Ahmad

MEMORANDUM **

The facts of this case are familiar to the parties and we recite them here only to the extent necessary. Petitioner Naeem Ahmad, a native and citizen of Pakistan of Indian descent, appeals the Board of Im *13 migration Appeals’ (“BIA”) denial of his motion to reopen for consideration of protection under the Convention Against Torture (“CAT”). In denying his motion, the BIA took administrative notice of the fact that there had been a change in regime in Pakistan during the pendency of Ahmad’s motion to reopen. The BIA concluded that because Ahmad had not shown that he faced torture under the current regime, he failed to show that he was likely to be tortured in the future and thus did not qualify for CAT protection.

Due process claims in deportation proceedings are reviewed de novo. Rodiguez-Lariz v. INS, 282 F.3d 1218, 1222 (9th Cir.2002) (citing Castillo-Perez v. INS, 212 F.3d 518, 523 (9th Cir.2000)). Ahmad argued that he was denied due process because the BIA took notice of a regime change in Pakistan without giving him notice and an opportunity to respond.

The BIA may generally take administrative notice of legislative facts such as changed country conditions…

dissenting.

I respectfully dissent.

I agree with the majority’s interpretation of Castillo-Villagra v. INS 1 and its progeny, but the administrative notice of a change of regime was not decisive in this case.

Ahmad bore the burden of proof on his contention that if he was returned to Pakistan, he would probably be tortured because of his support for Pakistanis descended from those who fled India at partition. 2 The BIA said that he had not met that burden, because he had not been tortured in the past and had otherwise shown no probability of torture in the future.

Though he claimed he had been beaten twice and otherwise abused by the police, the BIA found that such police brutality *14 did not “r[i]se to the level of torture.” The BIA had adopted an interpretation of the Convention, consistent with language in the legislative history, that “rough and deplorable treatment, such as police brutality, does not amount to torture.” We have similarly interpreted the law. 3 As reprehensible as police brutality is, I doubt that it is confined to so few regimes or so entirely unknown in our own, except in cases more extreme than those involving two beatings with no long term medical…