Immigration – Asylum – Persecution

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Where the Board of Immigration Appeals upheld a denial of a Pakistani family’s asylum request, a remand is necessary for an analysis of the reasonableness of the applicants’ claim of a fear of future persecution.

Need for remand

“[Javed Iqbal] Khattak is an active member of the Awami National Party (‘ANP’), which he describes as a ‘secular alternative’ to the Taliban. According to his testimony in immigration court as well as documentary materials that he appended to his asylum application, Khattak has been a member of the ANP for approximately 20 years and was the president of the local ANP chapter for about 15 years. He also served as Mayor of Khairabad, a municipality of 20,000 people that evidently includes the village of Narri, from 1980 to 1991.

“More recently, Khattak served as vice president of the Pakistan International Human Rights Organization and, starting in August 2008, as a member of the Nowshera Peace Committee. That month, he began working for the Peace Committee as a volunteer ‘special police officer’; his task was to ‘tell people and advise people that the fight that the Taliban are fighting … [is] not [a] fight of Islam.’ He spread this message at the local mosque and at ‘hujras,’ or social spaces. …

“At this stage, Khattak argues that he has a well-founded fear of future persecution based on his anti-Taliban political opinions and ANP activism; he does not continue to press the argument that he suffered past persecution, nor does he continue to pursue asylum based on membership in a particular social group. The IJ acknowledged that Khattak has a ‘subjectively genuine fear of returning to Pakistan’ but held that Khattak did not show his fear was objectively reasonable. …

“With regard to Khattak’s claim that he would be ‘singled out’ for harm on the basis of his political opinion, the BIA offered no analysis of its own, stating only that the IJ ‘properly determined that [Khattak] has not met his burden.’ The IJ’s finding that Khattak would not be ‘singled out’ on the basis of political opinion was premised on her belief that, under Matter of Fuentes, 19 I. & N. Dec. 658, an applicant is not eligible for asylum if he is targeted due to his activities as a police officer.

“This interpretation of Matter of Fuentes was squarely rejected in Castañeda-Castillo v. Holder, 638 F.3d 354 (1st Cir. 2011), which we decided ten months after the IJ’s order in Khattak’s case but nine months before the BIA dismissed Khattak’s appeal. Matter of Fuentes held only that police officers do not suffer ‘persecution’ within the meaning of the asylum statute when they are ‘attacked … because they are (or are viewed as) extensions of the government’s military forces or simply because they are highly visible embodiments of the power of the state.’ 19 I. & N. Dec. at 661. But Matter of Fuentes did not hold that a police officer is ineligible for asylum if he is targeted due to the political views that he has expressed on the job or off. …

“Matter of Fuentes also did not address situations in which individuals may be labeled as ‘police officers’ but perform non-traditional police functions. … Here, while Khattak was technically a ‘special police officer,’ his primary duty on behalf of the Peace Committee was to persuade people to spurn the Taliban, which is not a standard law-enforcement function. … Thus, the IJ not only misconstrued the holding in Matter of Fuentes, but the holding in Matter of Fuentes does not even appear to apply to Khattak’s case.

“Furthermore, in addition to his status as a ‘special police officer,’ Khattak was particularly prominent in his hometown as a member of the Peace Committee, a leader of a national human rights organization, a longtime ANP activist and a former mayor. If Khattak’s activities in one or more of these roles contributed to the Taliban’s decision to target him, then ‘the persecution the applicant fears is not a result simply of h[is] status as a … police officer, but rather is a result occasioned by other factors more specific to the particular applicant.’ …

“Importantly, nothing that we have said so far should be interpreted as holding that Khattak necessarily has met his burden of showing eligibility for asylum. The BIA said that Khattak did not meet his burden (albeit without explaining why), and ‘[t]o reverse the BIA finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.’ …

“In sum, while we will not reverse the BIA’s findings where the evidence at least admits the possibility of a conclusion in accord with the BIA’s, ‘we will remand if the agency fails to state “with sufficient particularity and clarity the reasons for denial of asylum” or otherwise to “offer legally sufficient reasons for its decision.”‘ … Here, we are not satisfied that either the IJ or the BIA has ‘present[ed] a reasoned analysis of the evidence as a whole.’ … Accordingly, the petition for review is granted; the order of the BIA is vacated; and the case is remanded for further proceedings consistent with this opinion.”

Khattak, et al. v. Holder (Lawyers Weekly No. 01-019-13) (23 pages) (Lynch, C.J.) (1st Circuit) William P. Joyce on brief for the petitioners; Sunah Lee, Stuart F. Delery and Cindy S. Ferrier on brief for the respondent (Docket No. 12-1144) (Jan. 17, 2013).

 Click here for the full-text opinion.