Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-16-2009
Shahzad v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1205
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"Shahzad v. Atty Gen USA" (2009). 2009 Decisions. Paper 1532.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1205
___________
MUHAMMAD SHAHZAD
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A96-260-000)
Immigration Judge: Honorable Eugene Pugliese
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 15, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges
(Opinion filed April 16, 2009)
________________
OPINION
________________
PER CURIAM
Muhammad Shahzad, a native of Pakistan, entered the United States in
April 2001. On March 31, 2003, Shahzad was charged as removable for overstaying his
admission period. Shahzad conceded removability and applied for asylum, withholding
1
of removal, and relief under the Convention Against Torture (CAT). Shahzad argued that
he would be persecuted if returned to Pakistan based on his membership and activities in
the Nawaz branch of the Muslim League. After a hearing, the IJ found Shahzad
removable, denied relief, and ordered Shahzad removed to Pakistan. After the BIA
dismissed the appeal, Shahzad filed a timely petition for review.
The IJ found Shahzad’s asylum application untimely. Generally, we lack
jurisdiction to review a decision by the IJ or the BIA that an asylum application is
untimely. 8 U.S.C. § 1158(a)(3). We have jurisdiction to review constitutional claims
and questions of law but not factual or discretionary determinations related to the
timeliness of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d
Cir. 2006). Shahzad argues that the IJ erred in not admitting his arguments regarding
changed country conditions into evidence. During the hearing, the IJ noted that
Shahzad’s attorney had provided a memorandum on the changed country conditions but
had not attached anything to support the claim. C.A.R. at 97, 354-55. The IJ refused to
consider the memorandum as evidence. Shahzad did not discuss the relevant events in his
testimony. The BIA did not err in refusing to consider arguments on changed country
conditions that were unsupported by the record.
Shahzad also applied for withholding of removal and relief under the CAT.
To be eligible for withholding of removal, Shahzad must demonstrate that it is more
likely than not that his life would be threatened in Pakistan on account of race, religion,
2
nationality, membership in a particular social group, or political opinion. Tarrawally v.
Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for
withholding of removal under the CAT, Shahzad must demonstrate that it is more likely
than not that he would be tortured if removed to Pakistan. 8 C.F.R. § 208.16(c)(2). We
may reverse the BIA’s decision only if the record permits but one reasonable conclusion,
which was not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481
(1992).
Shahzad testified that he started working for the Muslim League in 1995.
He arranged rallies and later became an assistant general secretary. He stated that in
October 1999, the leaders of his party were arrested after there was a change in power in
the government. He asserted that he went to another city for a few months after a warrant
was issued for his arrest on charges of instigating people against Musharraf. He testified
that others were arrested, tortured and sent to jail. Later, at a rally, he was hit with a stick
by the police and needed stitches near his eye. He stated that the police bothered his
parents every month and threatened them with jail if they didn’t give the police his
address. He testified that he would have problems if he returned because Musharraf was
still in power.
Shahzad argues that the IJ found him incredible without justification.
While the IJ made comments which indicated that he doubted Shahzad’s credibility, it is
not clear that he made an explicit adverse credibility finding. “The case certainly does
3
present credibility problems here and the Court does not feel comfortable coming to any
conclusion that this testimony was credible or that the respondent’s accounts were
trustworthy.” C.A.R. at 75. However, the BIA did not rely on any adverse credibility
finding. Rather, the BIA agreed with the IJ that Shahzad had not met his burden for
withholding of removal.
As proof of past persecution, Shahzad points to affidavits from members of
the Muslim League and arrest warrants in the record. C.A.R. at 237-41, 251-53.
However, these documents do not compel a finding that Shahzad is entitled to
withholding of removal or relief under the CAT. As noted by the IJ, Shahzad was unable
to give many details of his activities with the Muslim League. The affidavits of the other
Muslim League members do not give any additional details of Shahzad’s activities and do
not describe any persecution Shahzad suffered beyond his allegations of an arrest warrant
being issued and his family being harassed. We conclude that Shahzad cannot show that
the current record compels a finding that it is more than likely that he will be persecuted
or tortured if he is returned to Pakistan.
For the above reasons, we will deny the petition for review.