Raheel Rehman v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: December 28, 2018
• Docket: 18-1577
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 18-1577

RAHEEL REHMAN,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A209-870-724) Immigration Judge: Honorable John B. Carle ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 9, 2018

Before: AMBRO, SCIRICA and RENDELL, Circuit Judges

(Opinion filed: December 28, 2018)

OPINION

RENDELL, Circuit Judge:

Petitioner, Raheel Rehman, argues that the Board of Immigration Appeals (“BIA”)

erred in upholding the Immigration Judge’s (“IJ”) conclusion that Rehman was not credible and is ineligible for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Rehman also argues that the BIA abused its

discretion and violated his right to due process in denying his motion for remand.

Finding no error, we will affirm the BIA.

I. Factual and Procedural Background

Rehman is a Sunni Muslim and citizen and native of Pakistan. He entered the

United States illegally in December of 2016 and was apprehended by the Department of

Homeland Security (“DHS”) shortly thereafter. DHS processed Rehman for expedited

removal, but when Rehman claimed to be afraid of returning to Pakistan, DHS gave him

a credible fear interview. Rehman was provided with an interpreter for the interview, and

both parties affirmed that they understood one another.

Rehman stated in the credible fear interview that he was afraid to return to

Pakistan because of the terrorism and war in the country. He stated that he had never

been physically harmed in Pakistan. When asked to describe the worst thing to have

happened to him, he stated that he had been very close to a bomb blast. However,

Rehman later told the interviewer that he had been beaten by police multiple times for no

reason, that this is “normal with police,” and that he feared he would be harmed by police

if he returned to Pakistan “because this is routine.” AR 366-67.

Rehman also stated that he felt harmed or threatened in Pakistan because of his

religion. He spoke of the “Shia and Sunni war” in Pakistan and stated that he witnessed

an incident in which a “Shia master was attacked” and “about 200 people” were killed.

AR 368. When asked if there was anything else important to his claim, Rehman

2 answered that he thought the interviewer “understood [his] case” and “that is all.” AR

369. DHS found that Rehman expressed a credible fear of torture in Pakistan.

DHS served Rehman with a Notice to Appear, commencing proceedings before

the Immigration Court under 8 U.S.C. § 1182(a)(7)(A)(i)(I). At Rehman’s first hearing,

the Immigration Judge sustained the charge of removability. Rehman informed the IJ

that he intended to apply for asylum, and the IJ instructed him to file the asylum

application with the court at his next hearing.

At Rehman’s next hearing, he requested a 90-day continuance so that he could

obtain evidence from a family member to support his application. He requested a date in

July of 2017, and the IJ continued the matter to July 3, 2017. Six days before this hearing,

Rehman requested another continuance, asserting difficulty in obtaining the evidence.

The IJ denied this request.

At the July hearing, Rehman again requested a continuance, stating that he had not

yet received evidence sent by his father. The IJ informed Rehman’s counsel that Rehman

would simply have to testify about the nature of the documents his father sent and denied

the continuance request. Rehman testified that the evidence included (1) his medical

papers documenting a broken hand that Rehman received when he was beaten up by

police because of his religion, (2) the witness testimony of his friends, and (3) his father’s

testimony supporting Rehman’s case.

Rehman further testified before the IJ that he feared the Pakistani police, as well as

two Shia men belonging to “a criminal mafia and a land mafia.” AR 159. He explained

that the two Shia men were involved in a clash at a mosque between Shias and Sunnis

3 that Rehman witnessed in 2013. He testified that the men tried to pressure him by

sending the police to beat him, threatened him against being a witness, and tried to abduct

him. Rehman also testified that in 2015 they shot at him because he was a witness to the

mosque incident. He explained that, although he was shot, he did not seek medical

treatment because he would have had to report the incident to police, whom he feared.

He testified that he did not mention the shooting incident in his credible fear interview

because he may not have answered some of the questions properly and because he did not

understand his interpreter. He also explained that he did not include the incident in his

asylum application because he and his attorney had “filled up all the spaces” and that he

would have discussed it “at length” had he been fluent in English. AR 171-72.

The IJ then asked Rehman about his testimony that the police broke his hand.

Rehman explained that a week after the mosque incident he reported it to police. He

testified that months after reporting the incident, the police beat him, causing the broken

hand. He stated that the police demanded money from him for his “protection” and

became angry when he threatened to report them.

After considering all of the evidence, the IJ ordered that Rehman’s applications for

asylum, withholding of removal, and protection under the CAT each be denied and that

Rehman be removed to Pakistan. The IJ first made an adverse credibility finding against

Rehman based on the numerous inconsistencies in the record. The IJ then denied

Rehman’s asylum application because (1) his past experiences in Pakistan did not rise to

the level of persecution and (2) he failed to establish a well-founded fear of future

persecution on account of a protected ground. The IJ found no evidence in the record

4 that either the two Shia men or the police were motivated by Rehman’s religion.

Rehman’s ineligibility for asylum necessarily made him ineligible for withholding of

removal. Lastly, the IJ found Rehman ineligible for CAT protection because he failed to

establish that he would, more likely than not, be tortured by the Pakistani government or

with its acquiescence upon returning to Pakistan.

Rehman filed an appeal with the BIA and filed a motion requesting that the BIA

remand his case back to the IJ. His motion for remand was based on the receipt of new

evidence that had been sent to him by his family in Pakistan. The evidence Rehman

submitted with his motion to remand included a medical report documenting his injuries

from the July 2015 shooting incident and an affidavit from his father stating that Rehman

went to the hospital after the shooting. The BIA issued an opinion dismissing both

Rehman’s appeal and his motion for remand.

The BIA affirmed the IJ’s adverse credibility finding as not clearly erroneous.

Even assuming Rehman was credible, the BIA also agreed with the IJ’s finding that

Rehman was not eligible for asylum or withholding of removal on the merits because he

failed to establish that he was or would be harmed in Pakistan on account of his religion

rather than for criminal purposes. The BIA also affirmed the IJ’s denial of Rehman’s

request for CAT protection because (1) it was based on testimony that was not credible,

and (2) Rehman did not establish that he faces a clear probability of torture in Pakistan by

or with the consent or acquiescence of a public official.

The BIA denied Rehman’s motion to remand because it found that the new

evidence did not rehabilitate Rehman’s credibility or establish that a protected ground

5 was or will be one central reason for his harm in Pakistan. Instead, the BIA found that, if

anything, the medical document casts more doubt on Rehman’s credibility because he

testified that his father was sending him a medical report documenting his broken hand,

not his injury from the shooting incident, and because Rehman also testified that he had

not sought medical treatment after the shooting incident. Rehman subsequently filed this

timely petition for review.

II. Jurisdiction and Standard of Review

The BIA had jurisdiction over Rehman’s appeal of the IJ’s decision pursuant to 8

C.F.R. §§ 1003.1(b)(3) and 1240.15. We have jurisdiction pursuant to 8 U.S.C. §

1252(a), which grants the courts of appeals sole and exclusive jurisdiction to review final

orders of removal and claims under CAT. Rehman filed his petition for review within

thirty days of the final order of removal, so his petition is timely. Because the BIA issued

its own opinion, we review its decision rather than that of the IJ. Olivia-Ramos v. Atty.

Gen. of U.S., 694 F.3d 259, 270 (3d Cir. 2012).

Administrative findings of fact are analyzed using the “substantial evidence”

standard and “are conclusive unless any reasonable adjudicator would be so compelled to

conclude to the contrary.” See 8 U.S.C. § 1252(a)(4)(B); Lin v. Atty. Gen. of U.S., 543

F.3d 114, 119 (3d Cir. 2008). This is a deferential standard of review, “even more

deferential than the clearly erroneous standard.” Reynoso-Lopez v. Ashcroft, 369 F.3d

275, 278 (3d Cir. 2004). The BIA’s decision denying a motion to remand is reviewed for

abuse of discretion. Korytnyuk v. Ashcroft, 396 F.3d 272, 285 (3d Cir. 2005).

III. Discussion

6 Rehman makes four claims on appeal. First, he argues that the BIA erred in

affirming the IJ’s adverse credibility finding. Second, he argues that the BIA’s denial of

his motion to remand constituted an abuse of discretion and a violation of his right to due

process. Third, he argues that the BIA erred in finding that Rehman failed to establish

that a protected ground was or will be at least one central reason for his harm in Pakistan.

Fourth, he argues that the BIA erred in finding that he did not qualify for CAT protection.

We will address each claim in turn.

A. Adverse Credibility Determination

Rehman first argues that the BIA erred in affirming the IJ’s adverse credibility

finding because this finding was not plausible in light of the record. The Government

responds that substantial evidence supports the BIA’s determination. Adverse credibility

determinations, as administrative findings of fact, are reviewed under the substantial

evidence standard and ought to be upheld if no “reasonable adjudicator would be so

compelled to conclude to the contrary.” Lin, 543 F.3d at 119. The BIA’s finding must be

upheld if the agency provided “specific, cogent reasons why the applicant is not

credible.” Id.

Substantial evidence supports the BIA’s finding that there are “numerous, material

inconsistences” in Rehman’s presentation of his claims. The BIA noted the specific

changes and additions to Rehman’s claims made between his credible fear interview and

his hearing before the IJ. The BIA also considered Rehman’s explanations for the

inconsistencies but found that they were not sufficient to show that the IJ’s adverse

credibility finding was clearly erroneous given the “nature, circumstances, and

7 documentation of the credible fear interview.” AR 4. Given the significant changes to

Rehman’s claims and the lack of adequate explanation for the changes, it cannot be said

that a reasonable adjudicator would be compelled to find that Rehman was credible. See

Xie v. Ashcroft, 359 F.3d 239, 243 (3d Cir. 2004) (finding it “implausible and incredible”

that a traumatic event “would not have been mentioned to the Immigration officer” or

“included in the [asylum] application”). Therefore, we will affirm the BIA’s decision to

uphold the IJ’s adverse credibility finding.

B. Rehman’s Motion to Remand

Second, Rehman argues that the BIA’s denial of his motion to remand constituted

an abuse of discretion and a violation of his Fifth Amendment right to due process. The

Government responds that there was no abuse of discretion because there was nothing

arbitrary, irrational, or contrary to law about the BIA’s decision and that Rehman’s due

process claim fails because he cannot show prejudice. Where the BIA denied a motion to

remand because the movant would not be entitled to the relief sought, the BIA’s findings

of fact are reviewed for substantial evidence, and its ultimate decision to deny remand is

reviewed for abuse of discretion. Korytnyuk, 396 F.3d at 285. Under the abuse of

discretion standard, the BIA’s decision will not be disturbed unless it is “arbitrary,

irrational, or contrary to the law.” Id. at 293.

The BIA did not abuse its discretion in denying Rehman’s motion to remand. The

medical document undermines Rehman’s testimony before the IJ that he did not seek

medical treatment for his gunshot wound, and neither the medical document nor his

father’s statement establishes that Rehman has or would suffer any harm on account of

8 his religion rather than criminal motivations. Although Rehman argues that the medical

document indicates that Rehman received a “medical evaluation” rather than “treatment,”

the record does not compel the conclusion that his testimony before the IJ was credible.

Appellee’s Br. at 27. Furthermore, Rehman does not address the BIA’s finding that the

new evidence does not establish that he was or will be harmed in Pakistan because of a

protected ground. There is nothing arbitrary, irrational, or contrary to law about the

BIA’s decision to deny Rehman’s motion to remand based on these factual findings. Cf.

Korytnyuk, 396 F.3d at 393 (holding the denial of a motion to remand solely on the basis

of factual finding that lacks substantial evidence to be an abuse of discretion because “to

do so is necessarily arbitrary”).

Rehman’s due process claim is also without merit. “Where an alien claims a

denial of due process because he was prevented from making his case to the BIA or the

IJ, he must show (1) that he was prevented from reasonably presenting his case and (2)

that substantial prejudice resulted.” Lupera-Espinoza v. Atty. Gen. of U.S., 716 F.3d 781,

789 (3d Cir. 2013). To succeed in this argument, Rehman must show how the new

evidence would have changed the outcome of his case if remand had been granted. See

id. However, Rehman fails to explain how the new evidence would have resulted in a

different credibility determination, particularly in light of the BIA’s conclusion that the

medical document casts more doubt on his credibility. He also fails to show how the new

evidence establishes that he feared or fears persecution in Pakistan on account of a

protected ground rather than criminal motivations. Instead, Rehman merely recasts his

abuse of discretion argument in constitutional terms, and we can deny this argument for

9 the same reasons as his abuse of discretion argument. Khan v. Atty. Gen. of U.S., 448

F.3d 226, 236 (3d Cir. 2006); see also Vakker v. Atty. Gen. of U.S., 519 F.3d 143, 149 (3d

Cir. 2008) (finding that the BIA’s decision to deny petitioner’s motion to remand “did not

deny [petitioner] due process of law because the BIA considered [petitioner’s] motion

and properly denied it, providing adequate explanation and authority to support its

decision”). Therefore, we will affirm the BIA’s denial of Rehman’s motion to remand.

C. Rehman’s Asylum and Withholding of Removal Claims

Third, Rehman argues that the BIA erred in finding that Rehman failed to establish

that a protected ground was or will be at least one central reason for the harm he suffered

or fears in Pakistan. The Government responds that substantial evidence supports the

conclusion that Rehman failed to establish the requisite nexus between past or feared

future harm and any claimed statutorily-protected ground. To establish that he is eligible

for asylum or withholding of removal, Rehman must show that a protected ground was or

will be “at least one central reason” for any past or future harm. See 8 U.S.C. §§

1158(b)(1)(B)(i), 1231(b)(3)(A). He must establish “either that he was previously

persecuted on account of a statutorily enumerated ground, or that he has a well-founded

fear of future persecution on account of a statutorily enumerated ground.” Espinosa-

Cortez v. Atty. Gen. of U.S., 607 F.3d 101, 107 (3d Cir. 2010).

Substantial evidence supports the BIA’s finding that Rehman’s religion was not

and will not be at least one central reason for any harm he suffered or fears in Pakistan.1

1 Although Rehman correctly asserts that his religion need not be the only reason for his persecution to satisfy this requirement, the BIA did not find that his religion was not the 10 See id. (stating that an agency’s determination whether a petition has established that he

or she has a well-founded fear of persecution must be upheld if it is supported by

substantial evidence). Rehman must establish “that the evidence he presented was so

compelling that no reasonable factfinder could fail to find the requisite fear of

persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). He has not done so.

Substantial evidence supports the conclusion that Rehman was harmed because of only

the criminal motivations of the two Shia men and the Pakistani police, not his religion.

That is, substantial evidence supports the finding that the Shia men only wanted to

prevent Rehman from being a witness against them and that the police only wanted to

extort him. Although Rehman argues that the record supports that the harm experienced

had a “religious nature,” he fails to show “that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.” Appellee’s Br. at 35; Elias-

Zacarias, 502 U.S. at 481. Therefore, we will affirm the BIA’s finding that Rehman is

ineligible for asylum and withholding of removal.

D. Rehman’s CAT Protection Claim

Lastly, Rehman argues that the BIA erred in finding that he did not qualify for

CAT protection. Rehman challenges the BIA’s findings that he did not establish a clear

probability of torture because his testimony was discredited due to the adverse credibility

determination and that he failed to establish that the Pakistani government would

acquiesce in his torture. The Government asserts that the BIA did not err in relying on

only reason for the harm he suffered or fears in Pakistan but that his religion was not at least one central reason for such harm. In other words, the BIA found that the record did not establish that Rehman’s asserted harms were because of his religion at all. 11 the adverse credibility determination and that Rehman’s governmental acquiescence

argument is inconsequential. To be eligible for CAT protection, Rehman must show first

“that it is more likely than not that [he] will be tortured if removed to [Pakistan]” and

second that the torture “will occur with the consent or acquiescence of the government.”

Gomez-Zuluaga v. Atty. Gen. of U.S., 527 F.3d 330, 349 (3d Cir. 2008).

Rehman’s argument that the adverse credibility determination “should not

preclude full consideration of [his] [CAT] arguments” is unavailing. Appellee’s Br. at

37. An applicant’s “credibility, by itself, may satisfy his burden or doom his [CAT]

claim.” Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir. 2005). As previously

discussed, the adverse credibility determination against Rehman is supported by

substantial evidence and ought to be upheld, so this finding can preclude his CAT claim.

Furthermore, the BIA did not rely solely on the adverse credibility determination

in finding Rehman ineligible for CAT protection. The BIA also found that, independent

of his discredited claim of past harm, Rehman failed to establish that he faces a clear

probability of torture in Pakistan. As an administrative finding of fact, the BIA’s

determination must be sustained if it is supported by substantial evidence. Wang v.

Ashcroft, 368 F.3d 347, 350 (3d Cir. 2004). Rehman argues that the record “shows that

there is much inter-religious violence between Shia and Sunni in Pakistan.” However, he

fails to show that the record compels the conclusion that it is more likely than not that he

himself will be tortured. See Wang, 368 F.3d at 350. Because Rehman has not met his

initial burden, his governmental acquiescence argument is inconsequential. See INS v.

Bagamasbad, 429 U.S. 24, 25 (1976) (“As a general rule courts and agencies are not

12 required to make findings on issues the decision of which is unnecessary to the results

they reach.”).

IV. Conclusion

For the foregoing reasons, the BIA properly upheld the IJ’s adverse credibility

determination against Rehman and properly denied Rehman’s asylum, withholding of

removal, and CAT claims. The BIA also did not abuse its discretion or violate Rehman’s

right to due process in denying his motion for remand. Accordingly, we will deny

Rehman’s petition for review and will affirm the BIA’s decision.