Block on Trump's Asylum Ban Upheld by Supreme Court
A former lawyer in Pakistan who overstayed his U.S. visa was denied his political asylum petition for withholding of removal and his Convention Against Torture petition by both an immigration judge and the Board of Immigration Appeals. The First Circuit granted, in part, his petition for witholding of removal and remanded it to the BIA for further proceedings. However, his CAT petition was denied for lack of evidence of torture.
Mohammed Ilyas Javed was a lawyer in Pakistan representing a local political party, the Hunj group. Some members of the group were injured in a shooting involving another local party, the Batore group. These groups were subsidiaries of the ruling national Pakistan party. The two groups were in a dispute over a supposed rigged election. Javed soon experienced threats and harm based on the mistaken affiliation to the Hunj group.
Javed seeks political asylum in the U.S. for his link to his client's political party. In Pakistan, he attempted to get local police to file a report needed for the prosecution of his client's case, but he was jailed instead. Javed alleged that the police helped to further delay the criminal proceedings because they were siding with the Batore group. The Batore group was based in Javed's home area. They threatened him and beat him up on occasion for having an affiliation with the Hunj group.
When Javed later opened his own law office, the building was destroyed by the local government under the Batore group's control. As a result of these events and threats, he fled Pakistan for South Africa leaving family behind, and then to the U.S. Javed did not want to return to the country where threats on his life continued in his absence.
The IJ denied Javed's withholding of removal petition because it was not established that he had experienced the sufficient level of persecution as a result of an immutable characteristic. The IJ also found that the harm he experienced was from his private involvement in litigation, and not related to a protected ground.
The First Circuit disagreed, finding that evidence shows the harm was not entirely a private dispute. The police and local officials worked to protect the Batore group. The court also found that the pattern of threats to Javed were severe enough to constitute persecution, especially when involving death threats. The First circuit found the evidence sufficiently showed Javed experienced past persecution by the local authorities.
Although the court found that Javed had experienced past persecution by the government from the perceived affiliation to the Hunj group, the First Circuit remands this case to allow the government to attempt to rebut the presumption of threat of future persecution.
The District Court rejected Javed's CAT petition because there was no evidence of past torture or threat of future torture by the national government. It did not believe, based on the evidence, that Javed will likely be tortured by the government -- even though his persecutors were affiliated with the ruling political party. With no evidence of future torture by the Pakistan government, the court cannot make that "inferential leap" to grant the CAT petition.