United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 30, 2007
Charles R. Fulbruge III
Clerk
No. 05-61072
Summary Calendar
ALTAF HUSSAIN LALANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A79 010 531)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Altaf Hussain Lalani petitions for review of the Board of
Immigration Appeals’ (BIA) dismissing his appeal from the
immigration judge’s (IJ) denial of his application for withholding
of removal.
Lalani contends: his removal proceedings should be continued
to await adjudication of his labor-certification application; and
the filing of a timely petition for review tolls the voluntary-
departure period, making him eligible for adjustment of status.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Because these issues were not presented to the BIA, we lack
jurisdiction to consider them. See Ali v. Gonzales, 440 F.3d 678,
682 (5th Cir. 2006); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir.
2004).
We also lack jurisdiction to consider Lalani’s claim he is
eligible for a one-year filing deadline exception to enable him to
seek asylum based on changed circumstances in Pakistan. See 8
U.S.C. § 1158(a)(2)(B), (a)(3); see also Zhu v. Ashcroft, 382 F.3d
521, 526-27 (5th Cir. 2005).
Lalani further maintains admission of evidence obtained
through the National Security Entry/Exit Registration System
(NSEERS) violated his equal-protection and due-process rights
because the program unfairly targets a class based upon national
origin, race, religion, and gender and is not narrowly tailored to
meet the Government’s interest in securing its borders. “[T]he
exclusionary rule [, however,] does not ordinarily apply to removal
proceedings”. Ali, 440 F.3d at 681. Even assuming arguendo a
basis for an equal-protection and due-process violation, Lalani
does not show prejudice; he admitted to the facts he now seeks to
suppress. See id. at 681–82. Our court has previously rejected
other NSEERS-based equal protection challenges. See Ahmed v.
Gonzales, 447 F.3d 433, 439–40 (5th Cir. 2006); see also Ali, 440
F.3d at 681 n.4.
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Finally, Lalani contends the BIA erred in denying his
application for withholding of removal. “To be eligible for
withholding of removal, an applicant must demonstrate a ‘clear
probability’ of persecution upon return.” Roy, 389 F.3d at 138
(quotation omitted). “A clear probability means that it is more
likely than not that the applicant’s life or freedom would be
threatened by persecution on account of either his race, religion,
nationality, membership in a particular social group, or political
opinion.” Id. The alien must present specific facts demonstrating
a reason to fear that he will be singled out for persecution.
Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).
“When ... the BIA affirms the immigration judge and relies on
the reasons set forth in the immigration judge’s decision, this
court reviews the decision of the immigration judge as well as the
decision of the BIA.” Ahmed, 447 F.3d at 437. In determining
Lalani failed to prove a clear probability of religious persecution
if he returns to Pakistan, the IJ impliedly found Lalani’s
testimony incredible, noting: Lalani had returned to Pakistan
voluntarily after traveling to the United States following alleged
incidents of harassment in 1993 and 1999; and, although Lalani
stated he came to the United States because he feared for his wife
and daughter (a United States citizen), his wife and daughter
remained in Pakistan for several months after Lalani left for the
United States. The IJ also found: the alleged incidents of
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harassment were not serious enough to constitute persecution; and
Lalani did not have a position of importance within the Shia
community such that he would be a likely target of persecution. A
reasonable factfinder would not be compelled to conclude Lalani was
eligible for withholding of removal. See Zhang v. Gonzales, 432
F.3d 339, 343–45 (5th Cir. 2005); see also Efe v. Ashcroft, 293
F.3d 899, 905-06 (5th Cir. 2002).
DISMISSED IN PART; DENIED IN PART
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