Or How I Learned to Stop Worrying

Convicted murderer Mohiuddin AKM Ahmed was deported from the United States and arrived in Bangladesh today. Mohiuddin’s arrival in Bangladesh was front page news in every Bangladeshi paper:

After leading a fugitive life of nine years in the United States Lt Col (retd) Mohiuddin Ahmed, a killer of the founding father of Bangladesh, Bangabandhu Sheikh Mujibur Rahman, was brought back to Dhaka yesterday from Los Angeles, as a US court rejected his appeal to stay.

Col Mohiuddin, one of 12 former army officers given death sentence for assassinating Sheikh Mujib and his family on August 15, 1975 through a bloody coup, was deported by the U.S. Homeland Security after a district court in California turned down his last appeal on June 14.

All the killers left Bangladesh after the coup and were absorbed in Bangladesh missions abroad following an understanding with the post ‘75 regimes.

Mohiuddin, 60, was a major at the time of the coup when most members of Sheikh Mujib’s family were killed and his three and half year old elected government was toppled.

Mohiuddin was tried in absentia and sentenced to death in 1998 during the second Awami League (AL) government led by Mujib’s daughter Sheikh Hasina, who was its Prime Minister.

While serving as a Bangladeshi diplomat in a Middle-Eastern country, Mohiuddin entered the United States on a visitor’s visa in 1996. Since then, he has fought a long legal battle to stay in the U.S.A.

Of the convicts, only four Lt Col (Retd) Syed Farooq Rahman, Lt Col (Retd) Sultan Shahriar Rashid Khan, Lt Col (retd) Mohiuddin and Maj (retd) Bazlul Huda are behind the bar. Aziz Pasha died in Zimbabwe, two are living in Canada, the remaining persons, including Lt Col Rashid are reportedly living in unknown places outside Bangladesh.

The death sentence against the convicts has not yet been executed as their appeals are still pending before the Supreme Court.

Mohiuddin was flown in to Zia International Airport at about 12:18 noon by a Thai airplane (TG-321) from Los Angeles. Two officials of the US Homeland Security escorted him to the airport. The US officials handed him to the airport immigration. They left Dhaka for Bangkok by the return flight at 1:20pm.

Airport Thana police arrested the repatriated convict under Section 54 of the CrPc on his return. Clad in bulletproof jacket and helmet in his head, he was whisked in a convoy to the Chief Metropolitan Magistrate (CMM) court amidst foolproof security at about 1:35pm.

Police produced him in the court of Magistrate Shafique Anwar along with a report. The report reads: Mohiuddin is a condemned fugitive in the case of assassination of Sheikh Mujib on August 15, 1975. The case was filed with Dhanmondi police station in 1996.

The court was also informed that he was also an absconding accused in the Jail Killing Case filed with Lalbagh thana in 1975 as well as in Abdur Rab Serniabat Killing Case filed with Ramna thana in 1996.

After hearing the case statements, the court ordered that Mohiuddin be sent to Dhaka Central Jail with “custody warrant”. He was put behind bar at Dhaka central jail at about 2:00pm.

Mohiuddin was deported after a District Court judge in California denied his last minute petition for a stay of deportation [Click here to view the judge’s decision.]. Mohiuddin was scheduled to be deported on June 2nd after losing his final appeal with the 9th Circuit Court of Appeals but filed a Habeas Corpus petition with the District Court in Central California on June 1st citing Congressman Jim McDermott’s private bill that aimed to give Mohiuddin a green card. The judge temporarily stayed his deportation until he had a chance to rule. Mohiuddin’s lawyers had contended "not only that the government’s execution of his removal order was improper, but also that on June 1, 2007, which was during Congress’ Memorial Day recess, staff members of the Department of Homeland Security ( "DHS" ) had misled congressional staff as to when Petitioner would be deported, thereby depriving him of the possibility that Members could intervene on his behalf." 

The judge (1) denied Mohiuddin’s claim that DHS misled Congress and as a consequence he was deprived possibility of relief, and (2) dismissed Mohiuddin’s claim that the government’s execution of the deportation order was improper.

On the second claim, that the deportation was improper, the judge ruled he had no jurisdiction to hear a challenge to a deportation order.

On the first claim, that DHS lied to or misled Congress, the judge ruled that Mohiuddin’s argument does not prevail on the merits. The judge wrote in his decision:

 As the government notes, Petitioner presents only extraordinarily thin evidence that DHS misled congressional staffers concerning the timing of his removal. His evidence is a declaration from an associate of his lawyer…

…even Petitioner himself acknowledges that some congressional staffers were told he could be deported at any time, and others were told his departure was imminent. Because both statements were true, Petitioner’s own evidence demonstrates it is virtually impossible that DHS misled congressional staffers at all, except on the remote possibility that some were intentionally kept out of the loop.

Moreover, contrary to Petitioner’s representation at the first oral argument, the Court has received no declarations from staffers or Members of Congress indicating they were misled.

…

Finally, even if a misrepresentation occurred, and even if it prevented congressional action that otherwise could have occurred, any injury that might have occurred has been mooted by this Court’s stays for further briefing. Because the House Judiciary Committee enacted its rules on June 6, 2007, it has now had a full week in which to act – with full knowledge of Petitioner’s predicament – but has declined to do so. Thus, Petitioner can hardly argue that any harm created by a misrepresentation remains ongoing.

The Court remains firm in this conclusion even after Petitioner’s contention at the second oral argument that "Congress is like the Titanic" and takes so much time to act that any misrepresentation could continue to prejudice Petitioner even now by delaying relief. Petitioner cannot have it both ways. He cannot claim that Congress could have been nimble enough to have helped him at the eleventh hour but for a DHS lie, but at the same time too sluggish to help him with a week’s notice.

Thus, for each reason set forth above, the Court concludes that Petitioner has no claim based on a misrepresentation from DHS to congressional staff.

The District Court judge did not accept Mohiuddin’s claim that DHS had tried to mislead Congress. Last week a Canadian reporter had written that it was the judge himself who "charged the Department of Homeland Security with misleading Congress, particularly those members fighting the deportation order."  This report that the judge had "charged" DHS with misleading Congress was repeated by other news organizations. It turns out, from the judge’s ruling, that the "charge" came from Mohiuddin, and not from the judge. In fact, the judge found that Mohiuddin’s claim was "extraordinarily thin".

 Thus ended Mohiuddin’s efforts to fight deportation. His 9 years in the United States as a fugitive from justice has now come to an end.

Mohiuddin’s return to Bangladesh is not a moment for celebration, but one of reflection. There is no joy in seeing murderers taken into custody – only sadness that the murders occurred. Justice has been delayed in this case, but nonetheless, it has now arrived. It is a solemn reminder of the frailty of human life and the capacity of some to take it with such ease.

Now Mohiuddin faces justice for murders he committed nearly 32 years ago. Mohiuddin’s return to Bangladesh is an important event in Bangladesh’s history. It is one important step in bringing to closure the national upheaval that began on August 15, 1975. One by one the killers of 1975 who had enjoyed impunity for so many years are being brought to justice.

With their return to Bangladesh comes tremendous responsibility on the shoulders of the current Bangladeshi government. It is the responsibility of being just in the execution of justice. Mohiuddin was successfully returned to Bangladesh because the US courts were confronted with overwhelming evidence from Mohiuddin’s trial. The US courts were able to satisfy themselves that the trial in Bangladesh was free and fair and that Mohiuddin had received due process. If his trial had been a show trial, his return to Bangladesh would not have occurred. Mohiuddin’s deportation demonstrates very clearly the importance of fair trials and due process. Now that Mohiuddin is in Bangladeshi custody, the current government needs to ensure that Mohiuddin’s remaining appeals to the Supreme Court of Bangladesh are handled as transparently as his trial in 1997. Mohiuddin received due process and a deliberate consideration of his petitions in the United States – that deliberate process must continue in Bangladesh.

The case against convicted terrorist Mohiuddin AKM Ahmed is overwhelming. The evidence presented at the Bangladesh trial was overwhelming. The case against him in the US courts was overwhelming. On the other hand Mohiuddin’s answers at various times to the United States government, in front of the asylum officer and in front of the Board of Immigration Appeals, were inconsistent and simply not credible. When Mohiuddin’s appeal came to the 9th Circuit Court of Appeals the judges had a fairly easy decision to make based on the evidence and Mohiuddin’s failure to counter any of it. The 9th Circuit Court of Appeals ruled against Mohiuddin’s petition for asylum on the grounds that he had engaged in terrorist activities and that he failed to prove that his trial in Bangladesh was unfair and that he did not receive due process.

In front of the 9th Circuit Court of Appeals, the respondent’s brief was filed on behalf of the United States government by Assistent Attorney General Peter Keisler and, Michael Lindemann and Ethan Kantor of the Office of Immigration Litigation of the Department of Justice. Click here to view the US government’s brief. It is a damning document and should be read from beginning to end.

When Mohiuddin’s son and supporters started commenting on my blog this week claiming that he did not get a fair trial, I pointed out that the 9th Circuit had rejected that argument. I had also posed two questions to them that Mohiuddin will find difficult to answer. Not surprisingly I have not received an answer from his supporters. The questions were:

• Where was Mohiuddin living between August 15, 1975 and November 3, 1975?
• Did Mohiuddin take a flight to Bangkok in early November 1975?

After the coup of August 15, 1975 the coup plotters, the army Majors including Mohiuddin, took up residence in the presidential palace surrounded by their tanks. They remained there until November 3, 1975 when they and their families fled Bangladesh by airplane for Bangkok, Thailand. Mohiuddin was among the Majors who fled Bangladesh on that flight. Later, some of these Majors, including Mohiuddin, where given diplomatic posts abroad as a reward for the killings and as a way to protect them. These facts are undisputed and well documented in newspaper accounts as well as historical documents.

At Mohiuddin’s asylum hearing, the issue of the infamous flight to Bangkok was raised by the US government. Mohiuddin’s response was not credible to say the least:

With the counter-coup imminent, and because the August coup plotters were " "afraid,” AR 889, President Mushtaque assisted Mohiuddin and the ""other officers who are now being named or accused or convicted,” in leaving Bangladesh, initially to Thailand, and then to various diplomatic assignments abroad. AR 890. These assignments were continued by General Zia who quashed the counter-coup and later assumed the presidency. AR 890; see AR 888-892, 2265. When asked on cross-examination how he ended up on the airplane with the coup plotters if, as he claimed, his own role was so limited, Mohiuddin replied that it was ""an order that I received,” and some officers ""just escorted me to the aircraft.” AR 897. [Emphasis added by me.]

The US government also relied on an advisory letter that the State Department sent to the immigration judge that stated that the trial was fair and that Mohiuddin received due process. The State Department’s letter was based on the assessment of the trial made by the U.S. Embassy in Dhaka who closely monitored the trial:

In an advisory letter to the immigration judge, dated October 18, 1999, the State Department conveyed the assessment of the trial made by the U.S. Embassy in Bangladesh, noting the Embassy’s belief that the ""18-month trial process, the acquittal of four of the defendants, and the independence of the High Court now considering the appeals, demonstrate that the defendants received due process.” AR 1495. The Embassy also noted its ""belie[f] that the prosecution presented credible evidence that [Mohiuddin] participated in the conspiracy that led to these multiple, politically motivated murders in 1975.” Id. Based on the Embassy’s trial assessment, the State Department highlighted several indicia of the trial’s fairness: (1) the trial was ""conducted under a public spotlight,” (2) it was ""conducted under normal Bangladeshi judicial procedures,” (3) ""defense lawyers agreed that the judge allowed them the opportunity to put forward the questions and arguments they wanted,” (4) the length of the trial was partly attributable to ""the judge’s tolerance for protracted cross-examination by the lawyer for Farook Rahman, the main defendant in custody,” and (5) ""[w]hile it could be argued that the accused could have obtained more effective legal counsel had they chosen to return,” the trial judge ""acquitted two defendants represented by state-appointed counsels.” AR 1496-97.

All the convictions underwent ""confirmation” review by the High Court ""to ensure that death sentences are supportable on a factual and legal basis.” AR 1497. In addition, the four defendants in custody filed their own appeals for simultaneous review by the High Court. Id. The State Department noted that one such appeal, by a defendant who was then-recently returned to Bangladesh by Thailand, was ""particularly relevant, since it also includes challenges to the in absentia prosecution.” [Emphasis added by me.]

Mohiuddin’s defense in court, as it has been in public, is that the trial was essentially a "kangaroo court". The US government specifically rejected these blanket claims in a detailed decision by the Immigration judge and in briefs:

Trials against nineteen accused coup participants, six in custody, and thirteen fugitives including Mohiuddin, commenced on March 13, 1997. AR 3243. Mohiuddin and the other fugitives tried in absentia had state-appointed defense counsel. Id. The trial lasted eighteen months and was ""comprised of 149 hearings, involving 61 witnesses, documentary evidence, 10 attorneys for the state, and 18 attorneys for the defense, and was monitored by the international press.” AR 144. It resulted in a 100-page judgment of the Bangladesh High Court on November 8, 1998. See AR 1495 (State Department report); AR 1517-1616 (High Court Judgment). The High Court convicted Mohiuddin and fourteen others of the August 1975 coup murders, and sentenced them to death. AR 1495. [FN3] Of the nineteen defendants, four were acquitted, including two defendants who were tried in absentia. Id.; see also AR *14 1275 (from State Department Country Report on Bangladesh, February 2001).

…

The State Department’s 2000 country report reflects that the High Court’s confirmation review resulted in a split decision in which the senior judge " "upheld the convictions and death sentences of 10 of the 15 previously convicted persons,” while the junior judge upheld all convictions and sentences. AR 1274. In the spring of 2001, a third judge ""reconfirmed the death sentences of… those originally sentenced, including [Mohiuddin].” AR 133. The State Department also observed that while there is ""no automatic right to a retrial if a person convicted in absentia later returns,” the absent defendants ""may not file appeals until they return to the country.” AR 1275.

Transcripts and summaries of the evidence and witness testimony taken in the Bangladesh trial, as well as certified copies of the High Court’s judgment and the State Department’s periodic assessments of the eighteen month trial were *16 admitted at Mohiuddin’s removal hearing. Mohiuddin attacked the evidence as ""absolutely biased,” ""spurious and false,” ""fabricated,” and ""a complete frame-up.” AR 516, 549, 633, and 668, respectively. He alleged that the criminal case against him was ""motivated by the personal vengeance of Prime Minister Sheik Hasina, backed by the political power of the ruling Awami League, to achieve a preordained verdict against him.” AR 148. Mohiuddin attempted to support this wholesale condemnation of the evidence and judgment against him by citing problems with the translations of the Bangladesh trial testimony supplied by the Bangladesh government. He claimed that the Bangladesh government ""selectively provided and even altered the witness testimony in its translations to intentionally mislead [the immigration] court.” Id.

Mohiuddin’s arguments were addressed and rejected in an exhaustively detailed decision issued by Immigration Judge Henry P. Ipema, Jr. on May 29, 2002, denying Mohiuddin’s applications for asylum, withholding of removal, and protection under the Torture Convention. See AR 130-72.

…

The immigration judge found that Mohiuddin lacked credibility when he denied any knowledge of the purpose of his assignment on the night of the coup. The Asylum Officer was ""a credible witness” who had not ""created the facts that placed [Mohiuddin] only 150 yards from the presidential residence,” he found. Id. Thus, Mohiuddin’s attempt to ""distance himself even further from the presidential residence, such as by stating he was not even sure where it was, demonstrated his lack of credibility,” the immigration judge ruled. Id.

[Emphasis added by me.]

The US government of course lays out the background of the murders committed by Mohiuddin and his co-conspirators:

This immigration case arises out of the events in Bangladesh on August 15, 1975, when two regiments of the Bangladesh military, led by a group of majors including the petitioner, Major Mohiuddin A.K.M. Ahmed, staged a coup d’etat in which they shot and killed the first president and founder of Bangladesh, Sheikh Mujibur Rahman (known as ""Mujib,” or ""Bangabandhu,” meaning " "Bangalis’ friend,” AR 1862). Bangabandhu led the independence movement in 1971 that created Bangladesh from what had been East Pakistan. AR 131, 2262. Beyond *5 overthrowing Bangabandhu, however, the coup participants massacred forty-five people including Bangabandhu’s wife, his two adult sons and their wives, Bangabandhu’s ten year-old son, and the pregnant wife and four grandchildren (ages 5, 10, 11, and 15) of one of Bangabandhu’s cabinet ministers. AR 1933-35. [FN1]

FN1. The record contains numerous accounts of the coup and massacre, among them the report of journalist Anthony Mascarenhas in his book, BANGLADESHA Legacy of Blood (Hodder and Stoughton 1986), a chapter of which the State Department attached to its May 22, 1997 advisory opinion in Mohiuddin’s asylum case. See AR 3242-60; see also id. at 1854-1959 (historical and political context on the coup); AR 2241 (description of the coup from Marcus Franda, BANGLADESH The First Decade (South Asian Publishers Pvt Ltd. 1982); id. at 2235-52 (causes and aftermath of coup).

 …

As ""chief martial law administrator,” AR 2265, Mushtaque [the man installed in power by the Majors] issued the " "Indemnity Ordinance, 1975,” which amounted to ""a comprehensive pardon for the men who had slaughtered the Founding Father of the nation and 21members *6 of his family.” AR 1943.

Mushtaque’s regime was short-lived, ending in a counter-coup less than three months later. AR 2265-66. Just prior to the November 1975 counter-coup, however, Moshtaque helped shuttle petitioner Mohiuddin and sixteen other coup leaders and participants out of the country to diplomatic assignments abroad. AR 888-94. ""For over 21 years no one was brought to trial for the murders.” AR 131.

In elections held in June 1996, the Awami League won a majority in parliament, and its leader, Sheikh Hasina Wajed – the daughter of slain President Mujib, spared by her absence from Bangladesh during the August 1975 coup – became Prime Minister. AR 132. Sheikh Hasina declared her intention to bring to trial the suspects in the August 1975 killings. AR 132. Criminal charges were subsequently filed against Mohiuddin and nineteen other alleged coup plotters and participants. Id.; see AR 1520, 3273. The State Department observed that while the decision to bring charges against the coup participants may have been related to Sheikh Hasina’s election, ""this need not, in our view, lead to the conclusion that the Government of Bangladesh is seeking to persecute this applicant.” AR 3243. The State Department noted that the Prime Minister had obtained her post in ""elections which were widely described as free and fair by a variety of international and domestic election observers,” and that the " "Bangladesh judiciary, *7 especially at the higher levels, displays a high degree of independence and often rules against the government, even in politically controversial cases.” AR 3243

The US government presented extensive evidence showing Mohiuddin’s active involvement in the coup. Mohiuddin’s changing stories of his own involvement did not help his cause or his credibility:

Extensive background materials detail Mohiuddin’s role in the coup, such as journalist Anthony Mascarenhas’s book, Legacy of Blood, based on interviews with the two principal leaders of the coup, Major Farook Rahman (""Farook”) and Major Abdur Rashid (""Rashid”), who admitted – indeed, celebrated – their organizing role in the coup. AR 1858; see also Pet. Br. at 22 (conceding that ""Farook and Rashid, admitted their participation in broadcast interviews as early as 1976”). ""[A]ll the available evidence” demonstrates that the coup was ""conceived and commanded by 12 to 20 military and ex-military men, none of them above the rank of major.” AR 2241. Two regiments, artillery and ""Lancers” or tanks, respectively, were involved, with Mohiuddin commanding one of four Lancers squadrons. AR 1927-37. Mohiuddin and another major ""were assigned the task of knocking off Sheikh Mujib.” AR 3247. ""Their instructions were that they should kill Sheikh Mujib … [b]]ut were given latitude to proceed according to developments and, if necessary "wipe out anything en route.’ ” Id. In executing the plan, the ""main killer team led by Majors Mohiuddin, Noor and Huda … blocked off the surrounding area.” AR *8 3249-50. ""Then the majors and the men went in.” Id. at 3250. As the coup leaders described it to Mascarenhas, Mohiuddin ""was one of the officers who stormed the President’s residence.” AR 3242. [FN2]

FN2. Multiple witnesses in the Bangladesh trial describe Mohiuddin storming Mujib’s residence, ""firing continuously.” AR 1534; AR 1549 (Mohiuddin’s Lance Sergeant, L.D. Bashir, testified he saw Mohiuddin " "entering Bangabandhu’s house [and] later heard the sound of gun shots and the screams of men and women inside Bangabandhu’s residence.”); see also AR 1535-36, 1550, 1585.

By his own account, Mohiuddin’s role was less dramatic, though no less integral. In his written application for asylum, filed prior to the initiation of removal proceedings, Mohiuddin admitted that his ""task was to block the roads leading to Sheikh Mujib’s house from the north and the west to stop any outside interference.” AR 3270. At his asylum interview, he stated that the majors anticipated possible interference from the President’s special security forces (the Rakkhi Bahini) who were based ""one and a half miles from presidential palace.” AR 1078. His assignment, he said, was to ""[b]lock a road close to [the] president’s house.” AR 1073. Thus, he stated, he positioned his squadron on the road about ""150 yards from the residence,” id. at 1074, and was prepared to ""stop [the Rakkhi Bahini] by force if necessary.” AR 1079.

In denying Mohiuddin’s affirmative asylum request, the Asylum Officer concluded that he should be barred from asylum ""because he participated in the *9 persecution of others on account of their political opinion.” AR 1355 (Asylum Officer’s denial and referral for removal proceedings, August 29, 1997). ""Even without answering the allegations reported by the State Department” on Mohiuddin’s role in attacking the presidential residence, his " "own testimony revealed that he played a key role in the 1975 coup d’etat.” AR 1354. The Asylum Officer found that Mohiuddin admitted that ""he and all members of his squadron … were prepared to use force if necessary to accomplish the coup, thereby causing death, severe injuries to the President and his family.” Id. ""As a result of his support and participation in the coup d’etat, the President… his wife, young children and other close family members and trusted aides were killed,” she found. Id. She rejected Mohiuddin’s contention that he was ""only following orders,” noting that it " "did not relieve him of the responsibility for his role in the carnage,” and that Mohiuddin ""was not required to follow the order of the coup leaders, because he too was a major … the same military rank as … Maj. Farook and Maj. Rashid.” Id.

Following his asylum denial, Mohiuddin was placed in removal proceedings for overstaying his tourist visa. AR 4344. At a hearing on his renewed application for asylum, Mohiuddin downplayed his role in the coup further. He testified that he was ordered to participate in what he understood would only be a *10 ""peaceful coup,” and that the possibility of violence and killings " "simply did not strike my mind.” AR 735. At the same time, he asserted that if he had resisted the plan he would have been ""straightaway shot.” AR 485. Mohiuddin testified that he was assigned to block traffic on a road, but he claims he did not know the significance of this mission or the road’s close proximity to the president’s house. AR 814. He said he was not even sure where the president’s house was located. AR 860. Asked how he could be unaware of that location when soldiers from his own regiment performed routine security duties there, Mohiuddin denied knowledge of any such security duties. AR 864-66; compare AR 3250 (noting that ""Lancer sentries” at the president’s house " "quietly stepped aside” when their comrades approached). He also asserted that his earlier written statement that his mission was ""to block the roads leading to Sheikh Mujib’s house,” AR 3270, reflected information he learned only later. AR 817; see id. (claiming that only knowledge ""gathered over the last 21 years” informed him that his mission was to ""stop any outside interference,” AR 3270).

When confronted with the Asylum Officer’s report that Mohiuddin stated his job was to prevent the president’s security forces from disrupting the coup, Mohiuddin dismissed his prior statement as ""hypothetical,” and then refused during the hearing ""to answer hypothetical things.” AR 820.

*11 Mohiuddin repeatedly asserted that during and after the coup he had no ""active role other than obeying … orders.” AR 886; see e.g. AR 471, 481, 895. He said he remained at his post until ordered to return to base and resume his routine duties. AR 881. He said he only learned of the coup’s success from soldiers under his command who ""heard the radio.” AR 878.

Mascarenhas and others reported that after the coup, the group of majors went to the ""radio station” to announce the coup and broadcast declarations of allegiance to the new government. AR 1938; see AR 1938-41. Witnesses in the Bangladesh trial testified that Mohiuddin was among the majors at the ""radio center” on the day of the coup, and further place him ""in conference in the President’s office” later that day for the oath-taking ceremonies of the new president and cabinet. AR 1568, 1579.

Mohiuddin said nothing of these momentous actions at his asylum hearing. However, he did acknowledge his role in events leading to a counter-coup which took place less than three months after the establishment of the new government. The Library of Congress study observes that certain elements in the Bangladesh military ""were deeply resentful of the majors,” and that one of the ""Mujib loyalists, Brigadier Khaled Musharraf, launched a successful coup on November 3, 1975.” AR 2265. In Mohiuddin’s written asylum statement, he said that two of *12 General Khaled’s officers attempted to persuade soldiers in Mohiuddin’s regiment to join the counter-coup. AR 3271. Instead, Mohiuddin’s soldiers arrested the officers. AR 3271. Mohiuddin wrote: ""Brig. Khaled ordered me to release them or face dire consequence but I did not comply with his order.” AR 3271. At the removal hearing, Mohiuddin again downplayed his responsibility in the matter, asserting that his soldiers acted on their own, that he was ""sleeping at home” at the time, that he was called in to the regiment after the fact, and that he refused the Brigadier General’s order because he was simply ""trying to sort of understand what was going on.” AR 900; see AR 901. [Emphasis added by me.]

 The US government comprehensively refuted Mohiuddin’s arguments in court:

Substantial record evidence supports the Board’s denial of asylum and withholding under each of the three grounds of statutory ineligibility found by the Board and the immigration judge to be applicable to Mohiuddin. All three such bars derive from one set of facts: Mohiuddin’s participation in the slaughter of Bangabandhu, twenty-one members of his family, and tens of other individuals on the night of August 15, 1975. Mohiuddin’s challenge on this appeal is essentially two-fold. First, he argues that while he participated in the coup, he merely followed orders, and his involvement was not of a degree sufficient to bring him within any of the bars to asylum and withholding. See, e.g., Pet. Br. at 14 (asserting he should not be barred, because he was ""not involved in the planning and orchestration of the coup and did not participate in the killings.”). Second, he argues that the massacre itself ""while ugly and regrettable,” was necessary to accomplish a valid political objective because it was ""directly related to revolution.” Pet. Br. at 17. In pursuing these arguments, Mohiuddin advances the *34 identical arguments and cases rejected by the immigration judge, and further rejected by the Board.

In repeating his arguments before this Court, however, Mohiuddin has made several legal and factual concessions which are devastating to his case. On this appeal, he declines to challenge the bulk of evidence from which the Board and immigration judge found probable cause to believe that he is guilty of the Bangladeshi murder charges. Thus, for example, he does not discuss or confront the background material detailing his role in the killings. Compare Pet. Br. at 11-30 with AR 1405-19 (1982 United Kingdom ""Commission of Enquiry” on the coup), AR 1854-1960 (Mascarenhas account in Legacy of Blood), AR 2235-67 (Franda and Library of Congress studies on the coup and massacre), and AR 1367- 90 (television interview with Majors Farook and Rashid). Nor does he challenge hundreds of pages of Bangladesh trial witness testimony and the High Court’s summary of the evidence, including accounts of his actions on the night of the massacre, such as blocking access to the presidential residence, storming the president’s house, and acting in concert with the other majors to install the new government. See AR 1462-74, 2872-3214 (translations, summaries and transcriptions of witness testimony in Bangladesh trial, including, e.g. at 2877, 3089, 3161, 3205 ""cross examination in favour of Major A.K.M Mohiuddin *35 Ahamed”); and AR 1517-1616 (November 1998 Judgment of the High Court).

This has not always been the case. Mohiuddin mounted a challenge to this evidence at his removal hearing: (1) asserting he was misidentified in the High Court Judgment, (2) claiming the criminal case was solely the product of Sheik Hasina’s vengeance; and (3) charging that the translations and transcripts from Bangladesh were ""tampered, altered, and tainted.” See AR 148-56. Significantly, however – other than two cursory points addressed below – Mohiuddin has now dropped these arguments, as well as any attempt to confront the immigration judge’s methodical rejection of them. See Collins v. City of San Diego, 841 F.2d 337, 339 (9th Cir. 1988)(""It is well established in this circuit that claims which are not addressed in the appellant’s brief are deemed abandoned.”).

Mohiuddin has similarly abandoned any contest regarding the fairness and independence of the Bangladesh judicial system that rendered and affirmed the judgment against him. He declines to criticize the State Department’s consistent endorsement of the integrity of Bangladesh criminal procedure and the independence of its judiciary. See AR 2480-2500, 1265-1316, 2663-96, 1426- 56, 3215-32, and 3375-88 (State Department’s Bangladesh Country Report on Human Rights Practices for 1996, 1997, 1998, 1999, 2000, and 2001). Nor does he challenge the State Department’s individual letter opinions on the fairness of the *36 Bangladesh proceedings, judicial independence, credibility of evidence against Mohiuddin, and the unlikelihood of mistreatment if Mohiuddin is returned to Bangladesh. Compare Pet. Br. 11-30 with AR 1494-1502, 3233-41, 3242-44. Again, it is well to note that in his removal hearing he raised objections to the foregoing evidence before the immigration judge, but now utterly fails to confront the immigration judge’s exhaustive and favorable review of the State Department submissions. Martinez-Serrano, 94 F.3d at 1259-60 (issues not raised and supported in petitioner’s opening brief deemed abandoned). [FN10]

FN10. These concessions and Mohiuddin’s due process argument, see Pet. Br. at 29, are mutually exclusive. Thus, the Board correctly rejected his due process argument. See AR 5.

Here, his sole challenge to the Bangladesh evidence consists of the argument, raised for the first time on this appeal, that the ""conviction record itself establishes that six people recanted their "confessions’ as being obtained under torture.” Pet. Br. at 12. However, this new argument is also barred because Mohiuddin did not raise it to the Board. See AR 74-78; INA § 242(d), 8 U.S.C. § 1252(d) (requiring exhaustion of remedies); Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (""[f]ailure to raise an issue in an appeal to the BIA constitutes a failure to exhaust remedies with respect to that question and deprives this court of jurisdiction to hear the matter”) (citation omitted). In any case, Mohiuddin *37 undercuts this argument by conceding the voluntariness of the accounts given by two such ""confess [ors]” – principle coup leaders Farook and Rashid. See Pet. Br. at 22 (conceding that ""Farook and Rashid, admitted their participation in broadcast interviews as early as 1976”).

Regarding Bangladesh criminal and judicial process, Mohiuddin offers a one-sentence critique, asserting that he was ""reliant on defense counsel appointed and compensated by a hostile government.” Pet. Br. at 12. This implied charge of bias is overwhelmingly refuted, however, by: (1) the Board’s and immigration judge’s analysis and approval of the State Department’s opinions on that issue, see AR 2-5, 156-63 (immigration court analysis of Bangladeshi judicial process); (2) the State Department’s report that ""defense lawyers agreed that the judge allowed them the opportunity to put forward the questions and arguments they wanted,” and further report that the trial judge ""acquitted two defendants represented by state-appointed counsels,” see AR 1496-97; and (3) the Bangladesh High Court’s opinion, in its November 1998 Judgment, commending ""learned counsels for the accused,” for conducting the trial ""by detailed cross examination, arguments, and submissions even on behalf of the absconding accused,” see AR 1614. In sum, substantial and abundant record evidence supports the Board’s finding that the in absentia conviction, and the underlying evidence, provide probable cause to *38 believe that Mohiuddin is guilty of the crimes charged against him in Bangladesh.

Without the facts on his side, Mohiuddin attempts to argue the law. His arguments, rejected below, must also be rejected here. Regarding the persecution bar, Mohiuddin claims that he has not ""assisted or otherwise participated” in persecuting others within the meaning of INA sections 208(b)(2) or 241(b)(3) because his assistance was not "" "active, personal, and knowing.’ ” Pet. Br. at 15 (quoting Ofusu v. McElroy, 933 F. Supp. 237, 239 (S.D.N.Y. 1995)). However, even apart from his abandoned challenge to the evidence demonstrating otherwise, by insisting to this Court that ""he decided to participate in the coup out of military duty and a concern for his country’s future and in response to appeals from his military colleagues,” he hardly disproves an active, personal, and knowing participation. Pet. Br. at 15.

On a different tack, Mohiuddin argues that the slaughter of children, household servants, and others having no conceivable function in government, was a ""harm” resulting ""incidentally from behavior directed at another goal, the overthrow of a government.” Id. at 16-17 (Rodriguez-Majano, 19 I. & N. Dec. at 814-15). The crux of his argument against both the persecution and nonpolitical crime bars is that his actions were justified by political necessity.

…

The Board and immigration judge cogently and properly rejected these arguments, finding no factual or legal basis for the view that August 1975 massacre in Bangladesh of children, mothers, and house servants was directly related to revolution, the only means by which to change the government, or a purely political act. See AR 4 (holding that Mohiuddin’s actions were ""grossly out of proportion with any political objective”); AR 164 (distinguishing Izatula and Dwomoh, where Mohiuddin is not facing return either to the government he tried *40 to overthrow, or to a totalitarian government which would not accord him fundamental fairness at trial); id. (rather, unlike Dwomoh and Izatula, procedures are available to Mohiuddin in Bangladesh to ""adjudicate the charges and any defenses … including the defense that there was no other alternative to changing the government”).

…

The record overwhelming establishes reasonable grounds to believe that Mohiuddin participated in the assassination of Bangladesh’s first president and the merciless slaughter of his family and other innocent people. [Emphasis added by me.]

The case against Mohiuddin is overwhelming. He has been convicted of these murders in a free and fair trial in Bangladesh. Instead of facing the charges Mohiuddin chose to flee the country and thus became an international fugitive. The United States government, which along with other foreign observers closely monitored the trial, presented substantial evidence in front of the 9th Circuit Court of Appeals. After reviewing the evidence presented, the 9th Circuit Court of Appeals rightly ruled against Mohiuddin’s petition for asylum and also ruled that he engaged in terrorist activities.

The facts are not, and never have been, on Mohiuddin’s side. He has tried to spin all the evidence against him as concocted. But the historical record shows otherwise. Even ignoring the overwhelming evidence presented at trials in the US and Bangladesh, Mohiuddin simply cannot explain away the fact that he, along with his co-conspirators, boarded a flight on November 3, 1975 and fled Bangladesh for Bangkok, Thailand. That flight and his subsequent diplomatic assignments should convince any reasonable observer that he was an active coup plotter. The "killer Majors" who orchestrated the coup in 1975 are very well known in Bangladesh. We who lived through the time saw their tanks, the tanks of the 1st Lancer Regiment, on the streets of Dhaka and around Bangabhaban, the presidential palace, during the summer of 1975. To those who know the events and know the case Mohiuddin’s defense that he was "sleeping at home" or found out about the killings when he "heard the radio" or that he fled Bangladesh along with the coup plotters because someone just "escorted me to the aircraft" simply make a mockery of common sense. It appears that the 9th Circuit Court of Appeals also found his absurd claims incredible and therefore ruled against him.