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Ali v. U.S. Attorney General

United States Court of Appeals, Eleventh Circuit

August 5, 2019

IRFAN ALI, Petitioner,
v.
U.S. ATTORNEY GENERAL, Respondent.

          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, ...


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