Ahmed v. Keisler

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAIKH ALI AHMED, 

Petitioner, No. 04-76246

v.

 Agency No.

A75-516-529

PETER D. KEISLER,* Acting

Attorney General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 13, 2007—Pasadena, California

Filed October 16, 2007

Before: Harry Pregerson and Johnnie B. Rawlinson,

Circuit Judges, and Brian E. Sandoval,** District Judge.

Opinion by Judge Pregerson;

Dissent by Judge Rawlinson

*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-

zales, as Acting Attorney General of the United States, pursuant to Federal

Rule of Appellate Procedure 43(c)(2).

**The Honorable Brian E. Sandoval, United States District Judge for

the District of Nevada, sitting by designation.

14035

AHMED v. KEISLER 14039

COUNSEL

Shameem Hasan, Hasan & Samson, Los Angeles, California,

for the petitioner.

James E. Grimes, Office of Immigration Litigation, Washing-

ton, D.C., for the respondent.

OPINION

PREGERSON, Circuit Judge:

Petitioner Shaikh Ali Ahmed, a native of Bangladesh,

appeals the Board of Immigration Appeals’ (“BIA”) decision

affirming the Immigration Judge’s (“IJ”) denial of his applica-

tion for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). We have jurisdic-

tion under 8 U.S.C. § 1252, and we grant the petition for

review.

14040 AHMED v. KEISLER

BACKGROUND

I. Factual Background

Petitioner Ahmed is a forty-eight-year-old native of Ban-

gladesh. He is a Bihari, born in East Pakistan before it became

Bangladesh. The Biharis sided with Pakistan against East

Pakistan in the War of Independence in 1971. The Biharis

consider themselves to be citizens of Pakistan and they hope

to someday return to Pakistan. Biharis speak Urdu, the lan-

guage of Pakistan, rather than Bengali, the language of Ban-

gladesh. Pakistan has admitted only a few thousand Biharis —

the remainder, approximately 250,000, live in Bangladesh.

After the Biharis’ refusal to accept Bengali citizenship, the

Bengali government removed them from their homes, confis-

cated their property and businesses, and relocated them to

squalid, overcrowded resettlement camps. Ahmed testified

that Biharis are virtual prisoners inside these camps; there is

not enough food to sustain them, they are not allowed to

work, and they do not have the right to travel within the coun-

try. Following the War of Independence, Ahmed lived in two

settlement camps before coming to this country. From 1972

to 1984, Ahmed lived in Kalishpur Camp. From 1984 to

1994, Ahmed lived in Geneva Camp.

A. Events in Kalishpur Camp

In 1972, Ahmed, his older brother, and uncle, were cap-

tured and detained by the Bengali army. The army suspected

Ahmed’s uncle of having collaborated with Pakistan. During

the detention, the army killed Ahmed’s uncle in front of

Ahmed. They also beat Ahmed and his brother. Ahmed’s

brother suffered a fractured hand and Ahmed has scars all

over his body from the beating.

AHMED v. KEISLER 14041

B. Events in Geneva Camp

1. Civil Disobedience

After moving to Geneva Camp, Ahmed became politically

active. He joined the Bihari organization Stranded Pakistani

General Repatriation Committee (“SPGRC”) in 1985, and

became an assistant to Nassin Khan, the SPGRC’s chief

leader. In 1990, Ahmed organized a hunger strike. During the

strike, the police arrived, took Ahmed into custody overnight,

beat him, and released him the next day.

In 1991, Ahmed participated in a demonstration in front of

the Pakistan Embassy. The demonstrators sat in a circle

around the embassy, and they tried to give the Ambassador a

memorandum requesting that he make arrangements to send

them to Pakistan. When they were not allowed to enter the

embassy, the demonstrators screamed and threw rocks. The

police were called, and they fired guns and threw tear gas at

the demonstrators. The demonstrators tried to run away but

they were caught by police. Many demonstrators, including

Ahmed, were beaten by the police. The police forced Ahmed

to sign a statement saying that he would not organize in the

future.

On December 26, 1994, Ahmed, together with the Bihari

community in Geneva camp, participated in a demonstration.

The community protested that they wanted to go to Pakistan

because they “cannot live with this kind of living.” The police

arrived and tried to break up the demonstration. At one point,

the demonstrators became angry with the police and started

throwing stones. The police called for backup and fired guns

and tear gas at the demonstrators. The police captured many

demonstrators, including Ahmed, took them into custody, and

beat them. The police released Ahmed the next day but threat-

ened him with death should he ever protest again. Ahmed tes-

tified that, “if I ever try to say anything like this or try to

speak then we will be killed in the police camp.” After he was

14042 AHMED v. KEISLER

released, Ahmed fled the camp, realizing that he was not safe

and that he needed to leave the country. After four visits to

the American Embassy, Ahmed succeeded in getting a visa.

There is no evidence that Ahmed was violent or that he advo-

cated violence at any of the three demonstrations.

2. Ahmed’s Brother

Like Ahmed, his brother was politically active within the

Bihari community. In 1993, the Awami League, a group

opposing the ruling Bengali party, kidnaped Ahmed’s brother.1

Members of the Awami League had tried to force Ahmed’s

brother to provide them with Biharis to participate in a dem-

onstration because they wanted to increase the number of dem-

onstrators.2 Ahmed’s brother told the Awami League that he

could not provide people for the rallies because the ruling

party would get angry with the Biharis. The Awami League

became increasingly angry with Ahmed’s brother. One night

they came to the camp with a truck and took Ahmed’s

brother. Ahmed never saw his brother again. Nassin Khan, the

head of the SPGRC, asked the police commissioner for infor-

mation about Ahmed’s brother, hoping to find his body or

where he had been killed. No information was ever given.

C. Events in the United States

Ahmed came to this country on November 10, 1995, on a

B-1 non-immigrant business visa with authorization to remain

until November 9, 1996. Ahmed remained in the United

States beyond this deadline and on April 15, 1998, he filed an

1

At the time Ahmed testified, the Awami League was the ruling party.

2

Ahmed testified that there are many political parties in Bangladesh,

and when they have rallies, the political groups try to “recruit” people —

like the Biharis — from different parts of Bangladesh to participate in the

rallies to swell the numbers. These groups threaten to cut off the Bihari’s

food if they do not send people to the rallies, but the opposing parties get

angry and threaten the Biharis if they do participate in the rallies.

AHMED v. KEISLER 14043

application for asylum and for withholding of removal. In his

application, Ahmed stated that he was stateless, that he had

been persecuted in Bangladesh, and that his life was in danger

because of his leadership role among Biharis.

II. Procedural History

A. Immigration Court

Following an interview with an asylum officer, the INS

issued Ahmed a Notice to Appear, charging him with remov-

ability as an alien who remained in the United States longer

than permitted. At a subsequent hearing on July 24, 1998,

Ahmed conceded his removability and stated his intention to

pursue asylum and withholding of removal. On October 5,

1998, an IJ issued an oral decision denying Ahmed’s asylum

and withholding of removal claims. The IJ stated that

Ahmed’s arrests at violent demonstrations did not constitute

persecution. The IJ found that Ahmed was assimilated, that he

was not stateless, and that he could live anywhere in Bangla-

desh because he speaks fluent Bengali. “Nobody would know

that he’s a Bihari unless he wants to let them know, since he’s

fluent in Bengali” and “nobody could tell by looking at him.”

The IJ concluded that Ahmed was a Bengali citizen.

Discussing the death of Ahmed’s uncle, the IJ stated that

Ahmed’s uncle was believed to be a spy “or at least he was

believed to be assisting the Pakistani army,” and “we don’t

know the specific reasons why he was killed.” The IJ recog-

nized that Ahmed and his brother were severely beaten in

connection with their uncle’s death. The IJ also found that

Ahmed’s brother’s kidnaping resulted from an argument with

the Awami League and did not constitute persecution because

the kidnaping was not an act supported by the government.

Finding that Ahmed had not suffered past persecution and

had no well-founded fear of future persecution, the IJ denied

Ahmed asylum and withholding of removal. The IJ found

14044 AHMED v. KEISLER

Ahmed credible and had “no reason to believe . . . that he’s

undeserving of relief as a matter of discretion.” However,

finding that there were no “factors of a discretionary nature,”

he granted Ahmed sixty days to voluntarily depart — the

maximum allowable period.

On June 14, 1999, Ahmed filed a motion to remand the

case to an IJ so that Ahmed could apply for relief under the

Convention Against Torture (“CAT”).3 The BIA granted

Ahmed’s motion on April 15, 2002. Hearings on remand were

held on February 21, 2002, and August 4, 2003.4 On August

4, 2003, a new IJ issued a decision regarding Ahmed’s asy-

lum, withholding of removal, and newly-added CAT claim.

The IJ adopted the prior IJ’s finding that Ahmed was not enti-

tled to asylum relief or withholding of removal. The IJ denied

Ahmed’s CAT claim, finding that Ahmed failed to demon-

strate that he would be tortured if returned to Bangladesh. The

IJ found Ahmed to be credible and eligible for voluntary

departure. Ahmed timely appealed to the BIA.

B. BIA

On November 4, 2004, the BIA issued a brief per curiam

order affirming the IJ’s finding that Ahmed “failed to meet his

burden of establishing past persecution or a well-founded fear

of persecution on account of one of the statutorily protected

grounds, or that it is more likely than not that he will be perse-

cuted or subjected to torture upon his return to Bangladesh.”

3

Regulations implementing CAT were not promulgated until February

1999. See Regulations Concerning the Convention Against Torture, 64

Fed. Reg. 8478 (Feb. 19, 1999). Under these regulations, aliens like

Ahmed who were ordered removed before March 22, 1999, could move

to reopen for the sole purpose of seeking CAT relief. See 8 C.F.R.

§ 208.18(b)(2) (2000).

4

IJ Lawrence Burman issued the original decision in Ahmed’s case. On

remand, the case was heard by IJ Ira Bank because IJ Burman had been

reassigned to a different immigration court.

AHMED v. KEISLER 14045

The BIA then dismissed Ahmed’s appeal. Ahmed timely

appealed to this court.

DISCUSSION

I. Standard of Review

Although the BIA’s opinion did not expressly state whether

it conducted a de novo review, its phrasing suggests that it

conducted an independent review of the record. If that were

the case, we would review the BIA’s decision. See Avetova-

Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir. 2000) (citing

Vongsakdy v. INS, 171 F.3d 1203, 1206 (9th Cir. 1999)). But

the lack of analysis that the BIA opinion devoted to the issue

at hand — its simple statement of a conclusion — also sug-

gests that the BIA gave significant weight to the IJ’s findings.

See id. In light of that ambiguity, we also look to the IJ’s oral

decision as a guide to what lay behind the BIA’s conclusion.

See id.

We review for substantial evidence the decision that an

applicant has not established eligibility for asylum. See

Njuguna v. Ashcroft, 374 F.3d 765, 769 (9th Cir. 2004). We

will uphold the BIA’s asylum determination if it is “supported

by reasonable, substantial, and probative evidence on the

record considered as a whole.” Knezevic v. Ashcroft, 367 F.3d

1206, 1210-11 (9th Cir. 2004). Similarly, we review for sub-

stantial evidence the factual findings underlying the BIA’s

determination that Ahmed did not qualify for withholding of

removal, see Zehatye v. Gonzales, 453 F.3d 1182, 1184-85

(9th Cir. 2006), and the BIA’s finding that Ahmed is not eligi-

ble for protection under the Convention Against Torture, see

Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003).

14046 AHMED v. KEISLER

II. Asylum

A. Applicable Legal Standard

To be eligible for asylum, Ahmed must establish that he is

a refugee — namely, that he is unable or unwilling to return

to Bangladesh “because of persecution or a well-founded fear

of persecution on account of race, religion, nationality, mem-

bership in a particular social group, or political opinion.”5

Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir. 2004); 8 U.S.C.

§ 1101(a)(42)(A). The source of the persecution must be the

government or forces that the government is unwilling or

unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112,

1119 (9th Cir. 2004).

To be “well-founded,” an asylum applicant’s “fear of per-

secution must be both subjectively genuine and objectively

reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies

the subjective component by credibly testifying that [he] gen-

uinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184

F.3d 1029, 1035 (9th Cir. 1999)). “The objective component

can be established in two different ways.” Duarte de Guinac

v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999).

5

The fact that Petitioner is Bihari and consequently claims to be “state-

less” does not, absent other factors, warrant a grant of asylum, as the Act

explicitly contemplates asylum applicants with “no nationality.” 8 U.S.C.

§ 1101(a)(42)(A); see also Amin v. Ashcroft, 388 F.3d 648, 651 (8th Cir.

2004) (noting that “statelessness . . . would not by itself be evidence of

past persecution”). Such applicants are evaluated by referring to their

country of last habitual residence. See 8 U.S.C. § 1101(a)(42)(A). Like

other asylum applicants, Ahmed must demonstrate that he is “unable or

unwilling to return to . . . that country because of persecution or a well-

founded fear of persecution on account of race, religion, nationality, mem-

bership in a particular social group, or political opinion.” Id.; see also

Faddoul v. INS, 37 F.3d 185, 190 (5th Cir. 1994) (holding that “stateless

individuals must demonstrate the same well-founded fear of persecution

as those with nationalities”).

AHMED v. KEISLER 14047

One way to satisfy the objective component is to

prove persecution in the past, giving rise to a rebutta-

ble presumption that a well-founded fear of future

persecution exists. The second way is to show a

good reason to fear future persecution by adducing

credible, direct, and specific evidence in the record

of facts that would support a reasonable fear of per-

secution.

Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (internal quo-

tations and citations omitted). While a well-founded fear must

be objectively reasonable, it “does not require certainty of

persecution or even a probability of persecution.” Hoxha v.

Ashcroft, 319 F.3d 1179, 1184 (9th Cir. 2003). “Even a ten

percent chance that the applicant will be persecuted in the

future is enough to establish a well-founded fear.” Sael, 386

F.3d at 925 (quoting Knezevic, 367 F.3d at 1212. We look at

the totality of the circumstances in deciding whether a finding

of persecution is compelled. See Korablina v. INS, 158 F.3d

1038, 1044 (9th Cir. 1998) (“The key question is whether,

looking at the cumulative effect of all the incidents a peti-

tioner has suffered, the treatment [he or] she received rises to

the level of persecution.”).

Because Ahmed testified credibly, he has satisfied the sub-

jective component. See Sael, 386 F.3d at 924. Therefore, to

demonstrate that he is eligible for asylum, he must satisfy the

objective component by demonstrating past persecution or a

well-founded fear of future persecution. See Ladha, 215 F.3d

at 897.

B. Analysis

1. Past Persecution - Political Opinion

[1] Ahmed contends that he suffered persecution in Bangla-

desh on account of his political opinion. To demonstrate past

persecution on account of a political opinion, Ahmed must

14048 AHMED v. KEISLER

satisfy two requirements. First he must show that he held (or

that his persecutors believed that he held) a political opinion.

See Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000). Second,

he must show that his persecutors persecuted him because of

his political opinion. See id.

A political opinion encompasses more than electoral poli-

tics or formal political ideology or action. See e.g. Al-Saher

v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001) (recognizing that

an applicant’s statements regarding the unfair distribution of

food in Iraq resulted in the imputation of an anti-government

political opinion), amended by 355 F.3d 1140 (9th Cir. 2004).

A political opinion can be an actual opinion held by the appli-

cant, or an opinion imputed to him or her by the persecutor.

See Sangha v. INS, 103 F.3d 1482, 1488-89 (9th Cir. 1997).

We find that substantial evidence does not support the IJ’s

finding that Ahmed failed to demonstrate past persecution.

For the reasons set forth below, we hold that the record com-

pels the finding that Ahmed was targeted and persecuted on

account of his political opinion.

a. Ahmed Raises a Claim for Persecution on Account

of His Political Opinion

As an initial matter, the Government contends that Ahmed

cannot assert that he was persecuted on account of his politi-

cal opinion because Ahmed “disclaimed any political opinion

other than a desire to move to Pakistan, and presented no evi-

dence of political persecution.” To support this assertion, the

Government refers to Ahmed’s testimony where the following

exchange took place:

IJ: Okay. And, what is the political opin-

ion that you were trying to express in

the rallies and in the demonstrations

in ‘91 and ‘93?

AHMED v. KEISLER 14049

Ahmed: We do not have any political opinion

for Bangladesh. Our only main pro-

test was to send us to Pakistan. We,

we cannot live this kind of living. We

cannot live in this way, and we just

want some kind of arrangement to be

made by which we can be sent to

Pakistan.

In a similar vein, the IJ, in his oral decision, stated, “In fact,

there is no political opinion the Biharis have that’s not shared

by the Bengali government. The Biharis want to leave and the

Bengalis want them to leave.”

[2] To suggest that either of these statements demonstrates

that Ahmed does not have a political opinion is disingenuous.

Ahmed has a definite political opinion — he believes that the

Biharis are treated very poorly in Bangladesh and he wishes

to leave Bangladesh for Pakistan. Ahmed’s testimony may

have inartfully stated his position, but we do not think that it

can be interpreted as disavowing his claims that the govern-

ment and police “are trying to oppress us . . . when we try to

say something.” Rather, it is because Ahmed makes no secret

of his beliefs and because he is an outspoken organizer and

leader of Biharis in refugee camps that he was beaten,

detained, and threatened. Thus, we reject the Government’s

assertion that Ahmed does not raise a claim for past persecu-

tion on account of his political opinion.

b. Ahmed’s Civil Disobedience

There is no dispute that Ahmed was beaten and jailed by

the army and the police because of his participation in a hun-

ger strike and two political demonstrations. Ahmed was a

political organizer and leader in the SPGRC, and he did not

keep his political views a secret. Despite these facts, the IJ

found that Ahmed had not suffered past persecution.

14050 AHMED v. KEISLER

His arrests at these violent demonstrations . . . is not

persecution. The fact that the police beat the people

that they had taken in custody is more of a reflection

on police tactics in countries such as Bangladesh

than it is any indication that he had any political

opinion they wished to overcome, or any hatred they

had toward the Biharis.

[3] There is no evidence in the record to suggest that

Ahmed was violent at the protests or that he advocated vio-

lence. Ahmed testified that the protests began peacefully but

became violent later on. He testified that the police beat him

up for participating in a hunger strike; however, there is no

evidence that Ahmed was violent during the strike. Ahmed

testified that while demonstrating in front of the Pakistani

embassy in 1991, “we circled it and we sat there,” and “[we]

tried to give the Ambassador . . . a memorandum.” Although

Ahmed testified that “stones were thrown towards the embas-

sy,” there is no evidence that Ahmed threw rocks at the

embassy, that he was violent, or that he advocated violence.

Testifying about the third demonstration, Ahmed stated that

he and the rest of the Bihari community, “all got together

there, and we were having speeches and trying to see what we

can do. We were swearing, and we were taking an oath what

we are going to do,” when the police came and removed the

microphones.6 Again, there is no evidence that Ahmed was

violent at the demonstration or that he advocated violence.

Ahmed testified that he told the police, “If you don’t give us

the freedom to speak today, then this very Bangladesh is

going to become Pakistan again.”7 That was clearly a political

6

The Government states that the protest involved “profanity,” to under-

score its assertion that the demonstration was violent before the police

arrived. We believe it is a stretch to suggest that Ahmed’s statement that

the protestors were “swearing” and “taking oaths,” constitutes “a large

profanity-laced meeting.” In any event, such language does not indicate

when the violence began.

7

The Government suggests that this statement caused the police to fire

shots and tear gas on the demonstrators and that “[u]ndoubtedly, the police

AHMED v. KEISLER 14051

statement, and after it was made, the police beat up Ahmed

and other demonstrators and told Ahmed that he would be

killed if he ever tried to organize or speak up again.

Ahmed testified, “they are trying to oppress us . . . when

we try to say something,” and as a result of his involvement

with the demonstrations, he was beaten, detained, and threat-

ened. With respect to all three demonstrations, there is no evi-

dence in the record to suggest that Ahmed was violent,

advocated violence, or did anything other than make political

statements.

[4] Physical harm has consistently been treated as persecu-

tion. See Duarte de Guinac, 179 F.3d at 1161. Where an asy-

lum applicant suffers such harm on more than one occasion,

and, as in this case, is victimized at different times over a

period of years, the cumulative effect of the harms is severe

enough that no reasonable fact-finder could conclude that it

did not rise to the level of persecution. See Chand v. INS, 222,

F.3d 1066, 1074 (9th Cir. 2000); Korablina, 158 F.3d at 1044

(noting the cumulative effect of several instances of violence

and harassment compel finding of persecution). Ahmed was

the victim of violence on three occasions, on all of which he

was beaten by the police or army. Here, the detentions, beat-

ings, and threats that Ahmed was subjected to are dispropor-

tionate to Ahmed’s activities.

Therefore, we find that Ahmed’s suffering rises to the level

of persecution. See Fedunyak v. Gonzales, 477 F.3d 1126,

did not take Ahmed’s threat to overthrow the government lightly.” The

dissent agrees, saying that after his “not-so-veiled threat . . . it is not

suprising that the police moved to restore order.” Dissent at 14067. There

is no evidence, however, that it was Ahmed’s statement that prompted the

police to fire shots or tear gas on the protestors. Further, given that Ahmed

was clearly not in a position to overthrow the government and there is no

evidence that Ahmed was armed, we question whether the police could be

so concerned by Ahmed’s statement that they were compelled to resort to

violence.

14052 AHMED v. KEISLER

1129 (9th Cir. 2007) (finding that beatings, and death threats

made after petitioner voiced political opinion rose to the level

of persecution); Guo v. Ashcroft, 361 F.3d 1194, 1197, 1203

(9th Cir. 2004) (finding that two arrests and repeated beatings

constituted persecution); Mamouzian v. Ashcroft, 320 F.3d

1129, 1134 (9th Cir. 2004) (recognizing that repeated physical

abuse combined with detention and threats constituted perse-

cution); Salaam v. INS, 229 F.3d 1234, 1240 (9th Cir. 2000)

(holding that politically active petitioner who had been

arrested and tortured suffered persecution).

[5] Because Ahmed holds a political belief and he was per-

secuted for voicing his opinion, we find that Ahmed suffered

persecution on account of a political opinion. See Navas, 217

F.3d at 656. Therefore, we find that the IJ’s finding that

Ahmed did not suffer past persecution on account of his

involvement with “violent” protests is not supported by sub-

stantial evidence.8

c. Ahmed and His Uncle

[6] Ahmed’s uncle was captured by the government and

killed in 1972.9 The IJ found that the uncle may have been

8

The dissent argues that “the officers efforts to quell these riots did not

constitute persecution, but an attempt to maintain the peace.” Dissent at

14066. The record reflects the fact that the Biharis were completely peace-

ful during the first hunger strike in 1990, for which Ahmed was detained

and beaten. It also reflects that during the 1994 demonstration, the police

came to disrupt the demonstrations, which caused the violence to break

out. This practice is confirmed by the Country Report for Bangladesh,

which indicates that police corruption and abuse in Bangladesh are ram-

pant and the police “frequently beat demonstrators.”

9

The dissent suggests that the proximity of his uncle’s death to the 1971

war between West Pakistan and East Pakistan mitigates against a finding

of persecution. Dissent at 14065 (arguing that “we have consistently held

that confrontations, even deadly ones, that occur in the course of civil war

or insurgency, are, unfortunately, expected consequences of civil conflict

rather than persecution.”) We disagree. Ahmed’s uncle’s killing was not

AHMED v. KEISLER 14053

involved in espionage and therefore the government would

have a legitimate interest in prosecuting him. However, the

circumstances surrounding the uncle’s death suggest that his

death was politically motivated and not the product of legiti-

mate prosecution.

Ordinary prosecution for criminal activity is generally not

a ground for relief. See Chanco v. INS, 82 F.3d 298, 301 (9th

Cir. 1996). However, as mentioned earlier, if the prosecution

is motivated by a protected ground, and the punishment is suf-

ficiently serious or disproportionate, the sanctions imposed

can amount to persecution. See Bandari v. INS, 227 F.3d

1160, 1168 (9th Cir. 2000). Here, the army sought Ahmed’s

uncle because of his political opinion — he opposed the cre-

ation of an independent Bangladesh. The army also suspected

Ahmed and his older brother, and all three were beaten. But

regardless of Ahmed’s beliefs at the time, the fact that Ahmed

was beaten when captured with his uncle suggests that the

army imputed to Ahmed his uncle’s political opinion.10 See

Sangha, 103 F.3d at 1488-89.

during the course of a civil war, as the war ended in December 1971 and

he was killed in 1972. Further, even though generalized violence as a

result of civil strife does not necessarily qualify as persecution, neither

does civil strife eliminate the possibility of persecution. See Ndom v. Ash-

croft, 384 F.3d 743, 752 (9th Cir. 2004) (“At the same time, the existence

of civil strife does not alter our normal approach to determining refugee

status or make a particular asylum claim less compelling.”). The relevant

analysis is still whether the persecutor was motivated by one of five statu-

tory grounds. Because Ahmed’s uncle was beaten and killed after the war

because of his suspected ties to an opposition group, we do not think it

was merely the expected consequences of civil conflict.

10

The dissent suggests that Ahmed was beaten because he tried to save

his uncle’s life, not because of Ahmed’s political opinion. Though Ahmed

did testify that he tried to stop the army from beating his uncle, he also

testified that “they were suspicious about [his uncle], they were suspecting

him of [collaborating with Pakistan] so along with him we, both brothers,

were also taken.” Based on this testimony, it is not reasonable to conclude

that Ahmed’s detention was not on account of his imputed political opin-

ion. Further, this incident clearly would never have happened except for

his family’s political opinion. The fact that Ahmed attempted to stop his

uncle from being killed does not change this fact.

14054 AHMED v. KEISLER

[7] It seems rather unlikely that Ahmed’s uncle, a Bihari

refugee, would have the means or opportunity to “collabo-

rate” with Pakistan. Nonetheless, Ahmed’s uncle was killed in

front of Ahmed — without a trial or any other form of due

process — and Ahmed and his brother were beaten when they

tried to prevent their uncle’s death. The Country Report for

Bangladesh states that police corruption and abuse is rampant.

The Government frequently uses the police for polit-

ical purposes. There is widespread police corruption

and lack of discipline. Police officers committed

numerous serious human rights abuses and were sel-

dom disciplined, even for the most egregious

actions.

. . . Police committed a number of extrajudicial kill-

ings, and some persons died in police custody under

suspicious circumstances. Police routinely used tor-

ture, beatings, and other forms of abuse while inter-

rogating suspects. . . . The Government rarely

punishes persons responsible for torture or unlawful

deaths.

Thus, even if Ahmed’s uncle had collaborated with the Paki-

stanis, the facts that Ahmed’s uncle was killed and Ahmed

and his brother were severely beaten by the army suggest per-

secution on account of a political opinion. See Navas, 217

F.3d at 656.

[8] That Ahmed was beaten absent any due process also

supports his claim of persecution on account of a political

opinion. See Miranda Alvarado v. Gonzales, 449 F.3d 915,

930-31 (9th Cir. 2006) (“We have repeatedly held that perse-

cution in the absence of any legitimate criminal prosecution,

conducted at least in part on account of political opinion con-

stitutes persecution on account of political opinion, even if the

persecution served intelligence-gathering purposes.”) (internal

citation omitted); Ndom v. Ashcroft, 384 F.3d 743, 755 (9th

Cir. 2004) (“[E]ven if the government authorities’ motivation

AHMED v. KEISLER 14055

for detaining and mistreating [an applicant] was partially for

reasons of security, persecution in the absence of any legiti-

mate criminal prosecution, conducted at least in part on

account of political opinion, provides a proper basis for asy-

lum and withholding of deportation, even if the persecution

served intelligence gathering purposes.”) (internal quotations

and alternations omitted); Navas, 217 F.3d at 660 (“If there is

no evidence of a legitimate prosecutorial purpose for a gov-

ernment’s harassment of a person . . . there arises a presump-

tion that the motive for harassment is political.”).

[9] In sum, the facts that Ahmed was beaten because of his

political opinion, or an opinion imputed to him, and that he

was abused by the police absent any due process protections,

support his contention that he suffered past persecution. See

Navas, 217 F.3d at 656; Sangha, 103 F.3d at 1488-89. Fur-

ther, that Ahmed’s uncle was captured and killed by the gov-

ernment provides further support to Ahmed’s claim of past

persecution. See Baballah v. Ashcroft, 367 F.3d 1067, 1074-

75 (9th Cir. 2004) (“Violence directed against an applicant’s

family members provides support for a claim of persecution

and in some instances is sufficient to establish persecution

because such evidence may well show that [an applicant’s]

fear . . . of persecution is well founded.”) (internal quotation

and citation omitted). Thus, we find that this event supports

Ahmed’s asylum claim.

d. Ahmed’s Brother

Like Ahmed, his brother was politically active and an orga-

nizer in the Bihari community. He was kidnaped by members

of the Awami League because he refused to provide Bihari

supporters to attend the Awami League’s opposition rallies.

Ahmed’s brother did not want to provide supporters because

the government would withhold food from the camp.

Ahmed’s brother’s refusal to cooperate with the Awami

League was based, at least in part, on a political opinion (i.e.,

the brother did not want to anger the government and possibly

14056 AHMED v. KEISLER

lose food for the camp.) Ahmed’s brother took a political

position opposing the Awami League, and he was kidnaped

(and presumably killed) as a result. There is no evidence that

the perpetrators were ever prosecuted by the Bangladesh gov-

ernment.

[10] The IJ found that these events do not constitute perse-

cution because the perpetrators were the Awami League, not

the Government, and “one can’t think of any reason why the

government would want to assist an opposition party recruit

additional people for their opposition rallies.” However,

Ahmed is not required to show persecution from the govern-

ment; acts of harassment or violence perpetrated by an entity

that the government fails to control can constitute evidence of

persecution. See Korablina, 158 F.3d at 1044. There is no dis-

pute that Ahmed’s brother was kidnaped by the Awami

League.11 The record suggests that Bangladesh’s government

does not administer the camps, and there is no control over

who goes into and out of the camps. The government’s

unwillingness or inability to control the actions of private par-

ties — namely, the Awami League — inside or near the

camps, supports Ahmed’s asylum claim. See Singh v. INS, 94

F.3d 1353, 1359 (9th Cir. 1996) (noting that government inac-

tion in the face of persecution by private groups that the gov-

ernment is unwilling or unable to control may support a claim

for asylum). Further, we find the fact that Ahmed’s brother

11

The dissent adopts the IJ’s assertion that Ahmed’s brother was kid-

naped and killed because the Awami League got angry with him, not

because of his political opinion. Ahmed did testify that his brother got in

an argument with the Awami League representatives. This does not, how-

ever, undercut Ahmed’s contention that his brother was taken because his

brother refused to provide Bihari people for the Awami League demon-

stration. The two explanations for the kidnaping are not mutually exclu-

sive. The record reflects that the Awami League was angry at Ahmed’s

brother because he would not organize Biharis to participate in their politi-

cal rally. Regardless of whether they became angry with him before they

kidnaped him, the reason he was kidnaped was that he stood up to the

Awami League and refused to support them.

AHMED v. KEISLER 14057

was captured and presumably killed by the Awami League

provides additional support for Ahmed’s claim of past perse-

cution. See Baballah, 367 F.3d at 1074-75 (recognizing that

violence directed against an applicant’s family members pro-

vides support for a claim of persecution).

2. Future Persecution

a. Political Opinion

To demonstrate a fear of future persecution on account of

a political opinion, an asylum applicant must show (1) that he

holds a political opinion; (2) that his political opinion is

known to his persecutors; and (3) that the persecution will be

on account of his political opinion. See Gonzales-Neyra, 122

F.3d at 1296. A ten percent chance that an applicant will be

persecuted in the future is enough to establish a well-founded

fear of future persecution. See Sael, 386 F.3d at 925.

[11] However, proof of past persecution gives rise to a pre-

sumption of a well-founded fear of future persecution and

shifts the evidentiary burden to the government to rebut that

presumption.12 See, e.g. Popova v. INS, 273 F.3d 1251, 1259

(9th Cir. 2001); see also 8 C.F.R. § 208.13(b)(1)(i). The pre-

sumption can be rebutted with a showing:

(1) that there has been a fundamental change in cir-

cumstances such that the applicant no longer has a

12

Even if Ahmed did not establish past persecution, he satisfies the

lower ten percent standard for showing that he has a well-founded fear of

future persecution. See Sael, 386 F.3d at 935. First, Ahmed holds a politi-

cal opinion. Second, he was persecuted (arrested, beaten, and threatened

with death) by the army and police because of his political opinion.

Finally, the police told him that they will kill him should he participate in

another protest, and Ahmed’s uncle and brother were kidnaped and/or

killed because of their political opinions. Thus, Ahmed has satisfied the

three requirements to demonstrate a well-founded fear of future persecu-

tion. See Gonzales-Neyra, 122 F.3d at 1296.

14058 AHMED v. KEISLER

well-founded fear of persecution in Bangladesh on

account of his political opinion; or (2) that petitioner

can avoid future persecution by relocating to another

part Bangladesh and, under all the circumstances, it

would be reasonable to expect the applicant to do so.

See 8 C.F.R. § 208.13(b)(1).

[12] In this case, the Government failed to show a change

in country conditions that would overcome the presumption.

The Bangladesh Country Report contains numerous refer-

ences to police abuses and the government’s inability, or

unwillingness, to crack down on these abuses or punish the

perpetrators. Nor has the Government shown that life in the

Bihari camps has improved. In addition, it is not reasonable

to expect that Ahmed would be able to relocate to another part

of Bangladesh. Although, as the IJ noted, Ahmed does speak

Bengali and that “nobody could tell by looking at him” that

Ahmed was a Bihari, nothing suggests that Ahmed could

legally live in another part of Bangladesh. Bahiris were forced

to give up their property in the early 1970s and are not

allowed to hold jobs. Ahmed could only exist outside of the

camp if he pretended not to be a Bihari. The IJ also “found”

that Ahmed is a citizen of Bangladesh. However, there is no

evidence to support this finding; it is conjecture and “cannot

substitute for substantial evidence.” Karouni, 399 F.3d at

1177.

[13] Finally, Ahmed is a leader in the Bihari community

and an outspoken member of the SPGRC who is committed

to participating in dissident activities if forced to return to

Bangladesh. The INA does not require Ahmed to change “an

innate characteristic . . . so fundamental,” Hernandez-Montiel

v. INS, 225 F.3d 1084, 1094 (9th Cir. 2000), or to relinquish

such an “integral part of [his] human freedom,” Lawrence v.

Texas, 539 U.S. 558, 577 (2003). Because Ahmed’s fear of

persecution is based, in part, on his status as a politically

active Bihari, and he cannot be required to suppress his politi-

AHMED v. KEISLER 14059

cal interests and activities, it is unreasonable to expect that

Ahmed would be able to secretly live elsewhere in Bangla-

desh. See Karouni, 399 F.3d at 1173.

[14] For these reasons, we find that Ahmed has a well-

founded and unrebutted fear of future persecution on account

of his political opinion.

b. Social Group

Ahmed also contends that he has a well-founded fear of

future persecution in Bangladesh because he is a Bihari. “[A]

‘particular social group’ is one united by a voluntary associa-

tion, including a former association, or by an innate character-

istic that is so fundamental to the identities or consciences of

its members that members either cannot or should not be

required to change it.” Karouni, 299 F.3d at 1171 (quoting

Hernandez-Montiel, 225 F.3d at 1093). The IJ found that

Ahmed is part of a definite social group.

This group is defined as Bihari, and I do find that

they are a particular social group. In fact, I don’t

think that there’s much doubt about that. The Biharis

have wished nothing other than to go to Pakistan, the

problem is that Pakistan actually doesn’t want them.

[15] Ahmed can demonstrate a well-founded fear of future

persecution on account of his social group by showing that

“he is a member of a ‘disfavored group’ coupled with a show-

ing that he, in particular, is likely to be targeted as a member

of that group.” Sael, 386 F.3d at 925 (quoting Mgoian v. INS,

184 F.3d 1029, 1035, n.4 (9th Cir. 1999)); see also Kotasz, 31

F.3d at 853. The requirements that an alien be a member of

a “disfavored group” and that he faces an individualized risk

of being singled out for persecution, work together. See Sael,

386 F.3d at 925.

[16] It appears that Biharis are a disfavored group in Ban-

gladesh. They are required by the government to live in

14060 AHMED v. KEISLER

squalid refugee camps with no electricity, no sanitation, and

little food. Although these substandard living conditions may

be common throughout Bangladesh, it is significant that the

government withholds food from Biharis if they support

opposition political rallies. Ahmed testified that Bihari land,

property, and businesses were confiscated, and Biharis were

removed from their homes in the early 1970s. Ahmed also

testified that the government refused to allow Ahmed and

other Biharis to leave the country to travel to Korea to work

as laborers. Thus, it appears that Biharis face ill treatment by

the government due simply to their status as Biharis. See Bal-

labah, 367 F.3d at 1076 (finding that substantial economic

deprivation that constitutes a threat to life or freedom may

constitute persecution); Tawadras v. Ashcroft, 364 F.3d 1099,

1106 (9th Cir. 2004).

[17] With respect to the second requirement, Ahmed was

beaten, detained, and threatened because he is a leader and

organizer in the SPGRC. Ahmed testified that if he is forced

to return to Bangladesh, he will continue to be a dissident and

represent the Biharis. As mentioned earlier, asylum seekers

are not required to change immutable characteristics or to

abandon their beliefs simply to avoid future persecution. See

Karouni, 399 F.3d at 1173. Consequently, Ahmed will be

more likely to be singled out for persecution than other Biha-

ris. Because Ahmed has shown that he is part of a “disfavored

group” and that he is “likely to be targeted as a member of

that group,” we find that Ahmed has demonstrated a well-

founded fear of future persecution on account of his social

group. Sael, 386 F.3d at 925.

Conclusion

[18] Because Ahmed credibly testified that he suffered past

persecution on account of his political opinion and social

group, and because there is more than a ten percent chance

that if returned to Bangladesh he will suffer future persecution

on account of his political opinion or social group, we find

AHMED v. KEISLER 14061

that Ahmed is statutorily eligible for asylum. Reversal of the

IJ’s denial of Ahmed’s asylum application is warranted

because “the evidence would compel any reasonable fact-

finder to conclude that the requisite fear of persecution has

been shown.” Navas, 217 F.3d at 657; see also Kahssai v.

INS, 16 F.3d 323, 329 (9th Cir. 1994).

III. Withholding of Deportation

A. Applicable Legal Standard

An applicant is entitled to withholding of deportation if he

or she can establish a “clear probability,” INS v. Cardoza-

Fonseca, 480 U.S. 421, 430 (1987), that his “life or freedom

would be threatened” upon return because of his “race, reli-

gion, nationality, membership in a particular social group, or

political opinion,” 8 U.S.C. § 1231(b)(3)(A). This “clear

probability” standard, interpreted as meaning “more likely

than not,” is more stringent than asylum’s “well-founded

fear” standard because withholding of deportation is a manda-

tory form of relief. Navas, 217 F.3d at 655. “Unlike asylum,

withholding of removal is not discretionary. The Attorney

General is not permitted to deport an alien to a country where

his life or freedom would be threatened on account of” one of

the protected grounds. Al-Harbi v. INS, 242 F.3d 882, 888

(9th Cir. 2001).

Past persecution generates a presumption of eligibility for

withholding of removal. See Ballabah, 367 F.3d at 1079;

Kataria v. INS, 232 f.3d 1107, 1115 (9th Cir. 2000). Because

Ahmed has established that he suffered past persecution, the

Government must show, by a preponderance of evidence, that

country conditions have so changed that it is no longer more

likely than not that Ahmed would be persecuted should he be

forced to return, or that he reasonably could be expected to

relocate to another part of Bangladesh to avoid future threats

to life or freedom. See 8 C.F.R. § 208.16(b)(2); Navas, 217

F.3d at 657.

14062 AHMED v. KEISLER

B. Analysis

We find that Ahmed’s testimony not only “compel[s] any

reasonable factfinder to conclude” that he faces at least a ten

percent chance of future persecution, but also establishes that

it is “more likely than not” that he faces a “clear probability”

of persecution if removed. Navas, 217 F.3d at 655, 657. The

Government has not shown a fundamental change in circum-

stances. Ahmed is a leader in the Bihari community and an

outspoken member of the SPGRC who is committed to partic-

ipating in dissident activities. He cannot be forced to suppress

his political interests and activities, see Karouni, 399 F.3d at

1173, and if forced to return to Bangladesh, he will continue

to organize and participate in demonstrations, despite the

police death threat. Therefore, it is more likely than not that

if forced to return to Bangladesh, Ahmed will be persecuted

by the police or the government. Further, as discussed above,

it is unreasonable to expect that Ahmed can relocate within

Bangladesh to avoid future threats. It is unreasonable to

expect that Ahmed would be able to live elsewhere in Bangla-

desh because Biharis cannot own property and are forced to

live in camps. Nor is it reasonable to expect Ahmed to live in

total secret outside of the camps and away from his friends

and remaining family.

[19] Having shown an unrebutted presumption of entitle-

ment to withholding of removal, we hold that the IJ’s finding

that Ahmed was not entitled to withholding of removal is not

supported by substantial evidence. See Zehatye, 453 F.3d at

1184-85.

IV. CAT Relief

Ahmed contends that he is entitled to relief under CAT. To

qualify for CAT relief, Ahmed must establish that it is more

likely than not that he would be tortured if removed to Ban-

gladesh. See Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir.

2004). “ ‘Torture is an extreme form of cruel and inhuman

AHMED v. KEISLER 14063

treatment and does not include lesser forms of cruel, inhuman

or degrading treatment or punishment that do not amount to

torture.’ ” Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir.

2001) (quoting 8 C.F.R. § 208.18(a)(2)), amended by, 355

F.3d 1140 (9th Cir. 2004). Torture is defined as

any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a per-

son for such purposes as obtaining from him or her

or a third person information or a confession, pun-

ishing him or her for an act he or she or a third per-

son has committed or is suspected of having

committed, or intimidating or coercing him or her or

a third person, or for any reason based on discrimi-

nation of any kind . . . .

Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001) (quot-

ing 8 C.F.R. § 208.18(a)(1) (2000)). Country conditions evi-

dence can play a decisive role in determining eligibility for

relief under CAT. See id. at 1282-83. Ahmed bears the burden

of presenting evidence to establish “substantial grounds for

believing that [he] would be in danger of being subjected to

torture in the country of removal.” Id. at 1284 (internal quota-

tion marks omitted). We review the factual findings underly-

ing the IJ’s denial of relief under the CAT for substantial

evidence. See Zheng, 332 F.3d at 1193.

[20] The evidence in the record compels a finding that it is

more likely than not that Ahmed will be persecuted if

returned to Bangladesh, and Ahmed has offered evidence, if

less pronounced, suggesting the likelihood of future harm.

While in Bangladesh, Ahmed was taken into custody and

beaten on four occasions (once while with his brother and

uncle, and three times after participating in protests). Though

certainly forms of persecution, it is not clear that these actions

would rise to the level of torture.

[21] Because the evidence does not demonstrate that it is

more likely than not that Ahmed will be tortured if returned

14064 AHMED v. KEISLER

to Bangladesh, we find that CAT relief is not appropriate. See

Hasan v. Ashcroft, 380 F.3d 1114, 1120-23 (9th Cir. 2004);

8 C.F.R. § 208.16(c)(2). Accordingly, we find that substantial

evidence supports the IJ’s determination that Ahmed is not

eligible for CAT relief.

CONCLUSION

For the reasons set forth above, we grant Ahmed’s petition

for review.

PETITION GRANTED.

RAWLINSON, Circuit Judge, dissenting:

I respectfully dissent, as I cannot agree that the evidence in

this case compels a finding of persecution. See Lolong v. Gon-

zales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc) (requir-

ing affirmance of the BIA unless “the evidence not only

supports, but compels” reversal) (citation omitted). As we

have repeatedly held, persecution is an “extreme concept,”

characterized by “the infliction of suffering or harm upon

those who differ . . . in a way regarded as offensive.” Kohli

v. Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007) (citation

omitted). The facts of this case simply do not compel us to fit

Ahmed’s claims within that characterization.

The majority opinion cites three bases supporting its hold-

ing that a conclusion of persecution is compelled. The first is

the killing of Ahmed’s uncle and the beating of Ahmed and

his brother. The second is the punishment inflicted on Ahmed

as a result of his participation in unauthorized demonstrations.

The third is the disappearance of Ahmed’s brother following

an argument between the brother and members of an opposi-

tion group. I will explain why the majority’s reliance on these

bases is misplaced.

AHMED v. KEISLER 14065

1. The Killing of Ahmed’s Uncle

As the majority opinion recognizes, Majority Opinion, p.

14040, Ahmed’s uncle was suspected of collaborating with

Pakistan during the Bangladesh war for independence from

Pakistan. This fact itself militates against a compelled finding

of persecution. We have consistently held that confrontations,

even deadly ones, that occur in the course of civil war or

insurgency are, unfortunately, expected consequences of civil

conflict rather than persecution. See Miranda Alvarado v.

Gonzales, 449 F.3d 915, 931 (9th Cir. 2006), as amended

(“[I]njury inflicted by opposing political or other groups on

each other during a civil conflict will not necessarily equate

to persecution on account of one of the . . . protected

grounds.”); Ndom v. Ashcroft, 384 F.3d 743, 752-53 (9th Cir.

2004) (noting that “the existence of civil war . . . by itself,

does not establish eligibility for asylum . . .” and this court

has “found no persecution despite civil strife” when an appli-

cant fails to establish “that his or her persecutor was moti-

vated by one of the five statutory grounds”) (citations

omitted). Ahmed and his brother were beaten when they inter-

ceded on behalf of their uncle. Despite their good intentions,

they were unable to “save” their uncle from the soldiers.

However, Ahmed and his brother were beaten, not because of

their political views or their ethnicity, but because they inter-

fered with the soldier’s punishment of a suspected enemy col-

laborator. Although we might abhor the atrocities of war, that

abhorrence does not translate into a compelled finding of per-

secution. See Miranda Alvarado, 449 F.3d at 932 (citing with

approval language of a BIA decision holding that harm result-

ing “incidentally from behavior directed at another goal, the

overthrow of a government or, alternatively, the defense of

that government against an opponent, is not persecution”)

(citation omitted). The IJ’s conclusion that these events did

not rise to the level of persecution is supported by substantial

evidence as discussed above. See Ibarra-Flores v. Gonzales,

439 F.3d 614, 618 (9th Cir. 2006) (recognizing that we review

for substantial evidence, i.e., “such relevant evidence as a rea-

14066 AHMED v. KEISLER

sonable mind might accept as adequate to support a conclu-

sion.”) (citation omitted). The IJ’s finding is also bolstered by

the fact that for a period of 18 years — between 1972 and

1990 — Ahmed experienced no problems with the Bengali

military.

The majority opinion implicitly acknowledges the weak-

ness of Ahmed’s persecution claim where it states that “the

fact that Ahmed was beaten when captured with his uncle

suggests that the army imputed to Ahmed his uncle’s political

opinion.” Majority Opinion, p. 14053. However, more than a

suggestion is needed to countervene the Immigration Judge’s

(IJ) finding. Indeed, a suggestion falls far short of the compel-

ling evidence required to overturn the IJ’s finding. Lolong,

484 F.3d at 1178 (acknowledging that the evidence must com-

pel reversal).

2. Ahmed’s Participation in Demonstrations

As an initial matter, it should be noted that the majority

opinion’s description of the events in question as demonstra-

tions is somewhat euphemistic. In fact, Ahmed himself testi-

fied that the gatherings degenerated into riots, with stones

being thrown at police officers. The officers’ efforts to quell

these riots did not constitute persecution, but an attempt to

maintain the peace. See Fisher v. INS, 79 F.3d 955, 961-62

(9th Cir. 1996) (en banc) (holding that Iranian woman failed

to demonstrate a well-founded fear of persecution despite

multiple arrests for violating Islamic laws because, without

showing selective enforcement, “disproportionately severe

punishment” or “pretextual prosecution”, she had merely

established that she “face[d] a possibility of prosecution for

an act deemed criminal in Iranian society”) (citation omitted).

Adding to the fact that the gatherings became riotous was

Ahmed’s testimony that the protestors had been told that any

protests must be confined inside the camp rather than outside

the camp borders. When the protestors defied those orders and

AHMED v. KEISLER 14067

when Ahmed made the not-so-veiled threat that “if you don’t

give us the freedom to speak today [then] this very Bangla-

desh is going to become Pakistan again”, it is not surprising

that the police moved to restore order. That the police used

force in restoring order does not compel a finding of persecu-

tion.

3. The Disappearance of Ahmed’s Brother

The IJ’s finding that the disappearance of Ahmed’s brother

does not bolster his claim of persecution is supported by sub-

stantial evidence. Ahmed himself testified that his brother was

taken, not because of his political opinion, but because the

Awami League members “got angry [with his] brother and

they had an argument with him, not with the others.” This evi-

dence simply does not compel a finding that Ahmed’s brother

was taken away because of his political opinion.

When this case is considered under the deferential standard

we must apply, Ahmed’s petition fails to meet the require-

ments for asylum. See Gu v. Gonzales, 454 F.3d 1014, 1019

(9th Cir. 2006) (requiring a showing of persecution to be eli-

gible for asylum). That failure also dooms Ahmed’s request

for withholding of removal. See Fisher, 79 F.3d at 965 (hold-

ing that “failure to satisfy the lesser standard of proof required

to establish eligibility for asylum” necessarily results in fail-

ure “to demonstrate eligibility for withholding of deporta-

tion”) (citation omitted).

Because substantial evidence supports the IJ’s finding of no

persecution, I would deny Ahmed’s petition.