Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-28-2006

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Precedential or Non-Precedential: Precedential

Docket No. 04-3607




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                                            PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                  Nos. 04-3607 and 05-1122


                 SEEMAB FATIMA SHAH;
                    KHURRAM AIJAZ,
                               Petitioners

                              v.

    ATTORNEY GENERAL OF THE UNITED STATES,
                           Respondent


       PETITION FOR REVIEW OF A DECISION OF
        THE BOARD OF IMMIGRATION APPEALS
         Agency Nos. A95-148-835 & A95-148-836
         Immigration Judge: Hon. Donald V. Ferlise


                   Argued January 9, 2006


      Before: BARRY and AMBRO, Circuit Judges, and
               DEBEVOISE,* District Judge


                (Opinion Filed: April 28, 2006)


David E. Piver, Esq. (ARGUED)
W. John Vandenberg, Esq.


      *
         The Honorable Dickinson R. Debevoise, Senior District
Judge, United States District Court for the District of New
Jersey, sitting by designation.
Law Office of David E. Piver
150 Strafford Avenue, Suite 115
Wayne, PA 19087

Counsel for Petitioners

Jonathan Cohn, Esq. (ARGUED)
United States Department of Justice
Civil Division
950 Pennsylvania Avenue
Washington, D.C. 20530
       -AND-
John J. Andre, Esq. (ARGUED)
Donald E. Kenner, Esq.
Christopher C. Fuller, Esq.
Thankful T. Vanderstar, Esq.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, D.C. 20044
       -AND-
Christine A. Sanner, Esq.
Office of United States Attorney
17 South Park Row, Room A330
Erie, PA 16501

Counsel for Respondent




                  OPINION OF THE COURT




BARRY, Circuit Judge

                          I. Introduction

      Petitioner’s father was killed in cold blood, and the

                                2
government concedes that he is dead. That murder – and what
preceded and followed it – is the event on which her application
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”) was almost exclusively
based. In his apparent zeal to deny relief to petitioner, however,
the Immigration Judge, Donald V. Ferlise, came to the
conclusion that the father is alive.

       [T]he Court is strongly persuaded and tends to
       believe that the respondent’s father is indeed alive
       and is not dead . . . If this is true then the
       respondent’s entire case dissolves right in front of
       our eyes . . . . the case is nothing but a fraud that is
       being perpetrated upon this Court.

(App. at 18; see also 

(“[T]he fact that the respondent’s
father is indeed alive . . . is a very, very important issue in this
case.”).) In concluding that the father is alive, Judge Ferlise
utterly ignored undisputed evidence of the father’s death and
shored up his conclusion with evidence he had excluded,
evidence that actually corroborated the fact of the father’s death.
His conclusion “do[es] not flow in a reasoned way from the
evidence of record and [is] . . . arbitrary and conjectural in
nature.” Dia v. Ashcroft, 

, 250 (3d Cir. 2003) (en
banc). It is “more puzzling than plausible, more curious than
commonsense.” 

The petition for review will be
granted, and the case will be remanded for further proceedings
consistent with this opinion.1
                II. Facts and Procedural History

       Seemad Fatima Shah has a Master of Arts in International
Relations from the University of Karachi. She and her husband,



       1
          We are today issuing another opinion in which we
criticize Judge Ferlise’s conduct. See Cham v. Gonzales, No.
04-4251 (3d Cir. 2006). These opinions are not the first in
which we have done so. See, e.g., Sukwanputra v. Gonzales, 

(3d Cir. 2006); Fiadjoe v. Attorney General, 

(3d Cir. 2005).

                                  3
Khurram Aijaz, are natives and citizens of Pakistan. They are
both Shi’a Muslims and Mohajirs (a/k/a Muhajirs).2 Shah and
Aijaz entered the United States on October 8, 2000 as
nonimmigrant visitors authorized to remain here through April 7,
2001. On May 25, 2001, Shah, in addition to seeking
withholding of removal and relief under the CAT, submitted an
application for asylum on behalf of herself and her husband.3 In
the application, Shah stated that she was seeking asylum for the
following reason:

       I am a Mohajir (IMMIGRANT), my family and I
       worked for Muttahida Qaumi Movement.[4] I am
       an active member of MQM ladies Wing. I am also
       of SHIA sect. For a long time Mohajirs are being
       persecuted in Karachi-Pakistan. Shia’s are also
       being killed by Fanatic Muslims who are against
       the existence of Shia’s in Pakistan.

       My father Syed Abid Hussain was killed by
       terrorist on 01-10-1995, he was shot dead by the
       persons who are patronized by Police . . . . There


       2
         The State Department defines Muhajirs as “Urdu-
speaking immigrants from India and their descendants.” U.S.
Department of State, Background Notes: Pakistan, available at
http://www.state.gov/r/pa/ei/bgn/3453.htm (last visited Mar. 22,
2006).
       3
         Although Aijaz is nominally a petitioner, Shah, and
what happened to her father and to her, is the driving force
behind these applications. We will, therefore, refer to petitioner
in the singular.
       4
           The Muttahida Qaumi Movement (“MQM”), “formerly
known as the Mohajir Quami Movement, is a political group
which represents the Urdu-speaking immigrant urban Mohajir
population which migrated from India at the time the creation of
Pakistan in 1947.” Global Security.org,
http://www.globalsecurity.org/military/world/para/mqm.htm
(last visited Mar. 22, 2006).

                                4
      were two main factors for his killing, First he was
      Mohajir (IMMIGRANT) . . . , Second He was
      SHIA, they too are being victim of persecution.

      Since the killing of my father, my whole family
      was uprooted we could not live properly in
      Pakistan, we were unable to live in any part of
      Pakistan as police and other security agencies
      threatened severe consequences os we try name the
      culprits. My life was in continuous danger, I was
      not free to move freely due to continuous threats
      by security agencies as well as by fundamentalist
      who are being given full protection by the
      government.

      In the month of September 2000 security agencies
      threatened me and family of severe consequences
      if we try to proceed further for the inquiry of
      fathers killing, so mother who is very upset after
      the death of my father advised me to leave
      Pakistan immediately, so I had to leave Pakistan in
      a hurry as my life was in danger, I had to leave my
      newly born son also. For this reason I am seeking
      asylum in United States.

(App. at 300.)

       Shah submitted a supplemental statement in support of
her application for asylum. In it, she provided additional
information about the MQM and the violence allegedly
perpetrated against MQM members by the Muslim League and
the Pakistani army. “From 1992 until the present,” she wrote,
“more than 17,000 people have been tortured and killed.” (Id. at
153.) She also spoke of her father and his death:

      My father was a well-known, active and respected
      unit leader of the local chapter of the MQM. My
      father was visiting his friend, who was a doctor
      and also a Mohajir, at his office. Suddenly,
      members of the ISI, or Special Services

                               5
       Intelligence, burst into the office and shot my
       father and his friend in cold blood.

(Id.) After her father’s death, she was threatened, followed,
harassed, and told not to attend MQM meetings and not to look
into the circumstances surrounding his death. On one occasion,
four or five men, two of whom were wearing police uniforms,
burst into her house, took her seven-month-old son out of her
arms, and told her that she and her family would be killed if she
did not stop her involvement with the MQM.

        On April 21, 2003, Shah and Aijaz appeared before Judge
Ferlise. Shah and one other witness, Mohammad Hussain,
testified, Hussain going first.5 Hussain was an active member of
the MQM, both in Pakistan and in the United States, and Shah’s
father had been very active with the MQM in Pakistan until he
was shot to death by the ISI in 1995. He explained the
difficulties that the MQM continues to have in Pakistan – MQM
members have seats in the assembly, for example, but are not
given any actual authority. According to Hussain, Shah attended
MQM meetings in Pakistan and has been very active in Gehwar-
e-abad, the American branch of the MQM.

       Shah then provided testimony consistent with her prior
statements. Her father was an active member of the MQM.
After receiving phone calls from men threatening to kill him, he
was shot to death by the ISI while visiting a friend at his medical



       5
          Shah also proffered letters from two individuals
claiming to be current or former officials of the MQM. The
letters stated, in substance, that Shah is an active MQM member,
and that she would be in danger if forced to return to Pakistan.
Because the authors were not available to appear in court, and
the statements were letters, not affidavits, Judge Ferlise
concluded that he would give them whatever weight he deemed
advisable which, apparently, was none. See Liu v. Ashcroft, 

, 532 n.3 (3d Cir. 2004) (“[T]he fact that the IJ never
referred to the certificates in his final decision suggests that they
were not given any weight in making the ultimate decision.”).

                                 6
clinic in January 1995. Shah started attending MQM meetings
with her father in 1990, and worked for the MQM’s women’s
wing educating women about their rights. After her father was
killed, she became more active in the MQM, and sought to have
the men who killed him punished. She began receiving
threatening phone calls, sometimes as many as three or four a
day. In addition to these phone calls, men would come to the
newspaper where she worked and tell the security guards that
they were going to kill her when she left the building. On June
18, 2000, five men broke into her home and grabbed her son
from her arms. They pulled her hair, threw her on the floor,
kicked her, and cursed at her. They told her to stop working
with the MQM, and to stop pursuing the men who killed her
father. Shah expressed fear that she will be killed if forced to
return to Pakistan.

       Shah and Aijaz offered extensive documentary evidence
in support of their claims.

      “(a) Copy of 1-94 card of Respondents
      (b) Copy of Primary Respondent’s [Shah’s]
      Passport
      (c) Copy of Secondary Respondent’s [Aijaz’s]
      Passport
      (d) Birth Certificate of Primary Respondent, with
      translation
      (e) Marriage Certificate of Respondents, with
      translation
      (f) Birth Certificate of Respondents common child,
      with translation
      (g) Primary Respondent’s Educational Credentials
      (h) The Dawn identification card [English
      newspaper where Shah was employed]
      (i) Copy of Passport of Primary Respondent’s
      father
      (j) Death Certificate of Primary Respondent’s
      father
      (k) First Information Report for Police dated
      October 1, 1995, with translation
      (l) Extract of Entries of Death Registered with

                               7
       Health Department regarding death of
       respondent’s father, with translation
       (m) Letter to Deputy Commissioner of Karachi
       from Assistant Commissioner dated January 11,
       1995 regarding Respondent’s father
       (n) Letter of Chief Administrative Officer
       regarding special gratuity paid at time of
       Respondent’s father’s death
       (o) Articles from The Dawn [and the Daily]
       Mashriq, dated January 11 through January 31,
       1995, regarding death of Primary Respondent’s
       Father
       (p) Confirmation of Primary Respondent’s hire at
       Zibercom and subsequent pay raises
       (q) Letter of Recommendation for Primary
       Respondent
       (r) Letter of Termination for Primary Respondent
       (s) Tax information for Primary Respondent
       (t) The Dawn Internet Edition Articles on Pakistan
       dated January 5, 2001 through August 20, 2001
       (u) Copy of Pakistan Human Rights Watch World
       Report 2001.”

(App. at 184); see Exhibit 4 (Id. at 184-292.) Judge Ferlise
excluded documents (a) through (n) on the ground that they were
not certified pursuant to 8 C.F.R. § 287.6(b)(1)-(2), which states,
in relevant part:

       In any proceeding under this chapter, an official
       record or entry therein, when admissible for any
       purpose, shall be evidenced by an official
       publication thereof, or by a copy attested by an
       officer so authorized. . . . The attested copy, with
       the additional foreign certificates if any, must be
       certified by an officer in the Foreign Service of the
       United States, stationed in the foreign country
       where the record is kept.

Notably, he did not exclude the newspaper articles at (o).



                                8
        In an oral opinion issued at the conclusion of the hearing,
Judge Ferlise found the testimony of both Hussain and Shah
“totally incredible”; denied asylum, withholding of removal, and
relief under the CAT; and deemed the application for asylum
“frivolous.” On appeal, the Board of Immigration Appeals
(“BIA”) reversed the finding of frivolousness, but dismissed the
appeal “based upon and for the reasons set forth” in Judge
Ferlise’s decision. (Id. at 3.) A petition for review was filed
with this Court and motions to reconsider and for a stay of
removal with the BIA. By order dated December 29, 2004, the
BIA denied the motions, and a petition for review of this
decision was filed as well. We consolidated the two petitions for
review.

        On appeal, Shah contends, first, that substantial evidence
did not support the adverse credibility determinations and denial
of relief. She argues, as well, that incompetent translation by the
Urdu-English interpreter deprived her of her due process right to
a full and fair hearing, that Judge Ferlise’s decision to exclude
some of the documentary evidence under 8 C.F.R. § 287.6 was
legal error requiring a remand, and that the BIA abused its
discretion when it denied the motion to reconsider.6 We have
jurisdiction pursuant to 8 U.S.C. § 1252(a)(1).

                    III. Standard of Review

       Where, as here, “the BIA directs us to the opinion and
decision of the IJ who originally assessed [the] application, we
review the IJ’s opinion.” 

. We review an
immigration judge’s findings of fact and credibility
determinations under a substantial evidence standard. See, e.g.,
INS v. Elias-Zacarias, 

, 481 (1992); Gao v.
Ashcroft, 

, 272 (3d Cir. 2002). In so doing, we ask



       6
        Because we are remanding for another hearing, we need
not reach the question of whether the translation and exclusion
of evidence issues were preserved for appeal and, if so, whether
the BIA abused its discretion in rejecting the latter issue and
denying the motion for reconsideration.

                                9
whether such determinations are “supported by evidence that a
reasonable mind would find adequate.” 

.

       If the IJ’s conclusion is not based on a specific,
       cogent reason, but, instead, is based on
       speculation, conjecture, or an otherwise
       unsupported personal opinion, we will not uphold
       it because it will not have been supported by such
       relevant evidence as a reasonable mind would find
       adequate. In other words, it will not have been
       supported by substantial evidence.

         IV. Substantial Evidence – or Lack Thereof

        Judge Ferlise condemned, in the harshest of terms, the
testimony of Hussain and Shah: it was “totally incredible,”
“totally implausible,” “self-contradictory,” “impeached,” and,
were more needed, it “[did] not make any sense.” (App. at 25.)
Basing those conclusions on numerous supposed inconsistencies
in the testimony, he denied relief. It is clear, however, that the
bulk of those inconsistencies – if, indeed, they were
inconsistencies – were picayune in nature and that his decision
was, at bottom, primarily based on one factual finding – his
erroneous conclusion that Shah’s father was in fact alive at the
time of the hearing. There can be no dispute as to the
importance that he placed on this conclusion: “[T]he fact that
[her] father is indeed alive . . . is a very, very important issue in
this case.” (App. at 19.)

        Judge Ferlise concluded that the father is alive based on
one sentence of the testimony given by Hussain and the “highly
questionable” death certificates offered by Shah. On direct
examination, Hussain testified that Shah’s father had been killed,
and addressed the circumstances surrounding his death. His
testimony as to these facts, although somewhat difficult to
follow, was consistent. On cross examination, however, he
stated that Shah’s father and mother remain in Pakistan today.
Judge Ferlise, understandably, sought to resolve the discrepancy

                                 10
in Hussain’s testimony.

       Q. Before you were asked sir, what family
       members the female respondent has back in
       Pakistan. You said she has her brothers and
       sisters, said she had her parents there.
       A. Yes.
       Q. You told me her father is dead.
       A. Later on I said that her father is not active, he’s
       already dead, but her brother is.
       Q. Sir, you’re not paying attention. You were
       asked what family members she presently has in
       Pakistan. You said her parents, plural, meaning
       father and mother, and her brothers and sisters.
       That was not more than five minutes after you told
       me that her father had been killed. I’d like you to
       explain that obvious contradiction.
       A. When a girl is married her in-laws are also her
       parents and her father is dead but I said that her
       brother is active.
       Q. You said that she had her parents and her
       brother, sir. Now you’re compounding a lie on a
       lie. I don’t appreciate it. I want to know why you
       said her parents are presently in Pakistan when you
       told me her father was dead.
       A. I’m not telling a lie. I swear, and I, when I said
       her parents I meant that her in-laws, mother and
       father in law, and I already said that her father is
       dead and her brother is there.
       Q. Well, that’s right, you said her father was dead
       and then you just started talking abut her parents.
       Why didn’t you just say her in-laws. Why did you
       call them her parents.
       A. This was my mistake.
       Q. Obviously.

(Id. at 102-03). In his decision, Judge Ferlise characterized this
testimony as an “extraordinary contradiction” which the witness
“tried to explain . . . away by saying that when he said her
parents are living in Pakistan, he meant her in-laws.” (Id. at 17.)

                                11
He stated that he believed the witness “slipped up and . . .
divulged to the Court the fact that the respondent’s father is
indeed alive . . . .”

        The only other evidence relied upon by Judge Ferlise to
support his conclusion that Shah’s father is alive were the death
certificates offered by Shah. Although those certificates (along
with many other documents) were excluded because they were
not certified, Judge Ferlise nevertheless “perused” them, and
found them to be “highly questionable.” (Id. at 18.) He stated:

       The death certificate at tab J has absolutely nothing
       included in it as to the cause of death of the
       respondent’s father. The Court finds that to be
       extremely unusual and extremely bizarre. The
       death certificate at L appears to be defective. It is
       virtually impossible to read the cause of death and
       the Court cannot conclude from reading these
       documents why and how the respondent’s father
       was either killed or died of natural causes.

(Id. at 17.) Parenthetically, we note that we do not find it
“virtually impossible” to read the cause of death at tab L; indeed,
it is rather easy to conclude, with some minimal interpretation,
that the father died of cardiac respiratory failure secondary to
acute head injury as a result of a firearms injury.

       Even if there were no other evidence to corroborate the
testimony concerning the father’s death, it would be extremely
difficult to find that the two considerations relied on by Judge
Ferlise constituted substantial evidence in support of his
conclusion that the father is alive. With respect to Hussain’s
“extraordinary contradiction,” the witness explained his
misstatement. Despite Judge Ferlise’s dismissive tone regarding
that explanation, the explanation was, in fact, quite reasonable.
As for the “questionable” death certificates, we note, as an initial
matter, that Judge Ferlise should not have invoked evidence he
excluded to undermine Shah’s claims. Certainly, he should not
have selectively “perused” the excluded documents, relying on
the ones that he felt undermined her claim, and ignoring the

                                12
many other documents that corroborated it. Moreover, his
problem with the death certificates related to an inability to
understand the cause of death. He did not appear to question, on
the basis of the death certificates, that Shah’s father was dead,
and certainly the death certificates do not prove that he is alive.
Neither consideration, on its own, would be sufficient to support
Judge Ferlise’s conclusion that Shah’s father is alive, and the
two together do not “add up to a totality of circumstances that
support[]” that conclusion. 

. “Rather, they
are an aggregation of empty rationales that devolve into an
unsupported finding . . . .” 

evidence, which Judge Ferlise ignored, is
considered, it is clear that his conclusion is not just difficult to
support, it is entirely unsupportable. Pictures of Shah’s father
lying in a pool of blood on the ground where he was shot
appeared in newspaper articles about the murder in two
newspapers – Dawn (an English-language newspaper) and
Masriq (an Urdu-language newspaper), articles admitted into
evidence. Judge Ferlise utterly failed to address, or even
mention, these articles when discussing why he believed the
father is alive. One would have expected that, at the very least,
he would have explained his rationale for discounting them if,
indeed, there was one.

        In addition to the newspaper articles, petitioner offered
documents corroborating the fact of her father’s death,
documents which included a First Information Report for the
police detailing the circumstances surrounding his death (with
translation); an Extract of Entries of Death Registered with
Health Department regarding his death (with translation); and a
letter to the Deputy Commissioner of Karachi from the Assistant
Commissioner regarding his death. Judge Ferlise excluded these
documents because they were not authenticated under §287.6.7
We held in Liu v. Ashcroft, 

(3d Cir. 2004), albeit



       7
         Because the newspaper articles were not official
records, they were not excluded with the rest of the documents
under § 287.6.

                                 13
after Judge Ferlise ruled on the issue in this case, that § 287.6 “is
not an absolute rule of exclusion, and is not the exclusive means
of authenticating records before an immigration judge.” 

We made it quite clear that the applicants in Liu should
have been given an opportunity to prove the authenticity of their
documentary evidence through other means. There is no
question that here, as in Liu, without providing an opportunity to
prove authenticity by other means, Judge Ferlise excluded
documents that, if authenticated, would have corroborated the
testimony of Shah and Hussain. Because the documents may be
offered on remand and their authenticity reconsidered, we need
not decide what effect they would or should have had on Judge
Ferlise’s decision had they not been excluded. We note,
however, that they surely would not have helped him reach the
result he reached.

        The strength of the newspaper articles ignored by Judge
Ferlise and the weakness of the evidence cited by him compel
the conclusion that Shah’s father is dead, a fact which now the
government concedes. As to this “very, very important” fact,
“no reasonable person” would have found Shah and Hussain
incredible. Chen v. Ashcroft, 

, 222 (3d Cir. 2004);
see 8 U.S.C. § 1252(b)(4)(B); 

n.1. Stated somewhat differently, this “very, very important”
fact is not supported by substantial evidence.

       Nor are the handful of other inconsistencies invoked by
Judge Ferlise to support his adverse credibility determinations
supported by substantial evidence; indeed, virtually all of those
“inconsistencies” are either too minor to warrant discussion or
are not inconsistencies at all.8 We make one observation,



       8
         We offer but a few examples. Judge Ferlise concluded,
as to Hussain, that he changed his testimony as to which agency
was responsible for killing Shah’s father, and contradicted
himself repeatedly about whether Shah was a member of the
MQM. He did neither. As for Shah, Judge Ferlise found an
inconsistency because she stated in her asylum application that
her father was killed because he was a Mojahir and a Shi’a, but

                                 14
however. Aside from the fact that we are at a loss to see the
relevance, much less the significance, of any inconsistency
between Shah’s testimony that her father was murdered when he
was visiting a friend, who was a doctor, and newspaper accounts
that reflect that her father was a patient of the doctor, not a
friend, we find it disturbing that the same newspaper articles that
Judge Ferlise failed to consider before concluding that Shah’s
father is alive were invoked here in an attempt to create an
inconsistency for purposes of undermining Shah’s credibility.

       “Although we don’t expect an Immigration Judge to
search for ways to sustain an alien’s testimony, neither do we
expect the judge to search for ways to undermine and belittle it.”
Zhang v. Gonzales, 

, 158 (3d Cir. 2005). Nor do
we expect a judge to selectively consider evidence, ignoring that
evidence that corroborates an alien’s claims and calls into
question the conclusion the judge is attempting to reach. Where,
as here, an immigration judge turns his back on these
expectations and reaches a conclusion that is not “supported by
such relevant evidence as a reasonable mind would find
adequate,” we will not uphold that conclusion. See 

.

       We end by noting what we do and do not decide. We find
that Shah’s father is dead, now an undisputed fact and one that



later claimed it was because of his involvement with the MQM.
But there is no inconsistency because the MQM is a political
group that represents Shi’a Mohajirs. Judge Ferlise also made
findings having no support in the record and ignored evidence in
the record when it suited his purposes to do so. With reference
to the former, it was sheer speculation to conclude that it was
“probable” that “if indeed any harm came to [Shah] or her family
it had to do with a rival organization meting out their own form
of justice.” (App. at 21-22.) With reference to the latter, the
State Department Country Report supposedly contained
“nothing” indicating that the police target and kill MQM
members or that the government sponsors violence against
MQM members. Judge Ferlise was wrong.

                                15
was virtually undisputable before now. That fact was the
foundation on which the applications for relief were built, and
Judge Ferlise recognized its critical importance. We leave the
effect of that erroneous finding to the BIA on remand and leave
to it, as well, the question of whether petitioners, with the
father’s death and the witnesses’ credibility established, have
satisfied the requisites for the relief they seek.

       We will grant the petition for review, vacate the order of
the BIA and remand to the BIA for further proceedings
consistent with this opinion. We urge that, on remand, a
different immigration judge be assigned to any further
proceedings. See Sukwanputra v. 

,
638 (3d Cir. 2006) (quoting Korytnyuk v. Ashcroft, 

, 287 n.20 (3d Cir. 2005) (“[W]hile we recognize that
assignment of an [IJ] is within the province of the Attorney
General, if on remand an IJ’s services are needed, we believe the
parties would be far better served by the assignment to those
proceedings of a different IJ.”) (alternation in original, internal
quotation marks and citations omitted).




                                16