2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
4-28-2003 

# At ique v . Atty Ge n U SA P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t 02-3283

F o l lo w thi s a nd a dd it ion al work s at : h tt p://d i g it alc ommon s .l a w . vi l l a no va . e du/thir dc ir c uit_2003

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . vi l l a no va . e du
. Re c omme nde d C it at ion
" At ique v . Att y Ge n U SA" (2003). 2003 D e cisio n s . P ape r 616. h tt p://d i g it alc ommon s .l a

w . vi l l a no va . e du/thir dc ir c uit_2003/616* John Ashcroft, as the Att orney General of t

he United States, rather than the Immigrat ion and Natura lization Ser vice, is the proper r espondent in a peti tion for review of a n or der of r em ova l. See 8 U .S.C. § 125 2(b)(3 )(A). T he ca ption is orde red ch ange d to re fle ct t he pr op er pa rty.

** The H onorab le Louis H . Pollak, Senior D istrict Judge, United S tates District Court for the E aste rn D istrict of P enn sylvan ia, sittin g by d esig natio n. NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT


### No. 02-3283 QUAZI MU STAFA ZAHID ATIQUE , Petitioner

v. John Ashcroft, Attorne

y Ge neral of the United S tates, Respondent*
APPE AL FROM THE UNIT ED STA TES I MMIGRATI ON

AND NATURALIZATI ON SERVICE Agency No. A71-498-356
Submitte d Under Third Circ uit LAR 34.1(a)

April 11, 2003
Be for e: B AR RY , RO SE NN , Circuit Judges an d POL LAK, ** Distri ct Judge (Opinion Fi led: Apri l 28, 2003)2 OPI NION
BA RR Y, Circuit

Judge Petition er Q uazi M ustafa Zah id A tique, a c itizen o f Ba nglad esh, file d this tim ely petition for r eview of a finalorder of r emoval iss ued by t he Board of Immigration Ap pe al s, af

fi r mi ng wi t ho ut

op i ni ont he de ci si onof t he I mmi gr ati onJu dg e ( “I J” )
. We hav e jur isdic tion und er 8 U.S .C. § 125 2(a ), an d w ill de ny the petit ion
. Because we write only for the parties, we will not recit e the fact ual backgr ound of this case, e xcept as ne cessar y t o explai n our decis ion. I n this petition, Ati que chall enges the IJ's fin ding that he had n ot bee n sub ject to p ast per secu tion an d did not h ave a we llfounded fear of fut

ure pers ecuti on in Banglades h because of hi s stat us as a former officer in the Paki stanimili tary . Atique fought on behal f of Pakist an in the civil war between Pakist an and the cur

rent Bangl adesh. Becaus e the Board affirmed without opinion, and Atique has not

chall enged the pr ocedure by which it s ummarily

affirmed, we review the decisi on of the IJ

as the final admini strative de termination. The Imm igration and N ationa lity Act (“IN A” ) autho rizes the Atto rney G enera l, in his d iscre tion , to g ran t asylum to an alien wh o is a “ref uge e” a s de fine d in the A ct, i.e., an alie n who is unable or

unwilling to ret

urn to hi s or her home count ry“because of pe rse cu tio n o r a w ell -f

ou nd ed fe ar of

pe rse cu tio n o n a cc ou nt of ra ce , re lig io n, n ati on ali ty,
mem bership in a p articular social group , or political opinion.” 8 U .S.C. §§ 11 58(b)(1);3

1101(a)( 42)(A). The I J's determi nation t hat Atique was not eli gible f or asy lum must be upheld if it is “supp orted by reasonab le, substantial, and prob ative evidenc e on the rec ord
cons idered as a w hole.” 8 U .S.C. § 110 5a(a)( 4). It can be rev ersed only if the evide nce is such that a reasonabl e factfinder would have t o conclude t hat the requis ite f

ear of per sec utio n ex isted
. INS v. Elia s-Zacari as , 502 U .S. 478 , 481 ( 199 2). Fin ding s of fact, including find ings regarding “persecu tion” and “ well-fou nded fear of pe rsecution,” are
rev iew ed u nde r the deferen tial su bsta ntial evid enc e sta nda rd. Abdille v. Ashcroft , 242 F.3d 477, 483 ( 3d Cir. 2001) . Moreover, we may rej ect the inte rpret ation of the immigrat ion laws only i f it i s “arbi trar y, capric ious, or manifestly contrar y t o the st atute .” Chang v . I

NS , 119 F.3d 1055, 10 60 (3d C ir. 1997). In order to be ent itl ed to withhol ding of deport ation, an ali en must satisfy the stri cter s tandard of

showing “a cle ar probabi lit y of per secuti on.” INS v. CardozaFonseca , 480 U .S. 421, 430 (1987). “[T ]he standard is that he mus t show th at it is more likely t han not that he willface perse cution i f he is depor ted. ” Li n v. INS 238 F.3d 239, 244 (3d Cir. 2001). There fore, i f an ali en is unabl e to est ablis h eligibili ty for asylum, he is ine ligib le fo r w ithh old ing of d epo rtatio n. See Cardoza-Fonseca , 480 U.S. at 443-44. Atique cl aims that

he is el igibl e for asylum on the basi s of his s tatus as a former member of the Pakis tani mi lit ary . The IJ found t hat Atique 's pa st ser

vice i n the Pakis tani air force is an immutable tr ait or belie f, pote ntial ly

consti tuting the basi s for an as ylum clai m based on persecution on account of politicalopinion or

membership i n a parti cular4

socialgroup. The IJ

determi ned, however, that t here was no objec tive e vidence t hat Atique’s status as a former member of the Pakistani air force had resulted in past persecution or would cr eate a r easonable likel ihood of fut ure pers ecuti on. In order to show that

he has a well -founded fear of persecution, Ati que must show both that he genu inely fears perse cution if he re turns to Ban glade sh an d that h is fear is obj ectiv ely rea son able
. Lin , 238 F .3d at 2 44. “F or the g over nm ent's actio n to co nstitute persecution, it must amount to more than general ly

harsh condi tions shared by many othe r persons, but does i nclude threats to li fe, confinement, t ortur e, and economi c rest rictions
so severe that t

hey cons tit

ute a re al threat t o life or freedom. ” Id. at 24 3-4 4. Atiq ue co ntend s that se veral e vents cons titute pas t perse cution . The first is his impris onment in a Paki staniconcentr ation c amp for two ye ars begi nning in 1972. The second is his alleged forcible recruitment into Bangladesh's air force foll owing his release fro m th e Pa kista ni ca mp , and the c onc om itant har assm ent, w hich con tinu ed u ntil 1 981
. The third is all eged verbal and physical harassment by supporters of the Bangladesh Nationa l Party (“BNP ”) becaus e of his prior su pport of the Jatiyo party and its leader, General Ersha d. The IJ' s findi ng that t

here was no past

persecution is supporte d by subs tanti al evide nce. F irst, Atiqu e's con finem ent by the Pak istan go vern men t does not su ppo rt his clai m of persecut ion by the government

of Bangladesh. Second, Ati que's alle gation of forcibl e recruitment t o Bangladesh' s air force i s not suppor

ted by the rec ord. Ati que5

testified at his im migra tion he aring o nly that he wa s “acc epted ” into th e Ba nglad esh a ir fo rc e– no t th at h e w as “f or cib ly re cr ui ted ” in to it, a s h e c on ten ds in hi s b rie f. ( Pe titi on er 's Br. at 5 ; R. at 6 9.) M oreo ver, the haras sme nt alleg edly inflicte d on Atiq ue du ring h is servic e in the Ban glade sh air force– prov iding h im w ith inad equa te prac tice ho urs to main tain his flying skills an d failin g to co nside r his ap plication to resig n in a tim ely fashion–does not ri se to l evel of per secuti on. “‘[P] ersecution’ i s an extr eme concept that does not i nclude ever

y sor t of tr eatment our

societ y r egards as offensive. ” Fatinv. INS , 12 F.3d 1233, 12 43 (3d C ir. 1993). Third, and final ly , the alle ged conti nuous press ure by BNP supporters t o force Atique to resign fr om his civi l government posit ion, including t

he use of campaign poste rs urgin g his o uster, do es no t cons titute per secu tion. Su bstan tial evide nce s upp orts the IJ' s finding that the phy sical assaul t in 1990 in Atique's office by BNP supporters, which ended when they were apprehended by

a securi ty

guard, was an i solat ed event t hat occurred during a peri od of civi l unres t thr oughout Banglades h. The fact that Ati que was caught i n the “gener ally high-l evel of vi olence as sociat ed with Banglades h politics” does not mean he was pe rsec uted . ( R. at 136-37 , U.S. D EPART MENT OF S TATE , B ANGLADESH : P ROFILE OF A SYLUM C LAIMS & C OUNTRY C ONDITI ONS (Feb. 1998) .) Si milarly, the government' s all eged failure to pay a pension t o Atique' s family , in t he absence of evidence t

hat it was connected t o his st atus as a former Paki staniair force officer , is not evidence of per secuti on. In s um, the I J's finding of no past per secuti on is suppor ted by6

sub stan tial ev iden ce. In addition, t

he IJ found no obj ecti ve evidence t hat Atique 's s ubject ive fear of future pe rsecut ion was well- founded. Ati que's content ion that he would suffer persecution if h e returned to B angladesh is based on two theo ries. First, he fears future persecution b ased on the past persec ution he be lieves he exp erienced. Se cond, he fears that he will be arrest ed immediat ely upon retur

ning to Bangl adesh because he did not obtain pe rmissi on to depart , permi ssion which was r equired be cause he was a former military officer. With reg ard to A tique's first contention, the regulatory presum ption of fu ture pe rse cu tio n d oe s n ot ar ise in th is c as e g iv en th at s ub sta nt ial ev id en ce su pp or ts t he IJ's find ing of n o pa st pe rsec utio n. See Obianuju Ezeagwuna v. Ashcrof t , 301 F.3d 116, 126 (3d Cir. 2002). I n additi on, subst antia l evide nce support s the I J's finding t hat condi tions in Banglades h have, i f anyt hing, c hanged for the bett er with r egard to Ati que's sit uation since h is dep arture in 199 1. In the 199 6 elec tion, w hich b roug ht the A wa mi L eagu e to power, the J atiyo party

won 30 seats i n Parli ament, J atiyo party members were appoint ed to cab inet ap poin tmen ts in the n ew gov ernm ent, an d G enera l Ersh ad w as pe rmitted to take his s eat in Par liam ent a ltho ugh he w as f orm ally still in cus tod y on c har ges of g raft
. The re is no “evid ence of system atic po litical repre ssion o n a sc ale tha t wo uld m ake it diffic ult for o ppo sition p arty mem bers to contin ue to liv e and take a n activ e role in politics i n Bangladesh. ” (R. at 136, U.S. D EPART MENT OF S TATE , B ANGLADESH : P ROFILE1 Atique c laims that his petition arises in part un der the C onven tion Ag ainst Torture

(“CAT”) and was denied by the IJon that ba sis. The IJ does not appear t o have denied Atiq ue relie f un der the CA T. H ow ever, b ecau se A tique h as no t raised th is issue in his brie f to u s, the arg um ent is wa ived
. 7 OF A SYLUM C LAIMS & C OUNTRY C ONDITI ONS (Feb. 199 8).) With regar d to Atique' s second cont ention, no object ive evi dence support s the conclusion that he w ill be arrested upon his return to Ba ngladesh . More than his m ere say -so is requir ed. Moreover, even if Ati que does face ar rest for viol ation of

a public ized law against

unauthori zed depart

ure by former mil itar

y per sonnel, he has not es tabli shed that a reasona ble person in his position w ould fear p ersecution rather tha n mere pro sec utio n. In conclus ion, because Atique failed to dem onstrate either past pe rsecution or a well-founde d fear of fut ure pers ecuti on, the IJ' s decis ion deny ing asylum will be upheld. 1 In addition, be cause Atique does not qual ify for asylum, the IJ cor

rectly concluded that

he could not s atis fy t

he more stringent s tandard f or withhol ding of deport ation. Th e pe tition for rev iew wil l be d enie d.

TO THE CLERK OF COU RT: Kindly file the fore going opini on. /s/ Maryanne T rump B arry Circuit Judge