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Federal Appeals Court Sends Asylum Case Back to Immigration Board to Reconsider Taliban Threat
The National Law Journal
A federal appeals court has sent a case back to the Board of Immigration Appeals to "fully consider" whether the Taliban would persecute a Pakistani political and peace activist and his family if they're denied asylum.
On Thursday, the U.S. Court of Appeals for the First Circuit in Khattak v. Holder vacated the board's December 2011 order, which affirmed an immigration judge's May 2010 denial of the family's joint asylum application, and remanded the case.
Javed Iqbal Khattak; his wife, Naheed Alam Khattak; and their children, Fatima Javed and Shahbaz Khan, are seeking asylum in the United States.
The family lived in Pakistan's Nowshera District and also owned a house in Islamabad.
According to his testimony and affidavits, Khattak was active in the Awami National Party and vice president of the Pakistan International Human Rights Organization. In August 2008 Khattak joined the Nowshera Peace Committee as a volunteer "special police officer" who advised people that the Taliban was not fighting a "fight of Islam."
In the spring of 2009, the family started receiving threatening telephone calls, and the Taliban sent threatening letters about the family to his children's schools.
In July of that year, the family entered the United States on visitor visas. In November, they filed applications for asylum, withholding of removal, and relief under the Convention Against Torture.
In his ruling, the immigration judge cited Khattak's "subjectively genuine fear of returning to Pakistan." But the judge found that Khattak did not prove that fear was objectively reasonable because his special police officer activities made him a target, not his political party activism. The judge also held that Khattak and his family would be safe if they relocated to Islamabad.
Chief Judge Sandra Lynch wrote the opinion, joined by Judge Jeffrey Howard and Senior Judge Kermit Lipez.
Lynch first took issue with the board's lack of analysis in its finding that Khattak did not show he and his family would be "singled out" if they returned. She noted that even if the Taliban targeted him because of his special police work "it does not disqualify Khattak from establishing eligibility for asylum."
On the board's finding that Khattak has not shown that the Pakistani government is unable to protect him from the Taliban attacks, Lynch wrote, "although … military action indicates that the Pakistani government is willing to take on the Taliban, such action does not show that the Pakistani government is able to protect its citizens from Taliban attacks."
Lynch noted that the board correctly concluded that Khattak has the burden of proving that relocation to Islamabad would be unreasonable, but found that the board failed to address whether it would keep him safe: "Here, neither the [immigration judge] nor the [board] addressed evidence in the record indicating that the Taliban's reach may extend as far as Islamabad."
Khattak's lawyer, Bill Joyce of Boston's Joyce & Associates, said this case is "very important in setting out some of the evidentiary rules in asylum cases for the immigration court, particularly in countries where the government is supposed to be our ally."
The Justice Department did not respond to a request for comment.