2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-28-2006

Shah v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-3607

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"Shah v. Atty Gen USA" (2006). 2006 Decisions. Paper 1169.

http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1169
 The Honorable Dickinson R. Debevoise, Senior District *

Judge, United States District Court for the District of New

Jersey, sitting by designation. 

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

Nos. 04-3607 and 05-1122

 

SEEMAB FATIMA SHAH;

KHURRAM AIJAZ,

 Petitioners

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

 

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

 

Argued January 9, 2006

 

Before: BARRY and AMBRO, Circuit Judges, and

DEBEVOISE, District Judge *

 

(Opinion Filed: April 28, 2006)

 

David E. Piver, Esq. (ARGUED)

W. John Vandenberg, Esq.
2

Law Office of David E. Piver

150 Strafford Avenue, Suite 115

Wayne, PA 19087

Counsel for Petitioners

Jonathan Cohn, Esq. (ARGUED)

United States Department of Justice

Civil Division

950 Pennsylvania Avenue

Washington, D.C. 20530

-ANDJohn J. Andre, Esq. (ARGUED)

Donald E. Kenner, Esq.

Christopher C. Fuller, Esq.

Thankful T. Vanderstar, Esq. 

United States Department of Justice

Office of Immigration Litigation 

Ben Franklin Station

P.O. Box 878

Washington, D.C. 20044

-ANDChristine A. Sanner, Esq. 

Office of United States Attorney

17 South Park Row, Room A330

Erie, PA 16501

Counsel for Respondent

 

OPINION OF THE COURT

 

BARRY, Circuit Judge

I. Introduction

Petitioner’s father was killed in cold blood, and the
 We are today issuing another opinion in which we 1

criticize Judge Ferlise’s conduct. See Cham v. Gonzales, No.

04-4251 (3d Cir. 2006). These opinions are not the first in

which we have done so. See, e.g., Sukwanputra v. Gonzales, 434

F.3d 627 (3d Cir. 2006); Fiadjoe v. Attorney General, 411 F.3d

135 (3d Cir. 2005). 

3

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. 

1

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,
 The State Department defines Muhajirs as “Urdu- 2

speaking immigrants from India and their descendants.” U.S.

Department of State, Background Notes: Pakistan, available at

http://www.state.gov/r/pa/ei/bgn/3453.htm (last visited Mar. 22,

2006). 

 Although Aijaz is nominally a petitioner, Shah, and 3

what happened to her father and to her, is the driving force

behind these applications. We will, therefore, refer to petitioner

in the singular. 

 The Muttahida Qaumi Movement (“MQM”), “formerly 4

known as the Mohajir Quami Movement, is a political group

which represents the Urdu-speaking immigrant urban Mohajir

population which migrated from India at the time the creation of

Pakistan in 1947.” Global Security.org,

http://www.globalsecurity.org/military/world/para/mqm.htm

(last visited Mar. 22, 2006). 

4

Khurram Aijaz, are natives and citizens of Pakistan. They are

both Shi’a Muslims and Mohajirs (a/k/a Muhajirs). Shah and 2

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. In 3

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. I am [4]

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
5

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
 Shah also proffered letters from two individuals 5

claiming to be current or former officials of the MQM. The

letters stated, in substance, that Shah is an active MQM member,

and that she would be in danger if forced to return to Pakistan. 

Because the authors were not available to appear in court, and

the statements were letters, not affidavits, Judge Ferlise

concluded that he would give them whatever weight he deemed

advisable which, apparently, was none. See Liu v. Ashcroft, 372

F.3d 529, 532 n.3 (3d Cir. 2004) (“[T]he fact that the IJ never

referred to the certificates in his final decision suggests that they

were not given any weight in making the ultimate decision.”).

6

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. Hussain was an active member of 5

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
7

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 [Shah’s]

Passport

(c) Copy of Secondary Respondent’s [Aijaz’s]

Passport

(d) Birth Certificate of Primary Respondent, with

translation

(e) Marriage Certificate of Respondents, with

translation

(f) Birth Certificate of Respondents common child,

with translation

(g) Primary Respondent’s Educational Credentials

(h) The Dawn identification card [English

newspaper where Shah was employed]

(i) Copy of Passport of Primary Respondent’s

father

(j) Death Certificate of Primary Respondent’s

father

(k) First Information Report for Police dated

October 1, 1995, with translation

(l) Extract of Entries of Death Registered with
8

Health Department regarding death of

respondent’s father, with translation

(m) Letter to Deputy Commissioner of Karachi

from Assistant Commissioner dated January 11,

1995 regarding Respondent’s father

(n) Letter of Chief Administrative Officer

regarding special gratuity paid at time of

Respondent’s father’s death

(o) Articles from The Dawn [and the Daily]

Mashriq, dated January 11 through January 31,

1995, regarding death of Primary Respondent’s

Father

(p) Confirmation of Primary Respondent’s hire at

Zibercom and subsequent pay raises

(q) Letter of Recommendation for Primary

Respondent

(r) Letter of Termination for Primary Respondent

(s) Tax information for Primary Respondent

(t) The Dawn Internet Edition Articles on Pakistan

dated January 5, 2001 through August 20, 2001

(u) Copy of Pakistan Human Rights Watch World

Report 2001.”

(App. at 184); see Exhibit 4 (Id. at 184-292.) Judge Ferlise

excluded documents (a) through (n) on the ground that they were

not certified pursuant to 8 C.F.R. § 287.6(b)(1)-(2), which states,

in relevant part: 

In any proceeding under this chapter, an official

record or entry therein, when admissible for any

purpose, shall be evidenced by an official

publication thereof, or by a copy attested by an

officer so authorized. . . . The attested copy, with

the additional foreign certificates if any, must be

certified by an officer in the Foreign Service of the

United States, stationed in the foreign country

where the record is kept.

Notably, he did not exclude the newspaper articles at (o). 
 Because we are remanding for another hearing, we need

6

not reach the question of whether the translation and exclusion

of evidence issues were preserved for appeal and, if so, whether

the BIA abused its discretion in rejecting the latter issue and

denying the motion for reconsideration. 

9

In an oral opinion issued at the conclusion of the hearing,

Judge Ferlise found the testimony of both Hussain and Shah

“totally incredible”; denied asylum, withholding of removal, and

relief under the CAT; and deemed the application for asylum

“frivolous.” On appeal, the Board of Immigration Appeals

(“BIA”) reversed the finding of frivolousness, but dismissed the

appeal “based upon and for the reasons set forth” in Judge

Ferlise’s decision. (Id. at 3.) A petition for review was filed

with this Court and motions to reconsider and for a stay of

removal with the BIA. By order dated December 29, 2004, the

BIA denied the motions, and a petition for review of this

decision was filed as well. We consolidated the two petitions for

review. 

On appeal, Shah contends, first, that substantial evidence

did not support the adverse credibility determinations and denial

of relief. She argues, as well, that incompetent translation by the

Urdu-English interpreter deprived her of her due process right to

a full and fair hearing, that Judge Ferlise’s decision to exclude

some of the documentary evidence under 8 C.F.R. § 287.6 was

legal error requiring a remand, and that the BIA abused its

discretion when it denied the motion to reconsider. We have 6

jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). 

III. Standard of Review

Where, as here, “the BIA directs us to the opinion and

decision of the IJ who originally assessed [the] application, we

review the IJ’s opinion.” Dia, 353 F.3d at 240. We review an

immigration judge’s findings of fact and credibility

determinations under a substantial evidence standard. See, e.g.,

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). In so doing, we ask
10

whether such determinations are “supported by evidence that a

reasonable mind would find adequate.” Dia, 353 F.3d at 249. 

If the IJ’s conclusion is not based on a specific,

cogent reason, but, instead, is based on

speculation, conjecture, or an otherwise

unsupported personal opinion, we will not uphold

it because it will not have been supported by such

relevant evidence as a reasonable mind would find

adequate. In other words, it will not have been

supported by substantial evidence.

Id. at 250. 

IV. Substantial Evidence – or Lack Thereof

Judge Ferlise condemned, in the harshest of terms, the

testimony of Hussain and Shah: it was “totally incredible,”

“totally implausible,” “self-contradictory,” “impeached,” and,

were more needed, it “[did] not make any sense.” (App. at 25.) 

Basing those conclusions on numerous supposed inconsistencies

in the testimony, he denied relief. It is clear, however, that the

bulk of those inconsistencies – if, indeed, they were

inconsistencies – were picayune in nature and that his decision

was, at bottom, primarily based on one factual finding – his

erroneous conclusion that Shah’s father was in fact alive at the

time of the hearing. There can be no dispute as to the

importance that he placed on this conclusion: “[T]he fact that

[her] father is indeed alive . . . is a very, very important issue in

this case.” (App. at 19.) 

Judge Ferlise concluded that the father is alive based on

one sentence of the testimony given by Hussain and the “highly

questionable” death certificates offered by Shah. On direct

examination, Hussain testified that Shah’s father had been killed,

and addressed the circumstances surrounding his death. His

testimony as to these facts, although somewhat difficult to

follow, was consistent. On cross examination, however, he

stated that Shah’s father and mother remain in Pakistan today. 

Judge Ferlise, understandably, sought to resolve the discrepancy
11

in Hussain’s testimony. 

Q. Before you were asked sir, what family

members the female respondent has back in

Pakistan. You said she has her brothers and

sisters, said she had her parents there.

A. Yes.

Q. You told me her father is dead.

A. Later on I said that her father is not active, he’s

already dead, but her brother is.

Q. Sir, you’re not paying attention. You were

asked what family members she presently has in

Pakistan. You said her parents, plural, meaning

father and mother, and her brothers and sisters. 

That was not more than five minutes after you told

me that her father had been killed. I’d like you to

explain that obvious contradiction.

A. When a girl is married her in-laws are also her

parents and her father is dead but I said that her

brother is active.

Q. You said that she had her parents and her

brother, sir. Now you’re compounding a lie on a

lie. I don’t appreciate it. I want to know why you

said her parents are presently in Pakistan when you

told me her father was dead.

A. I’m not telling a lie. I swear, and I, when I said

her parents I meant that her in-laws, mother and

father in law, and I already said that her father is

dead and her brother is there.

Q. Well, that’s right, you said her father was dead

and then you just started talking abut her parents. 

Why didn’t you just say her in-laws. Why did you

call them her parents.

A. This was my mistake.

Q. Obviously. 

(Id. at 102-03). In his decision, Judge Ferlise characterized this

testimony as an “extraordinary contradiction” which the witness

“tried to explain . . . away by saying that when he said her

parents are living in Pakistan, he meant her in-laws.” (Id. at 17.) 
12

He stated that he believed the witness “slipped up and . . .

divulged to the Court the fact that the respondent’s father is

indeed alive . . . .” 

The only other evidence relied upon by Judge Ferlise to

support his conclusion that Shah’s father is alive were the death

certificates offered by Shah. Although those certificates (along

with many other documents) were excluded because they were

not certified, Judge Ferlise nevertheless “perused” them, and

found them to be “highly questionable.” (Id. at 18.) He stated:

The death certificate at tab J has absolutely nothing

included in it as to the cause of death of the

respondent’s father. The Court finds that to be

extremely unusual and extremely bizarre. The

death certificate at L appears to be defective. It is

virtually impossible to read the cause of death and

the Court cannot conclude from reading these

documents why and how the respondent’s father

was either killed or died of natural causes. 

(Id. at 17.) Parenthetically, we note that we do not find it

“virtually impossible” to read the cause of death at tab L; indeed,

it is rather easy to conclude, with some minimal interpretation,

that the father died of cardiac respiratory failure secondary to

acute head injury as a result of a firearms injury. 

Even if there were no other evidence to corroborate the

testimony concerning the father’s death, it would be extremely

difficult to find that the two considerations relied on by Judge

Ferlise constituted substantial evidence in support of his

conclusion that the father is alive. With respect to Hussain’s

“extraordinary contradiction,” the witness explained his

misstatement. Despite Judge Ferlise’s dismissive tone regarding

that explanation, the explanation was, in fact, quite reasonable. 

As for the “questionable” death certificates, we note, as an initial

matter, that Judge Ferlise should not have invoked evidence he

excluded to undermine Shah’s claims. Certainly, he should not

have selectively “perused” the excluded documents, relying on

the ones that he felt undermined her claim, and ignoring the
 Because the newspaper articles were not official 7

records, they were not excluded with the rest of the documents

under § 287.6. 

13

many other documents that corroborated it. Moreover, his

problem with the death certificates related to an inability to

understand the cause of death. He did not appear to question, on

the basis of the death certificates, that Shah’s father was dead,

and certainly the death certificates do not prove that he is alive. 

Neither consideration, on its own, would be sufficient to support

Judge Ferlise’s conclusion that Shah’s father is alive, and the

two together do not “add up to a totality of circumstances that

support[]” that conclusion. Dia, 353 F.3d at 251. “Rather, they

are an aggregation of empty rationales that devolve into an

unsupported finding . . . .” Id.

When other evidence, which Judge Ferlise ignored, is

considered, it is clear that his conclusion is not just difficult to

support, it is entirely unsupportable. Pictures of Shah’s father

lying in a pool of blood on the ground where he was shot

appeared in newspaper articles about the murder in two

newspapers – Dawn (an English-language newspaper) and

Masriq (an Urdu-language newspaper), articles admitted into

evidence. Judge Ferlise utterly failed to address, or even

mention, these articles when discussing why he believed the

father is alive. One would have expected that, at the very least,

he would have explained his rationale for discounting them if,

indeed, there was one. 

In addition to the newspaper articles, petitioner offered

documents corroborating the fact of her father’s death,

documents which included a First Information Report for the

police detailing the circumstances surrounding his death (with

translation); an Extract of Entries of Death Registered with

Health Department regarding his death (with translation); and a

letter to the Deputy Commissioner of Karachi from the Assistant

Commissioner regarding his death. Judge Ferlise excluded these

documents because they were not authenticated under §287.6.7

We held in Liu v. Ashcroft, 372 F.3d 529 (3d Cir. 2004), albeit
 We offer but a few examples. Judge Ferlise concluded, 8

as to Hussain, that he changed his testimony as to which agency

was responsible for killing Shah’s father, and contradicted

himself repeatedly about whether Shah was a member of the

MQM. He did neither. As for Shah, Judge Ferlise found an

inconsistency because she stated in her asylum application that

her father was killed because he was a Mojahir and a Shi’a, but

14

after Judge Ferlise ruled on the issue in this case, that § 287.6 “is

not an absolute rule of exclusion, and is not the exclusive means

of authenticating records before an immigration judge.” Id. at

533. We made it quite clear that the applicants in Liu should

have been given an opportunity to prove the authenticity of their

documentary evidence through other means. There is no

question that here, as in Liu, without providing an opportunity to

prove authenticity by other means, Judge Ferlise excluded

documents that, if authenticated, would have corroborated the

testimony of Shah and Hussain. Because the documents may be

offered on remand and their authenticity reconsidered, we need

not decide what effect they would or should have had on Judge

Ferlise’s decision had they not been excluded. We note,

however, that they surely would not have helped him reach the

result he reached. 

The strength of the newspaper articles ignored by Judge

Ferlise and the weakness of the evidence cited by him compel

the conclusion that Shah’s father is dead, a fact which now the

government concedes. As to this “very, very important” fact,

“no reasonable person” would have found Shah and Hussain

incredible. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004);

see 8 U.S.C. § 1252(b)(4)(B); Elias-Zacarias, 502 U.S. at 481

n.1. Stated somewhat differently, this “very, very important”

fact is not supported by substantial evidence. 

Nor are the handful of other inconsistencies invoked by

Judge Ferlise to support his adverse credibility determinations

supported by substantial evidence; indeed, virtually all of those

“inconsistencies” are either too minor to warrant discussion or

are not inconsistencies at all. We make one observation, 8
later claimed it was because of his involvement with the MQM. 

But there is no inconsistency because the MQM is a political

group that represents Shi’a Mohajirs. Judge Ferlise also made

findings having no support in the record and ignored evidence in

the record when it suited his purposes to do so. With reference

to the former, it was sheer speculation to conclude that it was

“probable” that “if indeed any harm came to [Shah] or her family

it had to do with a rival organization meting out their own form

of justice.” (App. at 21-22.) With reference to the latter, the

State Department Country Report supposedly contained

“nothing” indicating that the police target and kill MQM

members or that the government sponsors violence against

MQM members. Judge Ferlise was wrong. 

15

however. Aside from the fact that we are at a loss to see the

relevance, much less the significance, of any inconsistency

between Shah’s testimony that her father was murdered when he

was visiting a friend, who was a doctor, and newspaper accounts

that reflect that her father was a patient of the doctor, not a

friend, we find it disturbing that the same newspaper articles that

Judge Ferlise failed to consider before concluding that Shah’s

father is alive were invoked here in an attempt to create an

inconsistency for purposes of undermining Shah’s credibility. 

“Although we don’t expect an Immigration Judge to

search for ways to sustain an alien’s testimony, neither do we

expect the judge to search for ways to undermine and belittle it.” 

Zhang v. Gonzales, 405 F.3d 150, 158 (3d Cir. 2005). Nor do

we expect a judge to selectively consider evidence, ignoring that

evidence that corroborates an alien’s claims and calls into

question the conclusion the judge is attempting to reach. Where,

as here, an immigration judge turns his back on these

expectations and reaches a conclusion that is not “supported by

such relevant evidence as a reasonable mind would find

adequate,” we will not uphold that conclusion. See Dia, 353

F.3d at 250. 

We end by noting what we do and do not decide. We find

that Shah’s father is dead, now an undisputed fact and one that
16

was virtually undisputable before now. That fact was the

foundation on which the applications for relief were built, and

Judge Ferlise recognized its critical importance. We leave the

effect of that erroneous finding to the BIA on remand and leave

to it, as well, the question of whether petitioners, with the

father’s death and the witnesses’ credibility established, have

satisfied the requisites for the relief they seek. 

We will grant the petition for review, vacate the order of

the BIA and remand to the BIA for further proceedings

consistent with this opinion. We urge that, on remand, a

different immigration judge be assigned to any further

proceedings. See Sukwanputra v. Gonzales, 434 F.3d at 627,

638 (3d Cir. 2006) (quoting Korytnyuk v. Ashcroft, 396 F.3d

272, 287 n.20 (3d Cir. 2005) (“[W]hile we recognize that

assignment of an [IJ] is within the province of the Attorney

General, if on remand an IJ’s services are needed, we believe the

parties would be far better served by the assignment to those

proceedings of a different IJ.”) (alternation in original, internal

quotation marks and citations omitted).