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Hafsa Shaikh and v. Erich. Holder jr.

November 26, 2012


Petition for Review of an Order of the Board of Immigration Appeals. Nos. A099-869-754, A099-869-755

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


Before FLAUM, RIPPLE and WILLIAMS, Circuit Judges.

Hafsa Shaikh and her husband, Asim Shaikh, Pakistani citizens, endured a series of threats and attacks by members of the Muttahida Quomi Movement (the "MQM"). They now petition for review of an order of the Board of Immigration Appeals (the "Board") denying their applications for asylum or with-holding of removal. The Board upheld the immigration judge's order of removal, concluding that the Shaikhs did not establish refugee status because they did not demonstrate that the MQM targeted them on account of a protected characteristic. The Shaikhs argue that the Board applied an incorrect legal standard by requiring that political opinion be the MQM's primary motive for targeting them. We deny the petition for review.

I. Background

Hafsa and Asim entered the United States in 2006 and applied for asylum several months later. In 1984, Hafsa left her native India and moved to Karachi, Pakistan, for an arranged marriage to her cousin (not Asim). She became a naturalized citizen of Pakistan shortly thereafter and relinquished her Indian passport.

Hafsa's new hometown of Karachi presented an environment full of violence, crime, and corruption spurred on by political and ethnic rivalries. See Jane Perlez, Karachi Turns Deadly Amidst Pakistan's Rivalries, N.Y. Times, Nov. 18, 2010. In 2010, the city was the most dangerous*fn2 area in Pakistan outside of war zones. Id. It earned this ignoble distinction after 1,350 people died in targeted political attacks, more than in the rest of Pakistan combined. Id.

Such violence largely results from tension between two ethnic groups in Karachi, the Mohajirs and Pashtuns. Id. Mohajirs, Urdu-speaking people who left India in 1947 after its partition, have long dominated the city. Id. Pashtuns, on the other hand, are immigrants from war-plagued areas of northern Pakistan. Id. The MQM arose from this conflict. It styles itself as a political party representing Mohajirs but has long been at the center of violence in Karachi. Id. The party dominates local politics, often controlling the mayor's office, the police force, and the majority of other local government positions. Id.

Hafsa was unaware of this history of violence when she discovered the MQM. Drawn to the party by promises to improve infrastructure and rid Karachi of the quotas used to fill government jobs, Hafsa and her first husband began supporting the party in 1988. She attended MQM meetings, collected donations for the party, and encouraged her friends and family to support the party. She was never a member of the party, however. By 1991, Hafsa became disillusioned by the warring factions within the party and its involvement in illegal activities. When she stopped supporting the party in 1991, her husband and his friends within the MQM pressured her to reconsider, but she refused.

Hostility towards Hafsa from MQM members began in 1999 after she began an extramarital romantic rela-tionship with Asim. Asim was also married at that time to his then-wife Afroz, an MQM member. When Afroz discovered her husband's affair with Hafsa, she told Hafsa's then-husband about it. She also began calling Hafsa at work and warning her to keep away from Asim, enlisting friends to do the same. Subsequently, Hafsa and Asim both filed for divorce and shortly thereafter married.

Beginning in June 2001, the harassment of the Shaikhs intensified, taking on a more political dimension. Other MQM members began calling Hafsa as often as three times a month. Although Afroz limited her calls to personal attacks and insults, the MQM members accused Hafsa of betraying the party and demanded that she leave Asim so he could return to their "Mohajir sister" Afroz. The callers also demanded she renew her own support of the MQM. They told Hafsa that, if she did not leave Asim and return to the MQM, she "would not have the right to live." Hafsa never reported these calls to the authorities or her employer because she feared losing her job and the MQM controlled the police.

In addition to these threatening calls, the Shaikhs survived three incidents of violence between 2002 and 2005. First, while driving home, another vehicle rammed Hafsa's car and sped away. The accident injured her hand, requiring stitches. Although Hafsa never saw the driver, MQM members later described the crash as an attempt on her life and told her she would not survive the next attack. About a year later, three armed men entered Hafsa's workplace; one pushed his gun against Hafsa's forehead and told her that, because she had not heeded the MQM's warnings, they would kill her. The gunman then ordered his accomplice to slit Hafsa's throat, but Hafsa's former manager intervened and paid them $3,000 to leave. Finally, the MQM attacked the Shaikhs on their drive home from work, pulling Hafsa from the car and beating Asim when he came to her rescue. Hafsa narrowly escaped, but the MQM kidnapped Asim. They took him to a barn on Karachi's outskirts, tied him to a pole, and beat him repeatedly over the next two days. While beating Asim, the MQM members referenced his ethnicity by calling him a dirty Sindhi (an ethnic group originally native to the Sindh province of the Indian empire); told him to reunite with Afroz, their Mohajir sister; and demanded that he urge Hafsa to return to the MQM.

After the hearing, the immigration judge noted the Shaikhs' "consistent credible testimony" but denied their applications for asylum, withholding of removal, and protection under the United Nations Convention Against Torture. He concluded that only the kidnapping incident rose to the level of persecution but did not occur "on account of" their political opinion. Because the MQM did not seriously threaten or attack Hafsa until after her affair with Asim, the immigration judge could not "conclude that one of the central reasons for the harm was [Hafsa's] prior minimal support for the MQM." Additionally, the immigration judge found that the Shaikhs had not shown that the government of Pakistan was unwilling or unable to protect them.

The Board, agreeing with the immigration judge's reasoning, dismissed the Shaikhs' appeal. It emphasized that, though the MQM may have pressured Hafsa before her marriage to Asim, "the more serious threats, kidnapping, and actual and attempted violence experienced by the [Shaikhs] at the hands of MQM supporters occurred after [Asim's] ex-wife discovered the [Shaikhs'] extra-marital relationship." Thus, it found "the MQM's motivation to have [Hafsa] rejoin the MQM was secondary and not the group's primary motivation." Finally, the Board agreed that the MQM, though it may have engaged in "forced recruitment," did not target ...

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