Kabir v. Bondi: Re-affirming the “Pretextual Prosecution” Test for Anti-Corruption Asylum Claims

Introduction

In Kabir v. Bondi, No. 23-6179 (2d Cir. July 25, 2025), the United States Court of Appeals for the Second Circuit denied Bangladeshi banker Md Humayun Kabir’s petition for review of a Board of Immigration Appeals (“BIA”) decision dismissing his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The petitioner claimed that he would be persecuted for his “anti-corruption” political opinion if returned to Bangladesh, asserting that criminal charges lodged against him were a façade designed to silence him after he exposed large-scale bank fraud.

The case raises two interlocking issues that frequently confront courts in the asylum context:

• When does opposition to corruption become a protected political opinion under U.S. asylum law?
• How does a court distinguish between a bona fide domestic criminal investigation and a pretextual prosecution intended to persecute the applicant for a protected ground?

Summary of the Judgment

Applying substantial-evidence review, the Second Circuit concluded that:

1. Kabir’s testimony and documentary evidence did not compel a finding that the Bangladeshi investigation was a pretext for political persecution.
2. His alleged anti-corruption stance reflected “self-protection,” not a challenge to the legitimacy of the Bangladeshi regime – falling short of the requirement in Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005).
3. Because Kabir failed to establish a well-founded fear of persecution, he necessarily failed the higher burdens for withholding of removal and CAT relief (Lecaj v. Holder, 616 F.3d 111 (2d Cir. 2010)).

The petition for review was therefore denied.

Analysis

Precedents Cited and Their Influences

• Yueqing Zhang v. Gonzales, 426 F.3d 540 (2d Cir. 2005)
  Key Holding: Opposition to endemic corruption can be a protected political opinion only when it “transcends mere self-protection and represents a challenge to the legitimacy or authority of the ruling regime.”
  Role in Kabir: The Court relied on Yueqing Zhang to decide that Kabir’s testimony before Bangladeshi investigators was self-exculpatory and did not meet the political-opinion threshold.
• Jin Jin Long v. Holder, 620 F.3d 162 (2d Cir. 2010)
  Key Holding: Legitimate enforcement of generally applicable laws does not amount to persecution unless shown to be a veil for political motives.
  Role in Kabir: Guided the Court in assessing whether the bank-fraud investigation was a “legitimate law-enforcement effort” or pretextual.
• INS v. Elias-Zacarias, 502 U.S. 478 (1992)
  Key Holding: The asylum seeker bears the burden of showing, through direct or circumstantial evidence, that a protected ground was or will be at least one central reason for persecution.
  Role in Kabir: Confirmed Kabir’s burden to produce evidence of persecutor motive.
• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) & Quintanilla-Mejia v. Garland, 3 F.4th 569 (2d Cir. 2021)
  Key Points: Clarify standard of review (substantial evidence) and “one central reason” test for nexus.
  Role in Kabir: Instructed the panel’s deferential fact-finding review while applying the “one central reason” standard.

Legal Reasoning

The Court’s analysis proceeded in four steps:

1. Identifying the Protected Ground.
   The Court accepted that “anti-corruption” can be a political opinion but only if the activity challenges state authority (Yueqing Zhang). The record showed Kabir’s statements to investigators were primarily to absolve himself, not to criticize the regime.
2. Evaluating Nexus – Was Prosecution Driven by Political Motive?
   Using Elias-Zacarias, the Court asked whether Kabir produced evidence that Bangladeshi officials intended to punish him because of his political opinions. Kabir lacked direct evidence and circumstantial indications (e.g., threats referencing politics, disparate treatment of political opponents).
3. Assessing Objective Reasonableness of Fear.
   Under Jian Xing Huang v. INS, 421 F.3d 125 (2d Cir. 2005), fear cannot be “speculative.” A letter saying investigators were ready to issue a “no liability certificate” undermined the claim of imminent arrest.
4. Applying the “Pretextual Prosecution” Test.
   Even if Kabir faced prosecution, Jin Jin Long dictates that enforcement of neutral laws is not persecution absent a showing of pretext. Because documentary evidence demonstrated rule violations during his tenure, the Court found a colorable criminal basis.

Impact on Future Litigation and Immigration Practice

• Clearer Boundaries for Anti-Corruption Claims.
  The decision tightens the evidentiary requirements for professionals (bankers, auditors, journalists) who portray corruption charges as persecution. They must now articulate concrete ways their actions posed a political threat to the regime.
• Re-affirmation of Pretext Doctrine.
  Immigration advocates must furnish objective indicators of political animus—e.g., disparate sentencing, public denunciations, or leaked communications—rather than relying on speculation.
• Practical Guidance for IJs and the BIA.
  The judgment provides a succinct template: (1) identify the protected ground; (2) interrogate motive; (3) search for pretext; (4) test objective reasonableness. This four-step approach may streamline future adjudications.
• Limitations.
  Although a summary order has no precedential effect per Second Circuit Rule 32.1.1, it illuminates how the court will likely treat similar fact patterns, thereby shaping litigation strategy.

Complex Concepts Simplified

• Summary Order: A non-precedential appellate decision. While not formally binding, it signals how the court views specific legal questions.
• Well-Founded Fear (Asylum): The applicant must show a reasonable possibility (as low as 10%) of persecution if returned.
• Clear Probability (Withholding): A higher standard than asylum—more likely than not (50%+) that persecution will occur.
• “One Central Reason” Test: A protected ground must be at least one of the main reasons for the feared harm—not a minor or incidental factor.
• Pretextual Prosecution: When criminal charges are a sham to punish someone for a protected trait or opinion. Proof requires showing the charges lack genuine law-enforcement basis or are selectively applied.

Conclusion

Kabir v. Bondi fortifies the Second Circuit’s line of authority that anti-corruption activity is not inherently political persecution unless it openly challenges state power and the applicant supplies evidence that any ensuing prosecution is a façade. By re-affirming the “pretextual prosecution” doctrine, the Court reminds practitioners that motive is the pivot on which asylum claims turn. Absent direct or circumstantial proof that Bangladeshi authorities targeted Kabir because of a political stance—and not merely to enforce banking regulations—the claim fails. Consequently, litigants must present more than subjective fears and inferential leaps; they need documentary corroboration, consistent testimony, and persuasive country-conditions evidence.

Going forward, the decision will inform both applicants and adjudicators that allegations of corruption-related retaliation must clear a high evidentiary bar, thereby shaping the contours of political-opinion asylum jurisprudence in the Second Circuit and beyond.