Lalani v. Gonzales

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this opinion should not be published and is not precedent except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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