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Nasir v. Immigration And Naturalization Service

September 2, 1997




Petition for Review of an Order of the Board of Immigration Appeals, A29-700-249

Before POSNER, Chief Judge, and EASTERBROOK and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Argued May 12, 1997

Decided September 2, 1997

Mansoor Rana Nasir, a citizen of Pakistan, entered the United States at Richmond, Vermont, on May 8, 1993. He entered "without inspection," which means he did not present himself to an officer of the Immigration and Naturalization Service. He was immediately apprehended and deportation proceedings were instituted. He conceded deportability but requested asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. sec. 1158. Because his request was made after deportation proceedings started, it was also considered a request for withholding of deportation under section 243(h) of the Act, 8 U.S.C. sec. 1253(h)(1). The immigration judge denied his request, and the Board of Immigration Appeals, on a 2 to 1 vote, dismissed his appeal. This petition for review followed.

Section 208(a) authorizes the Attorney General, in her discretion, to grant asylum to an alien who is a "refugee," i.e., a person who is unwilling to return to his 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[.]" Section 101(a)(42)(A), 8 U.S.C. sec. 1101(a)(42)(A). We review the BIA decision for an abuse of discretion, DeSouza v. INS, 999 F.2d 1156 (7th Cir. 1993), and uphold it if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole[.]" 8 U.S.C. sec. 1105a(a)(4).

To be eligible for the withholding of deportation, an applicant must show a "clear probability of persecution on account of race, religion, nationality, political opinion, or membership in [a] defined social group." Sharif v. INS, 87 F.3d 932 (7th Cir. 1996). INS v. Stevic, 467 U.S. 407 (1984). The burden for showing eligibility for the withholding of deportation is heavier; i.e., a "clear probability of persecution" is harder to prove than a "well-founded fear" of persecution.

Nasir contends that he has a well-founded fear of persecution because he is an Ahmadi. He is a 28-year-old single male, a native of Karachi, Pakistan. He claims to be a member of the Ahmadiyya Movement, one of the 73 sects of Islam. The sect was founded by Mirza Ghulam Ahmed (sometimes Hahmady) and differs from fundamental Islam, principally because it considers Ahmed to be a successor of the Prophet Muhammad. The members are required by their faith to teach the continuing revelation of the word of God to Islam. Other Islamic groups consider members of the Ahmadi Movement to be heretics.

It appears that Ahmadis in general have suffered prejudice and discrimination in Pakistan ever since the country was founded in 1947. In 1974 the Second Amendment to the Pakistani Constitution of 1973 was enacted; it declared Ahmadis to be non-Moslem. In 1984, Article XX of the Pakistan Penal Code made Ahmadis liable for prosecution for any activities deemed likely to "outrage the religious feelings of Muslims"; it prohibits Ahmadis, for instance, from referring to their founder as a prophet or using the Muslim call to prayer. According to the Pakistan Human Rights Commission, between 1987 and 1992, 106 Ahmadis were charged under various statutes directed at their religious activities.

Nasir claims that in Pakistan he was a member of the Khuddam Al Ahmadiyya, which is a group for men aged 16 to 40. He says he performed religious work on their behalf and that, as a result of his work, he suffered discrimination at school, was beaten by Islamic fanatics, and threatened with death if he did not change his beliefs.

Using a false passport he left Pakistan and went to Canada, where he sought asylum. While he was in Canada he obtained an official Pakistani passport, on which his religion was given as Ahmadi. This passport was valid until October 17, 1998. Before his petition for asylum in Canada was decided, he entered the United States. Once in the United States, Nasir obtained a letter from the Ahmadi Mission in Canada which said he was an Ahmadi. Also while he was in the United States, Nasir obtained another Pakistani passport from the Pakistan Consulate in Los Angeles. Like the one issued in Canada, this passport listed his religion as Ahmadi. He also obtained a letter from Mr. Mubasher Ahmad of the Ahmadiyya Muslim Community Center in Baltimore, attesting that he was an Ahmadi. Mr. Ahmad is missionary of the South East Region of the Ahmadiyya Movement in the United States. The South East Region includes Pennsylvania, where Nasir was located at the time. Mr. Ahmad is one of the persons in the United States designated to attest to one's status as an Ahmadi.

In this case, the immigration judge and the Board found that Nasir failed to meet the less onerous burden for asylum and that his request for the withholding of deportation, therefore, also failed. The basis of the immigration judge's decision was, in essence, that Nasir failed to establish that he was a member of the religious sect which he claims is persecuted in Pakistan. The decision was based largely on credibility determinations, which in proceedings of this kind are entitled to deference on review. They are overturned by a reviewing court only when "extraordinary circumstances so require." Carry Companies of Illinois v. NLRB, 30 F.3d 922, 926 (7th Cir. 1994).

Credibility determinations, however, are only relevant to the witness whose credibility is an issue. The lack of credibility of one witness does not necessarily undermine the credibility of another witness or of documentary evidence.

As we said, the immigration judge did not believe certain parts of Nasir's testimony. Also, prior to the hearing (we say "hearing" but it wasn't over and done with in one sitting; instead, it was continued many times) in his case, the State Department issued an advisory opinion, saying that some asylum applications filed by those claiming to be Ahmadi are false. For that reason, the immigration judge said he would make a careful credibility analysis; he then proceeded to cite several inconsistencies in Nasir's testimony. These include discrepancies between Nasir's statement made in connection with his request for asylum and his testimony at his hearing. One discrepancy involves an incident during 1986 when he was assaulted by six students of the Jamat Islami Student Association. In his statement he said he was "kicked and hit with fists about my face and body," but during the hearing, he could not remember any event occurring in 1986. Second, in his statement he said he was beaten in August 1990 by a Moslem religious leader called a Mullah and five of his followers, but at the hearing he denied being beaten by a Mullah. Also, in testimony Nasir said he was unemployed in Pakistan, but his biographical information for his request for asylum said he was employed as an assistant ...

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