Charania v. Gonzales , 155 F. App'x 781 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 28, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-60582
Summary Calendar
Saleem Ibrahim Charania
Petitioner,
versus
Alberto R. Gonzales, U.S. Attorney General
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Petitioner Saleem Ibrahim Charania challenges the decision of
the Board of Immigration Appeals (“BIA”) adopting and affirming,
without opinion, the immigration judge’s (“IJ”) decision to deny
his request for asylum and for withholding of removal. Finding the
IJ’s decision supported by substantial evidence, we affirm.
I.
*
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should not be published and is not precedent except under the limited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.
Saleem Ibrahim Charania, a 38-year old male native and citizen
of Pakistan, attempted to enter the United States without a valid
passport. The Immigration and Naturalization Service (“INS”)
charged him under 8 U.S.C. § 212(a)(7)(A)(I) of the Immigration and
Nationality Act. His petition for asylum was denied by the IJ, and
the Board of Immigration Appeal affirmed, without opinion.
Charania requested asylum on the basis of alleged persecution
and fear of persecution as a Shi’a Muslim. He asserted that his
life was threatened by Sunni Muslims, the religious majority in
Pakistan. He alleged that in May 2001, shortly before arriving in
the United States, he was attacked by several Sunni youth and was
hospitalized for two days due to his injuries. He also alleged
that violence against Shi’a Muslims was on the rise since the death
of Sunni Muslim leader, Saleem Qadri, earlier that month.
The IJ rejected Charania’s claim for asylum, finding
inconsistencies in his testimony and credibility problems with his
documentary evidence. She concluded that Charania failed to show
that he was persecuted or that he had a reasonable fear of
persecution. She described the act of vandalism at his store as
mere “harassment,” rather than persecution. Charania submitted two
affidavits of neighboring shop owners who supported his testimony
regarding the May 2001 attack. However, the IJ discredited this
testimony because Charania testified that he did not know the two
affiants, while each averred that they knew Charania for several
years.
2
The Board of Immigration Appeals affirmed the IJ’s decision
without opinion. The BIA denied Charania’s motion to reopen,
finding the evidence cumulative and identical to arguments
previously raised. We have jurisdiction pursuant to 8 U.S.C. §
1251(b)(1).
II.
We review a BIA’s determination that an applicant for asylum
failed to establish his statutory eligibility for substantial
evidence.1 Under this standard, we may not reverse the BIA’s
decision unless we find that the evidence compels a contrary
conclusion.2 Substantial evidence is lacking only if the
petitioner establishes that the record evidence “was so compelling
that no reasonable fact finding could fail to find” the petitioner
statutorily eligible for asylum or withholding.3
Under section 208(a) of the INA,4 the Attorney General is
authorized to grant asylum to “refugees.”5 A refugee is a person
1
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Faddoul v. INS, 37 F.3d
185, 188 (5th Cir. 1994). Typically, we only review the decision of the BIA and
do not concern ourselves with the decision of the IJ. Castillo-Rodriguez v. INS,
929 F.2d 181, 183 (5th Cir. 1991). However, when the BIA has adopted the
findings of the IJ, we review the IJ’s decision directly. Gomez-Mejia v. INS,
56 F.3d 700, 702 (5th Cir. 1995).
2
Elias-Zacarias, 502 U.S. at 481 n.1; Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997); Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).
3
Elias-Zacarias, 502 U.S. at 483-84.
4
8 U.S.C. § 1158(a).
5
INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987); Mikhael v. INS, 115
F.3d 299, 303 (5th Cir. 1997).
3
unable or unwilling to return to his country “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.”6 In order to establish refugee
status, the applicant must present specific facts demonstrating
that he suffered past persecution or has a well-founded fear of
future persecution on account of one of the protected categories.7
The burden is on the claimant to establish eligibility for asylum
and withholding of deportation.8
We conclude that Charania has failed to meet his burden of
establishing that he qualifies for asylum and withholding.
Charania was the only witness during his asylum hearing, and his
testimony contradicts the documentary evidence he submitted.
Charania testified to several beatings, but he presented no
evidence establishing that the beatings actually occurred. In
addition, the affidavits supporting the alleged May 2001 beating
were provided by two individuals who stated they knew Charania for
several years. However, Charania testified repeatedly on the stand
that he did not know the two affiants. Moreover, the affidavits
stated that the incident occurred on May 26, 2001, while Charania
6
8 U.S.C. § 1101(a)(42)(A).
7
Id.; Elias-Zacarias, 502 U.S. at 481; Faddoul v. INS, 37 F.3d 185, 188
(5th Cir. 1994).
8
See 8 C.F.R. § 208.13 (1999); Mikhael, 115 F.3d at 304; Faddoul, 37 F.3d
at 188.
4
maintained that the incident occurred on May 30, 2001. The IJ did
not err in refusing to give credence to these affidavits. Finally,
Charania also cannot establish that the attacks occurred on account
of his membership in the Shi’a Muslim community.
III.
For the foregoing reasons, the BIA’s decision affirming the
IJ’s denial of asylum and withholding to Charania is AFFIRMED.
5