United States Court of Appeals

FOR THE EIGHTH CIRCUIT

 ___________

Nos. 09-3416/10-2483

 ___________

Tarique Majeed Shaghil, *

*

Petitioner, *

* Petitions for Review of 

 v. * Orders of the Board

* of Immigration Appeals.

Eric H. Holder, Jr., United States *

Attorney General, * 

*

Respondent. *

___________

Submitted: September 23, 2010

Filed: April 14, 2011

___________

Before RILEY, Chief Judge, MURPHY and MELLOY, Circuit Judges.

___________

RILEY, Chief Judge.

Tarique Majeed Shaghil petitions for review of two Board of Immigration

Appeals (BIA or Board) decisions. In Case No. 09-3416, Shaghil requests relief from

the BIA’s affirmance of an immigration judge’s (IJ) order denying Shaghil asylum,

withholding of removal, and relief under the Convention Against Torture (CAT). In

Case No. 10-2483, Shaghil seeks relief from the BIA’s denial of his motion to reopen

immigration proceedings to enable him to adjust his status, pursuant to 8 U.S.C.

§ 1255(a), based upon Shaghil’s marriage to a United States citizen. We dismiss
1

This factual statement incorporates information from both the merits hearing

transcript and the decision and order of the IJ. Shaghil argues the IJ’s written opinion,

which was reviewed by the BIA, is fundamentally flawed because it relies upon the

IJ’s review of a hearing transcript which includes several instances of indiscernible

testimony. As discussed in Part II.C below, although the transcript is flawed, Shaghil

fails to point to any missing evidence or any incorrect fact finding in the IJ’s written

opinion which prejudiced him. Accordingly, our review includes reference to the IJ’s

written opinion.

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Shaghil’s petition in Case No. 09-3416 as it relates to his asylum claim, and deny the

remainder of both petitions.

I. BACKGROUND1

Shaghil was born and raised as a Suni Moslem in Karachi, Pakistan. In 1991,

Shaghil entered the United States to attend the University of South Alabama. In 1995,

he married Monica Rodriguez, an American citizen, and filed for adjustment of his

immigration status. While married, Shaghil identified himself as a Christian and

attended Catholic and Protestant Christian churches. In his testimony, the IJ noted

Shaghil “displayed only a marginal knowledge of Christian tenants [sic]” and could not

describe his conversion.

In 1998, Shaghil returned to Pakistan for four and a half months. During his

visit to Pakistan, Shaghil’s friends and family criticized his marriage to Rodriguez

because of her Christian faith. He was involved in a fight outside a mosque when he

argued with people about his Christian church attendance. Also during the trip,

Shaghil’s “father told him that he ‘needed to change his faith back.’” Shaghil admits,

however, “he has never been harmed or arrested or tortured by the government in

Pakistan during either the time he grew up there or when he returned later.” 

After September 11, 2001, Shaghil began making critical comments about

Islamic tenets “that he stated supported terrorism.” Shaghil believes his business of
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selling prepaid telephone calling cards predominantly to Moslems in the United States

suffered because he was “pro-American” and “opposed the terrorists.” During this

time period, Shaghil and Rodriguez stopped living together and his then-pending

application for adjustment of status was denied. Shaghil and Rodriguez divorced in

July or August 2006 and Shaghil has not heard from Rodriguez in several years. 

Shaghil believes, if returned to Pakistan, “he would be tortured by the police in

jail and eventually killed because of his religious faith.” As the IJ explained, Dr.

Nargis Virani, Assistant Professor of Arabic Islamic Studies at Washington University

in St. Louis, testified at Shaghil’s hearing that “it would be more likely than not that

[Shaghil] would be persecuted if he were returned to Pakistan.” The IJ recognized Dr.

Virani 

later testified that “perhaps” [Shaghil] would be persecuted. She also

stated that it was “possible” that the respondent’s family would be

targeted because of his conversion. She stated that she believed there had

been violence directed against Christians in Pakistan, but noted that

recent terrorist acts in that country had not been targeted against

Christians, but against civilians of all faiths. She also indicated

knowledge that Moslems regularly target each other for acts of harm and

violence. She stated a belief that Christians only have low-end jobs in

Pakistan, but on cross-examination, stated that she obtained this

information from [Shaghil].

The United States Department of State International Religious Freedom Report

2004 (country report) is part of the record. Referring to the country report, the IJ noted

the Pakistani constitution provides for freedom of religion, with limits; approximately

96% of Pakistanis are Moslem and less than 2% are Christian; the Roman Catholic

Diocese of Karachi estimates 120,000 Catholics live in Karachi; and religion (Moslem

or non-Moslem) is indicated on Pakistani passports. The country report notes speaking

in opposition to Islam is illegal in Pakistan. Although there is no law instituting the

death penalty for apostates (converts from Islam to other religions), “social pressure
-4-

against conversion is so powerful that most convergence [sic] reportedly takes place

in secret.” Notwithstanding, foreign missionaries operate in Pakistan, and

proselytizing is generally permitted. The country report notes 90% of Pakistan’s

Christians live in Punjab Province, and that Christians are the largest religious minority

there. The Roman Catholic Church and the Church of Pakistan (Protestants associated

with the Anglicans) report that links with co-religionists in other countries are

maintained relatively easily. The country report also supports Shaghil’s view that

“Christians have difficulty finding jobs other than those involving menial labor.” 

On January 16, 2001, Shaghil received a notice to appear before the immigration

court. Shaghil failed to appear at the hearing on May 3, 2001, was found removable

and ordered removed. For reasons unrelated to this appeal, the IJ later granted

Shaghil’s motion to reopen proceedings. Shaghil applied for asylum, withholding of

removal, and CAT relief. Before Shaghil’s merits hearing, the IJ found Shaghil

ineligible for asylum because Shaghil failed to apply within one year of his arrival in

the United States and no changed or extraordinary circumstances excused his tardiness.

After the merits hearing, the IJ found Shaghil “generally credible” and Dr.

Virani’s testimony credible. However, the IJ found the evidence insufficient to show

Shaghil would be persecuted because of his religion if he were returned to Pakistan,

and denied Shaghil’s claim for withholding of removal. Similarly, the IJ was “not

convinced that [Shaghil] is more likely than not to be tortured if he were removed to

Pakistan at this time.” The IJ therefore ordered Shaghil removed from the United

States.

On September 21, 2009, the Board dismissed Shaghil’s appeal. The Board

agreed with the IJ that Shaghil had presented insufficient evidence to excuse the

untimely filing of his asylum application, because although Shaghil claims he was

persecuted in 1998, he did not file his asylum application until 2003 and made no

showing of cause. The Board rejected Shaghil’s argument that, upon an earlier
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remand, the IJ erred by improperly listening to audio recordings of Shaghil’s merits

hearing, rather than allowing him to present additional evidence. The Board confirmed

the IJ’s finding that Shaghil failed to meet his burden of proving a clear probability of

future persecution on his withholding of removal claim. Finally, the Board agreed

Shaghil had not shown he would be tortured if returned to Pakistan. 

On October 19, 2009, Shaghil petitioned this court for relief from the removal

order. On December 16, 2009, while Shaghil’s petition for review of the removal order

was pending, Lorraine A. Campos, a United States citizen, filed a petition for alien

relative with the United States Citizenship and Immigration Services on behalf of

Shaghil. On December 18, 2009, Shaghil moved the BIA to reopen his case based

upon his asserted marriage to Campos, attaching (1) the petition for alien relative and

a notice of its receipt, (2) an application for adjustment of status and related biographic

information, and (3) a series of wedding photographs. 

The BIA found “no other evidence that [Shaghil] and his wife maintained a

relationship at any time” and denied the motion to reopen. On July 2, 2010, Shaghil

petitioned this court for review of the BIA’s denial of his motion to reopen. On July

19, 2010, this court consolidated Shaghil’s petitions for oral argument and submission

purposes. We have jurisdiction over final orders of removal pursuant to 8 U.S.C.

§ 1252(a). 

II. DISCUSSION

A. Standard of Review

This court reviews the BIA’s ruling, but to the extent the BIA adopts the finding

or reasoning of the IJ, the court also reviews the IJ’s decision. See Ismail v. Ashcroft,

396 F.3d 970, 974 (8th Cir. 2005). “[A]dministrative findings of fact are conclusive
2

This is identical to the substantial evidence standard of review. See MenendezDonis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004). 

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unless any reasonable adjudicator would be compelled to conclude to the contrary,”2

8 U.S.C. § 1252(b)(4)(B), while conclusions of law are reviewed de novo, “with

substantial deference to [the agency’s] interpretations of statutes and regulations

administered by the agency,” Villanueva v. Holder, 615 F.3d 913, 915 (8th Cir. 2010).

We review motions to reopen for an abuse of discretion. See INS v. Doherty, 502 U.S.

314, 323 (1992). 

B. Denial of Asylum, Withholding of Removal, and CAT Relief

1. Asylum

“The Secretary of Homeland Security or the Attorney General may grant asylum

to an alien who has applied for asylum in accordance with the requirements and

procedures established . . . under this section if the Secretary . . . or the Attorney

General determines that such alien is a refugee within the meaning of section

1101(a)(42)(A) of this title.” 8 U.S.C. § 1158(b)(1)(A). A “refugee” is a person who

“is unable or unwilling to return to, and is unable or unwilling to avail himself or

herself of the protection of” his or her home 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.” § 1101(a)(42)(A). 

Shaghil argues he is entitled to asylum because he both suffered past persecution

and has a well-founded fear of future persecution. Shaghil concedes this court lacks

jurisdiction to review the BIA’s decision that his application for asylum is time-barred

because he did not file it within one year of his arrival in the United States. See

§§ 1158(a)(2)(B) (barring asylum applications of aliens who fail to file within one year

of arrival), (3) (“No court shall have jurisdiction to review any determination of the

Attorney General under paragraph (2).”). Lacking jurisdiction, we dismiss Shaghil’s

appeal with respect to his asylum claim. 
-7-

2. Withholding of Removal

The Attorney General generally must grant withholding of removal if Shaghil

proves his “life or freedom would be threatened” in Pakistan on account of his religion

or political opinion. See §1231(b)(3)(A). The test is forward looking. However, if

Shaghil establishes he suffered past persecution on account of his religion or political

opinion, he is entitled to a rebuttable presumption of future persecution. See 8 C.F.R.

§ 1208.16(b)(1)(i); Beck v. Mukasey, 527 F.3d 737, 739 (8th Cir. 2008). Without a

showing of past persecution, it is Shaghil’s burden to demonstrate “a clear probability

of future persecution” in order to obtain withholding of removal. Beck, 527 F.3d at

739. A clear probability of future persecution is a higher standard than the “wellfounded fear of persecution” standard utilized in asylum proceedings. See Ladyha v.

Holder, 588 F.3d 574, 579 (8th Cir. 2009). “In the absence of a statutory definition for

persecution, we have held that it is an ‘extreme concept’ that involves the infliction or

threat of death, torture, or injury to one’s person or freedom, on account of a protected

characteristic.” Malonga v. Holder, 621 F.3d 757, 764 (8th Cir. 2010) (quoting Sholla

v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007)).

We agree with the Board that Shaghil did not adduce sufficient evidence to show

past persecution. The only purported evidence of past persecution Shaghil cites is the

1998 beating incident outside the Karachi mosque. “It is a well-established principle

that minor beatings and brief detentions . . . do not amount to political persecution.”

Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004). In addition, “persecution”

is a harm that is “inflicted either by the government of [a country] or by persons or an

organization that the government was unable or unwilling to control.” Menjivar v.

Gonzales, 416 F.3d 918, 921 (8th Cir. 2005) (quoting Valioukevitch v. I.N.S., 251 F.3d

747, 749 (8th Cir. 2001)). Any harm Shaghil suffered was at the hands of five

neighbors, not the Pakistani government. And although Pakistani “police at times

refuse to prevent such abuses or refuse to charge persons who commit such acts,”

Shaghil never reported the matter to the police. There is no evidence the government

was unable or unwilling to control Shaghil’s assailants in this case, and generalized
3

Nor does the IJ’s finding that Dr. Virani was credible compel us to grant the

petition. “Persecution” is a legal term of art, and Dr. Virani’s opinion regarding

whether Shaghil would be subject to persecution is not binding on the Board. In any

event, Dr. Virani’s testimony is not addressed to the “extreme concept” of persecution

that our cases envision:

Q. . . . Would he, more likely than not, do you believe, face

persecution in Pakistan if he were to return?

A. Of some sort, he would, especially if he’s very vocal about his

belief.

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evidence of occasional police failures, without more, is insufficient to show futility.

Cf. Ngengwe v. Mukasey, 543 F.3d 1029, 1035-36 (8th Cir. 2008) (remanding an

asylum case where the IJ and BIA failed to address petitioner’s evidence that seeking

police assistance would be futile, instead citing only the fact petitioner did not contact

the police). Substantial evidence supports the IJ’s finding that there was no past

persecution, and Shaghil is not entitled to any presumption that he will be persecuted

in the future.

Shaghil contends “even if he did not suffer past persecution, [he] has done many

other things in the U.S. which increase the likelihood that he will be persecuted in

Pakistan should he be deported now.” Shaghil asserts he would be persecuted if

returned to Pakistan because he: (1) “believes women can work outside of the home

and remain independent from men,” (2) thinks “the fighting between Muslims and

Jews in the Middle East is wrong,” (3) changed his name from Tarique to Shawn,

(4) anticipates the police would fail to help him, (5) “would be unable to work, own

a business or get married if he returned,” and (6) asserts conditions in Pakistan have

worsened since September 11, 2001. 

None of these additional facts compel the conclusion that it is more likely than

not Shaghil will be persecuted if he returns to Pakistan.3

 Shaghil offers no evidence
(Emphasis added.) Because the only “sort” of persecution relevant to this case is that

defined by immigration law, we find Dr. Virani’s statement vague, fundamentally

irrelevant, and insufficient to overcome our highly deferential standard of review. 

4

The dissent suggests our holding cannot be reconciled with the IJ’s findings

that Shaghil and Dr. Virani were credible. See Post at 13 & 15-16. But Dr. Virani

never testified Shaghil would be persecuted in the sense our cases require—either by

government persecution or because the government would refuse or be unable to

protect him. Although Shaghil may subjectively believe the government will torture

him if he is removed, no objective evidence supports this assertion.

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he would be subject to death, torture, or injury to his person or freedom on account of

his new political beliefs. Nor is there evidence his use of an American name makes

religious persecution more likely than the bare fact of his Christian faith. Shaghil’s

remaining assertions evidence nothing more than a subjective and speculative fear of

persecution, an unpersuasive showing in the entirely objective withholding of removal

analysis.4

 See Malonga, 621 F.3d at 767-68. 

Substantial evidence supports the BIA’s conclusion that Shaghil failed to meet

his burden of proving a clear probability of future persecution. Although Pakistan is

undoubtedly a less hospitable place for Christians than the United States, the country

report states that although there is social pressure against apostasy, missionaries are

present and generally allowed to proselytize. There are also at least two million, and

perhaps as many as four million, Christians living in Pakistan without being

persecuted. Christians are the largest religious minority in Punjab Province, Pakistan’s

largest province. See, e.g., Salkeld v. Gonzales, 420 F.3d 804, 809 (8th Cir. 2005)

(concluding substantial evidence supported the BIA’s denial of withholding of removal

where there were some locations within the country where members of the minority

could live more safely). 
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Because the record supports the BIA’s finding that Shaghil failed to meet his

burden, we are unable to say any reasonable adjudicator would be compelled to

conclude the contrary. Shaghil’s petition for withholding of removal is denied.

3. CAT Relief

To be eligible for withholding of removal under the CAT, it was Shaghil’s

burden to prove, by a preponderance of the evidence, he would be tortured if removed

to Pakistan. See 8 C.F.R. 208.16(c)(2). Torture is: 

Any act by which severe pain or suffering, whether physical or mental,

is intentionally inflicted on a person for such purposes as obtaining from

him or her or a third person information or a confession, punishing him

or her for an act he or she or a third person has committed or is suspected

of having committed, or intimidating or coercing him or her or a third

person, or for any reason based on discrimination of any kind, when such

pain or suffering is inflicted by or at the instigation of or with the consent

or acquiescence of a public official or other person acting in any official

capacity. 

8 C.F.R. § 208.18(a)(1). Even if Shaghil were subjected to severe pain or suffering in

the 1998 beating by neighbors, as discussed above, there is no evidence of any nexus

between the pain or suffering and the Pakistani government. Shaghil’s petition for

CAT relief must be denied.

C. Due Process

Shaghil argues the BIA violated his Fifth Amendment right to due process of

law when it failed to (1) make audio recordings of his merits hearing available to him,

and (2) allow him to introduce evidence following an earlier remand. In order “to

demonstrate a violation of due process, an alien must demonstrate both a fundamental

error and that the error resulted in prejudice.” Lopez v. Heinauer, 332 F.3d 507, 512

(8th Cir. 2003). “In this context, prejudice means a showing that the outcome of the

proceeding may well have been different had there not been any procedural
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irregularities.” Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007). As the BIA

correctly stated, Shaghil “makes a conclusory statement that the [IJ] did not have an

accurate transcript, but fails to specify how it was inaccurate.” Shaghil also does not

explain how the errors he alleges were in the transcript would have altered the result

of his proceeding. 

Shaghil’s argument that he can show prejudice because of the BIA’s withholding

of the recordings from him is unavailing. Shaghil was present at his hearings and

contends in his brief “that what is missing from the original hearing transcript is vital

to his case,” yet he does not offer any evidence, or even identify in his brief, what vital

information is missing. 

As to Shaghil’s suggestion that, on remand from the BIA, the IJ should have

allowed Shaghil to offer further evidence at a hearing, rather than simply listen to the

audio recordings of the first hearing and make corrections to the written order, we find

no due process violation. The Board’s order “remanded to the [IJ] for further

proceedings and for the issuance of a new decision.” The order identified two specific

errors in the IJ’s written opinion and indicated Shaghil was concerned the IJ did not

fully comprehend his testimony and allegations of “past harm and fear of future harm.”

The IJ corrected the errors and “listened to the tapes of the hearing which he had

personally conducted, to insure that he did not misunderstand the testimony in reaching

his initial decision.” And, as the BIA stated in Shaghil’s second appeal, Shaghil “does

not specify any additional areas where the [IJ] allegedly failed to hear crucial

testimony.” It was Shaghil’s burden to prove fundamental error and prejudice.

Because he fails to show either, we reject his due process argument. 

D. Motion to Reopen Proceedings

Lastly, Shaghil suggests the BIA should have granted his motion to reopen. 
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[A] properly filed motion to reopen may be granted, in the exercise of

discretion, to provide an alien an opportunity to pursue an application for

adjustment where the following factors are present: (1) the motion is

timely filed; (2) the motion is not numerically barred by the regulations;

(3) the motion is not barred by Matter of Shaar, 21 I&N Dec. 541 (BIA

1996), or on any other procedural grounds; (4) the motion presents clear

and convincing evidence indicating a strong likelihood that the

respondent’s marriage is bona fide; and (5) the Service either does not

oppose the motion or bases its opposition solely on Matter of Arthur, [20

I&N Dec. 475 (BIA 1992)].

Matter of Velarde-Pacheco, 23 I&N Dec. 253, 256 (BIA 2002). The Board affirmed

the IJ’s denial of Shaghil’s motion because it found Shaghil had not presented clear

and convincing evidence the marriage was bona fide within the meaning of the fourth

element above. Shaghil argues his motion to reopen should have been granted because

the Board’s factual finding was wrong. Shaghil suggests the Board overlooked the fact

he and Campos lived together “almost a year and a half before their marriage and over

one year before the original decision of the BIA in this case.” Shaghil also believes the

Board erred in stating the photographs of his wedding ceremony were undated and this

error betrays a lack of sufficient consideration of the evidence.

The Board did not abuse its discretion in denying Shaghil’s motion. The fact

Campos had a child with another man while she was living with Shaghil undermines

Shaghil’s argument that he and Campos’s cohabitation proves they had a genuine

romantic relationship. Under these circumstances, we cannot say the Board abused its

discretion in finding the marriage was not bona fide. And while we agree with Shaghil

that the Board erred in referring to his and Campos’s wedding photographs as

unlabeled and undated, we find the error harmless because the Board’s ruling was not

based upon its mistaken view regarding the pictures, but rather upon its unfulfilled

expectation “that [Shaghil and Campos] would file evidence of the bona fide nature of

their relationship at a later date.” They did not.
5

For the same reasons I believe Shaghil has presented sufficient evidence of

persecution, I also believe that he has met his more-rigorous burden of proof under the

Convention Against Torture. I focus my comments only on persecution because

"'persecution' for the purposes of withholding of removal may encompass abuse that

is less severe than 'torture' for the purposes of the CAT." Malonga v. Mukasey, 546

F.3d 546, 555 (8th Cir. 2008).

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III. CONCLUSION

We dismiss Shaghil’s petition as it relates to asylum relief in No. 09-3416 and

deny petitions Nos. 09-3416 and 10-2483 in all other respects.

MELLOY, Circuit Judge, concurring in part and dissenting in part.

I concur in the opinion of the Court except with respect to whether Shaghil has

presented sufficient evidence of future persecution.5

 In this case, the IJ and the BIA

credited Shaghil's evidence of future persecution but found it insufficient to prove a

clear probability of persecution under the governing statute. In my view, a reasonable

fact finder cannot make both findings because, if believed, Shaghil's evidence is

compelling—he will be severely persecuted if he returns to Pakistan because of his

political and religious views. Accordingly, I would reverse the decision of the BIA.

"The standard for withholding of removal is a clear probability of persecution

. . . ." Guled v. Mukasey, 515 F.3d 872, 881 (8th Cir. 2008). An alien may not be

removed if he can show that it is more likely than not that "his life or freedom would

be threatened upon removal because of his 'race, religion, nationality, membership in

a particular social group, or political opinion.'" Thu v. Holder, 596 F.3d 994, 999 (8th

Cir. 2010) (quoting 8 U.S.C. § 1231(b)(3)(A)). "A threat of future persecution can be

established by demonstrating either an individualized risk or a pattern of persecution

of similarly situated persons based on one of the five grounds." Id.

 
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"Persecution has been defined by this court as 'the infliction or threat of death,

torture, or injury to one's person or freedom, on account of race, religion, nationality,

membership in a particular social group, or political opinion.'" Litvinov v. Holder, 605

F.3d 548, 553 (8th Cir. 2010) (quoting Davila-Mejia v. Mukasey, 531 F.3d 624, 628

(8th Cir. 2008)). While this Court reviews an adverse finding on the existence of

persecution deferentially, this Court has stated that it will vacate such a finding when

"the evidence [is] so compelling that no reasonable fact finder could fail to find the

requisite fear of persecution." Osonowo v. Mukasey, 521 F.3d 922, 927 (8th Cir.

2008) (internal quotation marks omitted). In making this determination, this Court

should conclusively presume that all factual findings made below are accurate "unless

any reasonable adjudicator would be compelled to conclude to the contrary." Id.

(internal quotation marks omitted).

Here, Shaghil presented substantial evidence in the form of his own testimony,

testimony from an expert on Pakistan, and a State Department Report that he would be

tortured or killed on account of his religious and political beliefs should he return to

Pakistan. Shaghil testified that, based upon his experiences growing up in Karachi,

Pakistan and his knowledge of the community, he would likely be tortured or killed for

his newfound political and religious beliefs at either the behest of the government or

with the government's acquiescence. He testified in part, after describing some of the

violence religious minority groups experience at both the hands of the community and

the police:

Q. Okay. Do you believe if you returned to Pakistan that you would be

tortured?

A. 100 percent.

Q. Okay. Do you believe you would be killed?

A. Well, of course, they're going to torture me and then maybe I'm not

going to survive.
-15-

Likewise, his expert, Dr. Verani, testified that, based upon her expert knowledge of the

"social and political circumstances" in Pakistan and her interview with Shaghil,

Shaghil should fear for his life and well-being if he were to return to Pakistan. She

specifically stated: "I think from the area that he comes and the family background that

he shared with me, yes, he should have reasonable fear [of persecution]. In addition,

with all the other political turmoil that's going on in Pakistan . . . he should have some

reasonable fear about his life and his, his well-being there." Later, after opining that

it was more likely than not Shaghil would face persecution "of some sort," Dr. Virani

further stated:

Q. –and the definition there [in the Convention Against Torture] would

be that it would be more likely than not that he would face torture were

he to return to his country. Are you able to form an opinion and to offer

an opinion on that regard?

A. With regard to specific torture or persecution of some sort, depending

on whether it is opportunities again, depending on what part of Karachi

he lived in, depending on how many people would be there to protect

him, I think that, yeah, there would be some level of persecution. It is

possible that his family may also be targeted and I think for that reason,

if he did choose to stay here or if he has applied to stay here, I think that

that would be reasonable, reasonable fear about persecution.

Finally, a State Department Report on Pakistan strongly indicated that Shaghil,

as a convert away from Islam, could easily face severe persecution, stating in part:

While there is no law instituting the death penalty for apostates (those

who convert from Islam), social pressure against conversion is so

powerful that most conversions reportedly take place in secret.

According to missionaries, police and other local officials harass villagers

and members of the poorer classes who convert. Reprisals and threats of

reprisals against suspected converts are common.

Since the BIA and the IJ credited all of Shaghil's evidence of persecution and since the

government failed to present any evidence on this issue, I believe that Shaghil has
6

As cited by the majority, the IJ quotes Dr. Virani as testifying that "perhaps"

Shaghil would be persecuted. However, a close reading of the transcript reveals that

Dr. Virani used the word only once to describe whether Shaghil's outspokenness

would further increase the already-existing probability that Shaghil would be

persecuted. More specifically, she testified regarding Shaghil:

Q. Okay. And, in fact, even since we've had the last hearing, there has

been additional turmoil within the Moslem world over a (indiscernible).

Are you familiar with that situation?

A. Yes, I am.

Q. Are you familiar with what he has endured himself in that regard?

A. He hasn't shared with me, but, but he is really vocal about his views,

so he may be.

-16-

carried his burden of proof. Indeed, I cannot discern how a reasonable adjudicator can

give credence to Shaghil's evidence and still conclude that he has not shown a clear

probability of persecution.

The majority holds to the contrary, discounting both the testimony of Dr. Virani

and Shaghil. The majority disregards Dr. Virani's testimony as "vague, fundamentally

irrelevant, and insufficient to overcome our highly deferential standard of review"

because "persecution" is a term of art for the courts to decide and because Dr. Virani's

testimony does not establish the "extreme concept" that is persecution. For support,

the majority cites Dr. Virani's statement that Shaghil would face persecution "of some

sort" in Pakistan. However, a fair reading of Dr. Virani's entire testimony belies the

majority's conclusion. Dr. Virani opined that Shaghil should fear for his life and wellbeing should he return to Pakistan. Dr. Virani further spoke of torture in a similar

manner to persecution, thereby indicating that Dr. Virani's conception of persecution

was far more than mere intimidation and low-level harassment, which this Court has

found insufficient. Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007). As the

preceding excerpts indicate, Dr. Virani never equivocated on whether Shaghil would

face severe mistreatment if he were to return to Pakistan. At most, Dr. Virani waffled

on whether Shaghil's family would also be targeted, stating it was "possible."6

 Thus,
Q. And would that make things even more extreme to this date?

A. Well, in the present mindedness of the statement, perhaps that would,

yeah. . . .

7

Shaghil also testified on cross examination:

Q. And where in all of this record can you show me that the government

of Pakistan seeks out people who have changed their faith? Did you see

any documents in any of this? Are you aware of any news stories that

the government has persecuted or harmed people who have simply

changed their faith?

A. Yes, sir –

Q. Oh.

A. –they do over there.

Q. Okay. What happens?

A. Well, those people, if they're – first of all, they are tortured . . .

-17-

Dr. Virani's testimony, as an unchallenged expert opinion credited by both the IJ and

the BIA, should alone present a material hurdle to dismissing Shaghil's petition for

withholding.

The majority also discounts Shaghil's testimony. The majority characterizes his

testimony as mere assertions, unsupported by evidence in the record and incapable of

proving an objective likelihood of persecution. However, Shaghil's testimony is

corroborated both by the expert opinion of Dr. Virani and by the State Department's

report on Pakistan. Further, Shaghil's testimony regarding his fear of persecution is

based upon his own extensive knowledge of and experience in Pakistan, all of which

constitutes evidence when, as here, the fact finders fully credit his testimony. See

Osonowo, 521 F.3d at 927 ("A credibility determination is a finding of fact, which

should be accepted unless any reasonable adjudicator would be compelled to conclude

to the contrary." (internal quotation marks omitted)). For example, Shaghil testified

that his fear of persecution is based in part on his knowledge of how individuals in

similar circumstances were treated, stating:7
-18-

Q. Have you read news stories? You've read –

A. Yes, I

Q. Okay.

A. –that's the newspaper (indiscernible).

Q. Okay. And do you know what has happened to those people like you?

A. They, you're going to find the dead body on that street somewhere and

it's not going to be –

Q. Has that been in the news?

A. Yes.

While Shaghil did not provide many personal accounts of the persecution of religious

and political minorities in Pakistan, his general knowledge of the conditions in

Pakistan should not be dismissed out-of-hand when the IJ finds all of his testimony

credible. Accordingly, to give meaning to the administrative findings of fact in this

case, I believe the Court should conclude that Shaghil presented sufficient evidence to

prove a clear probability of persecution.

 

For the foregoing reasons, I concur in part and dissent in part.

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