Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-16-2003
Malik v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket 01-1222
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"Malik v. Atty Gen USA" (2003). 2003 Decisions. Paper 655.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No: 01-1222
____________
SHAHZAD MALIK,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES OF AMERICA,
Respondent
________________
Appeal from Immigration and Naturalization Service
(Board No. A28 431 758-cv-05455)
_______________
Submitted Under Third Circuit LAR 34.1(a)
on March 3, 2003
Before: ROTH, BARRYand FUENTES CIRCUIT JUDGES
(Opinion filed: April 16, 2003)
_________________
OPINION
________________
ROTH, Circuit Judge:
Petitioner Shahzad Malik, a 22-year-old native and citizen of Pakistan, was charged
by the Immigration and Naturalization Service (INS) with deportability for overstaying his
nonimmigrant visitor’s visa. Malik’s mother brought him and his siblings to the United
States when Malik was six years old. He has remained in this country. At Malik’s
deportation hearing, the Immigration Judge (IJ) found that Malik’s family in Pakistan was
feuding with another family, that Malik had a clear probability of being harmed if he returned
to Pakistan, and that there might be a reasonable possibility that the Pakistani government
would not protect Malik. The IJ granted asylum to Malik but declined to withhold removal.
In granting asylum, however, the IJ did not indicate whether Malik’s fear of persecution was
based on one of the five statutory grounds that qualify a petitioner for asylum.
The INS appealed the decision to the Board of Immigration Appeals (BIA). The INS
claimed that Malik feared harm based on a property dispute between two families and that
the IJ did not specify which of the five statutory grounds qualified Malik for asylum. The
BIA reversed the IJ’s grant of asylum on the grounds that Malik had “failed to establish
consistent facts on which a reasonable person would fear that the danger arises on account
of his membership in a family,” and that Malik had failed to provide convincing evidence that
“his fear of persecution would exist throughout Pakistan.” Malik then filed a petition for
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review, contending (1) that the decision of the BIA should be reversed because the Board
had overlooked certain facts before it, and alternatively, (2) that we should take judicial
notice of the changed circumstances regarding sentiments in Pakistan following September
11, 2001, and (3) that we should consider Malik’s claim of ineffective assistance of
counsel.
We have jurisdiction to review final orders of removal issued by the BIA pursuant to
§ 242 (b) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1252 (b). We review for
abuse of discretion the BIA’s decision to grant or deny asylum. See Sankar v. INS, 757 F.2d
532, 533 (3d Cir. 1985), disapproved on other grounds by INS v. Cardoza-Fonesca, 480
U.S. 421 (1987). We review for substantial evidence the factual determinations that
underlie the BIA’s decision to deny asylum. See INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). “The BIA’s determination that [petitioner] was not eligible for asylum must be
upheld if ‘supported by reasonable, substantial, and probative evidence on the record
considered as a whole.’” Id. (citations omitted).
Malik alleges that the BIA erred by failing to find a nexus between the feud in which
his family is involved in Pakistan and Malik’s fear of persecution on return to the country.1
He also claims that the BIA’s conclusion that Malik failed to demonstrate that he would be
1
Malik makes much of the fact that the IJ found the witnesses to be credible and the
BIA found no reason to disturb that conclusion. However, as the BIA noted, a finding of
credible testimony is not dispositive as to whether asylum should be granted. The contents
of the testimony and other evidence in the record must be considered. See Matter of E-P-,
21 I&N Dec. 860, 862 (BIA 1997).
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persecuted throughout the country of Pakistan was “unreasonable.”
We conclude that the BIA’s determination that Malik was not eligible for asylum was
“supported by reasonable, substantial, and probative evidence on the record considered as a
whole.” Elias-Zacarias, 502 U.S. at 481. While we will reverse the BIA’s conclusions if it
did not examine the entire record, see e.g. Gao v. Ashcroft, 299 F.3d 266 (3d Cir. 2002),
there is no requirement that the Board mention all the evidence it considered as long as
requisite support is found on the record. See, e.g., Morales v. INS, 208 F.3d 323, 328 (1st
Cir. 2000) (if “the Board has given reasoned consideration to the petition, and made
adequate findings, we will not require that it address specifically each claim . . . or each
piece of evidence the petitioner presented.”). Our review of the record demonstrates to us
that the BIA did not ignore any substantial evidence as to danger to Malik arising from
membership in a social group, i.e., a family, or as to any threat to Malik of prosecution
throughout the country of Pakistan.
Malik alternatively requests that we take judicial notice of the changes in Pakistan
since September 11, 2001, because certain Taliban members allegedly belong to a sect of
Malik’s Pashtun tribe. We decline to take judicial notice of these changes. Judicial review
of final orders of deportation is limited to the administrative record. See, e.g., 8 U.S.C. §
1252 (a) (4); Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
Finally, Malik asks us to consider, from the record before us, his claim of ineffective
assistance of counsel; he alternatively requests that we remand this case to the BIA for
further testimony. In this regard, Malik alleges that he has filed a yet-undecided contention
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with the BIA. We decline either to consider ineffective assistance of counsel from the
record or to remand. The doctrine of exhaustion of administrative remedies applies in
immigration cases. See Bak v. INS, 682 F.2d 441, 442-43 (3d Cir. 1982). Malik was
required to follow the procedures set forth by the BIA and to present this issue to the BIA.
He failed to do so. See Lozada v. INS, 857 F.2d 10 (1st Cir. 1988).
For the foregoing reasons, we will deny the petition for review of the order of the
BIA.
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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/a/Jane R. Roth
Circuit Judge
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