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Non-Precedent Decision of the Administrative Appeals Office

MATTER OF Z-A- DATE: NOV. 2, 2015

MOTION OF ADMINSTRA TIVE APPEALS OFFICE DECISION

APPLICATION: FORM I-485, APPLICATION TO REGISTER PERMANENT RESIDENCE OR ADJUST STATUS

The Applicant, a native and citizen of Pakistan, seeks to adjust status to Lawful Permanent Resident. See Section 13 of the Act of September 11 , 1957, Pub. L. No. 85-316, 71 Stat. 642, amended by Pub. L. No. 97-116, 95 Stat. 161 (1981), 18 U.S.C. § 1255b. The Director, National Benefits Center, denied the application. We dismissed a subsequent appeal and a motion to reopen and reconsider. The matter is now before us on a second motion to reopen and reconsider. The motion will be denied.

On March 5, 2013, the Director denied the application for adjustment of status after determining that the Applicant had failed to demonstrate compelling reasons that prevent his return to Pakistan. The Director also noted that the U.S. Department of State issued its opinion on January 26, 2013 advising that it could not make a favorable recommendation in this case as the Applicant had not established compelling reasons that prevent his return to Pakistan.

The Director also denied the application of the Applicant's spouse who submitted an Application to Register Permanent Residence or Adjust Status (Form I-485), seeking to adjust her status under Section 13 as a derivative dependent spouse of the applicant. The Director issued a separate decision denying the application. We dismissed a subsequently filed appeal and a motion to reopen and reconsider.

In a decision dated January 6, 2014, we determined that the Applicant failed to meet his burden of establishing his eligibility for adjustment of status under Section 13 of the Act. Specifically, we determined that the Applicant failed to establish compelling reasons that prevent his and his family 's return to Pakistan and dismissed the appeal accordingly.

On February 3, 2014, the Applicant timely filed a Form I-290B, Notice of Appeal or Motion requesting that we reopen and reconsider our January 6, 2014 decision. The Applicant submitted a brief, statements from officials of the , a statement from his father, and a copy of a "First Investigation Report" dated February 15, 1981 , from Pakistan, in support of the motion. After review of the evidence in the record, we found the evidence insufficient to overcome the grounds of our earlier decision, and on July 14, 2014, dismissed the motion accordingly.

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On August 14, 2014, the Applicant filed the current motion. The Applicant submits copies of documents he submitted in prior proceedings, which he states provide sufficient reasons why he is unable to return to Pakistan. The Applicant states that he fears persecution by the Taliban and that in 2010, his father received phone calls from the Taliban threatening to assassinate him and his family if they return to Pakistan. The Applicant also submits an additional statement in which he indicates that his children have been granted permission to remain in the United States through the Deferred Action for Early Childhood Arrivals program. The Applicant states that he cannot return to Pakistan because if he does, no one will be able to support his children. The Applicant further states that his children need to remain in the United States so that they can complete their studies. The Applicant also submits supportive statements from his children.

Pursuant to 8 C.P.R. § 245.3, eligibility for adjustment of status under Section 13 is limited to aliens who were admitted into the United States under section 101(a)(15)(A)(i), (a)(15)(A)(ii), (a)(15)(G)(i), or (a)(15)(G)(ii) of the Act who performed diplomatic or semi-diplomatic duties, and to their immediate families, if they establish that there are compelling reasons why the applicant or the member of the applicant's immediate family is unable to return to thecountry represented by the government that accredited the applicant and that adjustment of the applicant's status to that of an alien lawfully admitted to permanent residence would be in the national interest. Aliens whose duties were of a custodial, clerical, or menial nature and members of their immediate families are not eligible for benefits under Section 13.

The legislative history for Section 13 reveals that the provision was intended to provide adjustment of status for a "limited class of ... worthy persons ... left homeless and stateless" as a consequence of "Communist and other uprisings, aggression, or invasion" that have "in some cases ... wiped out" their governments. Statement of Senator John F. Kennedy, Analysis of Bill to Amend the Immigration and Nationality Act, 85th Cong., 103 Cong. Rec. 14660 (August 14, 1957). The phrase "compelling reasons" was added to Section 13 in 1981 after Congress "considered 74 such cases and rejected all but 4 of them for failure to satisfy the criteria clearly established by the legislative history ofthe 1957law." H. R. Rep. 97-264 at 33 (October 2, 1981).

On motion the Applicant states that his children have been approved for Deferred Action for Early Childhood Arrivals and are not willing to go back to Pakistan. The Applicant states that his children want to remain in the United States to complete their education and that he has to remain in the United States in order to care for and support his children. The above stated reasons for not wanting to return to Pakistan are not compelling reasons under Section 13. As stated in our prior decisions and incorporated by reference in this decision, the legislative history of Section 13 shows that Congress intended that "compelling reasons" relate to political changes that render diplomats and foreign representatives "stateless or homeless" or at risk of harm following political upheavals in the country represented by the government which accredited them. Section 13 requires that an applicant for adjustment of status under this provision have "compelling reasons demonstrating that the alien is unable to return to the country represented by the government which accredited the" applicant. (Emphasis added). The term "compelling" must be read in conjunction with the term "unable" to correctly interpret the meaning of the words in context. Thus, reasons that are compelling are those that render an applicant unable to return, rather than those that merely make return undesirable or not

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preferred from the applicant's perspective. Thus, the Applicant's desire to remain in the United States for family unity and for the continued education and general well-being of his children is not a compelling reason within the meaning of Section 13.

The Applicant submits evidence previously submitted into the record and claims that he is unable to return to Pakistan because he fears that the Taliban would harm him and his family based on his political affiliation with the _ The two statements from officials of the

_ dated January 12, 2014 and January 15, 2014, and a "First Investigation Report" dated February 15, 1981, indicate that the Applicant was an active member of the and that he was arrested and imprisoned in February 1981 by the military government in power in Pakistan at that time because he and other party activists were protesting against the government. The statements from the officials also indicate that the applicant is at risk of harm from "militant groups" operating in Pakistan because of threats against the Applicant and his family, but provide no more detail about the threats or how the PPP officials became aware of them. The statement from the Applicant's father dated January 10, 2014, indicates that there are serious threats against the Applicant and his family from the militant groups in Pakistan because of his long political affiliation with The Applicant' s father states that in 2010, he received telephone calls from the militant groups threatening to kill the Applicant and his family if they return to Pakistan.

As noted in our previous decision, the Applicant did not claim fear of persecution by the Taliban or reference any threats to himself or his family when he applied for adjustment of status. At his adjustment of status interview oh November 14, 2011 , the Applicant was asked by an immigration officer to state the compelling reasons why he is afraid to return to Pakistan. The Applicant stated that his main reason was the continued education of his children and his family's security given the problematic security situation in Pakistan. The Applicant also expressed the fear that his children may be kidnapped because they were coming back from the United States and that his daughters cannot freely attend school or college in Pakistan. The Applicant did not mention his fear of the Tali ban even though he now claims the Taliban threatened to kill him in 2010. We noted this inconsistency in our prior decision, and in response, the applicant submitted a statement dated January 23, 2014, claiming that at first, he did not take the threats seriously, but that the threat became stronger afterwards and "posed a real life threat" to him and his family. However, given the seriousness of the threats the Applicant states were conveyed to him by his father in 201 0-that militant groups threatened to kill the Applicant and his family if they returned to Pakistan - it is reasonable to expect that he would mention these threats when asked during his 2011 interview why he feared returning to Pakistan. On the current motion, the Applicant submits the same statements from officials and his father, which have been previously submitted into the record, to support his assertions. The Applicant has provided no further evidence to establish that he and his family recently received specific threats from the Taliban, and the record does not establish by the preponderance of the evidence that he is currently at risk ofharm by the Taliban because of his political affiliation and activities, his past government employment, or other related reasons.

Even if the Applicant established that he and his family were the targets of specific threats from the Taliban, the Applicant has failed to establish that the threats are related to political change in Pakistan that rendered him, a returning diplomat, "stateless or homeless" or at risk of harm following political

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upheavals in the country that accredited him. The Taliban and other militant groups were operating in Pakistan before the Applicant carne to the United States in 2003 and continued to operate and carry out acts of terrorism while he was in the United States in his diplomatic capacity.

The U.S. Department of State reports that the formed in 2007 in opposition to Pakistani military efforts in the Federally Administered Tribal Areas (F ATA). The group formed from disparate militant tribes in the FAT A who "agreed to cooperate and eventually coalesced into It operates in the F ATA, where it trains and deploys its operatives, with a goal of "usurping the Government of Pakistan by waging a campaign of terror against the civilian leader of Pakistan, its military, and against NATO forces in Afghanistan," and it has a "symbiotic relationship" with al-Qa'ida. US Department of State, Office of the Coordinator for Counterterrorism, Country Reports on Terrorism 2010, August 18, 2011. Members of the Tali ban, as well as al-Qa'ida and the groups in the FATA that joined to form the , have been operatingin Pakistan since before the Applicant carne to the United States in May 2003. The Department of State reported that in 2002, the "liberation of Afghanistan from the Taliban regime eliminated al­Qa'ida's principal base and sanctuary," and "[f]leeingterrorists also caused trouble in Pakistan and other states through which they transited." US Department of State, Office of the Coordinator for Counterterrorism; Patterns of Global Terrorism, April 30, 2003. In January 2002, the Government of Pakistan arrested nearly 500 suspected al-Qa'ida and Taliban members and banned five extremist organizations. Patterns of Global Terrorism, April30, 2003.

According to a 2005 report issued by the Department of State:

After the two near-miss assassination attempts against President Musharraf in December 2003 , groups linked to al-Qa'ida tried to assassinate a corps commander in

in June, and the Finance Minister (now Prime Minister) in July .... Al-Qa' ida declared the Government of Pakistan to be one of its main enemies, and called for its overthrow.

The Government of Pakistan continues to pursue al-Qa'ida and its allies aggressively . through counterterrorist police measures throughout the country and large-scale military operations in the Federally Administered Tribal Areas (FA TA) along the rugged Afghanistan-Pakistan border. .. . Over 600 suspected operatives of al-Qa'ida and other groups have been killed or captured by Pakistani authorities since September 2001.

US Department of State, Office of the Coordinator/or Counterterrorism, Country Reports on Terrorism, April27, 2005.

While country condition reports indicate that the Taliban and other militant groups have expanded their activities beyond the tribal areas to other parts of the country, the government of Pakistan has maintained control and continued to launch attacks against these groups. According to U.S. Department of State reports issued in 2013 and 2014, militant and terrorist activity continued, and the

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government took actions to weaken terrorist ties around the country and prevent recruitment by militant organizations, implementing countermeasures against the and other groups in the tribal areas as well as urban areas such as See US Department of State Country Reports on Human Rights Practices- Pakistan for 2013 and 2014.

We acknowledge the violent situation and lack of security in Pakistan caused in part by political instability and the terrorist and other extremist groups operating there and that, despite the government's counterinsurgency and counterterrorism operations, violent attacks by these groups persist. However, as discussed above, the legislative history of Section 13 shows that Congress intended that "compelling reasons" relate to political changes that render diplomats and foreign representatives "stateless or homeless" or at risk of harm following political upheavals in the country represented by the government which accredited them. Here, the Applicant has not established that he is at risk of harm due to political change or upheaval that occurred while he was in the United States in diplomatic status.

For the reasons discussed above, we find that the Applicant is not eligible for adjustment of status under Section 13 of the Act. He has failed to establish that compelling reasons within the meaning of Section 13 prevent his return to Pakistan. The applicant has failed to overcome the grounds of our previous decisions.

In application proceedings, it is the applicant's burden to establish eligibility for the immigration benefit sought. Section 291 of the Act, 8 U.S.C. § 1361. Here, that burden has not been met.

ORDER: The motion to reopen is denied.

FURTHER ORDER: The motion to reconsider is denied.

Cite as Matter o.fZ-A-, ID# 10557 (AAO Nov. 2, 2015)