Shardar v. Atty Gen USA

Opinions of the United

2007 Decisions States Court of Appeals

for the Third Circuit

9-19-2007

Shardar v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 06-1238

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 06-1238

MOHAMMAD ARIF SHARDAR,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review of an Order of

The Board of Immigration Appeals

Immigration Judge: Honorable Annie S. Garcy

(No. A72-779-408)

Argued July 10, 2007

Before: RENDELL and AMBRO, Circuit Judges,

SHAPIRO,* District Judge

(Opinion filed: September 19, 2007)

Alan M. Strauss, Esquire (Argued)

Law Office of Stanley H. Wallenstein

41–43 Beekman Street, 3rd Floor

New York, NY 10038

Counsel for Petitioner

Peter D. Keisler

Assistant Attorney General

Civil Division

Alison M. Igoe

Senior Litigation Counsel

Richard M. Evans, Esquire

Joan E. Smiley, Esquire

Lyle D. Jentzer, Esquire (Argued)

Ada E. Bosque, Esquire

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

*

Honorable Norma L. Shapiro, Senior District Judge for

the Eastern District of Pennsylvania, sitting by designation.

2

OPINION OF THE COURT

AMBRO, Circuit Judge

Mohammad Arif Shardar seeks review of an order of the

Board of Immigration Appeals (“Board” or “BIA”) denying his

motion to reopen removal proceedings. Because we conclude

that the Board abused its discretion in denying the motion, we

grant the petition for review and remand with instructions to

reopen the proceedings.

I. Factual and Procedural Background

Shardar is a native of Bangladesh. He became a member,

and later a local leader, of the Jatiya Party. That political party

was formed by Army Chief of Staff General H.M. Ershad, who

seized power in a bloodless coup d’état in 1983 and ruled

Bangladesh until he was forced to resign in December 1990. In

1989, Shardar became Secretary of the Jatiya Party in Demra, a

suburb of the capital, Dhaka. In the wake of Ershad’s

resignation, there was violence directed against those associated

with Ershad and the Jatiya Party. In Demra, Jatiya Party

headquarters were ransacked by members of rival political

factions and Shardar’s life was threatened. One of the rival

political parties, the Bangladesh Nationalist Party (BNP), won

national elections in February 1991.

3

In January 1992, Shardar participated in a political

demonstration in support of the Jatiya Party in Jatrabari Square

in Demra. During the demonstration, police dispersed the crowd

with tear gas and arrested Shardar and three others. Shardar was

charged with having weapons and explosives, but he testified in

removal proceedings that the demonstration was peaceful and

that the allegations against him were false.1 Following his

1

The following is the police report version of the

incident:

[T]hey were delivering defamatory,

detractive and slanderous slowgans [sic]

against the present Gov[ernmen]t . . . . We

then and there made an importunate [sic]

entreaty to them not to deliver such types

of slowgans[,] for which they got

infuriated and[,] being armed with deadly

weapons[,] made a sudden invasion on us.

They exploded some bombs at the spot one

after another. Many padestrians [sic] were

lethally injured. We[,] to control this

predicament [sic] situation [,] used tear gas

to disperse them but they became more

furious and begun [sic] to throw brickbats

on us. We[,] having found no other way[,]

advanced with fortitute [sic] to arrest them

and Md. Arif Sardar [sic] accused No. 1

arrested by us, under whose Leadership

this occurrence was occurred and the other

skedaddled from the spot . . . . All the

4

arrest, Shardar testified that he was severely beaten by police.

The police struck him with canes and kicked him. They also

told him that “Ershad time is over. Now is . . . BNP time.”

App. at A330. While in custody, Shardar was forced to confess

to the charges against him and to renounce the Jatiya Party in

order to stop the beating and save his life. After three days in

the police station and six days in a jail, Shardar appeared before

a judge and was released on bail. He was then taken by his

father to a private medical clinic for nine days to receive

treatment for the injuries he sustained while in police custody.

Fearful of further police brutality and not confident in his

ability to get a fair trial, Shardar evaded the police who came

looking for him on several occasions. Eventually, a warrant was

issued for his arrest because of his failure to attend a hearing.

When the police discovered that he was hiding at a friend’s

house, Shardar decided to flee the country and procured a false

passport. He entered the United States in August 1992 and filed

an affirmative application for asylum in November of that year.

After initially denying his asylum claim, the Government

began removal proceedings; Shardar requested asylum relief and

accuseds [sic] are the members of Jatiyo

[sic] Party, they are hideous, ferocious,

turbulent, rampant and recalcitrant in

nature.

App. at A441–42.

5

withholding of removal. A hearing was held before an

Immigration Judge in February 1998, at which Shardar testified

and presented evidence. In July 1998, the IJ denied his claim

for asylum and for withholding of removal but allowed him to

depart the United States voluntarily. The IJ found Shardar

credible (“The respondent testified extremely credibly with

regard to his incarceration and the beatings that he suffered.”),

and specifically credited his testimony regarding the beatings he

had received at the hands of the police.

Nevertheless, while conceding that Shardar could

arguably show past persecution, the IJ rejected his asylum claim

after concluding that he had not shown that his arrest was

pretextual or that he could not receive justice in the Bangladeshi

courts. The IJ insisted that Shardar feared prosecution, not

persecution. In rejecting Shardar’s contentions, the IJ

specifically relied on a 1997 State Department report, which

stated that Jatiya Party members who had been harassed by the

BNP “were able to defend themselves in court actions and have

the same judicial rights as other Bangladeshis.” App. at 419.

Without some evidence that the judicial system was corrupt, the

IJ concluded that Shardar could not sustain his burden of

showing a well-founded fear of persecution.

In August 1998, Shardar appealed the IJ’s decision to the

Board, and on June 25, 1999, he moved to reopen removal

proceedings in order to seek relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman or

6

Degrading Treatment or Punishment (CAT), Dec. 10, 1984, S.

Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85. The Board

affirmed the IJ’s decision and denied his motion to reopen in

March 2003, stating that it had “no reason to conclude that the

prosecution [Shardar] may face if he returns to Bangladesh is

politically motivated, and there is no reason to find that he

would be unable to establish his claimed innocence.” Shardar

petitioned for review of the Board’s decision in our Court and,

based on the record before us at that time, we denied that

petition in August 2004. Shardar v. Ashcroft, 382 F.3d 318 (3d

Cir. 2004).

Following our Court’s denial of his petition for review,

Shardar filed a motion before the Board in October 2004 to

reopen his removal proceedings based on changed country

conditions and new evidence. Specifically, Shardar presented

evidence that the re-emergence of the BNP as the ruling party in

Bangladesh in 20012 represented a change in country condition

2

Although not part of the record before us, we note that

it has been reported in the press that in November 2006 the

BNP’s term as ruling party ended. See, e.g., Somini Sengupta,

Bangladesh Says It Won't Let an Ex-Leader Re-enter the

Country, N.Y. Times, Apr. 19, 2007, at A4. Although

parliamentary elections were scheduled for January 2007, the

interim caretaker government backed by the army has postponed

elections under emergency powers. Id. This does not affect our

review of the Board’s decision but, of course, these and other

developments in Bangladeshi politics will need to be considered

7

and that his position as a former local leader of the Jatiya Party

made it likely that he would be persecuted if returned to

Bangladesh. The Board denied his motion to reopen in a three-

paragraph order, which concluded that Shardar had “not

adequately demonstrated that his situation is appreciably

different from the dangers faced by all his countrymen,” and that

he had “failed to establish [that] materially changed country

conditions exist in Bangladesh.”3 Shardar filed a timely petition

for review of the Board’s order.

II. Jurisdiction and Standard of Review

The BIA has jurisdiction over motions to reopen removal

proceedings under 8 C.F.R. § 1003.2(a). Our Court has

jurisdiction over Shardar’s petition for review under 8 U.S.C.

§ 1252. Cruz v. Att’y Gen., 452 F.3d 240, 246 (3d Cir. 2006)

(“Congress has explicitly granted federal courts the power to

review ‘any final order of removal’ under 8 U.S.C. § 1252(a)(1).

Implicit in this jurisdictional grant is the authority to review the

denial of a motion to reopen any such final order.”).

“We review the BIA’s denial of a motion to reopen for

abuse of discretion . . . and review its underlying factual

upon reopening the removal proceedings.

3

The Board’s order is dated February 2005. However, it

reissued the order in December 2005 because of an “error in

administrative processing.”

8

findings related to the motion for substantial evidence.” Filja v.

Gonzales, 447 F.3d 241, 251 (3d Cir. 2006) (internal citation

omitted). Its “denial of a motion to reopen may only be reversed

if it is ‘arbitrary, irrational, or contrary to law.’” Id. (quoting

Sevovian v. Ashcroft, 290 F.3d 166, 174 (3d Cir. 2002)).

III. Discussion

A. Introduction

The resolution of this appeal turns on two related but

analytically distinct issues: (1) whether Shardar has presented

evidence of changed country conditions sufficient to allow him

to file a motion to reopen more than 90 days after the Board

rejected his claims; and (2) whether the new evidence Shardar

has presented and the prior evidence in the record together show

that he has a reasonable likelihood of prevailing on his asylum

claim, i.e., whether he has presented a prima facie case for

asylum.4 The first is a threshold question: does the new

evidence show a change in country conditions that would allow

the motion to reopen to be brought? The second then asks a

question about the merits: does the new and the old evidence

together make out a prima facie case for asylum? We conclude

4

Although Shardar seeks, in addition to asylum,

withholding of removal and CAT relief in his motion to reopen,

because we conclude that he has made a prima facie case for

asylum, we need not deal with these forms of alternative relief.

9

that the decision of the Board answering no to these two

questions is both irrational and arbitrary; thus it abused its

discretion. Furthermore, to the extent the Board’s decision is

grounded in a factual finding that Shardar’s “situation” is not

“appreciably different from the dangers faced by all his

countrymen,” that finding is not supported by substantial

evidence.

B. Governing Legal Standards

1. Asylum

Under 8 U.S.C. § 1158(b), the Attorney General may

grant asylum to an alien who is a “refugee.” A “refugee” is

defined as

any person who is outside any country of such

person’s nationality . . . who is unable or

unwilling to return to, and is unable or unwilling

to avail himself or herself of the protection of,

that country because of persecution or a well-

founded fear of persecution on account of race,

religion, nationality, membership in a particular

social group, or political opinion.

8 U.S.C.A. § 1101(a)(42)(A). “An applicant bears the burden

of proving eligibility for asylum based on specific facts and

credible testimony.” Guo v. Ashcroft, 386 F.3d 556, 561 (3d

10

Cir. 2004). A well-founded fear of persecution is the key to

eligibility. 8 C.F.R. § 208.13(b). Persecution includes “‘threats

to life, confinement, torture, and economic restrictions so severe

that they constitute a real threat to life or freedom.’” Lukwago

v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (quoting Lin v.

INS, 238 F.3d 239, 244 (3d Cir. 2001)). “The persecution must

be committed by the government or forces the government is

unable or unwilling to control.” Vente v. Gonzales, 415 F.3d

296, 300 (3d Cir. 2005) (internal quotation marks omitted). To

qualify for asylum, the applicant must show that the persecution

is on account of one of the statutorily recognized grounds, i.e.,

race, religion, nationality, membership in a particular social

group, or political opinion. Lukwago, 329 F.3d at 167.

If an applicant demonstrates past persecution on account

of a protected ground there is “a rebuttable presumption of a

well-founded fear of future persecution, as long as that fear is

related to the past persecution.” Id. at 174; 8 C.F.R.

§ 208.13(b)(1). This presumption may only be rebutted if the

Government proves by a preponderance of the evidence that: (1)

“[t]here has been a fundamental change in circumstances such

that the applicant no longer has a well-founded fear of

persecution”; or (2) “[t]he applicant could avoid future

persecution by relocating to another part of the applicant’s

country of nationality . . . and . . . it would be reasonable to

expect the applicant to do so.” 8 C.F.R. § 208.13(b)(1)(i).

An applicant who fails to demonstrate past persecution

11

may still qualify for asylum if he shows that he has a well-

founded fear of future persecution on account of a protected

ground. Lukwago, 329 F.3d at 174. A well-founded fear

includes both a subjective and objective component. Id. at 175.

“An applicant must ‘show that he has a subjective fear of

persecution that is supported by objective evidence that

persecution is a reasonable possibility.’” Id. (quoting Abdille v.

Ashcroft, 242 F.3d 477, 496 (3d Cir. 2001)); see also 8 C.F.R.

§ 208.13(b)(2)(i).

2. Motions to Reopen

There are both procedural and substantive hurdles that

must be overcome in a motion to reopen removal proceedings.

Under the governing regulations, “an alien may file only one

motion to reopen removal proceedings . . . and that motion must

be filed no later than 90 days after the date on which the final

administrative decision was rendered.” 8 C.F.R. § 1003.2(c)(2).

However, the “time and numerical limitations . . . shall not

apply” to motions to reopen that “apply or reapply for asylum or

withholding of deportation based on changed circumstances

arising in the country of nationality . . . if such evidence is

material and was not available and could not have been

discovered or presented at the previous hearing.” §

1003.2(c)(3). Therefore, if the asylum applicant presents

material evidence of changed country conditions that could not

have been presented during the hearing before the IJ, his motion

can be considered, even if there has been a prior motion to

12

reopen or the motion is beyond the 90-day time limit for filing.

See Filja, 447 F.3d at 251–54.

With regard to the substantive hurdle, “[a]s a general

rule, motions to reopen are granted only under compelling

circumstances.” Guo, 386 F.3d at 561. The Board has held that

in exercising its discretion to reopen proceedings “we have been

willing to reopen where the new facts alleged, when coupled

with the facts already of record, satisfy us that it would be

worthwhile to develop the issues further at a plenary hearing on

reopening.” In re L-O-G, 21 I. & N. Dec. 413, 419, 1996 WL

403255 (BIA June 14, 1996) (internal quotation marks omitted).

As noted, “[a] motion to reopen must establish prima facie

eligibility for [the relief sought].” Guo, 386 F.3d at 563. In

order to make a prima facie case, the applicant must “‘produce

objective evidence showing a “reasonable likelihood” that he

can establish [that he is entitled to relief].’” Id. (quoting

Sevovian, 290 F.3d at 175) (alteration in original). For an

asylum claim, this “means merely showing a realistic chance

that the petitioner can at a later time establish that asylum should

be granted.” Id. at 564. Facts presented in the motion to reopen

are “accepted as true unless inherently unbelievable.” Bhasin v.

Gonzales, 423 F.3d 977, 987 (9th Cir. 2005). That said, the

regulations provide that “[t]he Board has discretion to deny a

motion to reopen even if the party moving has made out a prima

facie case for relief.” 8 C.F.R. § 1003.2(a). But while the Board

has discretion to deny a motion to reopen notwithstanding a

prima facie showing, when it denies a motion to reopen on the

13

ground that the applicant has failed to make a prima facie

showing, we yet review that determination to ensure that it is

supported by substantial evidence and is not an abuse of

discretion. Sevovian, 290 F.3d at 174.

C. Changed Country Conditions

Shardar brought his motion to reopen in October 2004,

more than 90 days after the Board’s “final administrative

decision was rendered” in March 2003. Therefore, because his

motion to reopen is untimely,5 it must be “based on changed

circumstances arising in the country of nationality” and be

supported by new evidence that was not available during his

hearing before the IJ. 8 C.F.R. § 1003.2(c)(3)(ii).

To show changed country conditions, Shardar presented

evidence that since the BNP returned to power in 2001, the

situation for Jatiya Party supporters has become more

dangerous. When Shardar fled Bangladesh in 1992, the Jatiya

Party, in which he had been a local leader, had recently lost

power to the BNP. His beating by the police was a politically

motivated action by BNP supporters against Shardar because of

5

Shardar’s motion to reopen is also his second, as he

previously moved to reopen to seek relief under the CAT. In

any event, whether because he is outside the 90-day time limit

or because the motion is his second, he must show changed

country conditions to bring his current motion to reopen. 8

C.F.R. § 1003.2(c)(2)-(3).

14

his association with the Jatiya Party. See Shardar, 382 F.3d at

324 (“The evidence indicates these beatings were politically

motivated . . . .”). The BNP was in power in Bangladesh until

1996, at which time the Awami League became the ruling party.

In October 2001, the BNP returned to power. It was during the

time of the Awami League’s rule, in 1998, that the IJ decided

Shardar’s asylum claim. Thus, the evidence of changed country

conditions submitted by Shardar with his motion to reopen “was

not available and could not have been discovered or presented

at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii).6

As part of his motion to reopen, Shardar submitted a

detailed affidavit by Dr. John Adams, an expert in the society,

politics, and economics of South Asian countries. The

Government has not challenged Dr. Adams’s qualifications or

the reliability of his affidavit, which at this stage of the

proceedings we must accept as true. The affidavit states that,

while members of the Jatiya Party “remained under pressure”

during the rule of the Awami League, the re-emergence of the

BNP “caused a sharp change in country conditions, restoring the

context from which the applicant fled, but in a form that is more

intensive and predatory.” App. at A67–68. The affidavit

6

Although the BNP returned to power before the Board

had decided Shardar’s appeal, our Court has held that the

hearing before the IJ is “the previous hearing” referenced in the

regulatory requirement. See Filja, 447 F.3d at 252–54 (quoting

8 C.F.R. § 1003.2(c)(3)(ii)).

15

continued: “There is a consistent pattern of abuse of political

rights and political persecution for holding the [Jatiya Party’s]

political opinions, perpetrated by the BNP, the police forces

under its control, and the BNP’s allies, including radical Islamist

elements, which has intensified since October 2001, sufficiently

to represent a change in country conditions.” Id. at A67. As Dr.

Adams notes, following the BNP’s re-emergence “[t]he climate

for parties in opposition to the government is becoming

increasingly chilly in Bangladesh.” Id. at A69. State

Department documents cited in the Adams affidavit and

reporting on conditions after the BNP’s re-emergence state that

“police employed excessive, sometimes lethal, force in dealing

with opposition demonstrators, and the police routinely

employed physical and psychological torture during arrests and

interrogations.” Id. at A71. In addition, criminal laws are

frequently used as a pretext to punish and harass members of the

political opposition. Id.

The re-emergence of the political party responsible for

the applicant’s prior persecution is the type of situation that

would constitute a change in country conditions. See Filja, 447

F.3d at 255–56. In Filja, we rejected the Government’s

argument that the applicants’ motion to reopen was not timely.

Although not essential to our holding (which rejected the legal

standard for timeliness applied by the Board), we suggested that

the Filjas could likely demonstrate changed country conditions

because, “[a]lthough at the time of the IJ hearing the Democratic

Party was in power . . . [, w]hen in 1997 the Socialist Party

16

returned to power the position of those supporting the

Democratic Party became more precarious.” Id. at 256.

Shardar’s situation is analogous: while the BNP was not in

power at the time of Shardar’s hearing before the IJ, its re-

emergence constitutes a material change in conditions for an

individual like Shardar, who was previously beaten by the BNP-

affiliated police force.

Indeed, the Board itself has agreed that the re-emergence

of the BNP is a change in Bangladeshi country conditions for a

member of the Jatiya Party seeking asylum. In re Hossin, A70

907 367 (BIA Jan. 27, 2003) (unpublished). It specifically

concluded that “[c]onsidering the respondent’s political

affiliation [as a member of the Jatiya Party], the re-emergence

of the BNP in Bangladesh would qualify as changed country

circumstances warranting further review.” Id. When Shardar

cited this decision in his motion to reopen, the Board rejected its

relevance, concluding (1) that as an unpublished opinion it was

not precedential, and (2) that it was distinguishable because,

unlike Shardar, Hossin had moved to reopen after initially

abandoning his claim.

The Board’s responses miss the mark. First, regardless

whether the Hossin decision is precedential, by reaching an

exactly contrary decision on a materially indistinguishable set of

facts, the Board acted arbitrarily. As we recognized in Cruz,

“[w]hile . . . unpublished BIA decisions . . . are not necessarily

in the category of ‘selected decisions . . . designated to serve as

17

precedents in all proceedings involving the same issue or

issues,’ 8 C.F.R. § 1003.1(g), agencies should not move away

from their previous rulings without cogent explanations.” 452

F.3d at 250; see also Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996)

(“[A]dministrative agencies must apply the same basic rules to

all similarly situated supplicants.”).

Second, the Board’s attempt to distinguish Hossin falls

short. That Hossin’s initial asylum claim was denied because it

was deemed abandoned, but that Shardar’s initial asylum claim

was denied on the merits, is of no relevance to whether the

BNP’s re-emergence constitutes a change in Bangladeshi

country conditions for a Jatiya Party member who is seeking to

reopen removal proceedings. Both situations are materially

indistinguishable regarding whether country conditions have

changed. Thus, we have little difficulty concluding that the

Board acted arbitrarily and abused its discretion, as it offered no

reasonable explanation for failing to follow its own decision.

Moreover, the Board abuses its discretion when it fails to

“consider[] and appraise[] the material evidence before it.”

Sevovian, 290 F.3d at 177 (quoting Tipu v. INS, 20 F.3d 580,

583 (3d Cir. 1994)). Here, the Board offered no explanation for

not accepting the Adams affidavit concerning changed

circumstances in Bangladesh. The only explanation it provided

for why Shardar’s motion did not satisfy the regulatory

requirements for filing a motion after the 90-day time limit is the

following conclusory statement: “We further find that the

18

respondent has failed to establish [that] materially changed

country conditions exist in Bangladesh to overcome the

temporal limitations set forth in 8 C.F.R. § 1003.2(c)(2).”

Without any explanation for why Shardar failed to overcome the

“temporal limitations” in the regulations given the evidence he

presented, the Board’s conclusory handling of this issue was an

abuse of discretion. See Zhao v. Dep’t of Justice, 265 F.3d 83,

93 (2d Cir. 2001) (“An abuse of discretion may be found in

those circumstances where the Board’s decision provides no

rational explanation, inexplicably departs from established

policies, is devoid of any reasoning, or contains only summary

or conclusory statements; that is to say, where the Board has

acted in an arbitrary or capricious manner.” (internal citations

omitted)).

D. Eligibility for Asylum

1. The Board’s Decision

The Board also rejected the merits of Shardar’s motion

to reopen in a similarly conclusory fashion: “Although the new

evidence presented by the respondent continues to show that the

current conditions in Bangladesh are turbulent, the respondent

has not adequately demonstrated that his situation is appreciably

different from the dangers faced by all his countrymen.” This

conclusion is puzzling. While it is correct that an asylum

applicant must make a showing of a particularized threat of

persecution, see Kotasz v. INS, 31 F.3d 847, 851–52 (9th Cir.

19

1996), Shardar presented significant evidence of just such a

particularized threat.

First, the Adams affidavit repeatedly explained why

Shardar’s political beliefs and his position as a former local

leader of the Jatiya Party would be likely to result in persecution

by the BNP on that basis. It explained that following the BNP’s

rise to power in the early 1990s there were “countrywide attacks

on identified [Jatiya Party] workers,” as well as “[t]hreats and

violence . . . directed at [Jatiya Party] activists and their families

and properties.” App. at A68. In addition, “local leaders and

cadres [of the Jatiya Party] were increasingly exposed to threats

and violence.” Id. Since the decline of the Jatiya Party in the

early 1990s, its members “have attempted to form opportunistic

alliances with the BNP and AL [Awami League], but these have

been fleeting and have not insulated local [Jatiya Party] workers

from bullying, brutality, extortion and physical abuse.” Id. at

A70. Dr. Adams also stated that following the re-emergence of

the BNP in 2001,“[u]se of the local courts, which are an

administrative branch of the government, to harass [Jatiya Party]

adherents remains common.” Id. at A69. After chronicling

several specific acts of BNP violence against members of the

Jatiya Party since the BNP regained power in 2001, Dr. Adams

concluded with the specific prospects for Shardar in the then-

current climate in Bangladesh: “There is a high probability that

the applicant’s safety, person, and life will be in jeopardy should

he be compelled to return to Bangladesh. Memories are long in

Bangladesh and there is every reason to presume that, even after

20

a dozen years, the return of the applicant would lead to a

resumption of previous threats and acts.” Id. at A76–A77. The

Adams affidavit is not simply evidence of general turbulence in

Bangladesh; instead it provides a detailed, cogent, and reasoned

explanation why Shardar would likely be the specific target of

persecution because of his Jatiya Party affiliation.

Second, even more pertinent to the claim of

particularized persecution, Shardar presented an affidavit from

his brother in Bangladesh that stated that he (the brother) had

been recently threatened with a gun and beaten by “BNP goons”

for being a “collaborator of Jatiya Party,” and that the

perpetrators specifically asked about Shardar’s whereabouts. Id.

at A133. The brother’s affidavit is further supported by a

certification from a doctor who treated him and confirmed that

he received wounds consistent with a beating. This evidence,

which must be accepted as true at the motion-to-reopen stage,

shows a significant likelihood that Shardar would be subjected

to particularized persecution and does not simply concern itself

with general country conditions. Indeed, it is hard to believe

that a more particularized showing could be made: the brother’s

affidavit stated that individuals associated with the BNP had

targeted Shardar’s family members for persecution because of

their association with the Jatiya Party, and these individuals had

made a specific inquiry about Shardar.

The Board’s conclusion that Shardar had not “adequately

demonstrated that his situation is appreciably different from the

21

dangers faced by all his countrymen” ignores or misconstrues

the evidence that Shardar presented, and thus constitutes an

abuse of discretion. See Sevovian, 290 F.3d at 177. We

previously rejected a similar attempt by the Board in Vente to

misconstrue an asylum seeker’s application. The Board rested

its rejection of Vente’s asylum claim on a finding that “the

general unrest in Columbia did not provide a basis for asylum.”

Vente, 415 F.3d at 301. We noted that “the record clearly shows

that Vente’s asylum claim is based not on allegations of general

social unrest in Columbia but on the specific threats that he

received.” Id. As such, we vacated and remanded the case to

the Board, noting that “the BIA’s findings . . . are wholly

unsupported by the record and essentially ignore the actual basis

of Vente’s asylum claim.” Id. at 302. Likewise, the Board’s

denial of Shardar’s motion to reopen “essentially ignore[s] the

actual basis of [his] asylum claim.” Id. While it is true that

“[t]he Board ‘is not required to write an exegesis on every

contention,’” it must “show that it has reviewed the record and

grasped the movant’s claims.” Sevovian, 290 F.3d at 178

(quoting Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000)).

It has not shown that here. By ignoring the evidence that

Shardar presented of the likelihood of particularized persecution

and by misconstruing his claims, the Board abused its discretion.

Moreover, to the extent the Board’s conclusion rests on

a factual finding that Shardar’s “situation” is not “appreciably

different from the dangers faced by all his countrymen,” that

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finding is wholly unsupported by the record. We will uphold

the Board’s factual findings that are “supported by ‘reasonable,

substantial, and probative evidence on the record considered as

a whole.’” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.

2006) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)). But “[w]e will not accord the BIA deference where its

‘findings and conclusions are based on inferences or

presumptions that are not reasonably grounded in the record.’”

Id. (quoting Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003)).

Here, as already pointed out, the Board’s finding that Shardar’s

situation is not appreciably different from all other Bangladeshis

is not reasonably grounded in the record, which demonstrates a

likelihood of particularized persecution because of his political

affiliation. Thus, the Board’s conclusion, which fails to address

this relevant evidence, is not supported by substantial evidence.

2. Prima Facie Case

When the evidence Shardar submitted is properly

considered, there is little doubt that he has presented a prima

facie case for asylum, i.e., a reasonable likelihood that he is

entitled to relief. As noted previously, when an applicant has

shown past persecution, a well-founded fear of future

persecution is presumed, absent a showing by the Government

by a preponderance of the evidence that conditions have

changed to make future persecution unlikely. Lukwago, 329

F.3d at 174. In this case, the IJ credited Shardar’s testimony

with regard to his being beaten by the police on account of his

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political opinion and determined, albeit reluctantly, that he had

likely demonstrated past persecution. The IJ concluded,

however, that the Government had rebutted the presumption that

Shardar had a well-founded fear of future persecution because

conditions in Bangladesh had changed that allowed him to

receive justice from the judicial system. The crux of the IJ’s

decision was that Shardar had not presented sufficient evidence

to show that his criminal prosecution was pretextual and that his

rights could not be adequately protected by Bangladeshi courts.

The new evidence Shardar presented in his motion to

reopen went directly to what the IJ believed was the primary

weakness in Shardar’s case. Dr. Adams’s affidavit states that

the “benign viewpoint” expressed in State Department reports

from 1997 and 1998, relied upon by the IJ for the conclusion

that the Bangladeshi court system was capable of giving Shardar

a fair trial, “was then, and is now, entirely inconsistent with

scholarly or independent human rights assessments, and has

been superseded by the Department of State’s successor

documents.” App. at A70. Those superseding State Department

documents and other sources noted by Dr. Adams indicated that

the court system in Bangladesh is corrupt and that criminal laws

are often used by authorities to oppress members of the political

opposition. Indeed, according to the Adams affidavit,

Transparency International has consistently ranked Bangladesh

as the most corrupt country in the world since 2000. Dr. Adams

summarized the situation this way:

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The local and middle tiers of the judiciary are

highly corrupted and subject to influence and

intimidation by government officials or by

political activists. These judicial layers are

governed by administrative appointment and

judges at this level are highly attuned to the

wishes of the party in power. . . . [I]t would be

very improbable for the applicant to be in a

position to depend upon the police or the courts

for protection or remedy should he return to

Bangladesh.

Id. at A72.

Given that the IJ denied Shardar’s asylum claim primarily

based on a conclusion that he could get a fair trial in

Bangladesh, the Adams affidavit (the factual assertions in which

must be taken as true), when taken together with the evidence

already in the record, supports the conclusion that Shardar has

made a prima facie case for asylum. Indeed, the cumulative

evidence presented by Shardar demonstrates a reasonable

likelihood “that he has a subjective fear of persecution that is

supported by objective evidence that persecution is a reasonable

possibility.” Lukwago, 329 F.3d at 175 (internal quotation

marks omitted). The Board, which denied Shardar’s motion to

reopen because of a failure to establish a prima facie case, failed

to assess and consider the relevant evidence before it. Under

these circumstances, we conclude that the Board abused its

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discretion.

Finally, given our conclusion that Shardar has presented

a prima facie case for asylum and “in consideration of the

already protracted history of the case,” we conclude that it is

appropriate to direct the Board to reopen the removal

proceedings. Fadiga v. Att’y Gen., 488 F.3d 142, 163 (3d Cir.

2007); see also Malty v. Ashcroft, 381 F.3d 942, 948 (9th Cir.

2004) (remanding with directions to reopen when the applicant

had made a prima facie showing).

VI. Conclusion

The Board abused its discretion in denying Shardar’s

motion to reopen his removal proceedings. Accordingly, we

grant the petition for review and remand the case with directions

to reopen the proceedings.

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