rest of the population. Whether violence is tied to political
movements or not, all of the evidence in the record indicates that religious
minorities in Bangladesh are specifically targeted and disproportionately at risk in
times of unrest and violence, as has been the case since 2013. (See, e.g., R. at
899 (“The Hindu community in Bangladesh is at extreme risk, in particular at
such a tense time in the country. It is shocking that they appear to be targeted
simply for their religion. . . . Given the obvious risks the Hindu minority faces in
Bangladesh, these attacks were sadly predictable.”).) Moreover, although the
record indicates that Islamist militants have targeted some individuals besides
religious minorities—primarily secular bloggers, atheists, LGBT activists, and
foreigners—there is nothing in the record to suggest that these other targeted
individuals constitute such a significant portion of the “populace as a whole” that
-9- anyone could reasonably conclude that religious minorities face no more risk than
the rest of the population.
As in Qiu, the BIA “provided no rational, factually supported reason for
denying Petitioner’s motion to reopen.” 870 F.3d at 1206. We therefore remand
this case back to the BIA for further consideration. In so doing, we express no
opinion as to the ultimate merits of the case.
The petition for review is GRANTED and REMANDED. In light of
Petitioner’s recent deportation to Bangladesh and his concerns about his safety
there, we GRANT his motion to seal the case. This opinion shall be publicly
filed, but all other documents relating to this case shall be kept under seal. All
other pending motions are DENIED.
ENTERED FOR THE COURT
Monroe G. McKay Circuit Judge
-10-