Hamdani v. Gonzales , 150 F. App'x 367 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 19, 2005
Charles R. Fulbruge III
Clerk
No. 05-60197
Summary Calendar
ADA JOHAR HAMDANI
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the Board of Immigration
Appeals
No. A78 957 347
Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.
PER CURIAM:*
Petitioner Ada Johar Hamdani challenges the decision of the
Board of Immigration Appeals (“BIA”) adopting and affirming the
Immigration Judge’s (“IJ”) decision to deny his application for
withholding of removal. For the reasons stated below, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
Ada Johar Hamdani is a twenty-one-year-old native and
citizen of Pakistan who entered the United States without
*
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that this opinion should not be published and is not precedent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.
inspection on December 3, 2000. Upon his arrival in the United
States, Hamdani moved to Houston, Texas, to live with a family
member. On July 5, 2002, the Immigration and Naturalization
Service (“INS”),1 believing that Hamdani had overstayed his
visitor’s visa, charged Hamdani with removability as an alien
present in violation of the law under 8 U.S.C. § 1227(a)(1)(B)
(2000). At his first appearance before an IJ on January 14,
2003, Hamdani received a sixty-day continuance to allow his
pending labor certification application to be processed.2 At the
next hearing, held in March, Hamdani denied that he had entered
the United States on a visitor’s visa and overstayed that visa;
instead he asserted that he had entered the United States without
inspection. The IJ granted the government’s request for a merits
hearing.
At the merits hearing on June 17, 2003, the government filed
an amended charge of removability, this time under 8 U.S.C.
§ 1182(a)(6)(A)(i), alleging that Hamdani was an alien who had
arrived in the United States without being admitted or paroled.
1
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security. The Bureau
of Immigration and Customs Enforcement in the Department of
Homeland Security assumed the INS’s detention, removal,
enforcement, and investigative functions.
2
Throughout the course of these proceedings, despite
receiving a number of continuances, Hamdani was unable to produce
a valid labor certification.
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Hamdani admitted these allegations and conceded his removability.
The IJ then granted a continuance to allow Hamdani to file an
asylum application. At the next hearing, August 19, 2003,
Hamdani conceded that he was not eligible for asylum because he
had failed to file an application within one year of his arrival
in the United States.
The IJ granted another continuance and held a hearing on
Hamdani’s request for withholding of removal under 8 U.S.C.
§ 1231(b)(3)(A) on December 2, 2003. At the hearing, Hamdani
testified that he was a Shi’a Muslim and had fled to the United
States because he felt that his life had been in danger in
Pakistan. According to Hamdani, the minority Shi’a Muslims often
suffer harassment at the hands of the Sunni Muslims, who make up
eighty-four percent of Pakistan’s population. Hamdani claimed
that Sunni Muslims had beaten him at a bus stop on his way to
college on two separate occasions and that the police did not
adequately respond to his complaints. He claimed that his
brother had suffered similar treatment and that his father had
heard gunshots outside of a mosque one day. Hamdani also offered
into evidence a police report concerning the death of his uncle,
who Hamdani speculates was killed by Sunni Muslims in July 1999.
He further testified that since September 11, 2001, the tension
between Sunni and Shi’a Muslims in the region has escalated, and
he is afraid to return to Pakistan because the government does
not adequately protect the Shi’a minority from violence and
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harassment. In support of his testimony, Hamdani submitted news
articles and a State Department report discussing the discontent
between the two Muslim sects in Pakistan.
The IJ found that Hamdani was removable pursuant to 8 U.S.C.
§ 1182(a)(6)(A)(i) and that he was ineligible for asylum because
he had failed to file an application for asylum within one year
of his arrival in the United States. The IJ, drawing a
distinction between persecution and mere harassment, also denied
Hamdani’s application for withholding of removal because Hamdani
failed to show a clear probability that he would be persecuted if
he returned to Pakistan. A.R. 43-44. The IJ then granted
Hamdani’s request for voluntary departure. The BIA subsequently
adopted and affirmed the IJ’s decision. Hamdani filed a petition
for review of the BIA’s decision with this court.
II. DISCUSSION
A. Standard of Review
We review the BIA’s factual findings to determine if they
are supported by substantial evidence. INS v. Elias-Zacharias,
502 U.S. 478, 481 (1992); Mikhael v. INS, 115 F.3d 299, 302 (5th
Cir. 1997). “Under substantial evidence review, we may not
reverse the BIA’s factual determinations unless we find not only
that the evidence supports a contrary conclusion, but that the
evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994) (emphasis in original). Thus, the petitioner must prove
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that the evidence he presented was so compelling that no
reasonable factfinder could reach a different conclusion.
8 U.S.C. § 1252(b)(4)(B) (2000) (“[T]he administrative findings
of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary . . . .”); Elias-Zacharias,
502 U.S. at 483-84; Chun, 40 F.3d at 78.
“We have authority to review only an order of the BIA, not
the IJ, unless the IJ’s decision has some impact on the BIA’s
decision.” Mikhael, 115 F.3d at 302; see also Chun, 40 F.3d at
78. Here, because the BIA adopted and affirmed the IJ’s
decision, we must review the IJ’s decision for substantial
evidence. Id.B. Analysis
Hamdani argues that the IJ erred by (1) applying an improper
standard of proof in determining that he was not eligible for
withholding of removal under 8 U.S.C. § 1231(b)(3)(A); (2)
finding that he would not suffer persecution if he returned to
Pakistan when substantial evidence did not support this finding;
and (3) denying a continuance of his withholding of removal case
pending a decision on his labor certification application in
violation of his due process rights.3
To establish eligibility for withholding of removal under
8 U.S.C. § 1231(b)(3)(A), an alien must demonstrate that he would
3
Hamdani does not challenge the BIA’s finding that he is
ineligible for asylum.
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face a “clear probability” of persecution on account of his
“race, religion, nationality, membership in a particular social
group, or political opinion” if removed. 8 U.S.C.
§ 1231(b)(3)(A); see also Zhu v. Ashcroft, 382 F.3d 521, 528 n.6
(5th Cir. 2004) (citing Mikhael, 115 F.3d at 306). Meeting the
clear probability standard of proof “is equivalent to a showing
that it is more likely than not that the alien would be subject
to persecution on one of the specified grounds.” Bahramnia v.
INS, 782 F.2d 1243, 1247 (5th Cir. 1986) (quoting INS v. Stevic,
467 U.S. 407, 429-30 (1984)).
In this case, the IJ found that, while the evidence
submitted did reflect that tension exists between Sunni and Shi’a
Muslims in Pakistan, Hamdani did not present “enough evidence to
show that [Hamdani] would suffer persecution if he returned to
Pakistan.” A.R. 43. Hamdani contends that the IJ’s use of the
word “would” in this context indicates that the IJ held Hamdani
to a higher standard of proof than the clear probability
standard. However, a further reading of the transcript of the
IJ’s oral decision demonstrates that the IJ did apply the
appropriate clear probability standard in assessing the evidence
that Hamdani presented:
There is not evidence to show that it is more likely
than not that he would suffer persecution based on the
evidence presented by [Hamdani]. . . . There is
insufficient evidence to show that [Hamdani] has
suffered persecution or that he has a well-founded fear
of persecution or that his life or freedom would be
endangered. . . . The record contains merely
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[Hamdani’s] own unsubstantiated and conclusionary
statements in support of his persecution claim. . . .
[Hamdani] has failed to satisfy the clear probability
standard of withholding of removal.
A.R. 43-44. Thus, Hamdani’s argument that the IJ applied an
improper standard of proof is without merit.
Moreover, the IJ’s finding that Hamdani is not likely to
suffer persecution upon his return to Pakistan is supported by
substantial evidence. See Mikhael, 115 F.3d at 306. The only
evidence that Hamdani presented consisted of his testimony that
he had been beaten twice by Sunni Muslims while trying to attend
college, a police report indicating that Hamdani’s uncle had been
killed in Pakistan by unknown persons (who Hamdani speculates
were Sunni Muslims), and news articles documenting tension that
exists between Sunni and Shi’a Muslims living in Pakistan. While
this evidence is sufficient to show that Hamdani has suffered
intimidation and harassment in Pakistan in the past, it is not
sufficient enough to compel a factfinder to conclude that Hamdani
will more likely than not be subjected to treatment that rises to
the level of persecution if he returns to Pakistan. See Eduard
v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004) (holding that
Christians who had been beaten, struck in the head with rocks
while on their way to church, and otherwise taunted based on
their religion had neither experienced persecution nor proven
that future persecution was likely if they returned to
Indonesia); see also Nagoulko v. INS, 333 F.3d 1012, 1016 (9th
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Cir. 2003) (noting that persecution is “an extreme concept that
does not include every sort of treatment our society regards as
offensive”).
Finally, Hamdani has failed to exhaust his remedies with
regard to his contention that the IJ violated his due process
rights by denying a continuance of the withholding of removal
proceeding pending a decision on Hamdani’s labor certification
application. Hamdani did not raise this argument before the BIA;
he raises it for the first time before this court. Because
Hamdani did not raise this issue in his appeal to the BIA, this
court has no jurisdiction to consider the issue in reviewing the
order of removal. 8 U.S.C. § 1252(d)(1) (2000); Wang v.
Ashcroft, 260 F.3d 448, 453-54 (5th Cir. 2001) (“An alien fails
to exhaust his administrative remedies with respect to an issue
when the issue is not raised in the first instance before the
BIA . . . .”).
III. CONCLUSION
For the foregoing reasons, the decision of the BIA is
AFFIRMED.
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