2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-18-2011

Mohammad Butt v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-4017

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

No. 09-4017

MOHAMMAD SUHAIL BUTT;

MUSTAFA BUTT,

 Petitioners

 v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

Petition for Review of an Order of the 

Board of Immigration Appeals

(Nos. A098-493-362 & A098-493-363)

Submitted pursuant to Third Circuit LAR 34.1(a)

Friday January 28, 2011

Before: McKEE, Chief Judge, SMITH, Circuit Judge,

and STEARNS,* District Judge

(Opinion filed: February 18, 2011)

OPINION

McKEE, Chief Judge.

Mohammad Suhail Butt petitions for review of an order of the Board of 

Immigration Appeals denying his motion to reopen his immigration proceedings to apply 

 

* Honorable Richard G. Stearns, District Court Judge, District of Massachusetts, sitting 

by designation.
2

for asylum, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under Article 

III of the Convention Against Torture. For the reasons that follow, we will grant the 

petition and remand to the BIA.

1

I.

Since we are writing primarily for the parties, we need only briefly summarize as 

much of the factual and procedural background as will clarify our discussion.

Mohammad Suhail Butt is a Pakistani citizen and Shia Muslim. His last 

administrative hearing before the Immigration Judge was in 2006 when his motion for a 

continuance pending adjudication of a labor certification was denied. His subsequent 

appeals, including a prior motion to reopen proceedings, related to his attempts to obtain 

an adjustment of status by way of a labor certification. Each of those appeals was denied 

and exhausted by 2009. See App. 000129, and Butt v. Att’y Gen. of the U.S., 327 F. 

App‟x 367 (3d Cir. 2009). In July 2009, he filed the current motion with the BIA to 

reopen proceedings in order to apply for asylum, withholding of removal, and relief 

under the Convention Against Torture. The BIA denied his motion in a decision dated 

September 21, 2009, and Butt filed the instant petition for review to challenge that denial.

II.

We review the BIA's denial of a motion to reopen for an abuse of discretion. Guo 

v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004). In order to succeed on a petition for 

 

1

Since Butt filed a timely petition for review, we have jurisdiction to review the BIA‟s 

final order of removal under 8 U.S.C. § 1252.
3

review, Butt must show that the BIA‟s discretionary decision was arbitrary, irrational, or 

contrary to law. See Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994).

Although a party may normally file only one motion to reopen, there is a statutory 

exception to that limitation based on changed country conditions in the country of 

nationality. See 8 U.S.C. § 1229a(c)(7)(C)(ii), and 8 C.F.R. § 1003.2(c)(3), and the 

motion to reopen at issue here is based upon changed country conditions. Butt primarily 

argues that the evidence supports his claim that there has been a fundamental change in 

Pakistan‟s country conditions and that he now faces persecution on account of being a 

Shia Muslim.2 Butt claims that the BIA abused its discretion in denying his motion to 

reopen because it failed to properly analyze the evidence of changed country conditions 

he submitted, some of which post-dated his original removal hearing.

 The BIA may deny a motion to reopen on three independent grounds: 1) failure 

to make out a prima facie case for relief; 2) failure to introduce previously available 

material evidence; or 3) even if the first two grounds were met, the BIA has discretion to

identify another reason why the movant is not entitled to relief. See I.N.S. v. Abudu, 485 

U.S. 94, 104-05 (1988). 

 

2 Butt makes several other arguments in support of his petition, including: 1) the BIA 

erred by failing to distinguish between “general violence and persecution in the context 

of general violence”; 2) that the BIA failed to review all of the evidence he presented 

with his motion to reopen, and 3) that the BIA failed to provide a reasoned analysis when 

it determined that he is unlikely to be targeted as an “American agent” upon his return to 

Pakistan. However, those arguments are, for the most part, subsumed in his overarching 

claim that changed circumstances justify reopening his petition for asylum. 
4

The BIA denied Butt‟s motion to reopen on the second ground primarily because 

it concluded that the evidence accompanying Butt‟s motion predated the 2006 hearing 

and was not shown to have been previously unavailable. See 8 C.F.R. § 1003.2(c)(1).3

The Board also concluded that the evidence provided with the motion did not establish 

materially changed conditions in Pakistan, but rather an “incremental increase in general 

violence.” App. 000003. We disagree.

Although some of the evidence accompanying the motion to reopen does predate 

Butt‟s 2006 hearing, the majority of it consists of post-2006 reports pertaining to violent 

acts inflicted upon Shia Muslims in Pakistan. That evidence includes a March 19, 2009 

report from an international news service, “Press TV,”

4 which includes the following 

report:

This is while extremists groups have embarked on an „ominous 

mission‟ to „eliminate‟ Shia elites across Pakistan – which became a 

safe haven for pro-Taliban and al-Qaeda-linked militants after the USled invasion of Afghanistan in 2001.

They have killed hundreds of Shia medical doctors, university 

professors, lawyers and police officers across the violence-wracked 

country during the past few years.

App. 000030. 

In addition, Butt‟s motion to reopen includes a petition imploring officials to stop 

what can best be described as unrelenting acts of violence directed against Shias. See

 

3

The BIA explained: “Much of the evidence accompanying or incorporated within the 

respondent‟s motion to reopen predates the respondent‟s last hearing . . . on September 

26, 2006, and has not been shown to have been unavailable . . . therefore failing to meet 

the requirements for a motion to reopen. See 8 C.F.R. § 1003.2(c)(1).” App. 000003. 

4

Press TV can be accessed via the internet at: http://www.presstv.ir/
5

App. 000031-34. Contrary to the Board‟s conclusion, each of the numerous incidents

that are alleged in that petition purportedly occurred in 2009 – well after the 2006 

decision was filed. Id. The following allegation is typical of the atrocities cited in the 

petition: “Muslims in Pakistan. Hundreds of Shias have been killed in the last one year 

alone in various attacks of terrorism by the Taliban, Al Qaeda, . . . and other sectarian 

and jihadi groups in Pakistan.” App. 000031.5 

Furthermore, Butt‟s petition has directed our attention to a July 14, 2009 BIA 

decision filed in a different proceeding in Houston, Texas approximately two months 

before the Board denied Butt‟s motion.6See Pet‟r‟s Br., Ex A. In the Houston 

Adjudication, another Shia Muslim and Pakistani citizen, whose last administrative 

hearing was also in 2006, made the same argument in support of a motion to reopen filed 

with the BIA: changed conditions in Pakistan with respect to Shia persecution. There, 

the Board granted the motion, concluding: 

While the background evidence indicates the existence of general 

civil strife, it also demonstrates that Shia Muslims are being targeted 

in violent attacks. Such evidence is material to the respondents‟ claim 

 

5 We have no way of knowing the accuracy of the statements set forth in that petition and 

we do not cite them as evidence of fact. Rather, we cite the petition and the violence it 

alleges merely to illustrate the analytical weakness of the BIA‟s conclusion that the 

materials Butt presented predated the 2006 decision. Moreover, the issue in an asylum 

claim is whether the alien can demonstrate a “subjective fear [that is] objectively 

reasonable.” Sun Wen Chen v. Att’y Gen. of the U.S., 491 F.3d 100, 105 (3d Cir. 2007). 

These materials are clearly relevant to that determination absent some explanation to the 

contrary. 

6

The filed copy of the Board‟s decision contained in the Appendix does not include the 

name of the petitioner in that case. Accordingly, we will refer to it simply as “The 

Houston Adjudication.”
6

of a fear of future threats to their lives or freedom on account of their 

religion and/or their requests for protection under the Convention 

Against Torture.

Id. 

We are therefore at a loss to understand how the Board could conclude that the 

materials of changed country conditions that Butt submitted reflect “simply an

incremental increase in general violence,” rather than a “material change in country 

conditions.” App. 000003. Moreover, as Butt argues, an increase in general violence 

does not negate the existence of persecution. Butt cites Matter of Villalta, 20 I&N Dec., 

142 (BIA 1990), to argue: “persecution can and often [does] take[] place in the context of 

general violence.” Pet‟r‟s Br. at 10. We agree. Indeed, history teaches that festering 

religious, political and ethnic objectives of persecutors often surface concomitantly with a 

general increase in societal violence. In fact, common sense supports the conclusion that 

it is far more difficult to perpetrate acts of ethnic and religious hatred during times of 

calm and social order. 

The government attempts to refute Butt‟s reliance on Matter of Villalta by arguing

that that case “involved an alien whose case was on direct appeal from the immigration 

judge‟s denial of his asylum and withholding claims ...” and by claiming that “Villalta

established that he and his immediate family were singled out by [the persecutors]. . . .” . 

See Resp‟t Br. at 10. However, the procedural difference does not distinguish the legal 

principles that apply to the adjudication of the motion. Furthermore, we are at a loss to 

understand the relevance of the fact that Villalta and his family were singled out. Butt 

does not have to show that he was “singled out,” because he is relying on a pattern or 
7

practice of persecution of a group that he is a member of. See 8. C.F.R. § 208.13(b)(2) 

(“[T]he asylum officer or immigration judge shall not require the applicant to provide 

evidence that there is a reasonable possibility he or she would be singled out individually 

for persecution if: . . . there is a pattern or practice . . . of persecution of a group of 

persons similarly situated . . . and the applicant establishes his . . . identification with,

such group . . . such that his . . . fear of persecution upon return is reasonable.”). See also 

Guo, 386 F.3d at 564. We therefore conclude that the Board acted arbitrarily in refusing 

to reopen Butt‟s application for relief. 

The Board also rejected Butt‟s claim that he would be persecuted on account of 

having been born in India and having resided in the United States for several years; as 

well as his claim that he would be targeted because he is a doctor. The former claims 

were rejected because the Board failed to find materially changed country conditions. 

Since we conclude that the Board‟s analysis was arbitrary and will remand on that basis, 

the Board should consider these additional claims on remand to the extent that Butt can 

establish these claims based upon the materials submitted with his motion. 

The Board explained its rejection of any claim based on Butt‟s status as a doctor 

as follows: “To the extent that [Butt] asserts that he would be targeted because he is a 

doctor, apparently arguing membership in a particular social group or imputed political 

opinion, he has failed to cite any cases which would recognize such as a cognizable 

particular social group or imputed political opinion.” App. 000004. Nevertheless, the 

materials that Butt submitted do refer to elites being singled out for persecution in 
8

Pakistan. Although absence of favorable decisions is certainly a factor that can be 

considered in rejecting any claim, it is not at all clear that the Board or any appellate 

court has ever been asked to decide whether doctors or elites in Pakistan constitute a 

particular social group under asylum law given the prevailing conditions at the relevant 

time. Thus, the absence of prior decisions should not have automatically precluded Butt 

from raising such a claim here. Accordingly, on remand, if the Board considers that such 

a claim is not foreclosed as a matter of law, the Board should consider whether the record 

would support such a claim here.

III.

For the reasons set forth above, we find that the Board‟s rejection of Butt‟s motion 

to reopen was an abuse of discretion and we will therefore grant the petition for review 

and remand to the Board for additional proceedings consistent with this opinion.