United States Court of Appeals
Fifth Circuit
In the
F I L E D
United States Court of Appeals January 25, 2006
for the Fifth Circuit
_______________ Charles R. Fulbruge III
Clerk
m 05-60487
Summary Calendar
______________
MUKHTAR AHMAD, FARZANA MUKHTAR, AND DANYAL AHMAD,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of the
Board of Immigration Appeals
m A71 471 729
m A96 051 414
m A96 051 415
_________________________
Before SMITH, GARZA, and PRADO, Mukhtar Ahmad, his wife Farzana Mukhtar,
Circuit Judges. and his son Danyal Ahmad (collectively,
PER CURIAM:*
* *
Pursuant to 5TH CIR. R. 47.5, the court has de- (...continued)
termined that this opinion should not be published and is not precedent except under the limited
(continued...) circumstances set forth in 5TH CIR. R. 47.5.4.
“Ahmad”)1 petition for review of the denial by the testimony of the one telephone witness he
the Board of Immigration Appeals (“BIA”) of provided. Finally, the IJ concluded that even
their application for asylum, withholding of if Ahmad were credible, the harassment al-
removal, and relief under the Convention leged would not rise to the level of persecu-
Against Torture (“CAT”). Because the deci- tion.
sion of the immigration judge (“IJ”) turned
primarily on an adverse credibility determina- The BIA adopted and affirmed the IJ’s find-
tion with substantial support in the record, we ings of fact, with the caveat that if the IJ had
deny the petition for review. found Ahmad’s testimony credible, the facts
alleged were sufficient to prove persecution.
Ahmad is a native and citizen of Pakistan With this one exception, we treat the opinion
and former active member of the Pakistan Peo- of the IJ as the final agency action for
ples Party (“PPP”). He claims he was kid- purposes of this appeal.2
naped and beaten severely by associates of
Shabir Ahmad (“Shabir”), a member of the Ja- We review for substantial evidence the fac-
mati Islamic party, for criticizing Shabir and tual basis of the IJ’s denial of Ahmad’s claims
his political party. Since that time, Ahmad, as for asylum, withholding of removal, and pro-
a professor at a public university, allegedly re- tection under CAT. Zhang v. Gonzales, 432
ceived threats against him and his family for F.3d 339, 343-44 (5th Cir. 2005). We will re-
his progressive political views. He came with verse the BIA only if we find that no reason-
his family to the United States on visitors’ vi- able factfinder could disagree with the result,
sas that have expired. He admits removability i.e., that the evidence must compel the con-
but has timely filed for asylum. trary conclusion. Chun, 40 F.3d at 78. When
reviewing an IJ’s credibility determination, we
The IJ denied Ahmad’s claims based pri- are particularly deferential. Id.
marily on a finding of adverse credibility. The
IJ noted that Ahmad did not leave Pakistan for There are two parts to a successful asylum
the United States until nearly six months after claim. First, the alien must establish eligibility
receiving a visitor’s visa, despite allegedly by proving that he is “unable or unwilling to
fearing persecution. When asked why he did return to . . . [his home] country because of
not file for asylum until one day before the persecution or a well-founded fear of persecu-
statutory deadline, he appeared to vacillate, tion on account of race, religion, nationality,
saying first that he was unaware of the asylum membership in a particular social group, or po-
remedy and later that he thought only political litical opinion.” 8 U.S.C. § 1101(a)(42)(A).
figures could apply for asylum. A well-founded fear of persecution involves “a
subjective fear of persecution, and that fear
The IJ also found the description of Ah-
mad’s difficulties vague and found unreliable
2
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)
(“We may review actions of the IJ only when they
1
Farzana Mukhtar and Danyal Ahmad are have some impact on the BIA’s decision . . . . In
derivative beneficiaries of Mukhtar Ahmad’s I-589 this case, the BIA specifically adopted the credi-
application for asylum and withholding of removal. bility findings of the IJ; therefore, we may review
Our analysis applies equally to all claimants. the findings of the IJ.”) (internal citation omitted).
2
must be objectively reasonable.” Lopez-Go- nation does not relate to an event central to his
mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. asylum claim and therefore cannot impeach his
2001). Second, the Attorney General or his entire testimony. We disagree. That Ahmad
delegate, the IJ, must decide, in his sole dis- waited nearly a year to file for asylum and six
cretion, to grant the claim.3 months after receiving a visitor’s visa to leave
Pakistan for the United States, calls into
The standard of proof for withholding of question whether he has a “subjective fear of
removal is “more stringent” than the standard persecution” as required for asylum. Lo-
for asylum claims. Mikhael, 115 F.3d at 306. pez-Gomez, 263 F.3d at 445.
The alien must prove by a “clear probability”
that he will, in fact, be persecuted if returned We assume arguendo, as the BIA found,
to his home country. Id. (internal citation that Ahmad has alleged facts sufficient to con-
omitted).4 Under CAT an alien must show it stitute persecution.6 But, as the BIA notes, an
is more likely than not that he will suffer tor- alien’s uncorroborated testimony must be
ture, as opposed to mere persecution, if re- credible before an IJ can grant asylum.7 For
moved to his home country. Efe v. Ashcroft, the reasons mentioned above, we are not com-
293 F.3d 899, 907 (5th Cir. 2002). pelled to find that Ahmad testified credibly,
and he presents no satisfactory corroborating
The IJ’s credibility determination is sup- evidence to carry his burden of proof.8
ported by substantial evidence. It is not unrea-
sonable to conclude that Ahmad, a university Because Ahmad mentions his withholding
professor, knew of the existence of the asylum of removal and CAT claims only in his state-
remedy well before he filed, despite his state- ment of the issues without developing either
ment to the contrary; at any rate, his later claim in the body of the brief, those issues are
equivocation called his credibility into ques-
tion.5
6
For this reason, we need not rely on the IJ’s
Ahmad argues that this credibility determi- finding that Ahmad’s description of his difficulties
is impermissibly vague.
3 7
Zhao v. Gonzales, 404 F.3d 295, 306 (5th 8 C.F.R. § 208.13(a) (“The testimony of the
Cir. 2005); Mikhael v. INS, 115 F.3d 299, 303 applicant, if credible, may be sufficient to sustain
(5th Cir. 1997). the burden of proof without corroboration.”) (em-
phasis added).
4
See also Faddoul v. INS, 37 F.3d 185, 188
8
(5th Cir. 1994) (“This standard contains no sub- As the IJ noted, the one telephone witness
jective component but requires a higher objective Ahmad presented, Rahim Kahn, filed an affidavit
likelihood of persecution than the ‘well-founded identical (except for name and date) to one filed
fear’ standard.”) (internal citation omitted). earlier by Qasim Khan. Also, Rahim Khan’s testi-
mony and affidavit together suggest that Ahmad
5
Ahmad argues that this finding infringes on and Shabir live in the same village, but Ahmad
his right to file for asylum at any time before the never mentioned this fact. Although these discrep-
statutory deadline. The IJ’s reasoning, however, ancies may be the result of confusion over similar
does not go to the timeliness of the application, but names, the IJ’s interpretation of the available
only to the probative value of Ahmad’s testimony. evidence is reasonable.
3
waived on appeal.9 We note, however, that
where an alien fails to meet his burden of prov-
ing eligibility for asylum, he ordinarily does not
meet the stricter standards established for
withholding of removal and relief under
CAT.10
The petition for review is DENIED.
9
See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th
Cir. 2004) (finding CAT claim waived for insuf-
ficient briefing); United States v. Beaumont, 972
F.2d 553, 563 (5th Cir. 1992) (“Failure of an ap-
pellant to properly argue or present issues in an
appellate brief renders those issues abandoned.”).
10
See Castillo-Rodriguez v. INS, 929 F.2d 181,
185 (5th Cir. 1991) (explaining that in affirming
BIA’s finding that alien is ineligible for asylum,
“we necessarily conclude that he is ineligible for
withholding of deportation as well”); Efe, 293 F.3d
at 907 (noting that unlike asylum or withholding of
removal claims, “CAT does not require
persecution, but the higher bar of torture”).
4