SHAHZAD v. BARR (2020)

SUMMARY ORDER

Petitioner Khurram Shahzad, a native and citizen of Pakistan, seeks review of a December 6, 2017 decision of the BIA affirming a November 8, 2016 decision of an Immigration Judge (“IJ”) denying Shahzad's application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Khurram Shahzad, No. A XXX XX7 661 (B.I.A. Dec. 6, 2017), aff'g No. A XXX XX7 661 (Immig. Ct. N.Y.C. Nov. 8, 2016). We assume the parties’ familiarity with the underlying facts and procedural history.

Under the circumstances of this case, we have reviewed the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). Accordingly, we assume Shahzad's credibility as to past events and his subjective fear of future harm and address only the agency's conclusion that he failed to establish an objectively reasonable fear of harm on the grounds alleged. Id.; see Yan Chen v. Gonzales, 417 F.3d 268, 271–72 (2d Cir. 2005). The applicable standards of review are well established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

An asylum applicant, like Shahzad, who has not suffered any past harm, may establish eligibility for asylum by demonstrating a well-founded fear of future persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1158(b)(1)(B)(i); see also 8 C.F.R. § 1208.13(b)(2). The persecution may be on account of an opinion imputed to the applicant by the persecutor, regardless of whether this imputation is accurate. See Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir. 2005). The applicant must “present credible testimony that he subjectively fears persecution and establish that his fear is objectively reasonable.” Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).

The agency did not err in determining that Shahzad failed to establish an objectively reasonable fear of persecution on account of his father's political activities, whether framed as a claim based on imputed political opinion or one based on family ties. First, there was no evidence that any family member other than Shahzad's father was harmed before the family left Pakistan in 2002. Second, Shahzad's claimed fear was undermined by the fact that both his father and brother returned to Pakistan without suffering any actual harm. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir. 1999) (finding claimed fear of future persecution weakened when similarly situated family members remain unharmed in petitioner's native country). Although Shahzad alleged that his brother was the victim of an attempted robbery and hostage-taking, his brother remained in Pakistan for a month unharmed and Shazad's father returned to Pakistan twice for approximately three and five months without being harmed. Although Shahzad's father testified that he heard gunshots outside the gate of his house on his last trip, he did not know who was responsible or whether he was the target. Third, there was no clear testimony or country conditions evidence as to who would target Shahzad because of his father's past political activity or that family members generally were targeted by opposition parties.

Although Shahzad argues that the agency failed to consider an expert's declaration in assessing this claim, the IJ discussed the expert's opinion, but reasonably gave it diminished weight because the professor was not subject to cross examination and the letter did not provide support for the conclusion that family members are targeted by opposition parties. See Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013) (“We generally defer to the agency's evaluation of the weight to be afforded an applicant's documentary evidence.”). Given the lack of evidence that Shahzad would be harmed on account of his father's political activities, his asylum claim was speculative. See Jian Xing Huang v. U.S. INS, 421 F.3d 125, 129 (2d Cir. 2005) (“In the absence of solid support in the record ․ [an applicant's] fear is speculative at best.”).

The agency also did not err in determining that Shahzad's fear of persecution based on his connections to the United States or his “Americanized” manner was speculative. See id. Shahzad testified that the Pakistani government may target him as an American spy, but he did not provide any basis for this assertion. And although the expert concluded that Shahzad would likely be targeted by religious extremists because he “expressed his desires to remain in the [United States],” Shahzad did not identify how religious extremists would learn that he sought to remain in the United States. Thus, the IJ reasonably determined that although there was evidence of anti-Western sentiment in Pakistan, Shahzad did not show that he would be targeted for harm as a Pakistani national returning from the United States. See id.

The agency's conclusion that Shahzad failed to show an objectively reasonable fear of harm on any of his alleged facts is dispositive of asylum, withholding of removal, and CAT relief. See Lecaj v. Holder, 616 F.3d 111, 119 (2d Cir. 2010). Shahzad's argument that the agency erred in relying on the asylum grounds to deny CAT relief is misplaced. Shahzad's failure to show an objectively reasonable fear of future harm is dispositive, and we do not reach the agency's alternative finding that one of Shahzad's alleged social groups was not cognizable. See INS v. Bagamasbad, 429 U.S. 24, 25, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976) (“As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach.”).

For the foregoing reasons, the petition for review is DENIED. All pending motions and applications are DENIED and stays VACATED.