Sheza Khan v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: July 21, 2021
• Docket: 20-14182
• Status: Unpublished

Opinion

USCA11 Case: 20-14182 Date Filed: 07/21/2021 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-14182 Non-Argument Calendar ________________________

Agency No. A026-686-648

SHEHZA KHAN,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent. ________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(July 21, 2021)

Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Shehza Khan, a native and citizen of Pakistan, petitions this Court for review

of the Board of Immigration Appeals’ final order affirming the immigration judge’s USCA11 Case: 20-14182 Date Filed: 07/21/2021 Page: 2 of 10

denial of his application for deferred removal based on the Convention Against

Torture. He argues that the BIA and the immigration judge failed to give reasoned

consideration to evidence in the record showing that it was more likely than not that

he would be tortured if he were removed to Pakistan. We disagree and deny the

petition.

I.

Khan entered the United States in 1984 as a nonimmigrant. In 2016, the

Department of Homeland Security served him with a notice to appear and charged

him with removability following multiple convictions, including several for drug-

trafficking offenses.

Khan initially appeared pro se, but the immigration judge found that he was

not competent to represent himself. Khan’s new counsel admitted the factual

allegations against Khan, and the immigration judge found that Khan was removable

as charged.

Khan then filed an application for withholding of removal under the CAT. See

8 C.F.R. §§ 1208.16(d)(2), 1208.17(a). He submitted several documents in support

of his application, including articles explaining that Pakistani law enforcement

engaged in widespread torture to obtain confessions from people in custody and

articles that detailed Pakistan’s denial of mental illness and that described a lack of

access to mental health care in the country. He also attached an excerpt from the

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State Department’s “Pakistan 2017 Human Rights Report,” which discussed torture

and prison conditions in the country.

Khan also testified in support of his application. He stated that he had no

friends or family in Pakistan, that he feared he would be homeless if removed to

Pakistan because he would not have access to needed medications, and that he was

scared of being tortured by Pakistani officials because he had monitored radical

Muslims for U.S. law enforcement. He also stated that he expected to be imprisoned

in Pakistan because he would be a criminal deportee and would be targeted because

he would be perceived as mentally ill.

After hearing Khan’s testimony, the immigration judge first noted that Khan’s

counsel “conceded that [Khan] was only eligible for deferral of removal under” the

CAT and explained that Khan was ineligible for withholding of removal because he

had been convicted of a “particular serious crime.” He then concluded that the record

did not establish that Khan was more likely than not to be tortured in the future if

returned to Pakistan and issued an oral decision denying Khan’s request for deferral

of removal. Khan administratively appealed. The BIA agreed that Khan was eligible

only for deferral of removal, but remanded the case to the immigration judge with

instructions to make specific findings regarding the likelihood that: (1) Khan would

not have access to his medication in Pakistan; (2) he would engage in behavior that

would bring him to the attention of Pakistani officials; (3) he would disclose his

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activities on behalf of western law enforcement to Pakistani officials (or that the

information would be otherwise discovered by Pakistani officials); and (4) that

information would lead to his torture. The BIA also directed the immigration judge

to clarify whether it had found that Khan in fact cooperated with western law

enforcement or whether it merely accepted his testimony as true for purposes of its

analysis.

At a second hearing before a new immigration judge, Khan testified consistent

with his statements from the first hearing. He also offered an article discussing

Pakistan’s mental health issues, which outlined a program that provides mentally ill

Pakistani citizens with medications and treatments for $20-$30 per year. But he

testified that he did not take medication for his delusional disorder because he knew

for a fact that he was not delusional.

But the psychiatric evaluation that he offered into evidence disagreed. In it,

the psychiatrist diagnosed him with a “[d]elusional disorder, grandiose type,

continuous” and an “[a]djustment disorder with mixed anxiety and a depressed

mood.” The evaluation also noted that Khan was able to work but may refuse to do

so due to his “grandiosity,” which leads him to believe that he is above taking on

what he considers to be unimportant work. And it stated that, if deported to Pakistan,

it was more likely than not that his delusional disorder would directly cause him to

engage in behavior that would draw the attention of Pakistani officials and, if

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confronted, would compel him to discuss his belief that he had previously worked

as a confidential informant for various United States agencies.

In his decision, the immigration judge stated that he would “assume that

[Khan was] sincere in his belief that he fears he would be tortured due to his alleged

past work with U.S. law enforcement agencies” but noted “the absence of reliable

corroboration” for his alleged work as a confidential informant. The immigration

judge also stated that he had “considered all the documentary and testimonial

evidence in this case” and that his “failure to comment on a specific exhibit or

particular testimony” did not mean that he had failed to consider it.

The immigration judge also addressed each of the four suppositions that the

BIA identified. First, he acknowledged that the record showed shortages of

medication in Pakistan and that Khan would not have family or friends to support

him there. But he cited the report that Khan produced establishing that the mentally

ill in Pakistan could obtain medication for $20 to $30 per person per year and that

Khan’s psychiatrist had determined that he was capable of working to support

himself. Accordingly, the immigration judge found that Khan had not demonstrated

that he would more likely than not lack access to his medication in Pakistan.

Second, the immigration judge found that it was more likely than not that

Khan would engage in behavior that would bring him to the attention of Pakistani

officials. And, third, he found that it was more likely than not that Khan would

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disclose his activities on behalf of western law enforcement to Pakistani officials.

But the immigration judge nonetheless found that Khan had not demonstrated that it

was more likely than not that information about his alleged work with U.S. law

enforcement agencies would lead to his torture. Instead, the immigration judge found

that “the greater weight of the evidence indicates that the torture by the Pakistani

government is primarily inflicted upon perceived political opponents, religious

minorities, and suspected terrorists.” And Khan did not fall into any of those

categories.

In support, the immigration judge noted that the State Department’s Human

Rights Report did not comment on whether the Pakistani government tortured

individuals suspected of cooperating with U.S law enforcement. And the

immigration judge concluded that, in any event, “it [was] more likely that Pakistani

authorities would dismiss [Khan] as a mentally ill individual than that he would be

deemed a person of interest from whom the authorities would want to extract

information.” Finally, the immigration judge found that Khan had failed to show that

any mistreatment of the mentally ill was “borne out of a specific intent to harm

mentally ill individuals.” Accordingly, the immigration judge denied Khan’s request

for deferral of removal.

Khan appealed to the BIA again. The BIA adopted and affirmed the

immigration judge’s decision, noting the specific findings that the immigration judge

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made on remand. It explained that Khan had not demonstrated clear error in the

immigration judge’s finding that the record lacked evidence regarding torture of

Pakistanis suspected of cooperating with U.S. law enforcement. And it rejected his

argument that the immigration judge’s finding that Khan lacked a clear probability

of being tortured was based solely on his lack of inclusion in the three groups most

likely to be tortured. Finally, it cited to the regulations defining the term “torture,”

stated that Khan had not shown clear error in the immigration judge’s findings that

any potential mistreatment would not amount to torture, and noted that “[h]arm

inflicted due to lack of resources or misunderstanding of the nature of mental illness

does not fall within the scope of the protection offered by the [CAT].” Khan’s

petition for review by this Court timely followed.

II.

When the BIA issues a decision expressly adopting the immigration judge’s

decision, we review both decisions. Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302,

1308 (11th Cir. 2013). The BIA reviews an immigration judge’s findings of fact

under a “clearly erroneous standard” and questions of law de novo. 8 C.F.R.

§ 1003.1(d)(3)(i)–(ii).

We review de novo whether the BIA afforded a petitioner’s claims reasoned

consideration. Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333 (11th Cir. 2019). If we are

not convinced that the BIA evaluated the entire evidentiary record before reaching a

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decision, we will remand for lack of reasoned consideration and will not analyze the

BIA’s legal or factual conclusions. Id. Otherwise, we review the BIA’s legal

conclusions de novo and its factual findings for substantial evidence. See id. Under

the highly deferential substantial-evidence test, we may not reweigh the evidence

from scratch. See Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1243 (11th Cir. 2006).

Instead, we must view the record evidence in the light most favorable to the agency

and draw all reasonable inferences in favor of its decision. See id.

The BIA fails to give reasoned consideration to a claim when it (1) “misstates

the contents of the record, [(2)] fails to adequately explain its rejection of logical

conclusions, or [(3)] provides justifications for its decision which are unreasonable

and which do not respond to any arguments in the record.” Ali, 931 F.3d at 1334.

The BIA must consider all of the applicant’s evidence and issues and “announce its

decision in terms sufficient to enable a reviewing court to perceive that it has heard

and thought and not merely reacted.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374

(11th Cir. 2006) (quoting Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992)).

But the BIA does not need to specifically address each piece of evidence presented.

Ali, 931 F.3d at 1333. Instead, it must discuss only the evidence in “the record [that]

would compel a different outcome, absent the discussion of [that] evidence.” Id. at

1334.

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Protection under the CAT may be granted in the form of either withholding

of removal or deferral of removal. 8 C.F.R. § 208.16(c)(4). An alien who has been

convicted of a “particularly serious crime” is ineligible for withholding of removal

under the CAT. 8 C.F.R. § 208.16(d)(2)–(3). But such an alien can still receive

deferral of removal if the alien establishes that “it is more likely than not that he or

she would be tortured if removed to the proposed country of removal.” 8 C.F.R. §

208.16(c)(2); see 8 C.F.R. § 208.17(a). To constitute torture, an act must be

specifically intended to inflict severe physical or mental pain or suffering. 8 C.F.R.

§ 208.18(a)(5). And that act must be committed by the proposed country of

removal’s government or the government must be aware of the torture and fail to

intervene. Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004)

(quoting 8 C.F.R. § 208.18(a)(1)).

After a thorough review of the record, we are satisfied that the BIA and

immigration judge gave reasoned consideration to all of the evidence and issues that

Khan put forth. Both accurately stated the contents of the record, adequately

explained their rejection of Khan’s conclusions, and provided reasonable and

responsive justifications for their decisions. See Ali, 931 F.3d at 1334. The

immigration judge explicitly considered Khan’s testimony, psychiatric evaluation,

and article on the treatment of mental illness in Pakistan as well as the State

Department report. Based on evidence that Khan produced, he determined that Khan

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had not established that it was more likely than not that he would not have access to

his medication in Pakistan. But he agreed with Khan that he had established that it

was more likely than not that he would engage in behavior that would bring him to

the attention of Pakistani officials and would disclose his activities on behalf of U.S.

law enforcement agencies. Still, the immigration judge determined that Khan had

not established that it was more likely than not that information about his activities

would lead to his torture based on the lack of evidence in the record that the Pakistani

government tortures individuals who have assisted United States law enforcement

agencies. Accordingly, both the immigration judge and the BIA gave reasoned

consideration to both the evidence and Khan’s arguments.

Further, substantial evidence supports the BIA and immigration judge’s

factual findings, and we agree with their legal conclusions. Khan did produce

evidence that it is more likely than not that he would garner the attention of Pakistani

officials and be unable to stop himself from disclosing his alleged activities on behalf

of U.S. law enforcement agencies. But he did not produce any evidence that the

Pakistani government tortures individuals based on such activities. And he failed to

establish a likelihood that he will be tortured for that or any other reason if removed

to Pakistan. Accordingly, we deny the petition.

PETITION DENIED.