The opinion of the court was delivered by: Marrero, District Judge.
Akhtar, a 29 year old Pakistani native and citizen, entered the
United States in 1979 as a lawful permanent resident. Return to
the Petition for a Writ of Habeas Corpus, ex. A (Certified
Administrative Record A35 542 224)("A") 213, 315, 400. In 1990,
Akhtar pleaded guilty in Schenectady County to attempted drug
possession, and was later sentenced to one to three years
In October 1994, based on the 1990 felony narcotics conviction,
the INS initiated deportation proceedings against Akhtar under
the Immigration and Nationality Act ("INA"), as amended, §§
241(a)(2)(A)(iii), (B)(i) (now renumbered as INA §§
237(a)(2)(A)(iii), B(i)), codified at 8 U.S.C. § 1251(a)(2)(A)
(iii),(B)(i)(1994).*fn1 (A 566-72). In June 1995, a deportation
hearing commenced before an IJ in Louisiana but was adjourned so
that Akhtar could retain counsel. (A 504). Shortly thereafter,
venue of Akhtar's hearing was transferred to New York City and
resumed in March 1996. (A 507, 543-45). Akhtar conceded his
deportability as charged by the INS, but requested time to
prepare a § 212(c) application for waiver of deportation.*fn2 (A
509). Meanwhile, in September 1995, Akhtar was arrested again and
charged with criminal sale of a controlled substance in the third
degree. Akhtar's § 212(c) application was due by June 7, 1996.
Instead, on that very day, Akhtar appeared in New York County
Supreme Court and was sentenced to three to six years
imprisonment for the September 1995 controlled substance charge.
(A 403, 515, 519).
Akhtar's deportation hearing resumed in August 1996. (A 403; B
6). Akhtar, by then incarcerated, did not appear. (A 514-16). The
IJ, evidently unaware of Akhtar's incarceration, ordered Akhtar
deported in absentia. (A 500, 515-16).
In January 1999, the INS moved to reopen Akhtar's deportation
proceedings, having learned that his failure to appear in August
1996 had been due to his incarceration.*fn3 (A 488-89). In April
1999, an IJ transferred venue to Buffalo, New York, where Akhtar
was incarcerated. (A 473). On April 21, 1999, the INS lodged an
additional charge that Akhtar was deportable because of the June
1996 felony narcotics conviction. (A 95-96).
After several additional adjournments for various reasons,
Akhtar's deportation hearing finally went forward on August 23,
1999. (A 99, 110-12, 125-26).
Akhtar sought relief under INA § 212(c) and also applied for
deferral of his removal to Pakistan under the United Nations
Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment ("Torture Convention" or "Convention"),
claiming that he would be
tortured in Pakistan because he is a Christian.*fn4
Both Akhtar and his brother testified in support of his
applications for § 212(c) relief and deferral of removal. (A
144-276). In addition to his testimony about his background, his
drug use and criminal record, Akhtar testified he had read
articles describing that Christians in Pakistan were being
"blasphemed" and that people who spoke against the Koran were
killed, but he admitted that he did not know anything about the
current Pakistani government, that he did not know who the
president of Pakistan was or the president's position with
respect to Christians. (A 268 71). He also admitted that he had
not read the State Department's report concerning conditions in
Pakistan. (A 270).
Akhtar also sought to offer the testimony of Reverend Samuel
Samson, who he claimed to be an expert on religious
discrimination in Pakistan. (A 185). In attempting to qualify as
an expert, Samson testified that he graduated from seminary in
Pakistan in 1970, then worked as a pastor there until 1974. (A
187-90). He thereafter worked as a travel agent in Pakistan for
about twelve years. (A 191-92). Samson testified that he
emigrated to the United States in 1991, and had since not
returned to Pakistan. (A 192-94, 196). Samson testified that he
was in contact with various friends and relatives who had been to
Pakistan, and that he received information on conditions in
Pakistan from various media and newspaper articles, friends, and
faxes. (A 199-200, 208-09). He further testified that he spoke at
different churches and groups, and had twice spoken at
demonstrations in front of the United nations in New York, about
the treatment of Christian churches in Pakistan. (A 201-04).
The IJ declined to designate Samson as an expert on current
conditions in Pakistan, observing that he had not been to
Pakistan since 1991 and that his knowledge of the subject matter
was limited to either hearsay or the contents of documents that
could be submitted. (A 90-91, 211). The IJ also noted that Samson
had served as a pastor in Pakistan for only a few years, and then
was not affiliated with any church for the twelve years prior to
his immigration to the United States. Id.
Akhtar also submitted documentary evidence respecting
conditions for Christians in Pakistan, including newspaper
articles, newsletters, congressional press releases and letters,
demonstration flyers, and Amnesty International's country report,
all of which were accepted by the IJ.
The Immigration Judge's Decision
In September 1999, the IJ ordered Akhtar deported to Pakistan
and denied the requests for § 212(c) relief and for deferral of
removal under the Torture Convention. (A 68-93). The IJ found
that Akhtar was not barred from seeking § 212(c) relief, but
concluded that the adverse factors against granting discretionary
relief "far, far outweigh[ed]" the equities in favor. (A 75-86).
The IJ also concluded that Akhtar failed to demonstrate that it
was "more likely than not" that he would be tortured in Pakistan
by or with the acquiescence of public officials, as required for
a grant of protection under the Torture Convention. See A 88
(citing 8 C.F.R. § 208.16(c)(2)).
Akhtar appealed the IJ's decision to the BIA, arguing that the
IJ (1) arbitrarily denied him § 212(c) relief; (2) applied the
wrong standard for deferral of removal under the Torture
Convention; and (3) violated his due process rights in precluding
Samson's testimony. (A 61). In January 2000, the BIA dismissed
Akhtar's appeal, ...