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Khan v. Holder

United States Court of Appeals, First Circuit

August 9, 2013

ERIC H. HOLDER, JR., Attorney General, Respondent.


William P. Joyce and Joyce & Associates P.C. on brief for petitioner.

Kelly J. Walls, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Stuart F. Delery, Acting Assistant Attorney General, Civil Division, and Leslie McKay, Assistant Director, Office of Immigration Litigation, on brief for respondent.

Before Lynch, Chief Judge, Lipez and Thompson, Circuit Judges.

LYNCH, Chief Judge.

On November 3, 2010, an immigration judge (IJ) denied Siraj Ahmad Khan's application for asylum, withholding of removal, and withholding under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed this denial on December 18, 2012. Khan timely petitions for review of the BIA's decision. We deny his petition.


Khan is a native and citizen of Pakistan who entered the United States on April 5, 2008 on a seaman crew visa that authorized him to remain in the United States until May 4, 2008. Khan had flown from Pakistan to Dubai and then to New York; his purported ultimate destination was Bermuda, where he was to rejoin the ship on which he worked. Khan remained in the United States in New York instead.

On September 10, 2008, Khan filed an application for asylum and for withholding of removal in which he also sought protection under the CAT. Khan alleged that he was eligible for relief based on claims he had and would suffer persecution because of his political opinion and membership in a particular social group. On July 14, 2009, Khan was issued a notice to appear (NTA) which alleged that he was removable as an alien who had remained in the United States beyond May 4, 2008 without authorization. Khan conceded the allegations in the NTA and sought the relief described.

A. Khan's Hearing Before the IJ

On November 3, 2010, an IJ conducted a merits hearing in Khan's removal proceedings, at which Khan testified. We describe Khan's testimony and evidence.

Khan was born on December 24, 1958, in the village of Shah Dheri, in the Swat district in Pakistan. Khan had a wife and seven children who, at the time of the hearing, had remained in Pakistan but no longer resided in Shah Dheri; instead, they lived with relatives in other towns.

The Taliban became active in Khan's area of Pakistan in 2007, while Khan was away working on a ship. When Khan returned to Shah Dheri in January 2008, he found that the Taliban were forcing local residents to cut their hair and grow long beards, and that they were "brainwashing young people" via radio broadcasts. Khan also stated that the Taliban were kidnapping children to secure ransom money from their families.

Khan testified that the Taliban in fact blew up his daughter's school in January 2008. The Taliban believed that girls should not attend school and that English should not be taught in schools. Khan said that he "kn[e]w" the Taliban was responsible for destroying this school because "there is no one else" who would have done it. He conceded that the Taliban did not target his daughter's school specifically because his daughter went there. Khan's view was that the Taliban's philosophy was "completely wrong" and "very bad for the future generation."

Khan testified that after returning home in January 2008, he started secretly urging his neighbors in the village "to make sure not to lose your freedom to Taliban" and "not to allow your children to be influenced by them." Khan also claimed that he went to the local police station ten to twenty times to report Taliban activities that community members described to him, and that the police initially arrested Taliban members based on this information, but later became ineffective.

Khan learned from a friend that the Taliban had held a meeting in a mosque where they discussed plans to blow up the local police station. Upon learning this information, Khan "informed to the police and they thanked [him] polite[ly]"; the police then called the army, which "put that area under surveillance and secure[d] it." Khan conceded that the presence of the army "improve[d] the situation in Shah Dheri, " though he said the Taliban remained secretly active.

Khan testified that after he disclosed this Taliban plot to the police, someone threw a letter attached to a stone at his house. Khan submitted this letter ...

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