United States Court of Appeals
For the First Circuit
No. 08-1588
MUHAMMAD RASHAD,
Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Stahl, Circuit Judges,
and García-Gregory,* District Judge.
Peter A. Allen and Peter Allen, P.C. on brief for petitioner.
Theodore C. Hirt, Attorney, Office of Immigration Litigation,
U.S. Department of Justice, Gregory G. Katsas, Assistant Attorney
General, and Linda S. Wernery, Assistant Director, on brief for
respondent.
January 16, 2009
*
Of the District of Puerto Rico, sitting by designation.
GARCÍA-GREGORY, District Judge. Petitioner Muhammad
Rashad (“Rashad”) submitted a petition for asylum, withholding of
removal, and protection under the United Nations Convention Against
Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“Convention Against Torture”). Rashad filed his
petition after he was ordered to appear before an immigration court
because he had exceeded the time period to remain in the United
States as authorized by his non-immigrant visa. In his petition,
Rashad claimed that he would be arrested, jailed, tortured, and
possibly killed if he were to return to his native Pakistan. The
Immigration Judge (“IJ”) rejected Rashad’s petition since it was
filed past the one (1) year statutory period mandated by the
Immigration and Nationality Act § 208(a)(2)(B), 8 U.S.C. §
1158(a)(2)(B) and because there were no changed or extraordinary
circumstances that would ban the application of the one (1) year
statute of limitations.1 Furthermore, the IJ held that Rashad did
not qualify for withholding of removal2 or protection under the
1
An alien must seek asylum within one year of entering the
United States. 8 U.S.C. § 1158 (a)(2)(B). However, an alien’s
failure to timely file an asylum application may be excused if the
alien shows “changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing an application.” 8 U.S.C. § 1158
(a)(2)(D).
2
As a general rule, the withholding of the deportation of an
alien is mandatory if he establishes that it is more likely than
not that he would be subject to persecution on account of race,
religion, nationality, membership in a particular social group, or
political opinion, should he return to his homeland. INS v.
-2-
Convention Against Torture. A timely appeal with the Board of
Immigration Appeals (the “BIA”) followed. The appeal was dismissed.
Rashad challenges the IJ and BIA’s ruling declaring him ineligible
for asylum, the denial of his application for withholding of
removal, and protection under the Convention Against Torture. We
lack jurisdiction over the asylum application and find that the
remainder of Rashad’s allegations are unpersuasive. As such, we
will deny Rashad’s petition for review.
FACTUAL AND PROCEDURAL BACKGROUND
The facts are drawn mainly from the IJ and the BIA’s
decisions and the exhibits referenced therein. Rashad is a sixty-
one (61) year old male, who is a native born citizen of Pakistan.
Rashad is also a married father of six (6) children, whose wife and
children live in Pakistan. On or about August of 2000, Rashad
obtained a non-immigrant visa from the United States Embassy in
Islamabad, Pakistan. On or about November 11, 2000, Rashad secured
admission to the United States. Rashad’s non-immigrant visa
authorized him to remain in the United States for a temporary
period not to extend beyond February 11, 2001. Prior to leaving
Pakistan, Rashad was a card carrying member of the Nawaz faction of
the Pakistan Muslim League (“PML-N”), an organization he joined in
2000. The PML-N was named after former Pakistani Prime Minister
Aguirre-Aguirre, 526 U.S. 415, 419 (1999).
-3-
Nawaz Sharif, who was deposed in a bloodless coup by Pakistani army
chief, General Pervez Musharraf on October 15, 1999.
On March 19, 2003, the Department of Homeland Security
sent Rashad a Notice to Appear (“NTA”) in immigration court,
charging him as subject to removal because he had remained in the
United States for a longer time period than permitted. Rashad
responded to the NTA and on April 7, 2004, more than three years
after his admission to the United States, Rashad filed a petition
for asylum alleging that he would be arrested, jailed, tortured,
and possibly killed if he returned to Pakistan because he was an
active member of the PML-N. On July 11, 2006, after a hearing on
the merits, the IJ issued an oral decision denying Rashad’s asylum
request. Specifically, the IJ denied Rashad’s asylum request as
untimely because he had failed to file his request within the one
(1) year statutory deadline. Furthermore, the IJ determined that
Rashad had failed to submit clear and convincing evidence
establishing a legal entitlement to an exception from the one (1)
year statutory deadline on account of extraordinary personal
circumstances in his life or changed human rights conditions in
Pakistan. Specifically, the IJ found that Rashad’s ignorance of the
law was not an excuse. Furthermore, the IJ noted that Rashad had
not been under stress or trauma, nor had he suffered from any
physical or mental problems, from any mistreatment or harm suffered
before he came to the United States. As to the “changed
-4-
conditions,” the IJ indicated that the PML-N continued to exist as
a significant political party in Pakistan.
The IJ also denied Rashad’s request for withholding of
removal and protection under the Convention Against Torture. The IJ
found that Rashad failed to establish that he would be persecuted
and/or tortured if he were to return to Pakistan. Namely, the IJ
stated that Rashad failed to demonstrate that he was a leader of
the PML-N or that he was of any significant interest to Pakistani
authorities. Furthermore, the IJ found that Rashad did not show
that he had to go into hiding in Pakistan or that he had any other
significant problems because prior to traveling to the United
States, Rashad had been able to move freely throughout Pakistan
staying at various locations including his family home. The IJ
further noted that his wife and children continued to reside in his
family home. Accordingly, the IJ denied Rashad’s request for
asylum, withholding of removal, and protection under the Convention
Against Torture.
Rashad filed a timely appeal with the BIA. Like the IJ,
the BIA agreed that Rashad was not eligible for asylum on account
of his failure to submit his application within one (1) year of his
arrival to the United States. Further, the BIA acknowledged the
IJ’s decision that Rashad failed to establish a valid exception to
this requirement or prove that his asylum application was filed
within a reasonable period under the circumstances. Moreover, the
-5-
BIA held that even if Rashad’s asylum application were timely filed
and his testimony before the IJ deemed credible, his appeal would
be denied because he failed to sustain the burden of proof
applicable to asylum petitions as well as the more stringent burden
applicable to claims for withholding of removal or protection under
the Convention Against Torture. Specifically, the BIA held that the
record did not show that he would be mistreated by the government
of Pakistan on account of a protected ground. Additionally, the BIA
concluded that Rashad failed to proffer an adequate torture claim.
The BIA dismissed Rashad’s appeal, and the instant petition for
review followed.
STANDARD OF REVIEW
When this Court has jurisdiction to review, we uphold
determinations by the BIA or the IJ if “supported by reasonable,
substantial, and probative evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal
quotation marks omitted). This deferential standard is applied to
findings of fact including credibility determinations. Chhay v.
Mukasey, 540 F.3d 1, 5 (1st Cir. 2008). Likewise, the “substantial
evidence” standard applies to claims for asylum, withholding of
removal, and relief under the Convention Against Torture. Settenda
v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). Under this standard,
“[w]e will reverse only if the petitioner’s evidence would compel
a reasonable factfinder to conclude that relief was warranted.”
-6-
Id.; see also 8 U.S.C. § 1252(b)(4)(B)(“administrative findings of
fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary”).3
Usually, this Court confines its review to the BIA’s
order that is being challenged by the petitioner. Sharari v.
Gonzales, 407 F.3d 467, 473 (1st Cir. 2005). If the BIA has simply
adopted or deferred to the IJ’s reasoning, the Court must look to
that decision instead, “treating the findings and conclusion of the
IJ as the Board’s own opinion.” Herbert v. Ashcroft, 325 F.3d 68,
71 (1st Cir. 2003). However, when as here, the BIA adopts the
decision of the IJ, and provides some analysis of its own, the
Court reviews both decisions. Romilus v. Ashcroft, 385 F.3d 1, 5
(1st Cir. 2004).
DISCUSSION
Rashad asks us to review his application for asylum,
request for withholding of removal, and petition for protection
under the Convention Against Torture. Furthermore, Rashad contests
the IJ’s credibility assessment. We begin with Rashad’s asylum
application.
3
Thus, a credibility determination will be sustained when the
IJ has given reasoned consideration to the evidence and has
provided a cogent explanation for his finding. Chhay, 540 F.3d at
5.
-7-
1. Rashad’s Asylum Application
An application for asylum must be filed within one year
of the alien’s arrival in the United States, absent changed
circumstances affecting eligibility for asylum or extraordinary
circumstances relating to the delay in filing. 8 U.S.C. §§
1158(a)(2)(B); 1158(a)(2)(D). Here, it is undisputed that Rashad
resided in the United States for more than three years before
filing his asylum application. Accordingly, both the IJ and the BIA
determined that Rashad’s petition was untimely. Furthermore, the IJ
and the BIA concluded that there were no changed or extraordinary
circumstances that might have justified his untimely application.
Unless the alien identifies a legal or constitutional
defect in the decision, this Court lacks jurisdiction to review the
BIA’s determination that a petition for asylum was untimely or that
there were no changed or extraordinary circumstances that might
have justified considering the application. Hana v. Gonzales, 503
F.3d 39, 42 (1st Cir. 2007) (citing 8 U.S.C. § 1252(a)(2)(D)).
Both the IJ and the BIA have determined that there are no
extraordinary circumstances justifying Rashad’s untimely
application for asylum. Therefore, we lack jurisdiction to review
the rejection of Rashad’s asylum application on this ground.
Nonetheless, Rashad claims that Congress violated his
right to due process by precluding our review of determinations
made by the Attorney General in connection with the one (1) year
-8-
filing rules or request for exceptions. This Court, nonetheless,
has previously held that this jurisdictional bar does not represent
a due process violation. Hana, 503 F.3d at 44 (holding that the
judicial review bar of 8 U.S.C. § 1158(a)(3) does not represent a
due process violation). Rashad further argues that the agency
violated his due process rights because it failed to provide him
with a fair and efficient procedure for determining the validity of
his persecution claim and failed to fully evaluate his exceptions
to the one (1) year statute of limitation for filing asylum
petitions. However, Rashad’s argument is meritless as it is not a
colorable constitutional claim.4 See Lutaaya v. Mukasey, 535 F.3d
63, 69 (1st Cir. 2008) (holding that petitioner’s argument that the
IJ violated her due process rights because the IJ did not consider
her testimony and failed to allow her to “fully explain” her
reasons to meet the one year deadline was not a colorable
constitutional claim that would allow this court to exercise
judicial review over the untimely asylum application); Jamal v.
Mukasey, 531 F.3d 60, 65 (1st Cir. 2008) (rejecting as frivolous
petitioner’s argument that the failure of the IJ to make an
individualized analysis to determine whether there was sufficient
evidence to qualify him for an exception from the one (1) year
4
“The underlying constitutional or legal question must be
colorable; that is, the argument advanced must, at the very least,
have some potential validity.” Pan v. Gonzales, 489 F.3d 80, 84
(1st Cir. 2007).
-9-
asylum ban was a violation of due process). Rashad’s allegation
that the IJ and the BIA failed to “fully evaluate” his
qualification for the exception to the one (1) year filing deadline
is another way of saying that the agency got the facts wrong, which
is simply a factual claim masqueraded as a legal challenge that
certainly cannot defeat the operation of the jurisdiction-stripping
provision. See Pan, 489 F.3d at 85. Hence, this Court lacks
jurisdiction to review Rashad’s asylum petition.
2. Withholding of Removal and Protection under the
Convention Against Torture
Although we lack jurisdiction to consider Rashad’s asylum
petition, we can consider his request for withholding of removal
and protection under the Convention Against Torture. See Saad v.
Keisler, No. 06-2347, 2007 U.S. App. LEXIS 24493, at *8 (1st Cir.
Oct. 19, 2007). In order to qualify for withholding of removal, a
petitioner must either demonstrate past persecution, which gives
rise to a rebuttable presumption of future persecution, or must
show that more likely than not he would face persecution on account
of race, religion, nationality, membership in a particular social
group, or political opinion should he return to his homeland.
Aguirre-Aguirre, 526 U.S. at 419; Limani v. Mukasey, 538 F.3d 25,
31 (1st Cir. 2008) (citing 8 C.F.R. § 208.16(b)(1)(i), (b)(2)).
Basically, “[w]ithholding of removal requires that the alien
establish a clear probability of persecution, rather than merely a
-10-
well-founded fear of persecution.” Ang v. Gonzales, 430 F.3d 50, 58
(1st Cir. 2005). “To qualify as persecution, a person’s experience
must rise above unpleasantness, harassment, and even basic
suffering.” Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000).
Unlike withholdings of removal, relief under the
Convention Against Torture does not require the petitioner to prove
the reason for torture. Romilus, 385 F.3d at 8. Instead, the
petitioner must prove that more likely than not he will be tortured
if he is returned to his homeland. Id. “To establish a prima facie
claim under the [Convention Against Torture], an applicant must
offer specific objective evidence showing that he will be subject
to: ‘(1) an act causing severe physical or mental pain or
suffering; (2) intentionally inflicted; (3) for a proscribed
purpose; (4) by or at the instigation of or with the consent or
acquiescence of a public official who has custody or physical
control of the victim; and (5) not arising from lawful sanctions.’”
Id. (internal citations omitted).
Rashad avers that he qualifies for withholding of removal
and/or protection under the Convention Against Torture because if
he were to return to Pakistan he would be tortured and/or
persecuted because of his political affiliations. Rashad brings to
this Court’s attention that even though he was not an official of
the PML-N, he helped organize political rallies. According to
Rashad, on October 2000, he spoke at a political rally. Thereafter,
-11-
the police, which were loyal to General Pervez Musharraf, searched
for him and forced him into hiding.5 Rashad fears that if he
returns to Pakistan he could be tortured and/or persecuted by
security forces. However, the IJ and the BIA held that Rashad did
not qualify for withholding of removal and protection under the
Convention Against Torture.
Our deferential standard of review does not permit us to
second-guess the determinations of the IJ or the BIA, if they are
supported by substantial evidence in the record. Khan v. Mukasey,
549 F.3d 573, 576 (1st Cir. 2008). “The substantial evidence
standard demands that we uphold the agency’s determination unless
the evidence points unerringly in the opposite direction.” Id.
(internal quotation marks and citations omitted). Here, the
evidence does not compel us to reject the agency’s conclusion. See
id.
The evidence in the record does not show that Rashad
experienced past torture, persecution, or that it was “more likely
than not” that he would be persecuted on one of the above specified
grounds if he returned to Pakistan. This conclusion is supported by
the fact that before coming to the United States, Rashad traveled
5
In reaching her conclusion that Rashad did not travel to the
United States for safety reasons, the IJ noted that Rashad had made
plans to come to the United States prior to the October 2000 rally,
before he allegedly had any knowledge that Pakistani authorities
“were looking for him and wanted to arrest him or anything else.”
-12-
freely around Pakistan, stayed at his family’s home, and was able
to leave Pakistan in November of 2000 using his passport without
any interference by Pakistani officials. Furthermore, Rashad’s
family continues to live peacefully in Pakistan. See Aguilar-Solis
v. INS, 168 F.3d 565, 573 (1st Cir. 1999) (finding that “the fact
that close relatives continue to live peacefully in the alien’s
homeland undercuts the alien’s claim that persecution awaits his
return”). As such, this Court finds that the evidence and testimony
offered by Rashad is insufficient to compel a reasonable factfinder
to conclude that more likely than not he would be tortured or
persecuted if he were to return to Pakistan.
CONCLUSION
For the foregoing reasons, the petition for review is
DENIED.
-13-