Bilal Qamar v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 2, 2018
• Docket: 14-73865
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 2 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BILAL QAMAR, No. 14-73865

Petitioner, Agency No. A075-648-505

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General of the United States,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted June 8, 2018 Pasadena, California

Before: FISHER and CHRISTEN, Circuit Judges, and SHEA,** District Judge.

Petitioner Bilal Qamar, a native and citizen of Pakistan, petitions for review

of the Board of Immigration Appeals’ (“BIA”) decision finding him ineligible for

deferral of removal under the Convention Against Torture (“CAT”) and denying

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward F. Shea, United States District Judge for the Eastern District of Washington, sitting by designation. his motion to reopen removal proceedings based on changed country conditions.1

We have jurisdiction under 8 U.S.C. § 1252(a), and we grant the petition for

review and remand for consideration of political developments that have occurred

in Pakistan since the BIA’s decision.

Qamar moves the court to take judicial notice of a January 7, 2015 news

article titled “Sipah-e-Sahaba Militants Executed at the New Central Jail Multan.”

Generally, this court reviews out-of-record evidence only “where (1) the Board

considers the evidence; or the Board abuses its discretion by failing to consider

such evidence upon the motion of an applicant.” Fisher v. INS, 79 F.3d 955, 964

(9th Cir. 1996). We may, however, take judicial notice of evidence of “dramatic

foreign developments” that was “not available when the BIA made its decision.”

Gafoor v. INS, 231 F.3d 645, 656 (9th Cir. 2000).

In Gafoor, we took judicial notice of a military coup in Fiji that occurred

after the BIA’s decision. The coup placed the petitioner at a particular and

heightened risk of racial violence, and we remanded for the agency to determine

the impact of Fiji’s changed political circumstances. We explained that because we

1 The Immigration Judge denied Qamar’s claims for asylum and withholding of removal, finding that Qamar’s participation in the Sunni organization Sipah-e-Sahaba (“SSP”) constituted “terrorist activity” and rendered him statutorily ineligible for either form of relief. See 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), 1231(b)(3)(B)(iv). Qamar has not appealed that finding, and it is not before us today.

2 14-73865 “simply introduced into the record facts that were not available earlier,” we did not

“diminish agency control over the case” or “usurp the authority of the

administrative agency.” Id. Indeed, we remanded precisely because the agency was

better equipped to conduct the necessary factual inquiry.

Here, Qamar submits a news article explaining that on January 7, 2015, two

Sipah-e-Sahaba (“SSP”) members were hanged after being charged and convicted

of murder in 1998 and 2000. The article further describes that Pakistan — only

days after the BIA rendered its decision in Qamar’s case — lifted its complete

moratorium on execution and has begun swiftly executing those suspected of

sectarian violence and terrorism. Qamar argues that this article is evidence of a

serious political development that places him, a former SSP member who was also

accused of murder in 1998, in dire risk of torture and execution if removed to

Pakistan.

Qamar’s motion for judicial notice is granted. Like Gafoor, the changed

political circumstances in Pakistan occurred after the BIA decision and are

significant enough that we cannot “close our eyes” to them. Gafoor, 231 F.3d at

657. And our action is not without precedent, both in our circuit and our sister

circuits. See id. at 656 (collecting cases). Accordingly, we remand for the BIA to

reconsider Qamar’s motion to reopen in light of our grant of judicial notice; in

deciding whether to grant the motion to reopen, the BIA shall consider the attached

3 14-73865 article and whatever additional evidence, if any, it deems appropriate.

Because we remand this matter to the BIA for further proceedings based on

a dramatic change of political circumstances, we decline to rule on the merits of

Qamar’s petition.

Petitioner’s motion for judicial notice, filed December 7, 2015 (Docket

Entry No. 13), is GRANTED.

The petition is GRANTED. REMANDED with instructions.

4 14-73865