Imran Shams v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
IMRAN SHAMS,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71386
Agency No. A029-807-991
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 12, 2014
Pasadena, California
Before: PREGERSON, WARDLAW, and BERZON, Circuit Judges.
Imran Shams (“Shams”), a native and citizen of Pakistan, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order affirming the
Immigration Judge’s (“IJ”) denial of withholding of removal and protection under
the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8
U.S.C. § 1252. Because the IJ and the BIA erred by failing to properly consider all
FILED
APR 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

-- 1 of 5 --

of the evidence in the record, we grant the petition and remand for further
proceedings.
1. Substantial evidence does not support the agency’s denial of withholding
of removal for failure to demonstrate an objectively reasonable fear of future
persecution. In reaching its conclusion, the agency ignored evidence from Shams’s
expert witness, Professor Shaul Gabbay, that Shams was highly likely to be in
danger if returned to Pakistan. Professor Gabbay testified that it was very likely
that Shams, who has lived in the United States for an extended period of time,
would be suspected of being an American spy. He reported that the “most extreme
punishment is meted out” to people considered to be spies. Moreover, Professor
Gabbay testified that because Shams is Pakistani, suspicion against him will be
much greater than against most Americans. Professor Gabbay noted that Pakistan
is a tribal, conservative country where a person like Shams cannot “just blend and
hide.” Rather, everyone will know that he has been living in the United States for
nearly twenty-five years, making him a target.
The IJ acknowledged that Islamist militant groups execute people they
accuse of being spies. The IJ noted Professor Gabbay’s testimony that Shams was
especially at risk of persecution because he may be suspected of being an
American spy. Yet, the IJ concluded, without additional comment, that there was
2

-- 2 of 5 --

“no evidence to suggest that natives of Pakistan who have lived in the United
States for an extended period of time face any threat to their life or freedom.” The
IJ provided no explanation for disregarding Professor Gabbay’s uncontroverted
testimony, which was supported by the country conditions report. The agency
erred by failing to provide a reason for disregarding the potentially dispositive
testimony of an expert witness. See Cole v. Holder, 659 F.3d 762, 772 (9th Cir.
2011).
Furthermore, the BIA erroneously determined that the IJ concluded that
Professor Gabbay’s testimony was insufficient to demonstrate eligibility for
withholding of removal “given that the country conditions materials in the record
do not adequately address how Pakistanis who return after living in the United
States . . . for an extended period of time are treated.” The IJ did not conclude that
Professor Gabbay’s testimony was insufficient; rather, the IJ acknowledged
Professor Gabbay’s testimony, and then ignored it without explanation.
Even assuming that the IJ concluded that Professor Gabbay’s testimony was
insufficient, that finding is not supported by substantial evidence. The country
conditions evidence suggests that militant groups target people they accuse of
being American spies. Professor Gabbay testified that Shams will likely be
suspected of being an American spy because he has lived in the United States for
3

-- 3 of 5 --

nearly twenty-five years. The agency failed to explain how the country conditions
report contradicted Professor Gabbay’s testimony. Although the agency is not
required to take Professor Gabbay’s testimony as true, it must reasonably consider
his highly probative and potentially dispositive testimony.1 See id. Because it did
not, we grant the petition for review on Shams’s withholding of removal claim, and
remand to the BIA to properly consider Professor Gabbay’s uncontradicted, expert
testimony.
2. Similarly, because the agency failed to consider “all evidence relevant to
the possibility of future torture,” 8 C.F.R. § 1208.16(c)(3), we grant Shams’s
petition for review on his CAT claim, and remand to the agency for further
proceedings. The BIA affirmed the denial of CAT relief “for the reasons stated by
the immigration judge.” The IJ, however, erroneously denied Shams’s CAT claim
because the claim depended on the same evidence as Shams’s withholding claim.
As with its withholding of removal analysis, the agency failed to provide any
reason for rejecting Professor Gabbay’s testimony in relation to Shams’s CAT
claim. The agency was required to “state[ ] reasons in the record why the [expert]
1 The government contends that Shams’s argument is a dispute over the
weight given to the evidence. Under substantial evidence review, we may not
reweigh evidence. Singh v. I.N.S., 134 F.3d 962, 969 n.14 (9th Cir. 1998). But
Shams does not argue that this court should reweigh the evidence; rather, he argues
that the agency failed to weigh the evidence at all, and we agree.
4

-- 4 of 5 --

testimony was insufficient to establish the probability of torture necessary to grant
CAT relief.” Cole, 659 F.3d at 772 (internal quotation marks omitted). Because
the agency “failed to give reasoned consideration to the potentially dispositive
testimony” of expert witness Professor Gabbay, we must grant the petition for
review, and remand to the agency to reconsider Shams’s CAT claim with
appropriate consideration of the expert testimony. Id. at 773.
GRANTED and REMANDED.
5

-- 5 of 5 --