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Shah v. Attorney General of the United States

April 28, 2006


PETITION FOR REVIEW OF A DECISION OF THE BOARD OF IMMIGRATION APPEALS Agency Nos. A95-148-835 & A95-148-836 Immigration Judge: Hon. Donald V. Ferlise.

The opinion of the court was delivered by: Barry, Circuit Judge


Argued January 9, 2006

Before: BARRY and AMBRO, Circuit Judges, and DEBEVOISE,*fn1 District Judge.


I. Introduction

Petitioner's father was killed in cold blood, and the government concedes that he is dead. That murder -- and what preceded and followed it -- is the event on which her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") was almost exclusively based. In his apparent zeal to deny relief to petitioner, however, the Immigration Judge, Donald V. Ferlise, came to the conclusion that the father is alive.

[T]he Court is strongly persuaded and tends to believe that the respondent's father is indeed alive and is not dead . . . If this is true then the respondent's entire case dissolves right in front of our eyes . . . . the case is nothing but a fraud that is being perpetrated upon this Court.

(App. at 18; see also id. at 19 ("[T]he fact that the respondent's father is indeed alive . . . is a very, very important issue in this case.").) In concluding that the father is alive, Judge Ferlise utterly ignored undisputed evidence of the father's death and shored up his conclusion with evidence he had excluded, evidence that actually corroborated the fact of the father's death. His conclusion "do[es] not flow in a reasoned way from the evidence of record and [is] . . . arbitrary and conjectural in nature." Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) (en banc). It is "more puzzling than plausible, more curious than commonsense." Id. at 251. The petition for review will be granted, and the case will be remanded for further proceedings consistent with this opinion.*fn2

II. Facts and Procedural History

Seemad Fatima Shah has a Master of Arts in International Relations from the University of Karachi. She and her husband, Khurram Aijaz, are natives and citizens of Pakistan. They are both Shi'a Muslims and Mohajirs (a/k/a Muhajirs).*fn3 Shah and Aijaz entered the United States on October 8, 2000 as nonimmigrant visitors authorized to remain here through April 7, 2001. On May 25, 2001, Shah, in addition to seeking withholding of removal and relief under the CAT, submitted an application for asylum on behalf of herself and her husband.*fn4 In the application, Shah stated that she was seeking asylum for the following reason:

I am a Mohajir (IMMIGRANT), my family and I worked for Muttahida Qaumi Movement.*fn5 I am an active member of MQM ladies Wing. I am also of SHIA sect. For a long time Mohajirs are being persecuted in Karachi-Pakistan. Shia's are also being killed by Fanatic Muslims who are against the existence of Shia's in Pakistan.

My father Syed Abid Hussain was killed by terrorist on 01-10-1995, he was shot dead by the persons who are patronized by Police . . . . There were two main factors for his killing, First he was Mohajir (IMMIGRANT) . . . , Second He was SHIA, they too are being victim of persecution.

Since the killing of my father, my whole family was uprooted we could not live properly in Pakistan, we were unable to live in any part of Pakistan as police and other security agencies threatened severe consequences os we try name the culprits. My life was in continuous danger, I was not free to move freely due to continuous threats by security agencies as well as by fundamentalist who are being given full protection by the government.

In the month of September 2000 security agencies threatened me and family of severe consequences if we try to proceed further for the inquiry of fathers killing, so mother who is very upset after the death of my father advised me to leave Pakistan immediately, so I had to leave Pakistan in a hurry as my life was in danger, I had to leave my newly born son also. For this reason I am seeking asylum in United States.

(App. at 300.)

Shah submitted a supplemental statement in support of her application for asylum. In it, she provided additional information about the MQM and the violence allegedly perpetrated against MQM members by the Muslim League and the Pakistani army. "From 1992 until the present," she wrote, "more than 17,000 people have been tortured and killed." (Id. at 153.) She also spoke of her father and his death:

My father was a well-known, active and respected unit leader of the local chapter of the MQM. My father was visiting his friend, who was a doctor and also a Mohajir, at his office. Suddenly, members of the ISI, or Special Services Intelligence, burst into the office and shot my father and his friend in cold blood.

(Id.) After her father's death, she was threatened, followed, harassed, and told not to attend MQM meetings and not to look into the circumstances surrounding his death. On one occasion, four or five men, two of whom were wearing police uniforms, burst into her house, took her seven-month-old son out of her arms, and told her that she and her family would be killed if she did not stop her involvement with the MQM.

On April 21, 2003, Shah and Aijaz appeared before Judge Ferlise. Shah and one other witness, Mohammad Hussain, testified, Hussain going first.*fn6 Hussain was an active member of the MQM, both in Pakistan and in the United States, and Shah's father had been very active with the MQM in Pakistan until he was shot to death by the ISI in 1995. He explained the difficulties that the MQM continues to have in Pakistan -- MQM members have seats in the assembly, for example, but are not given any actual authority. According to Hussain, Shah attended MQM meetings in Pakistan and has been very active in Gehware-abad, the American branch of the MQM.

Shah then provided testimony consistent with her prior statements. Her father was an active member of the MQM. After receiving phone calls from men threatening to kill him, he was shot to death by the ISI while visiting a friend at his medical clinic in January 1995. Shah started attending MQM meetings with her father in 1990, and worked for the MQM's women's wing educating women about their rights. After her father was killed, she became more active in the MQM, and sought to have the men who killed him punished. She began receiving threatening phone calls, sometimes as many as three or four a day. In addition to these phone calls, men would come to the newspaper where she worked and tell the security guards that they were going to kill her when she left the building. On June 18, 2000, five men broke into her home and grabbed her son from her arms. They pulled her hair, threw her on the floor, kicked her, and cursed at her. They told her to stop working with the MQM, and to stop pursuing the men who killed her father. Shah expressed fear that she will be killed if forced to return to Pakistan.

Shah and Aijaz offered extensive documentary evidence in support of their claims.

"(a) Copy of 1-94 card of Respondents

(b) Copy of Primary Respondent's ...

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