Terrorists Strike Pakistan: Changed Country Conditions And Filing A Motion To Reopen Or BIA Remand. A Practice Advisory
As family members collect the dead and search for the many still missing from the October 18, 2007 bomb blasts which claimed at least 140, one of the highest death tolls in Pakistani history,  this most recent act of terror places a now unforgettable exclamation point on the climate in Pakistan: Democracy, at least for now, is strongly resisted by many and many others are in serious jeopardy there if returned (removed) to Pakistan. As such, the time may be now to file a motion to reopen based on changed country conditions in Pakistan. The following article is a summary of up-to-date information in Pakistan and what should be included should your Pakistani client decide to file a motion to reopen or BIA motion to remand at this time, based on the current country conditions as they now exist there.
For the practioner whose clients have been disbelieved and their cases have been denied based on credibility issues, and/or the State Department Country Report, one must consider not only the law with regard to changed country conditions, but the current conditions in Pakistan. Many, including your IJ, would be hard pressed to now deny that Pakistan is a powder keg waiting to happen. And for your clients who face imminent deportation either from previously denied claims or cases on appeal with the BIA, now may be the time to file a motion to reopen or BIA remand motion, based on current regulations providing for such an avenue. Set forth below will examine both scenarios, and what course of action to take. Also provided below is a guide as to regulations one may wish to cite, the current law and the current country conditions which should be discussed with such an undertaking to the IJ or BIA.
CURRENT COUNTRY CONDITIONS IN PAKISTAN: A government unwilling or unable to protect individuals from terrorism.
While the legal basis for the motion to reopen or remand always must be established, the factual basis must be as well. Pakistan clearly is a country now overwhelmed by fear and grief. As the former two-time Pakistan leader Benazir Bhutto has stated, "For me, the attack was not on an individual…The attack was not on me. The attack was on what I represent-it was an attack on democracy." The attack, leaving at least 136 murdered, was apparently done by two suicide bombers who caused the explosions. A third individual , who wore a suicide belt, was detained by Bhutto's own security forces; a fourth man was found armed with a gun . One of the attackers also apparently threw a grenade at Bhutto's convoy. Seconds later, a suicide bomber blew himself up with a shrapnel-filled explosive . Police detained the three men in southern Punjab province -- a center for militancy -- and took them to Karachi for questioning. Hundreds of thousands had traveled across Pakistan to welcome Bhutto.
WHO IS THE CAUSE OF THE TERRORIST ACTS? THE MOTIVATIONS OF THE PERSECUTORS
Many have blamed Islamic militants for the attack. Such accusations may be warranted, as Islamic militants in recent months have increased their attacks now target cities rather than rural areas in Pakistan. Recently, Bhutto received further death allegedly from a "friend of al-Qaeda." Clearly, this attack is "clear and convincing" evidence that terrorists can attack anywhere, at anytime, and further evidence of a government which is unable or unwilling to prevent such an occurrence. Both have direct implications on your client's safety in Pakistan. The recent political turmoil within the Musharraf regime should also be discussed in the motion, as it is most likely directly related to the escalation of terrorism. Musharraf's attempt to remove Pakistan's chief justice in March has caused nationwide protests and calls for him to resign as army chief. Whether real or not, Musharraf's "perceived" deal with Bhutto, the former two-time minister and leader of the Pakistan People's Party, has angered many. Bhutto, whose father was hanged by the military ruler who overthrew him, has traditionally fought military rule. The fact that her supporters and opponents see Bhutto making deals with a military leader will only serve to infuriate all sides, and further weaken Musharraf's already tenuous hold on Islamic extremists. Musharraf's dismissal of Bhutto's corruption charges, allowing her return has further deteriorated his control, as this recent major attack has demonstrated. The attack was not only an attack against Bhutto, but also a symbol of the uncertainty of the Musharraf regime, a government desperate to appease all sides, but having pleased none. Such should be the tone of your argument with the IJ or BIA. Just recently, another suicide attacker targeted a police truck October 25, 2007, killing 24 people -- most of them police -- in the Taliban-dominated area of North West Frontier province. This incident continues to demonstrate the uncertainty and instability in Pakistan.  Even more recently, on October 25, 2007, in the Swat valley area of Pakistan, clashes between Islamic loyalists preaching suicide bombing and supporting cleric Maulana Fazlullah, linked to Osama Bin Ladin, and a group outlawed by Musharraf (Tehreek Nifaz-e-Shariat Mohammadi or "TNSM") also may be linked to the bomb blast killing at least 21 army troops recently. This too may illustrate the potential for a widened war and impact your argument on country conditions changing dramatically in recent weeks.
Moreover, as Bhutto begins campaigning in Pakistani cities in the next few weeks, the situation may most likely worsen, especially in Karachi and Lahore. Be prepared to supplement your motion in the form of a response brief or with recent news accounts of further escalation of mass civil unrest, terrorist attacks and violence in Pakistan, all of which shows the government is unwilling or unable to control the rise in terror and protection of its people, a situation getting much worse, not better. Moreover, support such a motion with clear documentation of the rise of the Pakistan People's Party now that Bhutto is back in Pakistan. Discuss what effects this will have on the Musharraf regime should the PPP become part of the current government as is expected, or the Musharraf's eight-year reign continues to weaken or crumbles. All are critical components in arguing changed country conditions. While your client must always demonstrate an individualized fear, country conditions must be closely documented to meet the one-year tolling requirement. As such, motivations of the persecutors in this regard are not relevant in the demonstration of changed country conditions and need not be argued in support of your motion.
FILING A MOTION TO REOPEN BASED ON CHANGED COUNTRY CONDITIONS IN PAKISTAN: File within 30 days of October 18, 2007.
An immigration judge also must accept an application for asylum regardless of the duration your client has been in the Untied States previously, even well-after the one-year bar. For a Pakistani client seeking asylum now, it may be advisable to file such a motion within 30 days of the October 18, 2007 bombing attacks to demonstrate the filing is within a reasonable time of the condition change. One must show why someone is eligible to file after the one-year deadline. There are explicit exceptions pursuant to 8 CFR § 208.4 et. seq. with regard to the one-year filing deadline of an asylum application. The one-year time bar does not apply, however, if the alien demonstrates either "the existence of changed circumstances which materially affect the applicant's eligibility for asylum" or extraordinary circumstances relating to the delay in filing. 8 U.S.C. § 1158(a)(2)(D).
Asylum regulations provide that changed circumstances may include but are not limited to: 1) changes in the conditions in the applicant's country or nationality or 2) changes in objective circumstances relating to the applicant in the United States, including changes in applicable U.S. law, that create a reasonable possibility that the applicant may qualify for asylum. See 8 CFR § 208.4 (a)(4)(i). Your client must be must be afforded an opportunity to present his case. But see Hussain v. Keisler, 06-2932 & 06-3318 (7th Cir., October 24, 2007), for a discussion of the one-year bar under 8 U.S.C. § 1158(a)(2)(B). The evidence offered to demonstrate changed circumstances can appear either in the application packet, or in testimony. See Castillo-Villagra v. INS 972 F.2d 1017 (9th Cir. 1992).
If you are filing for asylum under the one-year filing exception based on changed circumstances, one must apply for asylum within a reasonable period given those "changed circumstances."  Pursuant to INA § 208 (a)(2)(B); 8 U.S.C. § 1158(a)(2)(B), while an individual cannot obtain asylum if he or she fails to demonstrate "by clear and convincing evidence that the application has been filed with one year of the date of [his or her] arrival in the United States" he or she must be allowed the opportunity to present his or her case, have a hearing on the matter and provide evidence of exceptional or changed circumstances under 8 C.F.R. § 208.4. A change in the law would qualify, for example, as a "changed circumstances." An alien in removal proceedings must be given this opportunity to prove this assertion. Without question, an application can be considered by an immigration judge even if filed beyond the one-year deadline and the IJ could have instructed the petitioner of this fact. Clearly, the alien must be allowed an opportunity to "demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances or extraordinary circumstances relating to the delay in filing the application within the [one-year] period." See INA § 208 (a)(2)(D); 8 U.S.C §1158(a)(2)(D).
Other reasons, such as the changed county conditions in Pakistan and the continued escalation of the Shia/Sunni Muslim conflict world-wide, and in Pakistan, may constitute a "changed in circumstances" under 8 C.F.R. § 208.4 as it should be a liberally construed mechanism to allow legitimate claims go forward, despite being filed after one-year. These facts should also be included in such a motion, as the idea behind the one-year requirement was not to deprive individuals of valid asylum claims in the United States. Pursuant to the Asylum Officer Training Manual, Lesson Plan for the One-Year Filing Deadline, ("Manual"), asylum officers must be flexible and include all testimony or documentary evidence relating to the existence of an exception, including testimony of the petitioner, country conditions, and other legal research done by the asylum officer. Citing 8 C.F.R. § 208.4(a)(4)(I)(A), the Manual defines applicants, possibly like your clients, as refugees sur place as an applicant where changes occurring in the applicant's country or place of last habitual residence, and/or activities by the applicant outside of his or her country . The Manual also defines a "reasonable period of time," once it is established that the applicant falls into one of the exception categories. The Manual further suggests that there are many factors to be considered in defining a "reasonable period of time," including, education and level of sophistication of applicant, time to obtain legal assistance, any effects of persecution and/or illness, and "many other factors" should be considered.
Establishing the existence of changed circumstances in Pakistan that materially affect eligibility for asylum.
As the Manual indicates, there is an obligation to research the country conditions in making the determination of eligibility for the one-year filing exception. Therefore, absent a showing that either the government has found evidence contrary (all of which would require a hearing to resolve these issues) to that provided by petitioner in his application or testimony or some other indication that conditions in Pakistan have not changed since his arrival in the United States, the petitioner should be able to meet the burden of "reasonableness." The standard is stated as "to the satisfaction of the Attorney General," and the Manual indicates that only immigration judges, the BIA, and asylum officers have the authority to adjudicate this issue, and must find it reasonable to conclude that a changed circumstance exists.
Lastly, your client is entitled to a reasoned decision why he or she can or cannot present an asylum application. A denial without a reasoned basis maybe a clear violation of your client's right to fair hearing (with regard to the MTR or remand request with the BIA), as one "who faces deportation is entitled to a full and fair hearing of [his] claims and a reasonable opportunity to present evidence on [his] behalf." Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Indeed, it is an IJ's duty to develop the record fully and fairly. Jacinto v. INS, 208 F.3d 725, 733 (9th Cir. 2000). See Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003) (per curiam). As the Seventh Circuit Court of Appeals has noted in Colmenar, when an IJ refused to hear certain testimony from the petitioner but, instead, relied almost exclusively on his written asylum application this can be a denial of due process, observing that it is "[b]etter that we hear these claims out fully and fairly and then make an informed judgment on the merits. This is consistent with our role as judges, and the values of our Constitution demand no less." Id. at 973. See also Shoafera v. INS, 228 F.3d 1070, 1075 (9th Cir. 2000). (holding that, where an IJ found a credible applicant's claim insufficient because of her "speculations and conclusions," the IJ had to elicit all available testimony from the applicant before rejecting her claims). The issuance of a full and separate decision setting forth the reasons for the Immigration Judge's order why he was ineligible to file for asylum is necessary to preserve the respondent's due process rights and allow him a fundamentally fair and impartial hearing. The standard of proof in asylum applications is based on a "well-founded" fear of persecution, Cardoza-Fonesca, 480 U.S. at 448-449, which entails a subjective element of fear, for which an apprehension or awareness of danger has been held to be sufficient. Matter of Acosta, Int. Dec. #2986 (BIA 1985). Necessarily, the subjective element of fear is the individual's feelings and opinions concerning one's decision to flee his Pakistan. Your client, in the motion to reopen or remand, should also attempt to satisfy the requisite objective element of fear which a reasonable person in similar circumstances would fear persecution. Matter of Mogharrabi, defines the objective element of fear as that which a reasonable person in similar circumstances would fear. An alien satisfies this objective standard if the evidence shows that: 1) the applicant possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort; 2) the persecutor is already aware, or could become aware that the applicant possesses this belief or characteristic; 3) the persecutor has the capability of punishing the applicant; and, 4) the persecutor has the inclination to punish the applicant.
In summary, if one files a motion to reopen (attaching an asylum application) after April 1, 1998, one must demonstrate changed or extraordinary circumstances materially effecting eligibility now for asylum. That evidence offered to demonstrate changed circumstances can appear either in the application packet, or by applicant's testimony later. See Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). An affidavit by your client which coincides with recent media accounts of political violence is recommended. The apparent rise is suicide bombings can be argued also as a basis for changed country conditions and should be well-documented. The practitioner may document the growing trend of suicide bombings as a product of domestic political competition among various nonstate actors within Pakistan. The strategic logic of suicide terrorism is aimed at political coercion. The vast majority of suicide terrorist attacks, worldwide and including Pakistan, are not isolated or random acts by individual fanatics, but rather occur in clusters, part of a larger plot by an organized group to achieve a specific political goal. It is critical that the IJ or BIA be made aware of this fact, and that Pakistan is in fact a powder keg waiting to happen, as mentioned at the beginning of this article. Worldwide, suicide bombers target democracies and governments friendly to the West. Considerable corroborative evidence, demonstrating these changed country conditions and illustrating your client's well-founded fear of persecution based on the political conditions there, must be included. There will undoubtedly be more suicide attacks in Pakistan in the coming weeks, and all of them should be analyzed in support of establishing changed country conditions and hopefully reopening your client's case.
1 CNN.com. http://edition.cnn.com/2007/WORLD/asiapcf/. October 21, 2007. Other accounts have the toll at 140. See Blast Kills 21, Mostly Troops. CNN.com. http://www.washingtonpost.com/wp-dyn/content/article/2007/10/26/AR2007102600414.html?hpid=sec-world. October 26, 2007.
2 Bhutto: Attack had a higher aim. Chicago Tribune. October 20, 2007.
3 Pakistanis overwhelmed by grief. Chicago Tribune. October 20, 2007.
5 CNN.com http://edition.cnn.com/2007/WORLD/asiapcf/10/20/pakistan.bhutto.ap/index.html
October 20, 2007.
7 AFP.com. http://www.afp.com/english/news/stories/071023170622.gglkjbae.html. October 23, 2007. See also, Another al-Qaeda death threat for Bhutto. The Daily Telegraph. http://www.news.com.au/dailytelegraph/story/0,22049,22639606-5001028,00.html. October 24, 2007
8 CNN.com. Suicide blast kills 24 in Pakistan. http://edition.cnn.com/2007/WORLD/asiapcf/10/25/pakistan.blast/index.html?iref=topnews.www.cnn.com October 25, 2007.
9 Washingtonpost.com. Pakistan Blast Kills 21, Most Troops. http://www.washingtonpost.com/wp-dyn/content/article/2007/10/26/AR2007102600414.html?hpid=sec-world October 26, 2007.
10 See 8 C.F.R. § 208.4(a)(4)(ii).
11 See also 8 C.F.R. § 208.12(a).
12 Manual at page 14
13 Id. at 18
14 See Manual, page 9 (citing 8 C.F.R § 208.4(a)(1) and 8 C.F.R § 208.4(a)(2)(i)(B).).
15 See also Reyes-Melendez v. INS, 342 F.3d 1001, 1006 (9th Cir. 2003) (holding that a remand is called for when an alien was prevented from reasonably presenting his or her case); 8 U.S.C. § 1229a(b)(4)(B) (providing that an alien has a right to present evidence). As the Supreme Court has explained, the Fifth Amendment's "Due Process Clause applies to all 'persons' within the United States, including aliens." Zadvydas v. Davis, 533 U.S. 678, 693 (2001)
16 210 F.3d at 972.
17 Matter of Mogharrabi, Int. Dec. 3028, slip opinion at 5
18 8 CFR § 208.4 et.seq.
19 See Dying To Win: The Strategic Logic of Suicide Terrorism. Robert A. Pape. 2006. Random House.
About The Author
Christopher W. Helt, Esq. practices removal defense and federal immigration litigation principally in Chicago, Atlanta and Memphis and has successfully litigated motions to reopen on asylum claims from Pakistan and Iraq (based on changed country conditions). He has been twice qualified in federal district court as an expert witness in asylum law. As an adjunct faculty member at Loyola University of Chicago, he teaches separate courses on immigration policy and terrorism to undergraduate and graduate students. He can be reached at email@example.com.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.