2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-19-2010

Javed v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4317

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*

The Honorable Joseph H. Rodriguez, Senior United States District Judge for the

District of New Jersey, sitting by designation.

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 08-4317

_____________

ANWAR JAVED, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES;

SECRETARY DEPARTMENT OF HOMELAND SECURITY,

 Respondents

___________________________________________

On Petition for Review of an Order of the 

Board of Immigration Appeals

(Agency No. A094-813-777)

Immigration Judge: Honorable Miriam K. Mills 

______________________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 23, 2010

Before: SCIRICA, Chief Judge, CHAGARES, Circuit Judge, 

and RODRIGUEZ,*

 District Judge

(Opinion filed: April 19, 2010)

_____________
1

There is conflicting information in the record as to whether Javed has five or six

children, however, this fact is not material for purposes of this appeal. 

2

OPINION

_____________

CHAGARES, Circuit Judge.

Anwar Javed petitions this Court for review of a final order of removal issued by

the Board of Immigration Appeals (“BIA”). Substantial evidence supports the BIA’s 

conclusion that Javed failed to corroborate his allegations of religious persecution, and

therefore failed to meet the burden of proof required for his asylum and withholding of

removal claims. Accordingly, we will deny Javed’s petition.

I.

Because we write solely for the parties, we will briefly recite only the essential

facts. Javed is a Pakistani Christian whose claims are based on fear of religious

persecution. He is married and the father of five1

 children; his family remains in

Pakistan. Javed alleges the following: in 1991, he was visiting with two childhood

friends who were members of Sipah-e-Sahaba, a Muslim group that has since been

designated a terrorist organization and banned by the Pakistani government. The friends

told Javed that they would make him Muslim by having him recite the Qalna (a recitation

that “There is no god but Allah, and Mohammad is the prophet of Allah.”). Appendix

(“App.”) 52. He recited the Qalna to demonstrate to his friends that doing so did not

convert him to Isalm. In 1993, during a similar conversation about religion, the friends
3

asked him to chant the Qalna again. Javed did so, thinking that they would not interpret

his joking recitation to be a claim of religious faith. 

Up until 2005, Javed lived as a Christian without incident. His work kept him out

of his hometown, Firdauspura, during the week, but he regularly attended Catholic Mass

on Sundays. In 2005, Javed began living full-time in Firdauspura. During the first

Ramadan after Javed returned to the town, Javed’s Muslim friends began pressuring him

to join in Muslim prayers, fast for the holiday, and make his family obey Islamic rules. 

They told him that reciting the Qalna had made him Muslim, and that it was wrong for

him to continue to live as a Christian.

In January 2006, Javed’s friend, Mohammed Sadeq, accompanied by several men

from the local mosque who wore the dress of Sipah-a-Sahaba and carried riot sticks, came

to Javed’s home. Sadeq told Javed that they expected him to begin taking lessons on

being a Muslim and stated, “If you don’t come to the Mosque, you will face the

consequences. We will beat you until you die.” App. 54. Javed slammed the door and

immediately left town. The men returned several hours later. Javed’s son told them that

Javed had left town.

The group from the mosque continued to visit Javed’s family’s home to inquire as

to Javed’s whereabouts. About a week after Javed left town, one of Javed’s children told

him that someone posted a written threat on the front door of the family home: “This is

your last warning. You are a Muslim and you are living as a Christian. If you don’t

come to the Mosque, you will meet your end.” App. 54. A few weeks later, Javed left
2

 Javed also requested relief under the Convention Against Torture (“CAT”). 

Javed no longer contests the IJ’s decision to deny relief under the CAT, so that issue is

not before us.

4

Pakistan with an approved visa for the United States. He arrived in the United States on

February 10, 2006 and was authorized to remain until August 9, 2006. He filed an

application for asylum on September 12, 2006. On November 7, 2006 the Government

served Javed with a Notice to Appear, charging him with removal under Section

237(a)(1)(B) of the Immigration and Nationality Act for remaining in the United States

past August 9, 2006 without authorization. In response, Javed filed an application for

withholding of removal.2

 In late November 2006, after Javed had filed for relief, another

threatening note was posted to the front door of his family’s home. 

In support of his application, Javed produced two letters from his oldest son, Sami,

two letters from his priest, and the written threat from November 2006. However, neither

the priest’s nor Sami’s letters mentioned the January 2006 incident or the threats on

Javed’s life. 

After a hearing, the Immigration Judge (“IJ”) denied all relief. First, the IJ

determined that Javed was not credible. The IJ based the adverse credibility finding on

(1) Javed’s failure to distinguish between the first written threat (which was not submitted

into the record) and the November 2006 written threat, (2) the implausibility of Javed not

confiding in his priest about the danger his recitation of the Qalna had caused, and (3) the

supporting letters’ failure to mention the threats against Javed. Second, the IJ held that
5

even if Javed was credible, he failed to produce sufficient evidence to corroborate his

claim.

Javed appealed to the BIA. The BIA reversed the IJ’s credibility determination,

but dismissed Javed’s appeal because the absence of corroborative evidence provided a

sufficient basis for the IJ to reject Javed’s claim. The BIA further held that Javed had not

established that he faced persecution countrywide nor did he show a pattern or practice of

persecution against Christians by the Pakistani government or government acquiescence

in such persecution. Javed timely petitioned this Court for review. 

II.

We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. §

1252. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009). Where the BIA issues a

decision on the merits as opposed to a summary affirmance, we review the BIA’s

decision. Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). However, because

the BIA’s decision “affirmed and partially reiterated” the IJ’s corroboration analysis, we

review the IJ’s determination along with the BIA’s decision. See Sandie, 562 F.3d at 250. 

Factual findings, including findings related to persecution and fear of persecution,

are subject to the substantial evidence standard. Id. “Under this deferential standard,

‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). We review legal

conclusions de novo. Toussaint v. Att’y Gen., 455 F.3d 409, 413 (3d Cir. 2006). The IJ’s

corroboration determination is entitled to deference from this Court: “No court shall
6

reverse a determination made by a trier of fact with respect to the availability of

corroborating evidence . . . unless the court finds, pursuant to with [sic.] subsection

(b)(4)(B) of this section, that a reasonable trier of fact is compelled to conclude that such

corroborating evidence is unavailable.” 8 U.S.C. § 1252(b)(4)(D). 

 III.

Under 8 U.S.C. § 1158(b)(1)(A), the Secretary of Homeland Security or the

Attorney General may grant asylum to a person who qualifies as a refugee. The burden

of proof is on the applicant to establish his or her refugee status. 8 U.S.C. §

1158(b)(1)(B)(I). A refugee is defined as “any person who is . . . unable or unwilling to

return to, and is unable or unwilling to avail himself or herself of the protection of, that

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.” 8

U.S.C. § 1101(a)(42)(A). To show a well-founded fear, an applicant must demonstrate

that there is a “reasonable possibility” of suffering such persecution if he or she were to

return to his or her country of nationality or last habitual residence. 8 C.F.R. §

1208.13(b)(2)(I). “An applicant does not have a well-founded fear of persecution if the

applicant could avoid persecution by relocating to another part of the applicant’s country

of nationality . . . if under all the circumstances it would be reasonable to expect the

applicant to do so.” 8 C.F.R. § 1208.13(b)(2)(ii). 

Credible testimony alone is not always sufficient to meet the burden of proof in an

asylum claim. Sandie, 562 F.3d at 252. An applicant’s testimony may sustain the burden
7

of proof without corroboration “only if the applicant satisfies the trier of fact that the

applicant’s testimony is credible, is persuasive, and refers to the specific facts sufficient

to demonstrate that the applicant is a refugee.” 8 U.S.C. § 1158(b)(1)(B)(ii). This Court

has adopted a three-part test to determine whether an applicant is required to provide

corroborating evidence: “(1) an identification of the facts for which it is reasonable to

expect corroboration; (2) an inquiry as to whether the applicant has provided information

corroborating the relevant facts; and, if he or she has not; (3) an analysis of whether the

applicant has adequately explained his or her failure to do so.” Abdulai v. Ashcroft, 239

F.3d 542, 554 (3d Cir. 2001) (internal quotations omitted) (adopting BIA’s test in In re SM-J-, 21 I&N Dec. 722 (BIA 1997)). “Where the trier of fact determines that the

applicant should provide evidence that corroborates otherwise credible testimony, such

evidence must be provided unless the applicant does not have the evidence and cannot

reasonably obtain the evidence.” 8 U.S.C. § 1158(b)(1)(B)(ii). The IJ must give the

applicant notice of the corroboration expected and an opportunity to provide an

explanation if the applicant is unable to produce the corroboration. Chukwu v. Att’y

Gen., 484 F.3d 185, 192 (3d Cir. 2007). 

Javed argues that he provided sufficient corroboration to support his testimony and

that the BIA erred by not conducting an independent corroboration analysis. Javed relies

on Miah v. Ashcroft, 346 F.3d 434 (3d Cir. 2003). In Miah, the BIA reversed the IJ’s

adverse credibility finding but agreed with the IJ that Miah failed to meet his burden of
8

proof due to his lack of corroborating evidence. Id. at 436. In its corroboration analysis,

the BIA merely reiterated the IJ’s findings with respect to Miah’s corroboration instead of

providing its own rationale for its corroboration determination. Id. at 440. We held that

the BIA erred by adopting the IJ’s findings, because the IJ’s corroboration analysis was

influenced by its adverse credibility determination. Id. Since the BIA found Miah to be

credible, it should have conducted an independent corroboration analysis or remanded the

case so that the IJ could reach a conclusion given that Miah was now considered to be

credible. Id. Javed argues that, like in Miah, the BIA reversed the IJ’s credibility

determination but then relied on the IJ’s reasoning in concluding that Javed failed to meet

his burden of proof rather than conducting an independent analysis or remanding the

matter. 

Javed’s argument fails to persuade us. The IJ’s determination that Javed did not

meet his burden of proof with corroborating evidence did not depend on her adverse

credibility finding. Instead, the IJ found that “even assuming arguendo that he was

credible, the Court would expect reasonable corroboration of respondent’s claim in light

of the weakness of his testimony.” App. 19. This Court has held that Miah does not

apply when the IJ’s corroboration analysis is “separate and independent” from the IJ’s

adverse credibility finding. Sandie, 562 F.3d at 251 (declining to apply Miah when, “On

one hand, the IJ held that even if Sandie’s testimony were deemed credible, Sandie would

have to corroborate his story and he failed to do so. On the other hand, the IJ explained,

Sandie’s testimony was not credible.”). Thus, Miah does not control here, and the BIA
9

did not err by adopting the IJ’s findings with respect to Javed’s absence of corroborative

evidence.

Javed was required to provide reliable corroborating evidence if it was reasonable

to expect such proof and there was no satisfactory explanation for its absence. See Toure

v. Att’y Gen., 443 F.3d 310, 323 (3d Cir. 2006). The IJ based its conclusion that Javed

failed to meet this burden on two findings. First, the letters from Javed’s son and his

priest did not mention any threats to Javed’s life. Second, Javed failed to produce

corroborative evidence from any of his teenage children who, according to Javed,

witnessed the January 2006 incident where men with sticks threatened Javed at his home. 

Based on our review of the record and of the IJ’s decision, we conclude that the IJ was

reasonable in requiring corroboration. The January 2006 incident and the threats on his

life were central to Javed’s petition and were apparently witnessed by others. Despite

being able to produce four letters of support, none of the letters corroborate these events. 

“It is reasonable to expect corroboration for testimony that is central to an applicant’s

claim and easily subject to verification.” Sandie, 562 F.3d at 252. Further, as noted

below, Javed failed to present a satisfactory explanation for his failure to corroborate

these allegations. 

The IJ’s corroboration analysis meets the Abdulai standard. The IJ clearly

identified Javed’s testimony regarding the January 2006 incident and subsequent threats

on his life as requiring corroboration. During the hearing, the IJ put Javed on notice that 

he had not produced sufficient corroborating evidence for these allegations. The IJ gave
3

Since substantial evidence supports the determination that Javed failed to provide

corroborating evidence sufficient to meet his burden of proof, we need not address

whether Javed has shown that he would face persecution country-wide.

10

Javed an opportunity to explain why the letters he submitted from his son do not mention

these threats. Javed responded “Maybe they did not write anything about that, they will

be, just bothered by them later on.” App. 75. The IJ asked Javed why the letters from his

priest do not reference any threats against Javed, and Javed responded that he did not

disclose the threats to his priest because Javed was “very busy” with work. App. 82. 

Javed went on to state that his son had told the priest about the threats, but Javed did not

explain why the priest failed to include that information in his letters. Thus, the IJ

provided Javed with notice of the corroboration expected and an opportunity to explain

why he had not presented the corroboration. Substantial evidence supports the IJ’s

conclusion that Javed’s explanation did not adequately demonstrate that such evidence

was unavailable. We conclude that the BIA did not err in its review of the IJ’s

corroboration determination.3

 

Because Javed has not met the lower burden of proof for asylum, he is also unable

to meet the more stringent showing required to qualify for withholding of removal. See

Adbulrahman v. Ashcroft, 330 F.3d 587, 592 n.2 (3d Cir. 2003). Accordingly, we will

deny Javed’s petition.