Jamal v. Mukasey

United States Court of Appeals
For the First Circuit

No. 07-1599

MOHAMMAD JAMAL,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS

Before

Boudin, Circuit Judge,

Campbell and Stahl, Senior Circuit Judges.

Peter A. Allen for petitioner.
Jesse M. Bless, Attorney, Office of Immigration Litigation,
United States Department of Justice, Peter D. Keisler, Assistant
Attorney General, Civil Division, and David V. Bernal, Assistant
Director, on brief for respondent.

June 27, 2008
 CAMPBELL, Senior Circuit Judge. Petitioner Mohammad

Jamal, a native and citizen of Pakistan, seeks review of a March

19, 2007 decision by the Board of Immigration Appeals ("Board" or

"BIA") affirming an immigration judge's denial of his application

for asylum and withholding of removal under sections 208 and 241(b)

of the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158,

1231(b)(3) and protection under the Convention Against Torture

("CAT"), 1465 U.N.T.S.; see also 8 C.F.R. § 208.18 (2006)

(implementing the convention). Jamal argues that his right to due

process was violated by the IJ's conclusion that his asylum

petition was untimely filed, and he challenges the IJ's conclusion

that he was not subjected to past persecution and would not be

likely to suffer future persecution. We deny the petition.

Facts

Jamal entered the United States on July 30, 2000. On

March 21, 2003, the Department of Homeland Security ("DHS") charged

Jamal with removability because he had stayed in the United States

without authorization. Jamal conceded his removability but applied

for asylum, withholding of removal, and protection under the CAT.

The IJ denied his applications on August 9, 2005, and the Board

affirmed that decision on March 19, 2007.

The following facts were developed at the IJ's hearing

held on August 9, 2005. Jamal joined the Pakistani Muslim League-

Nawaz ("PML-N"), a political party which supported a movement

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toward democracy, in 1973. In 1998, according to Jamal, he was

named secretary general of his village. As secretary-general, he

held meetings, talked with party members, and recruited others to

join the PML-N. For nine months of each year from 1973-2000, Jamal

worked as a seaman. When not at sea, he worked as a farmer and

agriculturist. In October 1999, Pakistan's President Nawaz Sharif,

who was also the leader of the PML-N, removed the chief of the

army, General Pervez Musharraf. Musharraf retaliated by fomenting

a successful military coup against Sharif and his cabinet.

On November 16, 1999, Jamal participated in a meeting

advocating democracy and criticizing Musharraf's new military

regime. During the meeting, the police beat Jamal and others

present. Jamal testified that he sustained injuries to his hands,

back and feet but said nothing about injury to his abdominal

organs. Jamal said he sought medical treatment, and a doctor's

letter he submitted said he had sustained "blunt injuries to his

abdominal organs" and described his condition as "pretty serious."

When asked during the hearing whether he had suffered blunt

abdominal injuries, as the letter said, Jamal responded, "When you

are beaten with, with sticks and rock, surely you're going to get

injuries inside your system." The IJ observed that the doctor's

letter was dated October 29, 1999, several days before the meeting

when Jamal was supposed to have sustained the injuries. Jamal

testified that the date of the letter was an error. The IJ further

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observed that "the respondent does not appear to have suffered

blunt injuries to his abdominal organs."

At the hearing, Jamal submitted a document, translated

from Urdu into English, entitled "First Investigation Report," that

appeared to be a local police report dated November 16, 1999

accusing Jamal and others of disturbing the peace and stating that

Jamal and the others were fighting hand to hand with police.

Jamal asserted that after November 16, he resumed

participation in political activities and suffered other beatings

by the police. In all, he said that he suffered between five and

ten beatings between November 16, 1999 and November 30, 1999, when

he left the area. He did not, however, claim to have sustained

injuries subsequent to the beating on November 16; he testified as

to the latter incidents, "No, no, not really injuries." After

leaving the area on November 30 to go to Karachi, Jamal suffered no

further harm. In December of 1999, Jamal returned to his work as

a seaman and traveled out of Pakistan with government-issued

documentation. There was no evidence of his conviction of any

criminal offense, of the issuance of a warrant for his arrest, or

of any specific threat by authorities to his safety should he

return to Pakistan.

The 2001 State Department Country Conditions report

submitted by Jamal's counsel to the IJ stated there were

significant amounts of corruption and sectarian violence in

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Pakistan and that the government's human rights record was poor.

The 2001 report also observed that while the government permitted

all existing political parties to function, including the PML-N,

the government had essentially prevented the PML-N from electing

former President Sharif.

The country conditions report stated that on April 6,

2000, former President Sharif was convicted of hijacking and

terrorism because he had in 1999 refused to permit a commercial

flight on which Musharraf was a passenger to land in Karachi. On

December 10, 2000, Musharraf pardoned the former president, who

flew to exile in Saudi Arabia and promised to stay out of politics

for two decades. After the coup, the PML-N chose not to call for

the restoration of the Sharif government because it believed it

would be a mistake to challenge the military directly.

After taking over, Musharraf consolidated a number of

governmental roles and assumed more power for himself. His actions

included suspending the constitution, jailing several justices and

lawyers of the supreme court, and shutting down independent

television stations.1

1
While we look solely to facts in the record in determining
whether to sustain the decision below, we take note that history
has not stood still since this matter was decided. Press reports
indicate that former Prime Minister and leader of the opposition
Pakistan People's Party ("PPP") Benazir Bhutto was assassinated as
she campaigned in anticipation of January 2008 parliamentary
elections. When elections were finally held, both the PPP and the
PML-N won the majority of seats in the Parliament and formed an
alliance. Musharraf, who remains the president of Pakistan but is

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 Jamal testified to the IJ that if he returned to the area

of his home, he would be beaten by the local police. He also

submitted an affidavit asserting that "the leaders of these

extremist organizations know me and would kill me if I returned to

Pakistan." Since Jamal entered the United States, however, his

wife and six children have continued to live without incident in

Pakistan. There is no independent evidence of anyone looking for

Jamal or threatening to hurt him if he returns home, nor is there

evidence of such conduct by the authorities relative to other PML-N

adherents because of their opposition to the coup against Sharif.

IJ's Decision and Board Appeal

In denying Jamal's applications for asylum, the IJ

concluded that Jamal was statutorily ineligible for asylum because

he had neither filed his application for asylum within one year of

his arrival in the United States nor shown the existence of changed

or extraordinary circumstances sufficient to justify the lateness

of his application. The uncontested record evidence shows that

Jamal arrived in the United States on July 30, 2000 and sought

asylum only on January 5, 2004, some three and a half years later.

The IJ rejected Jamal's contention that his illiteracy and asserted

ignorance of the availability of asylum were exceptional

circumstances justifying the lateness of his application. She also

no longer the chief of the military, has said he would work with
the new Parliament. Sharif has returned to the country and is
expected to run for Parliament in June of this year.

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rejected any contention that the country conditions had changed in

a way that materially affected his reasons to fear harm upon his

return.

In evaluating Jamal's claims for withholding of removal

and protection under the CAT, the IJ concluded that Jamal's

contention that he was beaten by police for political reasons at

and after the meeting on November 16, 1999 was insufficient

evidence to establish past persecution. While the IJ found Jamal's

narrative of the November 16 beating was credible, and that the

harm he then suffered was "inflicted on account of his political

opinion and his political activities," she observed that Jamal had

been physically able to return to his political activities

immediately and had joined in other protests without additional

injuries. She further observed that the date of the doctor's note,

some days before the claimed beating, and the apparent lack of

blunt abdominal injury suffered by Jamal, also raised a question as

to the injuries inflicted. The IJ noted that the purported

translation of a document naming Jamal as fighting with police and

disturbing the peace on November 16, 1999 was unsigned by another

except the notary and was unaccompanied by the original. The IJ

found that it did not result in a warrant for Jamal's arrest and

did not interfere with his ability to travel or to leave the

country.

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 The IJ additionally concluded that despite the violence

in Pakistan, Jamal had failed to establish that he would more

likely than not be persecuted on his return to the country because

of his prior opposition to the coup against Sharif. The IJ based

this decision on the facts that Jamal's wife and children were

still living unharmed in Pakistan, that Jamal did not claim that

anyone had threatened him or looked for him since he left Pakistan,

and that he did not show that any supporter of Sharif had been

harmed since 2000. She concluded there was no evidence that the

uncertain conditions in Pakistan would affect Jamal any more than

any other citizens of Pakistan. The IJ denied Jamal's applications

for withholding of removal and protection under the CAT.

The BIA dismissed Jamal's appeal of the IJ's decision on

March 19, 2007, affirming both her conclusion that Jamal had filed

an untimely application for asylum not subject to any of the

exceptions and that he had not established past persecution or

likelihood of future persecution or of torture.

Discussion

We turn to Jamal's arguments that the BIA violated his

right to constitutional due process of law by upholding the IJ's

conclusion that his asylum application was time-barred, and also to

his challenges to the IJ's conclusion that he failed to establish

past persecution or threat of future persecution or torture.

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I. Timeliness

Under INA § 208(a)(3), 8 U.S.C. § 1158(a)(3),2 courts are

denied jurisdiction to review the Attorney General's determination

that an alien has filed an untimely petition and has not

established changed or extraordinary circumstances to excuse the

late filing. See Heng v. Gonzales, 493 F.3d 36, 47 (1st Cir.

2
The statute reads, in relevant part:

(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United
States or who arrives in the United States . . . may
apply for asylum in accordance with this section . . . .
(2) Exceptions
. . .
(B) Time limit
Subject to subparagraph (D), paragraph (1)
shall not apply to an alien unless the alien demonstrates
by clear and convincing evidence that the application has
been filed within 1 year after the date of the alien's
arrival in the United States.
. . .
(D) Changed circumstances
An application for asylum of an alien may be
considered, notwithstanding subparagraphs (B) and (c), if
the alien demonstrates to the satisfaction of the
Attorney General either the existence of changed
circumstances which materially affect the applicant's
eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application within the
period specified in subparagraph (B).
. . .
(3) Limitation on judicial review
No court shall have jurisdiction to review any
determination of the Attorney General under paragraph
(2).

8 U.S.C. § 1158(a).

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2007); Pan v. Gonzales, 489 F.3d 80, 84-85 (1st Cir. 2007) (holding

no jurisdiction to review a timeliness determination for asylum).

Jamal does not dispute that his petition was, in fact,

untimely filed but challenges on purported constitutional grounds

the IJ's factual finding that he did not demonstrate changed or

extraordinary circumstances sufficient to warrant an exception to

the one-year rule. He argues in his brief that "the failure of the

IJ to make an individualized analysis in order to determine whether

evidence exists in the record sufficient to qualify the Petitioner

for an exception from the (one) 1-year asylum ban on the basis of

changed circumstances or extraordinary circumstances . . . was a

violation of due process . . . ."

On the record before us, this claim of

unconstitutionality is frivolous. "To trigger our jurisdiction,

the putative constitutional or legal challenge must be more than a

disguised challenge to factual findings." Pan, 489 F.3d at 84.

The IJ acted reasonably in giving little credence to Jamal's

contention that, having overstayed his visa, he had justifiably

remained unaware for over three years from the time he arrived in

the United States of the one-year period within which to file for

asylum. She noted the existence of various legal aid sources where

advice was available and found that, "although not being able to

read or write, [he] is [an] otherwise seemingly intelligent,

oriented, and sane individual. Therefore, I find that the mere

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inability to read or write does not, under these circumstances,

cause the Court to conclude that the respondent is suffering from

a disability." Finally, she concluded that "the Court does not

believe that country conditions have changed since the respondent's

arrival in the United States so as to materially affect his reasons

for fearing harm." Nothing about these findings suggests that

Jamal's right to constitutional due process was infringed. We

accordingly lack jurisdiction to review the BIA's decision

affirming the IJ's conclusion that Jamal's asylum petition was

untimely and that he has not demonstrated changed or extraordinary

circumstances excusing his delay.

II. Denial of Claim for Withholding of Removal and Protection
Under the CAT

An alien scheduled for deportation may avoid removal if

the Attorney General concludes that "the alien's life or freedom

would be threatened in [the destination] country because of the

alien's race, religion, nationality, membership in a particular

social group, or political opinion." INA § 241(b)(3)(A), 8 U.S.C.

§ 1231(b)(3)(A). Jamal challenges the IJ's findings of fact that

he established neither past persecution nor threat of future

persecution should he be returned to Pakistan and also was not

eligible for withholding of removal and protection under the CAT.

If the Attorney General concludes that the alien was a

victim of past persecution, there is a presumption of future

persecution should the alien be returned to the country. 8 C.F.R.

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§ 1208.16(b)(1)(i). But an alien who has not demonstrated past

persecution must demonstrate that it is more likely than not that

he will be subject to future persecution upon returning to the

country. 8 C.F.R. § 1208.16(b)(2). Under the CAT, an alien may

not be returned to his country if "there are substantial grounds

for believing [he] would be in danger of being subjected to

torture." Pub. L. No. 104-277, § 2242, 112 Stat. 2681, 2681-822

(1998). The alien must show that he will more likely than not be

tortured upon returning to his country. Ang v. Gonzales, 430 F.3d

50, 55, 58 (1st Cir. 2005).

As the BIA affirmed the basis of the IJ's decision, we

review both the IJ and the BIA's decisions. Butt v. Keisler, 506

F.3d 86, 89 (1st Cir. 2007). Their conclusions "must be upheld if

supported by reasonable, substantial and probative evidence on the

record considered as a whole." INS v. Elias-Zacharias, 502 U.S.

478, 481 (1992) (internal quotation omitted). Our review is

deferential. Their findings of fact are "conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary." INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B). Jamal

must demonstrate the evidence in the record not only supports a

contrary conclusion but compels it. Da Silva v. Ashcroft, 394 F.3d

1, 4-5 (1st Cir. 2005). He has not done so here.3

3
The government argues that Jamal's argument regarding past
persecution and likelihood of future persecution has been abandoned
because they have been "advanced in skeletal form, unaccompanied by

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 a. Past Persecution

In rejecting Jamal's claim of past persecution, and its

accompanying presumption of future persecution should he return to

Pakistan, the IJ concluded that the evidence of police beatings in

November of 1999 following the military coup did not rise to the

level of persecution.

The only claimed actual injury to Jamal related to his

beating at the November 16, 1999 meeting. He walked home

afterwards, and engaged in further political activism throughout

the remainder of the month which, he said, resulted in further

police beatings, although without injury to himself. He then went

to Karachi without apparent problems and later resumed his work as

a seaman, during which time he traveled freely out of Pakistan

using government-issued documents.

The IJ credited Jamal's testimony as to the November 16,

1999 police beating although, because of the earlier date of the

doctor's report, the discrepancy between Jamal's description of his

injuries and those in the report, and Jamal's ability to walk home

and resume demonstrating thereafter, she found he exaggerated his

injuries. And while Jamal presented what appeared to be a

translation of a local police report verifying his encounter with

police on November 16, 1999, he presented no evidence he was

some developed argumentation." Pan, 489 F.3d at 87. Though there
is force to this argument, we conclude, in any event, that Jamal's
contentions are without substance.

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convicted for his part in the November 16 disturbances, nor that a

warrant for his arrest was issued. Nor was there evidence that

others who had engaged in activism similar to Jamal's were detained

or harmed thereafter by the police. His wife and children have

continued to live in Pakistan without being disturbed by the

authorities. There was evidence that, in general, while the police

at this time used force against demonstrators and sometimes

arrested them, the government usually allowed individuals to

assemble peacefully subject to some restrictions.

We cannot say that this record compelled the IJ to find

that Jamal was subjected to past persecution. The described events

occurring in November of 1999 could reasonably be categorized as

being more in the nature of isolated occurrences than the sort of

systematic threats to Jamal's life or freedom indicative of his

having been persecuted by the authorities. See Topalli v.

Gonzales, 417 F.3d 128, 132 (1st Cir. 2005) (distinguishing between

"systematic maltreatment that rose to the level of past

persecution" as opposed to a series of "isolated incidents," and

sustaining a finding of no past persecution where petitioner was

beaten seven times by the police but did not need medical attention

and was able to live in peace for three years following his last

arrest); Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005)

("[M]istreatment ordinarily must entail more than sporadic abuse in

order to constitute persecution," and upholding a finding of no

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persecution after two widely-separated beatings); Nelson v. INS,

232 F.3d 258, 263 (1st Cir. 2000) (three episodes of solitary

confinement of less than 72 hours accompanied by physical abuse

held insufficient to require a finding of persecution). Given

especially the deferential standard governing this court's review

of the IJ's and BIA's determinations of persecution, see, e.g.,

Bocova, 412 F.3d at 263 ("Persecution is a protean word of many

meanings," definition of which is in the first instance the

prerogative of the Attorney General), we are unable to say that a

contrary finding as to past persecution was required here.

b. Likelihood of Future Persecution or Torture

The IJ concluded that Jamal was not likely to be

subjected to future persecution or torture, noting that his wife

and six children still live safely in Pakistan and that despite the

corruption and political turmoil in the country, "there is just

simply no evidence that those conditions would affect the

respondent more than other citizens of Pakistan." Jamal testified

that his wife and children "don't have any problems." "Without

some explanation, the fact that close relatives continue to live

peacefully in the alien's homeland undercuts the alien's claim that

persecution awaits his return." Aguilar-Solis v. INS, 168 F.3d

565, 573 (1st Cir. 1999). Though Jamal expressed concern that "the

leaders of these extremist organizations know me and would kill me

if I returned to Pakistan," he did not provide evidence beyond his

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personal expression of these concerns and fears to support this

allegation. His family's ongoing safe residence in the country, as

well as his own earlier unobstructed passages when traveling to

Karachi and as a seaman, as well as the absence of any outstanding

relevant threats, belie this claim.

This court has said that the prospect "that a country's

politics remain volatile, leaving open the possibility of

deterioration and including some measure of specific violence, does

not necessarily establish an alien's well founded fear of

persecution should he be returned to that country." Chreng v.

Gonzales, 471 F.3d 14, 23 n.3 (1st Cir. 2006). Without evidence of

a specific threat or of an ongoing pattern of persecution against

similarly situated members of his party, Jamal has not shown the

record compels the conclusion that he is likely to be persecuted or

tortured upon returning to Pakistan.

Petition denied.

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