Usman v. Holder

United States Court of Appeals
For the First Circuit

No. 08-1331

MOHAMMAD USMAN,

Petitioner,

v.

ERIC H. HOLDER, JR.*, ATTORNEY GENERAL,

Respondent.

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

Before
Boudin, Stahl, and Lipez,
Circuit Judges.

Peter A. Allen, and Peter Allen, P.C., for petitioner.
Gregory G. Katsas, Assistant U.S. Attorney General, Civil
Division, Anthony N. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, and Surell Brady, Trial
Division, Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, for respondent.

May 22, 2009

*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric
H. Holder, Jr. has been substituted for former Attorney General
Michael B. Mukasey as the respondent.
 LIPEZ, Circuit Judge. Petitioner Mohammad Usman, a

native and citizen of Pakistan, seeks review of a decision of the

Board of Immigration Appeals (BIA) affirming the denial by an

immigration judge (IJ) of Usman's application for asylum,

withholding of removal, and relief under the Convention Against

Torture (CAT). The BIA adopted the IJ's findings that Usman's

asylum application was not filed within a year of his arrival in

the United States, as required by statute, and that petitioner did

not qualify for an exception to the deadline. The Board also

agreed with the IJ's conclusion that, because appellant had not

shown a clear probability of persecution or torture if returned to

Pakistan, he was ineligible for either withholding of removal or

protection under the CAT. We affirm the Board's decision in all

respects.

I.

Usman, who was then employed as a seaman, entered this

country on April 21, 1999, on a C1 visa1 that authorized him to be

in the United States, in transit, until April 23, 1999, when he was

supposed to join his ship and its crew in Puerto Rico. However,

Usman failed to leave the country by the date specified in the C1

visa, and, by remaining in the United States without authorization,

1
A C1 visa allows for the temporary admission of an alien in
"immediate and continuous transit" through the United States. 8
U.S.C. § 1101(a)(15)(C); 8 C.F.R. § 214.1(a)(1)(ii).

-2-
became removable under 8 U.S.C. § 1227(a)(1)(B) (rendering removable

any alien whose "nonimmigrant visa . . . has been revoked"). On

March 12, 2003, the Department of Homeland Security (DHS) issued a

Notice to Appear charging Usman with removability on this ground.

Petitioner responded by filing an application for asylum,

withholding of removal, and protection under the regulations

implementing the CAT. See 8 C.F.R. § 1208.16(b), (c). The

following facts are drawn from this application and Usman's

testimony before the IJ.

A Sunni Muslim, Usman was born in the Northwestern

Province of Pakistan in 1957. His four sons were all born in

Pakistan between 1983 and 1998. As of 2005, Usman was divorced, and

all of his sons lived in Pakistan with the rest of his immediate

family.

Between 1976 and 1988, Usman was employed as a merchant

seaman, working for various shipping companies. During this time,

he made frequent stops in the United States. Between 1986 and 1990,

he was employed as a cook and store manager in Pakistan, before

resuming work as a merchant seaman in 1991. Between 1991 and 1998,

Usman estimated that he spent approximately half his time on board

ship.

Usman's claims for relief were based on allegations that

he had experienced persecution at the hands of Islamic

fundamentalists in Pakistan on account of his political affiliation.

-3-
Before the IJ, Usman described a handful of encounters with such

fundamentalists over the course of about twenty years. Usman

claimed that these problems began in 1976, when he was beaten by

fundamentalists for being a member of a family loyal to the Pakistan

People's Party (PPP). Usman himself did not become a member of this

party until 1990, but began volunteering for them in 1973. He

stated that he experienced a similar attack in 1984, and that after

both incidents he had complained to the police to no avail. He

believed that because his work involved frequent travels to the

United States, he had come under suspicion as an American

sympathizer, and perhaps even a spy.

As a member of the PPP, Usman distributed pamphlets and

other party literature and attended party meetings at which he

sometimes gave speeches denouncing Islamic fundamentalism. He

testified that during both the fall of 1993, in the midst of an

election season, and then in the winter of 1997, he was again

attacked and beaten by groups of fundamentalists on account of his

membership in and activities on behalf of the PPP. Another attack

followed after he attended a PPP meeting near his home in March 1999

and spoke out against the Pakistani government. Finally, he stated

that just before his last trip to the United States in April 1999,

he was once again attacked by fundamentalists.

Usman explained at the hearing that, after his

unsuccessful attempt to meet his ship and its crew in Puerto Rico

-4-
in 1999, he decided to stay in the United States because of these

"political problems" in Pakistan, which caused him to fear for his

life. He told the IJ that he had not applied for asylum until 2003

because he did not know that he had the right to do so, and because

his inability to speak English prevented him from understanding and

exercising his rights. He also stated that the Islamic

fundamentalists in Pakistan became more active after the American

invasion of Afghanistan in 2001, and that they had since come to his

family's home and begun to threaten Usman's family, even attacking

his home on several occasions.

The IJ ruled that Usman's application for asylum, filed

nearly five years after his arrival in the United States, was

untimely, and that he did not qualify for either of the exceptions

to the one-year filing deadline described in the statute. He noted

that Usman's argument for waiver of the one year requirement was

essentially "one of ignorance of the law, and this [did] not

constitute extraordinary or changed circumstances or conditions."

The IJ also held that Usman had not demonstrated a "clear

probability" that he would be subjected to persecution if he

returned to Pakistan, and therefore that he did not qualify for

withholding of removal. The IJ reasoned that Usman himself could

not have harbored such a fear, since he had "voluntarily returned

to Pakistan on numerous occasions after the claimed beatings at the

hands of Islamic fundamentalists in Pakistan," and that the

-5-
Pakistani government had not sanctioned, and, indeed, was actively

attempting to suppress the activities of the extremists. Finally,

the IJ held that Usman had made no claim "that he would be tortured

by anyone in the country of Pakistan were he to be returned to that

country," much less that he would be tortured "at the instigation

of or with the consent of public officials," and, therefore, Usman

had failed to make out a claim under the CAT. However, the IJ did

grant voluntary departure.

Usman appealed the decision to the BIA. The Board

"specifically agree[d] with the Immigration Judge that the

respondent ha[d] not met the burden of proving that the application

for asylum was timely filed as required or that [he] qualifie[d] for

an exception to the deadline." The BIA conceded that the IJ had not

explicitly made an adverse credibility finding, but agreed with his

conclusion that Usman had failed to meet his burden of proving

eligibility for withholding of removal, characterizing Usman's

testimony as describing only "some isolated attacks" and citing

Usman's frequent returns to Pakistan as evidence that he did not

fear persecution. The Board also summarily affirmed the IJ's

conclusion about Usman's CAT claim.

Before us, petitioner argues that his hearing before the

IJ did not comport with the requirements of the Due Process Clause

because the judge failed to "undertake any meaningful analysis" or

"fully evaluate" his claims. Usman contends that the conduct of the

-6-
hearing below, and the judge's alleged failure to "evaluate the

totality of Usman's personal circumstances," undermined the

"fairness and integrity of the removal process," and consequently

that the ensuing decision is not owed the "customary deference."

He also claims that the IJ improperly denied his claims for

withholding of removal and relief under the CAT.

The government responds that we lack jurisdiction to

review the IJ's determination that Usman's application was untimely

and that he did not qualify for either of the exceptions. The

government asserts that, although Usman purports to raise a due

process challenge to the proceedings below, he has no cognizable

constitutional claim upon which we may base appellate jurisdiction.

Furthermore, the government contends that Usman's failure to present

evidence linking his alleged persecution by Islamic fundamentalists

to any government action or inaction was a sufficient basis for the

IJ to conclude that Usman was ineligible for withholding of removal

and CAT protection.

II.

When the BIA adopts aspects of the IJ's opinion, we

review those portions of the opinion in addition to the BIA

decision itself. Rivas-Mira v. Holder, 556 F.3d 1, 4 (1st Cir.

2009). Where we have the jurisdiction to do so, we review factual

findings under the deferential "substantial evidence" standard,

under which we do not disturb the IJ's factual findings if they are

-7-
"supported by reasonable, substantial, and probative evidence on the

record considered as a whole." Segran v. Mukasey, 511 F.3d 1, 5

(1st Cir. 2007) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)). The substantial evidence standard applies to claims for

asylum, withholding of removal, and relief under the CAT. Rashad

v. Mukasey, 554 F.3d. 1, 4 (1st Cir. 2009).

Under 8 U.S.C. § 1158(b)(1)(B)(i), an alien seeking to

qualify for asylum must prove that he is a refugee within the

meaning of 8 U.S.C. § 1101(a)(42)(A), i.e., that he is "unable or

unwilling to return to, and is unable or unwilling to avail himself

. . . of the protection of, [the country of origin] because of

persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social

group, or political opinion." However, 8 U.S.C. § 1158(a)(2)(B)

further provides that, in order to be eligible for asylum, an alien

must demonstrate "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." This one-year filing

deadline may be waived 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." Id. at § 1158(a)(2)(D). Usman continues

to press his claim that his "inability to adequately articulate his

-8-
claims in the English language and his ignorance of the United

States asylum system prevented him from submitting an asylum

application" within the one-year filing deadline. He also argues

that he qualified for the "changed circumstances" exception because

of an ostensibly worsening human rights situation in Pakistan.

However, "[w]e have no jurisdiction to review the

Attorney General's determination that an asylum application is

untimely and unexcused by circumstances." Lutaaya v. Mukasey, 535

F.3d 63, 69 (1st Cir. 2008); see 8 U.S.C. § 1158(a)(3) (providing

that "[n]o court shall have jurisdiction to review any determination

of the Attorney General" on an alien's compliance with the one-year

time limit). Usman attempts to avoid this rule by invoking 8 U.S.C.

§ 1252(a)(2)(D), which states that "[n]othing in . . . this chapter

. . . which limits or eliminates judicial review, shall be construed

as precluding review of constitutional claims or questions of law

raised upon a petition for review filed with an appropriate court

of appeals in accordance with this section." However, we have

repeatedly held that "[t]o trigger our jurisdiction" under this

provision, "the putative constitutional or legal challenge must be

more than a disguised challenge to factual findings." Pan v.

Gonzales, 489 F.3d 80, 84 (1st Cir. 2007); see also Lutaaya, 535

F.3d at 69; Melhem v. Gonzales, 500 F.3d 78, 81 (1st Cir. 2007).

Thus, unless a petitioner can identify a colorable, non-frivolous

"legal or constitutional defect in the decision, this Court lacks

-9-
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." Rashad, 554 F.3d at 5. Moreover, we have explicitly

held that our lack of jurisdiction over denials of asylum

applications on timeliness grounds does not, in and of itself,

violate due process, and thus the portion of Usman's argument that

purports to identify a due process violation based on 8 U.S.C. §

1158(a)(3)'s "complete preclusion of review" must fail. Hana v.

Gonzales, 503 F.3d 39, 44 (1st Cir. 2007).

Nevertheless, Usman also insists that he was deprived of

"the right to a fair hearing guaranteed by due process" because the

IJ did not "fully evaluate" his claims for asylum and for waiver of

the one-year filing deadline. However, we have rejected this exact

claim from petitioner's counsel on multiple occasions. See, e.g.,

Rashad, 554 F.3d at 5 (rejecting petitioner's claim that agency's

failure to provide "a fair and efficient procedure for determining

the validity of his persecution claim and failure to fully evaluate

his exceptions to the one (1) year statute of limitation"

constituted a due process violation); Jamal v. Mukasey, 531 F.3d 60,

65 (1st Cir. 2008) (rejecting as frivolous appellant's argument that

IJ's failure to make an individualized analysis to determine whether

he had presented sufficient evidence to qualify for one of the

exceptions to the one-year filing deadline was a violation of due

-10-
process). See also Lutaaya, 535 F.3d at 69 (petitioner's argument

that IJ violated her due process rights by failing to consider her

testimony or allow her to "fully explain" the reasons that she could

not meet the one year deadline was not a colorable constitutional

claim). Usman does not identify any specific deficiencies in his

hearing or BIA appeal that would give rise to a due process

violation. Instead, as in Rashad, Usman's claim "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." 554

F.3d at 5.

III.

Usman also sought withholding of removal and protection

under the CAT. These claims place a higher burden of proof on the

petitioner than a counterpart claim for asylum, requiring the

petitioner to prove that it is "more likely than not" he would face

persecution or torture if he returned to his home country.

Guillaume v. Gonzales, 504 F.3d 68, 71 n.2 (1st Cir. 2007).

However, the government argues that Usman has waived any

potential challenge to the denial of his request for withholding of

removal by not mentioning it in his opening brief. See, e.g, Stamp

v. Metro. Life Ins. Co., 531 F.3d 84, 88 (1st Cir. 2008) ("[I]ssues

adverted to in a perfunctory manner, unaccompanied by some effort

at developed argumentation, are deemed waived." (quotation marks and

-11-
citation omitted)). We agree. Although one of the headings in

Usman's brief alleges error in the IJ's finding that he had not

established that it was "more likely than not that [he] would be

persecuted or tortured," this heading introduces an argument aimed

at the merits of Usman's asylum claim. An argument that the

petitioner is entitled to asylum does not properly raise the issue

of withholding of removal. As noted, the standard of proof for

withholding of removal is even more stringent. The three-sentence

paragraph in Usman's brief that asserts, in a conclusory fashion,

that the petitioner "made [the] showing" that established his

eligibility for withholding of removal "through a combination of

written evidence and oral testimony" is also insufficient to make

the withholding issue appropriate for our consideration. See, e.g.,

Sok v. Mukasey, 526 F.3d 48, 52 (1st Cir. 2008) (deeming CAT claim

waived where petitioner made "no argument with respect to [the

claim] beyond an introductory assertion that '[t]he record

establishes the merits of [her] claims for withholding of removal,

and protection pursuant to the [CAT]'"); Tejada-Batista v. Morales,

424 F.3d 97, 103 (1st Cir. 2005) ("An argument not seriously

developed in the opening brief is forfeit . . . .").

To succeed on his preserved CAT claim, Usman "would need

to prove it more likely than not that he would suffer torture at the

hands of the government or with the consent or acquiescence of the

government" if returned to Pakistan. De Oliveira v. Mukasey, 520

-12-
F.3d 78, 79 (1st Cir. 2008). The BIA affirmed the IJ's conclusion

that Usman had not presented any such evidence. The IJ had found

specifically that Usman "made no claim that he would be tortured by

anyone in the country of Pakistan were he to be returned to that

country," and "certainly" that he had not alleged that "he would be

tortured at the instigation of or with the consent of public

officials or persons acting in an official capacity in the country

of Pakistan." Now, Usman argues that the attacks he suffered at the

hands of Islamic fundamentalists in Pakistan constituted torture and

that the Pakistani government had "effectively given its consent for

such abuse to continue." He claims that "past torture" is evidence

of "future" torture.

Although we doubt that the incidents described by Usman

at his hearing qualified as torture under the applicable regulation,

see 8 C.F.R. § 208.18(a)(1), Usman's failure to present any evidence

that the abuse he suffered occurred with the consent of the

Pakistani government ultimately dooms his claim. Indeed, the notion

of government complicity is belied by the IJ's supportable finding,

based on the Country Report, that the Pakistani government had "been

active in attempting to suppress Islamic extremists" within its

borders. Therefore, we uphold the BIA's conclusion that Usman is

ineligible for relief under the regulations implementing the CAT.

The petition for review is denied.

-13-