Petition for Review of a Decision of the Board of Immigration
Appeals Agency No. A209-339-475
Before
TJOFLAT, ROSENBAUM, and JULIE CARNES, Circuit Judges.
OFLAT,
Circuit Judge.
The
petitioner in this case asks us to review the Board of
Immigration Appeals's (the "Board's")
denial of his asylum, withholding-of-removal, and Convention
Against Torture ("CAT") claims. To effectively
conduct our review, we must be left with the conviction,
based on the record before us, that the Board has considered
and reasoned through the most relevant evidence of the case.
Because the Board has not left us with that conviction here,
we grant the petition for review, vacate the Board's
decision, and remand the case to the Board for further
consideration.
I.
Petitioner
Irfan Ali is a Pakistani Ahmadi-that is, a practitioner of
Ahmadiyya Islam.[1] The Department of Homeland Security
initiated removal proceedings against Ali on the grounds that
he entered the United States without a valid entry document
and without being admitted or paroled by an immigration
officer. During those proceedings, Ali sought asylum and
withholding-of-removal relief under the Immigration and
Nationality Act (the "INA"), as well as relief
under the CAT. See 8 U.S.C. §§ 1158,
1231(b)(3); 8 C.F.R. § 208.16.
The INA
authorizes the Attorney General to grant asylum to any alien
determined to be a "refugee" as defined by the
statute. 8 U.S.C § 1158(b)(1)(A). Under the statute, a
"refugee" is "one who is unable or unwilling
to return to his or her home country because of persecution
or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social
group, or political opinion." Id. §
1101(a)(42)(A).
To make
out an asylum claim, an applicant must establish either past
persecution or a well-founded fear of future persecution.
Sama v. U.S. Att'y Gen., 887 F.3d 1225, 1231
(11th Cir. 2018); 8 C.F.R. § 208.13(b). This second
basis for relief can be met either by coming forth with
applicant-specific evidence or by showing, broadly speaking,
the applicant's affiliation with a group that is subject
to a "pattern or practice" of persecution
(otherwise known as group persecution). 8 C.F.R. §
208.13(b)(2)(iii). In all cases, the persecution must be
"'by government forces' or 'by
non-government groups that the government cannot
control.'" Sama, 887 F.3d at 1231-32
(quoting Ayala v. U.S. Att'y Gen., 605 F.3d 941,
948 (11th Cir. 2010)).
Ali
alleged past persecution and a well-founded fear of future
persecution, both individually and as a member of a group: He
himself was forced to worship in secret when he lived in
Pakistan, and all Pakistani Ahmadis must hide their religious
practice because they face violence and because open worship
of the religion is criminal.[2] The Immigration Judge
("IJ") rejected each claim, and Ali appealed the
decision to the Board.[3]
The
Board dismissed Ali's appeal on the asylum claim. Because
he was able to regularly attend his mosque and to serve as a
youth organizer for Ahmadis in his community, the Board found
insufficient evidence of past persecution. Basing its
decision largely on the same evidence, the Board likewise
found insufficient evidence of a well-founded fear of future
persecution. To be sure, it acknowledged some contrary
evidence in the record, particularly as it related to
Ali's group-persecution claim. It found, for example,
that Pakistani Ahmadis may not refer to themselves as Muslims
or to their places of worship as mosques and may not sell
their religious literature. It also found that they are
victims of both blasphemy accusations and violence.
Nonetheless, the Board pointed to efforts by the Pakistani
state to protect Ahmadis from both. So considering these
efforts, alongside the fact that Pakistani law guarantees the
free exercise of religion, as well as the fact that Ali
practiced his religion, the Board rejected Ali's asylum
claim. Because withholding of removal has a stricter
evidentiary standard than asylum, [4] the Board rejected that
claim, too. And because Ali did not appeal his CAT claim, the
Board deemed it waived.[5]
In his
brief to the Board, however, Ali flagged specific evidence,
ignored by the IJ, that contradicted the IJ's decision to
deny him asylum and withholding-of-removal relief. We discuss
that evidence in broad strokes now but reserve the details
for our analysis. See infra Part III. For example,
though Ali was able to attend his mosque for a while, that
mosque was eventually shut down due to threats of violence
against its attendants that went unaddressed by the police.
Once the mosque was closed, "he was no longer able to
pray there and instead had to pray in secret outside of
town." The IJ's decision was therefore problematic,
Ali argued, because our cases recognize that "being
forced to practice one's faith in secret amounts to
persecution." Similarly, though the Board echoed the
IJ's finding that Pakistani Ahmadis were constitutionally
protected, Ali argued that they were "excluded from
these alleged constitutional 'guarantees.'" He
then cited specific examples that supported his position,
including Ahmadis' inability to openly practice their
religion, to propagate their religion, to convene for
religious gatherings, to perform a pilgrimage, to vote, to
build mosques, and to pray in certain manners.
In
summary, the IJ ignored specific evidence that Ali brought to
its attention, and on appeal, the Board ignored that same
evidence. Ali now petitions us to review the Board's
decision.
II.
To
enable our review, the Board must "give 'reasoned
consideration'" to an applicant's claims and
"make 'adequate findings.'" Tan v. U.S.
Att'y Gen., 446 F.3d 1369, 1374 (11th Cir. 2006)
(quoting Morales v. INS, 208 F.3d 323, 328 (1st Cir.
2000)). We assess the Board's compliance with this
mandate through something our cases have come to call a
reasoned-consideration examination. See, e.g.,
Bing Quan Lin v. U.S. Att'y Gen., 881 F.3d 860,
874 (11th Cir. 2018). Whether the Board has afforded a
petition reasoned consideration is a question we review
de novo.[6] Id. Because the
reasoned-consideration requirement has garnered significant
attention in our recent cases, [7] we take a moment to explain it.
Though
we review the Board's legal conclusions de novo
and its factual findings for substantial evidence,
Sama, 887 F.3d at 1231, we are sometimes prevented
from performing that review in the first place. This is so
because our review of the Board's decisions operates on a
simple premise: The Board has reached a decision only after
having evaluated the entire evidentiary record. When the
Board has not convinced us that it has done so, as is the
case when we remand for a lack of reasoned consideration, ...