NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 16

- 1431

_____________ MOHAMMAD ISRAIL ,

Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA , Respondent

______________ On Petition for Review of a Final Order o f the Board of Immigration Appeals ( Agency No. A 088

- 646

- 866 ) Immigration Judge: Honorable Philip Verrillo

______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

Decemb er 20 , 2016

______________ Before: SMITH , Chief Judge , Mc KEE and SHWARTZ , Circuit Judges

.

(Opinion filed: June 8, 2017 )

_______________________ OPINION *

______________________

* This d isposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

Mc KEE , Circuit Judge
Mohammad Israil seeks review of the Board of Immigratio n Appeal ’ s decision
affirm ing the Immigration Judge’s d ismissal of Israil’s claims for asylum, withhol ding of removal, and relief under the Convention Against Torture ( “ CAT ” ). For the reasons that
follow , we will dismiss Israil’s petition for asylum, but g rant Israil’s petiti on for review on his withholding of removal and CAT claim s
. I. 1
Israil is a 58

- year
- old citizen of Pakistan who entered the United States on February 1 7, 2006. Before the I mmigration J udge , Israil testified that he is a member of
the A wami National Party (“ANP”) , a leftist political party that openly opposes the
Taliban

. In 2003, Israil became the G eneral S ecretary for the ANP in Kaba l . I n December
2005 , Taliban members came t o Israil’s home when he was not there and instructed
Israil’s brot her to tell Israil that he should leave the ANP and r emove his children from
school or the Taliban would not “leave [him] alive

. ” 2 Israil reported the threats to the local police but did not receive any assistance. Shortly thereafter , Israil received a letter from the Taliban stating he would be killed if he did not leave the ANP. In response, he
f led with his family to Peshawar

. There, t hey relocated several times over a three month period out of fear of being found by the Taliban.
Israil then came t o the Un ited States in 2006 . His family has remained in

1 Because we write for the parties who are familiar with the factual and procedural history of this case, we provide only the background necess ary to our conclusions. 2 A.R. 142.Pakistan , but Israil testified that they continue to move frequently based on a belief that

the Taliban would retaliate against them for Israil’s flight. Israil testified that between
2005 and 2014 his wife and children lived in Swat, Peshawar, Karachi, Nagar, Mardan, Deri, and Kabul, sometimes moving several times within the same city or region . H is
children have been unable to attend school in part because of fear that the Taliban would kidnap them in order to coerce them into disclosing Israil’s whereabouts

. Their fear of the Taliban targeting Israil was corroborated on or about June 30 , 2009 , when Israil’s name
was broadcast on a Taliban

- run radio station and he was identified as someone the
Talib an wanted to find. Israil also testi fied that the Taliban came to h i s home in Tal in
2011 and 2012 and threatened his wife during the brief periods when she returned to
check o n their home

. On August 20 , 2008 , Israil filed an application for asylum, withho lding of removal, and withholding under CAT. His filing was beyond the one year time bar for asylum applications, but Israil claimed that the application should still be considered based on changed circumstances in Pakistan

. The IJ denied Israil all relie f

. Specifically,

t he IJ found that Israil failed to show changed circumstances in Pakistan sufficient to excuse his untimely petitio n. The IJ also found that Israil had not established the past persecution and possible future persecution necessary for with holding of removal, and
that he had not established the likelihood of torture that would qualify for protection
under the CAT if he returned to Pakistan

. The BIA subsequently affirmed and this petition for review followed.II
. 3

We first address Israil’s application for asylum and his claim that changed circumstances in Pakistan should excuse the untimeliness of his petition. 4 Israil argues that his untimely application should be excused under 8 U.S.C. § 1158(a)(2)(D) because
conditions in Pakistan have ch anged since he arrived in the United States

. However, 8 U.S.C. § 1158(a)(3) limits our jurisdiction to review ing constitutional claims and questions of law

. 5 We do not have authority to review the BIA’s discretionary findings
of fact in determining whethe r country conditions had sufficiently changed to justify a late filing

. 6 Here, the BIA found that conditions in Pakistan had not changed such that Israil’s petition’s untimeliness could be excused. Israil challenges only the factual underpinnings of the IJ and BIA’s determinatio n, arguing that conditions have changed

. 7 However, he does not assert any legal or constitutional challenges to the BIA’s

3 We have jurisdiction to review the IJ and BIA’s findings regarding Israil’s application for withholding of removal and protection under CAT. 8 U.S.C. § 1252(a) . We review using the substantial evidence standard. Tarraw ally v. Ashcroft , 338 F.3d 180, 184 (3d. Cir. 2003) . Accordingly, we will not disturb the BIA’s findings if “a reasonable fact finder could make a particular finding on the administrative record.” Dia v. Ashcroft , 353 F.3d 228, 249 (3d Cir. 2003) ; see also 8 U.S.C. § 1252(b)(4)(B) . However, as is discussed fully below, we lack jurisdiction to review the conclusion that Israil’s untimely filing of his asylum application is not excused due to changed country conditions. 4 8 U.S.C. § 1158(a)(2)(D) allows consi deration of an untimely petition if “the alien demonstrates to the satisfaction of the Attorney General

. . . the existence of changed circumstances which materially affect the applicant’ s eligibility for asylum.” 5 8 U.S.C. § § 1158(a)(3) , 1252(a)(2)(D). S ee also Sukwanputra v. Gonzales , 434 F.3d 627 , 634 (3d Cir. 2006)

. 6 Sukwanputra , 434 F.3d at 633

. 7 Pet’ r’s Br. 21

– 25.determination. Accordingly, we do not have jurisdiction to review the dismiss al of Israil’s

asylum petition.
Israil next argues that the IJ and BIA improperly denied his applicat ion for withholding of removal. To be eligible for withholdi ng of removal, an applicant must establish either past persecution or a well

- founded fear of experiencing persecution in the
future upon removal to their home country , and the pers ecution must be “on account of,” among other things, “membership in a particular social group, or political opinion

. ” 8 A withholding of removal claim may be properly denied if the evidence demonstrate s that future persecution could be avoided if the alien relocated to a different part of his home country. 9
We have held that a lack of physical harm , and threats that were not highly imminent in nature did not constitute past persecution. 10 Here, Is rail l eft the country following threat s he received from Taliban members through his brother and a letter in
the mail

. Because Israil was never directly threatened or given a deadline to comply, the threats he received were not sufficiently imminent to constitut e past persecution

. 11 W e

8 8 C.F.R. § 1208.16(b)

. 9 8 C.F.R. § 1208.16(b)(2)

. 10 See Gomez

- Zuluaga v. Att’y Gen. , 527 F.3d 330 , 341 (“[W]e have limited the type s of threats constituting persecution to only a small category of cases, and only when the threats are so menacing as to cause significant actual suffering or harm.” ) 11 See Gomez

- Zuluaga , 527 F.3d at 336, 341

– 42 (holding that incidents where the petitioner was “rounded up” at gunpoint without physical injury or robbery were “oblique and not imminent” and did not constitute persecution); Li v. Att’y Gen. , 400 F.3d 157, 164 (3d Cir. 2005) (concluding that in determining whether a petitioner experienced past p ersecution “threats standing alone constitute persecution in only a small category oftherefore conclude that t he record supports the BIA’s determination that those threats did

not ri se to the level of past persecution. Accordingly , Israil is only eligible for withholding of removal if he can
demonstrate the threat of future persecution by “ establish [ing] that it is more likely than
not that he . . . wo uld be persecuted on account of . . . [his] political opinion upon removal to that country.” 12 There is no question that the Taliban is opposed to the ideology and miss ion of Israil’s political party, the ANP, and have assassinated hundreds of the parties’ members , including Israil’s wife’s cousin. Additionally, “[U]nfulfilled
threats [that] fall within that category of past experience [are] more properly viewed as
indic ative of the danger of future persecution.” 13 Before he left Pakistan, Israil received
two threats from the T aliban demanding he leave the AN P or be killed

. A full three years
after Israil left P akistan, the Taliban broadcast that they were still looking fo r him

. More o ver, the Taliban visited his home in Tal in 2011 and 2012 to relay threat s to his
wife

. Nevertheless, the government asserts that Israil may safely relocate to a different part of Pakistan and thus he is unable to make out a claim of a reason able fear of future persecution

. 14 The IJ reasoned that relocation was reasonable because the Pakistani government is making efforts to target the Taliban

. However, government attempts to

cases” and that “unfulfilled threats must be of a highly imminent and menacing nature in order to constitute persecution”)

. 12 8 C.F.R. § 1208.16(b)(2)

. 13 Boykov v. INS , 1 09 F.3d 413, 416 (7th Cir. 1997)

. 14 Respondent’s Br. 21

– 24.control terrorist activity do not equate with actual success in contr olling terrorist

activity, 15 and the record contains more than enough to establish the Pakistani government’s inability to control Taliban forces. The government also point s to the fact that Israil’s family has remained in the country unharmed as evidence that Israil may safely retur n, but this conclusion gloss es over the reason behind the frequent movement of Israil’s family and the nature of the family’s continuing flight

. Israil’s wife and children have lived in at least seven different regions of Pakist an, for periods ranging from three months to approximately two years , fleeing each area when they had reason to believe that they were no longer safe from the
Taliban and that the Taliban would retaliate against them for Israil leaving the country.
The mer e fact that his wife and children have not been physically harmed during this time does not suggest that Israil may safely rejoin his family in Pakistan. Rather, it shows that the Taliban has thus far focused its vengeance on ly on Israil and not his famil y. Additionally, the multitude of different regions of Pakistan where Israil’s wife and
children have fled only to have to flee again strongly supports Israil’s fear that he cannot safely return to a different region of Pakistan other than his hometown of Tal. 16

15 Rehman v. Att’y Gen. , 178 F. App’x 126, 129 (3d Cir. 2006) (noting that though the Pakistani government was attempting to address the terrorist situation, it was “maybe not [doing so] successfu lly” ). 16 The First Circuit recently reached a similar conclusion while considering the reasonableness of an ANP member relocating within Pakistan. Khattak v. Holder , 704 F.3d 197 (1st Cir. 2013) (granting asylum petition for Pakistani member of the ANP and finding that the IJ had failed to consider evidence that ANP members were “major targets of attack” and the Taliban’s reach extended outside the Khyber Pakhtunkhwa province).Finally, w hen assessing the reasonableness of relocation, the adjudicator “should

consider

. . . ongoing civil strife within a country.” 17 The government concedes that “the family moves to avoid generalized conditions of violence and civil strife.” 18 T he evidence supports Israil’s fear of future persecution, as well as the unreasonableness of forcing
Israil to relocate to a different area of Pakistan. 19 Accordingly, w e hold that Israil succeeded in proving the likelihood of future persecution

. Last, Isr ail challenges the denial of relief under the CAT. For relief under the CAT, Israil must establish that “it is more likely than not that he . . . would be tortured if removed to the proposed country of removal.” 20 “Torture” under CAT “is an extreme
form of cruel and inhuman treatment” that is inflicted by or with the acquiescence of a public official. 21 The “acquiescence” component can sometimes be established where the government is willfully blind to torture by nongovernment actors. 22 Although there is
evide nce in the record that the government of Pakistan has made some efforts to curb the Taliban’s terrorist activities, this evidence does not foreclose the need to examine the

17 8 C.F.R. § 1208.16(b)(3)

. 18 Respondent ’s Br. 23. 19 The government argues that Israil’s future persecution claim is weakened by his family members remaining in Pakistan “unharmed.” Respondent ’s Br. 18, 22. However, this Court has held that a claim of future persecution is only weakened if the petitioner’s family “remain safely” in th e country and “ there is no individualized showing that petitioner would be singled out for persecution .” Lie v. Ashcroft , 396 F.3d 530, 537 (3d Cir. 2005) (emphasis added). 20 8 C.F.R. § 1208.16(c)(2)

. 21 8 C.F.R. § 208.18(a)(1) , (2).
22 See Myrie v. Att’y G en. , 855 F.3d 509, 516 (3d Cir. 2017) ; Pieschacon

- Villegas v. Att’y Gen. , 671 F.3d 303, 311 (3d Cir. 2011) ; Silva

- Rengifo v. Att’y Gen. , 473 F.3d 58, 65 (3d Cir. 2007)

.record to determine whether there is governmental acquiescence to allow for relief under

CAT. 23 Because Israil’s CAT claim stems from the same underlying facts as h is withholding of removal claim , we also vacate the BIA’s dismissal of his CAT claim for
the reasons discussed above

. III
. For the reasons set forth above, we will grant Isra il’s petition for review in part.
We dismiss Israil’s petition as to his asylum claim but grant it as to his withholding of
removal and CAT claim s . We remand to the Board of Immigration Appeals for further proceedings consistent with this opinion.

23 See Myrie , 855 F.3d at 516 (“Circumstantial evidence may establish acquiescence to ta rgeted acts of violence even when the government has an official policy or is engaged in a campaign of opposition against the entity the applicant fears.”); Pieschacon

- Villegas , 671 F.3d at 311 (“ [A] government’ s ability to control groups engaged in tortur ous activities may be relevant to, but not dispositive of, an asse ssment of willful blindness

. ” ).