Saleem v. Mukasey

289 F. App'x 452
CourtCourt of Appeals for the Second Circuit
DecidedAugust 13, 2008
DocketNos. 07-3740-ag (L), 08-0460-ag (Con), 08-1379-ag (Con)
StatusPublished

This text of 289 F. App'x 452 (Saleem v. Mukasey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Saleem v. Mukasey, 289 F. App'x 452 (2d Cir. 2008).

Opinion

SUMMARY ORDER

Petitioner Kashif Saleem, a native and citizen of Pakistan, seeks review of: (1) an August 7, 2007 order of the BIA affirming the September 27, 2005 decision of Immigration Judge (“IJ”) Sandy K. Horn denying Saleem’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”), In re Kashif Saleem, No. A98 420 084 (B.I.A. Aug. 7, 2007), affg No. A98 420 084 (Immig. Ct. N.Y. City Sep. 27, 2005); (2) a September 27, 2007 order of the BIA denying his motion to reconsider, In re Kashif Saleem, No. A98 420 084 (B.I.A. Sep. 27, 2007); and (3) a February 29, 2008 order of the BIA denying his motion to reopen, In re Kashif Saleem, No. A98 420 084 (B.I.A. Feb. 29, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.

As an initial matter, we grant the Government’s motion to consolidate Dkt. No. 08-1379-ag with the related petitions in Dkt. Nos. 07-3740-ag (L) and 08-0460-ag (Con). See 8 U.S.C. § 1252(b)(6).

I. Dkt. No. 07-3740-ag (L)

When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect our ultimate conclusion. See Wangchuck v. Dep’t of Homeland, Sec., 448 F.3d 524, 528 (2d Cir.2006). Because the agency never made an explicit credibility finding, in reviewing the agency’s determination, we assume Saleem’s [454]*454credibility. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005).

We review de novo questions of law and the application of law to undisputed fact. See, e.g., Secaidar-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). However, we will vacate and remand for new findings if the agency’s reasoning or fact-finding process was sufficiently flawed. See Cao He Lin v. DOJ, 428 F.3d 391, 406 (2d Cir.2005).

We find no error in the agency’s conclusion that the mistreatment Saleem described did not rise to the level of past persecution. See 8 U.S.C. § 1252(b)(4)(B); Ivanishvili v. DOJ, 433 F.3d 332, 341 (2d Cir.2006). The BIA found that such mistreatment “was tantamount to discrimination on account of [Saleem’s] religion.” Indeed, there is no evidence that Saleem was ever arrested or imprisoned on account of his Ahmadi religion. See Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.2006). To be sure, the incidents Saleem described are disturbing, detailing a life marred by atrocious discrimination. Nonetheless, we are not compelled to disagree with the agency and find that such mistreatment constituted persecution. Kambolli v. Gonzales, 449 F.3d 454, 457 (2d Cir.2006) (citing Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (“[Persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”)). Additionally, regarding any allegation of persecution prior to Saleem’s 2003 visit to the United States, he conceded that the mistreatment he suffered was not so severe as to prompt him to apply for asylum at that time. Thus, the IJ properly questioned whether Saleem had a subjective fear of persecution at that point.

As to the May 2004 incident, where Saleem was robbed and threatened by a former patient, the IJ likely erred in concluding that this incident was criminal, implying that it bore no relation to a protected ground. Indeed, the record suggests there was, at the least, a mixed motive for the robbery. See Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.1994); see also Matter of S-P-, 21 I. & N. Dec. 486, 492-95 (B.I.A.1996). Nonetheless, any error was harmless where the BIA, assuming that the incidents Saleem described were based on his religion, found that they did not rise to the level of persecution.

Despite the agency’s proper finding with respect to past persecution, we find that remand is required in light of the agency’s failure to analyze Saleem’s claim that he had an objectively reasonable well-founded fear of persecution. See Islami v. Gonzales, 412 F.3d 391, 394 n. 3 (2d Cir.2005), overruled in part on other grounds, Shi Liang Lin v. DOJ, 494 F.3d 296 (2d Cir. 2007) (“[W]e note that a showing of past persecution ... need not be a necessary condition for asylum eligibility to be established. An applicant who demonstrates a well-founded fear of future persecution is not required to show that he or she suffered past persecution as well.”).

In particular, remand is warranted pursuant to our decision in Mufied v. Mukasey, 508 F.3d 88 (2d Cir.2007), where we found insufficient the agency’s conclusion as to the petitioner’s pattern or practice claim. Here, the BIA acknowledged that “members of the Ahmadi faith suffer discrimination in Pakistan and are also often the victims of religious violence.” That observation notwithstanding, the BIA concluded that “a pattern or practice of perse[455]*455cution [does not] exist there against such individuals.” The BIA provided no further analysis on this issue. In Mufied, 508 F.3d at 91, we found that the BIA erred by failing to address the petitioner’s claim that there exists a pattern or practice of persecution against Indonesian Christians, and by concentrating instead on the individualized risk of persecution. While we acknowledged the BIA’s holding in Matter ofA-M-, 23 I. & N. Dec. 737 (B.I.A.2005), we found that its decision “does not provide us with sufficient guidance for how to evaluate a pattern or practice claim.”

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Related

Yan Chen v. Alberto Gonzales, Attorney General, 1
417 F.3d 268 (Second Circuit, 2005)
Mufied v. Mukasey
508 F.3d 88 (Second Circuit, 2007)
Manzur v. U.S. Department of Homeland Security
494 F.3d 281 (Second Circuit, 2007)
Shi Liang Lin v. United States Department of Justice
494 F.3d 296 (Second Circuit, 2007)
A-M
23 I. & N. Dec. 737 (Board of Immigration Appeals, 2005)
S-P
21 I. & N. Dec. 486 (Board of Immigration Appeals, 1996)
CHEN
20 I. & N. Dec. 16 (Board of Immigration Appeals, 1989)
Beskovic v. Gonzales
467 F.3d 223 (Second Circuit, 2006)

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Bluebook (online)
289 F. App'x 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saleem-v-mukasey-ca2-2008.