Mohammad Arif Shardar v. John Ashcroft, Attorney General of the United States

1
PRECEDENTIAL
UNITED STATES COURT OF
APPEALS
FOR THE THIRD CIRCUIT
No. 03-2110
MOHAMMAD ARIF SHARDAR,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY
GENERAL OF THE UNITED STATES
Respondent
On Petition for Review of an Order of
the Board of Immigration Appeals
(No. A72-779-408)
Submitted Under Third Circuit LAR
34.1(a) June 24, 2004
Before: NYGAARD, McKEE and
CHERTOFF, Circuit Judges.
(Filed: August 24, 2004)
OPINION
STEPHEN A. TRAYLOR
Traylor & Traylor
20 Nassau Street
Suite 204
Princeton, NJ 08542
Counsel for Petitioner
PETER D. KEISLER
Assistant Attorney General
Civil Division
LINDA S. WENDTLAND
Assistant Director
Office of Immigration Litigation
MICHELLE R. THRESHER
Attorney
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent

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CHERTOFF, Circuit Judge.
Mohammad Arif Sardar appeals the
decision of the Board of Immigration
Appeals (BIA), affirming the Immigration
Judge’s (IJ) denial of his application for
asylum and withholding of deportation,
and denying his motion to reopen the
proceedings for consideration under
Article 3 of the United Nations
Convention Against Torture (CAT). For
the reasons elaborated below, we will
deny the petition for review in its entirety.
I.
Shardar is a native and citizen of
Bangladesh who entered the United States
on August 26, 1992, using a false
passport. Shardar applied for asylum in
1992, alleging he was persecuted on the
basis of his political opinion for his
membership in the Jatiyo political party.
Jatiyo is the party of Army Chief of Staff
General H.M. Ershad, who seized power
and declared himself President in
December 1983. In the face of
widespread opposition, Ershad was forced
to resign in December 1990, and in a
February 1991 election the Bangladesh
Nationalist Party (BNP) won a
parliamentary plurality and formed the
government.
The primary basis for Shardar’s
asylum claim stems from events
surrounding his participation, on January
6, 1992, in an allegedly peaceful
demonstration in Jatrabari Square1 in
Bangladesh. Shardar was arrested and
charged with having weapons and
explosives, allegations that Shardar stated
were “[c]ompletely false.” A.R. at 174.
Shardar testified that following his arrest,
he was held in jail and beaten with canes
and kicked in the face. While he was
beaten his interrogators shouted, “Ershad
time is over. Now is, is BNP time.” Id. at
168. Shardar claimed he was forced to
confess that he had weapons and
explosives, and to proclaim that he would
never be with the party again, in order to
stop the beatings and “save [his] life.” Id.
at 169.
After three days in the police
station and almost six days in jail, Shardar
went before a judge. Shardar’s father paid
for a lawyer. The judge, whom Shardar
described as “pretty nice,” id. at 170,
released him on bail of 50,000 local taka,
which his father paid. Following his
release, Shardar’s father took him to a
private medical clinic for nineteen days.
Shardar then went to work for a
Chinese restaurant in Dhaka, Bangladesh.
He testified that the police came looking
for him on several occasions, and
therefore he “had to leave the job,” his
home, and his wife. Id. at 171. Shardar
1 While the Petitioner’s brief refers
to the location as “Jatrabi Square,” this
appears to be an error. We adhere to the
spelling—“Jatrabari”—used in the
Government’s brief and police report
(discussed below).

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conceded, however, that the police came
after a warrant was issued for his arrest
because of his failure to appear in court.
Id. at 176-77.
In addition to Shardar’s testimony,
documentary evidence was introduced,
including a police report and “charge
sheet” pertaining to his arrest, the record
of proceedings in the Court of Chief
Metropolitan Magistrate, and an arrest
warrant issued on May 20, 1992,
providing that Shardar “after having
[posted] bail[,] . . . abscond[ed],” id. at
284. Shardar also submitted letters from
the clinic where he was treated following
his release, his lawyer, an associate from
the Jatiyo Party, and an accounting firm.
See id. at 274-77.
Of particular relevance is the police
report, which characterizes the protestors
as violent and suggests Shardar was a
leader in the hostile activities. The report
explains, in pertinent part:
[T]hey were delivering
defamatory, detractive and
slanderous slowgans [sic]
a g a i n st t h e p r e s e n t
Gov[ernment] . . . . We
then and there made an
importunate entreaty to
them not to deliver such
types of slowgans [sic] for
which they got infuriated
and being armed with
deadly weapons made a
sudden invasion on us.
They exploded some bombs
at the spot one after another.
Many padestrians [sic] were
lethally injured. We to
control this predicament
[sic] situation used tear gas
to disperse them but they
became more furious and
begun [sic] to throw brick-
bats on us. We having
found no other way
advanced with fortitute [sic]
to arrest them and Md. Arif
Sardar [sic] accussed No. 1
arrested by us, under whose
Leadership this occurrence
was occurred and the other
skedaddled from the spot . .
. .
Id. at 279-80.
On July 22, 1998,2 the Immigration
Judge (IJ) denied Shardar’s application for
2 The IJ outlined the reason for the
delay between the 1992 application for
asylum and the issuance of the decision:
He applied for asylum . . . in
1992. The application,
however, was not granted
and instead was referred to
this Court for a decision,
along with a Notice to
Appear issued on October
17, 1997, almost five years
later. The Notice to Appear
was addressed on the record
on December 23, 1997.
A.R. at 83.

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asylum and withholding of removal, while
granting the application for voluntary
departure. The IJ concluded that
“although the respondent is credible, he
has in no way met his burden of proof.”
Id. at 89. The IJ explained that “[t]here is
a complete grand canyon of difference
between persecution and a fear of
prosecution.” Id. The IJ rejected the
suggestion that “the only reason he was
arrested was because he was a supporter of
the Jatiya Party.” Id. at 91. Rather, the IJ
pointed to the documentary evidence that
the demonstration was violent. Noting
that Shardar had failed to file newspaper
articles or other objective evidence
supporting his account of the
demonstration, the IJ explained that “[i]t is
equally plausible, in fact more plausible
than not given the evidence supplied by
the respondent, that the respondent had
been involved in inciting a demonstration
that turned violent and that the police were
mad as could be.” Id. at 92.
The IJ noted that Shardar did not
provide evidence that the judicial process
might be corrupted; rather, the State
Department report indicates that members
of the Jatiyo Party enjoy the same judicial
rights as other Bangladeshis. The State
Department’s 1997 Bangladesh Profile of
Asylum Claims and Country Conditions
(“1997 State Department Profile”)
provides, in pertinent part:
There is some evidence that
prominent Jatiyo Party
members and/ or supporters
. . . were harassed by the
BNP Government between
1991 and 1996. These
individuals were able to
defend themselves in court
actions and have the same
judicial rights as other
B a n g l a d e s h i s . T h e
harassment experienced by
some high level Jatiyo party
members is not sufficient to
justify the conclusion that
Jatiyo Party membership in
itself accounted for severe
mistreatment.
Id. at 257.
The IJ concluded that while
arguably Shardar was persecuted in the
past when he was beaten at the police
station, “the changed circumstances . . .
rebut or defeat any potential presumption
of a well-founded fear of future
persecution.” Id. at 97. The IJ elaborated
that “[t]he obvious and evident changed
circumstances are that the respondent was
released on a bond and obviously the
police did respect the respondent and left
him alone . . . . The fact that the police
came by later in time looking for the
respondent . . . is clearly all because the
respondent failed to appear in court and
the police were executing a warrant . . . .”
Id. The IJ also referenced the “1997 State
Department Profile” for the proposition
that “country conditions for people who
are in the Jatiya Party have radically
changed.” Id. at 95.3
3 The “1997 State Department
Profile” outlines many of the favorable

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On March 21, 2003, the Board of
Immigration Appeals (BIA), exercising
jurisdiction under 8 C.F.R. § 1003.1(b),
affirmed the IJ’s decision. The BIA
explained that Shardar had failed to meet
the burden of proof for establishing
asylum because
[w]hile . . . violence is a
feature of the political
process in Bangladesh, we
have no reason to conclude
that the prosecution the
respondent may face if he
returns to Bangladesh is
politically motivated, and
there is no reason to find
that he would be unable to
establish his claimed
innocence.
Id. at 2.
Moreover, the BIA denied
Shardar’s request to reopen the proceeding
for consideration under the CAT,
concluding that he had “failed to establish
prima facie eligibility for relief under the
Convention.” Id. However, the BIA
agreed that Shardar should be entitled to
voluntarily depart. Id. at 3.
This Court has jurisdiction pursuant
to 8 U.S.C. § 1252(a)(1). We conclude
that the BIA properly denied (1) the
petition for asylum; and (2) the petition to
remand the proceedings for consideration
under the CAT.
II.
Shardar argues that the BIA erred
in denying his application for political
asylum, particularly since the IJ found his
testimony credible. The Attorney General
has discretion to grant asylum if the
petitioner demonstrates that he meets the
Immigration and Nationality Act’s (INA)
definition of “refugee”—that he is unable
or unwilling to return to his 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.” 8 U.S.C. § 1101(a)(42)(A); see
Dia v. Ashcroft, 353 F.3d 228, 234 n.1 (3d
Cir. 2003).
changes for the Jatiyo Party:
A Jatiyo Party member of
parliament is serving as
M i n i s t e r o f
Communications and a
number of other Jatiyo party
members are also serving in
the Cabinet. Although still
formally held in custody,
Ershad took his seat in the
new P a r liament and
p a r t i c i p a t e d i n i t s
deliberations. He was freed
on bail in January 1997. In
the summer of 1997, the
government issued Ershad a
passport and permitted him
to travel to Europe and the
United States.
A.R. at 255.

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“A showing of past persecution
gives rise to a rebuttable presumption of a
well-founded fear of future persecution.”
Mulanga v. Ashcroft, 349 F.3d 123, 132
(3d Cir. 2003) (citing 8 C.F.R. §
208.13(b)(1); Abdulrahman v. Ashcroft,
330 F.3d 587, 592 (3d Cir. 2003)). The
presumption, however, is rebutted where
the Government “establishes by a
preponderance of the evidence that the
applicant could reasonably avoid
persecution by relocating to another part
of his or her country or that conditions in
the applicant’s country have changed so as
to make his or her fear no longer
reasonable.” Abdulrahman, 330 F.3d at
592 n.3.
Whether a petitioner has
demonstrated past persecution or a
well-founded fear of future persecution is
a factual question that is reviewed by this
Court under a substantial evidence
standard, and will be upheld to the extent
it is supported by “reasonable, substantial
and probative evidence on the record
considered as a whole.” Kayembe v.
Ashcroft, 334 F.3d 231, 234 (3d Cir.
2003) (citing Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002)). The scope of
review is narrow. “[T]he administrative
findings of fact are conclusive unless any
reasonable adjudicator would be
compelled to conclude to the contrary.” 8
U.S.C. § 1252(b)(4)(B). That is, “[u]nder
the substantial evidence standard, the
BIA’s findings must be upheld unless the
evidence not only supports a contrary
conclusion, but compels it.” Abdille v.
Ashcroft, 242 F.3d 477, 483-84 (3d Cir.
2001).
The fact that, as here, a petitioner’s
testimony is deemed credible is not
determinative. The BIA “may require
documentary evidence to support a claim,
even from otherwise credible applicants,
to meet their burden of proof.” Gao, 299
F.3d at 272 (citing Abdulai v. Ashcroft,
239 F.3d 542, 554 (3d Cir. 2001)). In this
case, the IJ did not merely deny Shardar’s
claim because of the absence of
corroborating evidence. Rather, the
documentary evidence that was presented
conflicted with Shardar’s contention that
the demonstration was peaceful.
As the IJ noted, there is a
distinction between persecution and
prosecution. “As a general matter, . . .
fear of prosecution for violations of ‘fairly
administered laws’
does not itself qualify one as a ‘refugee’
or make one eligible for withholding of
deportation.” Chang v. I.N.S., 119 F.3d
1055, 1060 (3d Cir. 1997) (citations
omitted). However, fear of prosecution,
even under generally applicable laws, may
constitute grounds for asylum or
withholding of removal. See id. “[I]f the
prosecution is motivated by one of the
enumerated factors, such as political
opinion, and if the punishment under the
law is sufficiently serious to constitute
persecution, then the prosecution under
the law of general applicability can justify
asylum or withholding of deportation.” Li
Wu Lin v. I.N.S., 238 F.3d 239, 244 (3d
Cir. 2001) (citing Chang, 119 F.3d at
1061); see also Fisher v. I.N.S., 79 F.3d

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955, 962 (9th Cir. 1996) (explaining that
there are “ two exceptions to the general
rule that prosecution does not amount to
persecution—disproportionately severe
punishment and pretextual prosecution”).
In this case, there was substantial
evidence to support the conclusion that
Shardar has not met his burden of proof
for establishing eligibility for asylum.
Rather, the evidence supports the
conclusion that Shardar was not
persecuted on account of his political
opinion; rather, he was legitimately
prosecuted for participation in a violent
political demonstration. Moreover,
Shardar failed to establish that the system
is so corrupt that if he is prosecuted after
returning to Bangladesh, he will be unable
to receive fair adjudication and
punishment. In fact, even his own
testimony suggests that thus far the
proceedings against him have been
conducted in a fair manner.
Shardar’s strongest claim in support
of asylum is his testimony, substantiated
by the hospital report, that he was severely
beaten while in police custody. The
evidence indicates these beatings were
politically motivated—the perpetrators
yelling, “Ershad time is over. Now is, is
BNP time.” A.R. at 168. Such treatment
is, to say the least, extremely troubling.
Nevertheless, this evidence alone does not
undermine the conclusion that there was
substantial evidence to support the denial
of his application for asylum.
We cannot disagree with the IJ’s
conclusion that even if this treatment rises
to the level of past persecution, the
circumstances have changed such that the
presumption of a well-founded fear of
future persecution is rebutted. Shardar
was released on bail from custody, and
there is no evidence suggesting that if he
returns for prosecution he will be
persecuted on the basis of his political
opinion. Moreover, the “1997 State
Department Profile” provides substantial
evidence in support of the conclusion that
the country conditions have changed in
Bangladesh, specifically noting that Jatiyo
Party members are able to “defend
themselves in court actions and have the
same judicial righ ts as other
Bangladeshis.” A.R. at 257.
Having concluded substantial
evidence supports the BIA’s denial of
asylum, we conclude that withholding of
removal was also properly denied. “The
standard for withholding of removal is
higher than, albeit similar to, the standard
for asylum. . . . If [a petitioner] is unable
to satisfy the standard for asylum, he
necessarily fails to meet the standard for
withholding of removal under [the INA].”
Lukwago v. Ashcroft, 329 F.3d 157, 182
(3d Cir. 2003).
III.
In the alternative, Shardar
maintains that the fact that he has
established that he was severely beaten in
prison and the documentary evidence in
the record that shows this is a common
practice in Bangladesh prisons should be

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sufficient to justify, at the very least, a
grant of withholding of removal under the
CAT. On June 23, 1999, Shardar filed a
motion to remand, requesting that the BIA
remand his case to the IJ for consideration
under the CAT, which having been passed
in 1999 was not effective when the IJ
rendered his decision in July 1998. We
conclude that the IJ properly denied the
motion for reconsideration.
“We review the BIA’s denial of the
motion to reopen [or remand4] for abuse of
discretion, ‘mindful of the “broad”
deference that the Supreme Court would
have us afford.’” Ezeagwuna v. Ashcroft,
325 F.3d 396, 409 (3d Cir. 2003) (quoting
Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir.
2001) (citing I.N.S. v. Abudu, 485 U.S.
94, 108 (1988)). “Motions to reopen
implicate important finality concerns even
when they seek to raise an underlying
claim for relief, such as relief under the
Convention Against Torture, that is not
committed to the Attorney General’s
discretion.” Sevoian v. Ashcroft, 290
F.3d 166, 172 (3d Cir. 2002). We
conclude that the BIA did not abuse its
discretion.
“An applicant for relief on the
merits under the Convention Against
Torture bears the burden of establishing
‘that it is more likely than not that he or
she would be tortured if removed to the
proposed country of removal.’” Id. at
174-75 (quoting 8 C.F.R. § 208.16(c)(2)).5
4 We treat the motion styled as a
“motion to remand” as a motion to reopen
since it requires reopening the
proceedings. Notably, the BIA decision
characterizes Shardar’s motion as
requesting that the “proceedings be
reopened.” A.R. at 2. Cf. 8 C.F.R. §
1003.2(c)(4) (explaining that “a motion to
reopen a decision rendered by an
Immigration Judge or Service officer that
is pending when an appeal is filed, or that
is filed when an appeal is pending before
the Board, may be deemed a motion to
remand”).
5 “Torture” is defined as follows:
Torture is defined as 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 t h ird p e r s o n h as
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 an official
capacity.

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Thus, “the prima facie case standard for a
motion to reopen under the Convention
requires the applicant to produce objective
evidence showing a ‘reasonable
likelihood,’ that he can establish that he is
more likely than not to be tortured.” Id. at
175 (quoting In re S-V-, Int. Dec. 3430,
2000 WL 562836, at *3 (BIA May 9,
2000) (en banc)).
In this case, the BIA did not abuse
its discretion in determining that Shardar
had not met this standard. As outlined
above, substantial evidence supports the
conclusion that Shardar faces legitimate
prosecution, rather than persecution, if he
returns to Bangladesh. The evidence does
suggest that Shardar suffered beatings in
the past. However, the BIA did not abuse
its discretion in determining that this
treatment did not rise to the level of
“torture,” or that there is not a reasonable
likelihood that Shardar can establish that
it is more likely than not he will be
tortured if removed.
****
For the foregoing reasons, we will
deny Shardar’s petition for review of the
decision of the BIA.
8 CFR § 208.18(a)(1).

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