Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-3-2005

Shoukat v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4505




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                                                                     NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 04-4505
                                     ___________

                           MAHMOOD KHAN SHOUKAT,

                                                       Petitioner,

                                           v.

                         Attorney General of the United States,

                                                       Respondent.
                                     ___________

                    ON PETITION FOR REVIEW OF AN ORDER
                   OF THE BOARD OF IMMIGRATION APPEALS
                               (No. A73 646 445)
                                 ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 27, 2005

              BEFORE: ALITO, AMBRO, and LOURIE,* Circuit Judges.

                                (filed: October 3, 2005 )

                                     ___________

                                      OPINION
                                     ___________




      *
          Honorable Alan D. Lourie, United States Circuit Judge for the Federal Circuit,
sitting by designation.
LOURIE, Circuit Judge:

       Mahmood Khan Shoukat, a citizen of Pakistan, petitions for review of the March 14,

2003 decision of the Board of Immigration Appeals (“BIA”) that affirmed, without opinion,

the decision of an Immigration Judge (“IJ”) denying Shoukat’s application for asylum,

withholding of removal, and protection pursuant to the Convention Against Torture. For the

reasons given below, we deny Shoukat’s petition for review.

                                     BACKGROUND

       Petitioner is a native and citizen of Pakistan, but was raised and schooled in Nigeria

from 1975 to 1988. After completing his post-graduate studies, Shoukat returned to Pakistan

in 1988. In 1989, Shoukat joined the Pakistan Muslim League (“PML”), one of Pakistan’s

major political parties. As a member of the PML, Shoukat was purportedly assigned the

position of publicity secretary, which entailed editing political flyers and organizing

meetings. According to Shoukat, the PML was in power from 1989 to 1993. Sometime in

1993, however, a rival political party, the Pakistan People’s Party (“PPP”), won election and

came into power. Before the IJ, Shoukat testified that soon after the election the police

arrested him and, while in their custody, he was tortured daily because of his prior political

activities as a member of the PML. After eighteen days in custody, Shoukat testified that he

was released. Soon after his release, Shoukat testified that he left Pakistan for Nigeria out

of concern for his safety. While in Nigeria, Shoukat purportedly obtained a United States

visa and arrived here on July 14, 1993. Shoukat also testified that he temporarily left the



                                              2
United States to visit an uncle in South Korea, but returned to the United States on December

29, 1993, and has remained here since that time.

       On or about September 24, 1994, Shoukat applied for asylum, withholding of removal,

and protection pursuant to the Convention Against Torture at the Immigration and

Naturalization Service (“INS”).1 To support his applications, Shoukat claimed that he would

be persecuted if returned to Pakistan because of his membership in the PML and for

opposing the policies of the PPP while that group was in power. On March 19, 1998, the

asylum officer declined to grant Shoukat’s applications even though he found that Shoukat

was a refugee. According to the officer, the evidence indicated that Shoukat was a refugee

because he was “persecuted in the past on account of a protected characteristic in the refugee

definition.”   The officer concluded, however, that the evidence also established that

conditions in Pakistan had changed to such an extent that Shoukat’s fears of persecution were

not well-founded and, in any event, that the threat of persecution did not exist country-wide.

       Unsuccessful before the asylum officer, Shoukat presented his applications for

asylum, withholding of removal, and protection pursuant to the Convention Against Torture

to the Immigration Court. A hearing was conducted on April 9, 2001, and, on the next day,

the IJ issued an opinion denying Shoukat’s applications. In particular, the IJ concluded that

Shoukat was not a refugee, and determined that Shoukat’s sole motivation for seeking asylum




       1
          On March 1, 2003, the INS ceased to exist as an agency, and its functions were
transferred to the Department of Homeland Security (“DHS”).

                                              3
in the United States was “to obtain employment and make a better living.” In reaching his

decision, the IJ made several factual findings, including that there was a lack of evidence

corroborating the injuries that Shoukat purportedly incurred from torture, suspicious

circumstances surrounding Shoukat’s procurement of travel visas for three different countries

in 1993, the return to political power of the PML after Shoukat’s departure from Pakistan,

and a lack of credibility of Shoukat’s “First Information Report” (INS Form I-589) alleging

the issuance of a foreign arrest warrant by the PPP.

       Shoukat appealed to the BIA, which affirmed the IJ’s decision without issuing a

separate opinion. Thus, pursuant to 8 C.F.R. § 3.1(a)(7)(iii), we review the IJ’s decision.

Dia v. Ashcroft, 

, 245 (3d Cir. 2003) (en banc). Shoukat timely appealed to this

Court. We have jurisdiction pursuant to 28 U.S.C. § 1252.

                                      DISCUSSION

       The Attorney General has the discretion to grant asylum to an alien who is a “refugee”

under 8 U.S.C. § 1158(b). To qualify for refugee status, the applicant may demonstrate that

he or she is “unable or unwilling” to return to his or her native 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)

(1999). An applicant bears the burden of proving eligibility for asylum based on specific

facts and credible testimony. Abdille v. Ashcroft, 

, 482 (3d Cir. 2001); 8 C.F.R.

§ 208.13(a) (2005). Once the applicant establishes his or her status as a refugee, the burden



                                             4
of proof shifts, and the government must prove that one or more of the various exceptions

to the presumption of fear of future persecution exists. 8 C.F.R. § 208.13(b) (2005).

       On appeal, Shoukat requests that we remand this case to the Immigration Court

because, he asserts, the IJ erred in not properly considering the asylum officer’s

determination that Shoukat was a refugee. According to Shoukat, the officer’s determination

that he was a refugee was “at least entitled to a modicum of deference” by the IJ. Moreover,

Shoukat asserts that, while the regulation provides that “[w]hen an Immigration Judge has

jurisdiction over an underlying proceeding, sole jurisdiction over applications for asylum

shall lie with the Immigration Judge,” 

it is unclear whether the IJ is bound

by prior determinations of the asylum officer. But Shoukat contends that some deference is

owed the asylum officer since he, like the IJ, has the authority to approve, deny, refer, or

dismiss an application for asylum. 

1208.14.

       We disagree that the IJ owes any deference to the asylum officer’s initial

determination of Shoukat’s refugee status. As a preliminary matter, we note that Shoukat

provides no statute or case law supporting his position. Moreover, several distinctions

between an interview with an asylum officer and a proceeding before the Immigration Court

lead us to conclude that the IJ owes no deference to the asylum officer’s determination. First,

unlike an asylum officer who is an employee of the INS (now the DHS), an IJ is independent

of the INS. See Marincas v. Lewis, 

, 199 (3d Cir. 1996); 8 C.F.R. § 1003.0

(2005). Requiring the IJ to give deference to an asylum officer’s initial determinations would



                                              5
undermine the purpose of making the IJ independent of the INS.

       Another distinction is that the interview with an asylum officer is nonadversarial. 8

C.F.R. § 208.9(b) (2005). The proceeding before an IJ, however, is adversarial, and an

asylum applicant is afforded several significant procedural rights, including the right to be

represented by counsel, having the proceedings on the record, and having the opportunity to

present evidence and cross-examine witnesses. Rafeedie v. INS, 

, 507-08 (D.C.

Cir. 1989); see also 

(stating that “aliens are entitled to an

adversarial asylum hearing before a neutral immigration judge with a full panoply of due

process safeguards”); 8 U.S.C. §§ 1229, 1229a (1999); 8 C.F.R. Part 1003. Given the greater

procedural protections and thoroughness of investigation provided to an asylum applicant in

a proceeding before the Immigration Court compared with an interview with an asylum

officer, we will not require the IJ to give deference to any of the asylum officer’s initial

determinations. No doubt, if the asylum officer had determined that Shoukat was not a

refugee, we would not have expected Shoukat to concede that deference should still be given

to that determination. The lack of deference works both ways.

       Moreover, as the government argues, pertinent regulation and agency practice further

support our conclusion that an IJ should not give deference to the asylum officer’s initial

determination of refugee status. For example, under 8 C.F.R. § 1003.42(d), when an asylum

officer determines that an applicant has failed to demonstrate that he is a refugee with a




                                             6
credible fear of future prosecution, the IJ reviews that finding de novo. 5    It would be

inconsistent for the IJ not to be given de novo review over a positive determination of the

asylum officer when he is given de novo review over a negative determination. Finally, the

decision of the asylum officer was issued on a form stating that “[t]he determinations that

[the INS has] made in referring your application are not binding on the immigration judge,

who will evaluate your claim anew.” Clearly the agency itself does not believe the IJ owes

any deference to an asylum officer’s initial determination of refugee status. Nor do we, and

we so hold. The IJ conducts a de novo review of an asylum officer’s determination without

deference to any prior determinations of that officer. Since Shoukat has raised no other

issues on appeal, we deny his petition for review.

                                     CONCLUSION

       For the foregoing reasons, Shoukat’s petition for review of the decision of the BIA

is denied.




       5
             That Section 1003.42(d) applies to an asylum officer in expedited removal
proceedings does not affect the force of our analysis.

                                             7