Mohammed Elahi Baksha v. Attorney General of the United States

*
The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2055
MOHAMMED ELAHI BAKSHA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A70-704-079
(U.S. Immigration Judge: Honorable Alberto J. Riefkohl)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 27, 2007
Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN *, Circuit Judges.
(Filed June 18, 2007)
OPINION OF THE COURT
SCIRICA, Chief Judge.
Mohammed Elahi Baksha petitions for review of the Board of Immigration
Appeals’ order affirming an Immigration Judge’s denial of his applications for political

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1 The Jatiya party-backed president stepped down on December 6, 1990, but Baksha
characterized the government’s collapse as a “gradual” one occurring in “late 1989–90.”
(J.A. 549.)
2
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We will deny the petition and affirm the BIA’s order.
I.
Baksha, a native of Pakistan and citizen of Bangladesh, entered the United States
on a thirty-day business visa on August 28, 1992, and has remained here ever since. He
filed an initial application for political asylum in February 1993, and an amended
application on July 27, 1998, on which date he was interviewed by the INS’s Asylum
Office. His application was denied, and on August 5, 1998, the INS served Baksha with a
notice to appear charging that he had overstayed the term of his visa and was removable
from the United States. At a hearing before the IJ on April 7, 2000, Baksha conceded his
removability, but renewed his request for political asylum, and also sought withholding of
removal and CAT relief.
According to his application and testimony, Baksha was a successful businessman
in Bangladesh, as well as a prominent supporter (though notably not a member) of the
Jatiya political party. Beginning during the Jatiya party-led government’s 1990 collapse,1
Baksha contended that he and his family were subjected to surveillance and violent
threats by members and operatives of the Jatiya party’s political opponents, the

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2 The Awami League was in power (as part of a coalition of which the Jatiya party was
also a member) at the time of Baksha’s hearing before the IJ. But the BNP is currently
the majority party.
3
Bangladesh National Party (“BNP”) and the Awami League.2 He contended that, in
November 1990, he narrowly escaped an attempt on his life orchestrated by the leaders of
the rival parties. Baksha also contended that he was forced to resign from his position as
Director of Operations of a shipping company for reasons related to his political opinion:
after undertaking an investigation in August or September 1990 into embezzlement at the
Khulna Diabetic Association (a charity he had founded), Baksha discovered that the
individuals responsible were two executives affiliated with the BNP and the Awami
League; those executives convinced two of Baksha’s fellow Directors at the shipping
company (who were also affiliated with the rival parties) to force Baksha out. Having
lost his business and position in society, Baksha contended he went into hiding for two
years, while his family members were forced to disperse. He contended he never
contacted the police because he feared they, too, were controlled by the rival parties. He
contended he expected them to jail him should he return to Bangladesh, where his family
still lives. He contended his family members have continued to be subjected to violent
threats, that his son was detained by the police for several hours in 1993, and that one of
his daughters was forced to marry a BNP-backed gang leader.
The IJ denied Baksha’s requests for relief in a July 17, 2000, decision, finding
Baksha had failed to make a sufficient case of persecution to receive asylum and also

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stating his testimony had “left doubts about his sincerity and truthfulness.” (J.A. 66.)
The IJ ordered Baksha removed to Bangladesh, granting him the right of voluntary
departure. Baksha appealed the IJ’s ruling to the BIA on August 16, 2000. In an April
22, 2003, decision, the BIA affirmed the IJ’s conclusion that Baksha had failed to
establish either past persecution on the basis of his political opinion in Bangladesh or a
well-founded fear of persecution should he return, and dismissed his appeal. Specifically,
the BIA found that the mistreatment Baksha and his family allegedly suffered in
Bangladesh had not risen to the level of persecution, and that they had not been targeted
on the basis of one of the five statutory protected grounds for asylum. The BIA reversed
the IJ’s adverse credibility determination because the IJ had failed to “provide adequate
support for his statements questioning [Baksha’s] credibility.” (J.A. 2.)
The BIA had jurisdiction to review the IJ’s order under 8 C.F.R. § 1003.1(b)(3).
We have jurisdiction to review the BIA’s final order under 8 U.S.C. § 1252(a). Under 8
U.S.C. § 1252(b)(4)(B), “administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” Factual findings
must be upheld if they are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
We have noted this is a deferential standard of review. See Jarbough v. Attorney Gen.,
483 F.3d 184, 191 (3d Cir. 2007) (“[W]e are not triers of fact, and Congress mandates
that we leave the agency’s factfinding undisturbed unless the evidence compels a contrary
conclusion.”). The substantial evidence standard applies to determinations whether an

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alien has experienced past persecution or has a well-founded fear of persecution, see
Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001), as well as credibility
determinations, see Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).
II.
An applicant for asylum on the basis of past persecution must show: (1) one or
more incidents that rise to the level of persecution; (2) that occurred on account of his or
her race, religion, nationality, membership in a particular social group, or political
opinion; and (3) that were committed by the government or by forces the government was
either unable or unwilling to control. Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d
Cir. 2003); 8 U.S.C. § 1101(a)(42)(A) (2006) (defining “refugee”). In order to establish a
well-founded fear of persecution on account of one of the five statutory protected grounds
for asylum, an applicant must “show that he has a subjective fear of persecution that is
supported by objective evidence that persecution is a reasonable possibility.” Abdille,
242 F.3d at 496. “A showing of past persecution raises a presumption of a well-founded
fear of future persecution.” Abdulrahman, 330 F.3d at 592.
Persecution “is an extreme concept that does not include every sort of treatment
our society regards as offensive.” Fatin v. INS, 12 F.3d 1233, 1243 (3d Cir. 1993).
“Abusive treatment and harassment, while always deplorable, may not rise to the level of
persecution.” Jarbough, 483 F.3d at 191. But physical abuse is not a
prerequisite—persecution may also take the form of “deliberate imposition of severe
economic disadvantage which threatens a petitioner’s life or freedom.” Li v. Attorney

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Gen., 400 F.3d 157, 168 (3d Cir. 2005). The economic persecution standard is stringent,
but not insurmountable. See id. at 168 n.7 (“[T]he economic harm . . . must be severe,
[but] we do not require complete loss of all means of earning a livelihood, nor do we
require evidence of near-starvation, for economic restrictions to rise to the level of
persecution.”).
The BIA found “the mistreatment [Baksha] claimed that he and his family
experienced does not rise to the level of persecution.” (J.A. 2.) According to the record,
Baksha and his family were subjected to surveillance and violent threats. Baksha himself
narrowly escaped an attack by unidentified assailants, and his son was detained by the
police on one occasion. Additionally, Baksha was forced to resign from his corporate
position. Baksha’s mistreatment makes a strong case for past persecution, but we do not
review this determination de novo. Under the deferential substantial evidence standard,
we cannot say that this record compels a finding of past persecution. Likewise, the record
does not compel a reversal of the BIA’s conclusion that Baksha “was targeted by business
associates because he had discovered they were stealing money and because they wanted
him out of the business,” and therefore “not . . . on the basis of one of the five statutory
grounds.” (J.A. 3.) There was substantial evidence in the record on this point, including
Baksha’s own testimony that the catalyst for the November 1990 attack (which actually
occurred while the Jatiya party was still in power) was his investigation into
embezzlement at the Khulna Diabetic Association. He also stated on cross-examination

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3 The BIA also concluded Baksha had failed to establish eligibility for withholding of
removal and CAT relief. An applicant for withholding of removal must show a clear
probability that he or she would be subjected to persecution if removed, and an applicant
(continued...)
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that his fellow Directors may have wanted to force him out of his corporate position so
that they could embark on a new business venture.
Perhaps most significantly, the BIA concluded Baksha had “not offered any
evidence to indicate that he now has a reasonable possibility or a clear probability of
facing persecution on account of his political opinion or his membership in a particular
social group if he is forced to return,” again noting that the persecution he allegedly
feared was not on account of one of the five protected statutory grounds for asylum. (J.A.
3.) Again, regardless of how we might decide the question de novo, the record does not
compel us to conclude to the contrary. In his amended asylum application, Baksha
contended he would fear for his life if he should be returned to Bangladesh. When asked
before the IJ exactly what he feared would happen, Baksha referred to the accused
embezzlers, among others, and said: “They will start doing the same thing.” (J.A. 132.)
Though he had never been arrested previously, he testified that he would be jailed and
would suffer greatly if he returned. The objective component of the reasonable fear of
persecution standard “requires a showing by credible, direct, specific evidence in the
record that persecution is a reasonable possibility.” Leia v. Ashcroft, 393 F.3d 427, 433
(3d Cir. 2005). We will not reverse the BIA’s conclusion that Baksha made an
insufficient showing of a well-founded fear of persecution. 3

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3
(...continued)
for CAT relief must show it is more likely than not that he or she would be tortured if
removed. Because we conclude the BIA’s determination that Baksha failed to establish
eligibility for asylum was supported by substantial evidence, it follows that the
determinations under the more rigorous standards were also supported by substantial
evidence. See Zubeda v. Ashcroft, 333 F.3d 463, 469–70 (3d Cir. 2003) (“[I]f an alien
fails to establish the well-founded fear of persecution required for a grant of asylum, he or
she will, by definition, have failed to establish the clear probability of persecution
required for withholding of deportation.”).
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III.
We will deny the petition and affirm the BIA’s order.

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