Razia Sultana v. Eric H. Holder, Jr. , 350 F. App'x 59 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0707n.06
FILED
No. 08-4589 Oct 29, 2009
LEONARD GREEN, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RAZIA SULTANA, )
)
Petitioner, ) ON PETITION FOR REVIEW OF AN
) OR DE R OF T HE BO AR D OF
v. ) IMMIGRATION APPEALS
)
ERIC H. HOLDER, JR., Attorney General, ) OPINION
)
Respondent. )
)
Before: GILMAN and GRIFFIN, Circuit Judges; and STEEH, District Judge.*
RONALD LEE GILMAN, Circuit Judge. Razia Sultana, a 44 year-old woman from
Pakistan, appeals a decision by the Board of Immigration Appeals (BIA) that denied her application
for asylum, withholding of removal, and protection under the United Nation’s Convention Against
Torture (CAT). In April 2001, Sultana came to the United States with her then-husband, Farooq
Khan. She seeks asylum based on alleged past persecution as a result of Khan’s political activities
in Pakistan. She also claims a fear of future persecution due to those same activities and due to her
alleged membership in the purported social group of unmarried women living in Pakistan without
a male protector. For the reasons set forth below, we DENY the petition for review.
I. BACKGROUND
*
The Honorable George Caram Steeh, United States District Judge for the Eastern District of Michigan, sitting
by designation.
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A. Factual background
Sultana was born in Karachi, Pakistan in January 1965. In 1986, Sultana married Farooq
Khan against the wishes of her family, who had arranged for her to marry another man. According
to Sultana, her family refused to accept the marriage because it was a “love marriage,” resulting in
the family abandoning her. Sultana and Khan had four children while living in Pakistan, two boys
and two girls.
While living in Karachi with Sultana, Khan was a leader of the Pakistan Muslim League, a
secular, moderate political group. He was arrested and held for 15 days in 1999 as a result of his
political activities and is currently charged with a political crime in Pakistan. Sultana and Khan,
accompanied by one of their daughters, entered the United States in April 2001 on a tourist visa, but
stayed beyond the permitted temporary period. Khan filed for asylum and withholding of removal
within the one-year deadline, with Sultana and the daughter as derivative applicants. A denial of the
application was upheld by the BIA in 2003, but the Sixth Circuit remanded the case in 2005 after
holding that the IJ had violated Khan’s due process rights by refusing to permit a relevant witness
to testify. Khan v. Gonzales, 148 F. App’x 303 (6th Cir. 2005).
Sultana and Khan were divorced in June 2004 after Khan began spending all of his time with
another woman. As a result of the divorce, Sultana’s application was severed from her ex-
husband’s. Khan’s application for withholding of removal was eventually granted in April 2007,
with the daughter as a rider. Khan has filed I-730 forms for the remaining three children to come
to the United States.
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B. Procedural history
In her application, Sultana claimed asylum and withholding of removal based only on her
membership in a purported social group. She contended that, as a single woman living in Pakistan
without protection from a strong male, she “would be subject to all the evils that befall women.” She
did not check the box claiming asylum or withholding based on political opinion. In her June 2007
merits hearing before an immigration judge (IJ), however, she presented evidence of past persecution
and her fear of future persecution based on her ex-husband’s past political activities in Pakistan.
At the end of the hearing, the IJ held that (1) Sultana had not demonstrated past persecution
or a well-founded fear of future persecution as a result of her ex-husband’s political activities;
(2) Sultana had not established that she was a member of the purported social group of single women
living in Pakistan without a male protector; and (3) Sultana had not met the “more likely than not”
standard of showing that she would be tortured by an entity covered by the CAT if she returned to
Pakistan. Sultana appealed to the BIA. In October 2008, the BIA dismissed Sultana’s appeal and
explicitly agreed with the IJ that she did not fall into the claimed social group and that she had not
presented any evidence that anyone in Pakistan would seek to harm her because of her ex-husband’s
past political activities. Sultana has timely appealed.
II. ANALYSIS
A. Standard of review
“Because the BIA adopted the IJ’s decision with additional commentary, we review the
decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj v. Mukasey,
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511 F.3d 583, 588 (6th Cir. 2007). We review the factual determinations of the IJ under the
“substantial evidence” test. Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). Under this standard,
we will not reverse a factual determination unless we find “that the evidence not only supports a
contrary conclusion, but compels it.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)
(emphasis in original).
B. Sultana’s alleged persecution as a result of her ex-husband’s political activities
1. Past persecution
Sultana’s first claim for asylum is based on the past persecution that she allegedly suffered
as a result of her ex-husband’s political activities in Pakistan. An alien who seeks asylum must
establish that she meets the definition of a “refugee,” which means a person unable or unwilling to
return to her country because of past persecution or a “well-founded fear” of future persecution “on
account of race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42). The burden of proof is on Sultana to establish that she meets this definition.
See id. § 1158(b)(1)(B)(i).
Both the IJ and the BIA concluded that Sultana had not presented any evidence of past
persecution that she allegedly suffered as a result of her ex-husband’s activities with the Pakistan
Muslim League. Substantial evidence supports this finding. Sultana herself testified that she was
never personally threatened or harmed because of Khan’s political activities. Although Sultana may
have suffered indirectly as a result of threats to Khan and his imprisonment in 1999, the BIA
correctly noted that “the harm visited on her husband does not necessarily equate to past persecution
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to herself.” Sultana provided no specific examples of how she suffered as a result of the harm
inflicted upon her husband. Indeed, she did not even generally explain how it negatively affected
her life.
Persecution “does not encompass all treatment that our society regards as unfair, unjust, or
even unlawful or unconstitutional,” Lumaj v. Gonzales, 462 F.3d 574, 577 (6th Cir. 2006) (quoting
Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)), and “requires more than a few isolated incidents
of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm,
or significant deprivation of liberty,” Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998). The
record is devoid of any instances of harm suffered by Sultana that meet this definition.
Sultana bases her claim of past persecution on a series of cases that allegedly support a
finding of persecution due to “derivative suffering.” But the sole Sixth Circuit case cited by Sultana
on this issue, Abay v. Ashcroft, 368 F.3d 634 (6th Cir. 2004), is distinguishable. In Abay, this court
held that a mother had established a well-founded fear of future persecution based on the likelihood
that her daughter would be forced to undergo genital mutilation in Ethiopia. Id. at 642. The mother,
however, established a fear of future persecution “in her own right” based on her fear of exposing
her daughter to permanent harm and of witnessing the pain and suffering of her daughter as a result
of a procedure that the mother opposed. Id. at 641-42. Moreover, since Abay, this court has been
clear that persecution of an applicant’s family members will not always be determinative of past
persecution of the applicant, Bal v. Gonzales, 207 F. App’x 627, 630 (6th Cir. 2006), and that “the
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overall context of the applicant’s situation” must be analyzed, Gilaj v. Gonzales, 408 F.3d 275, 285
(6th Cir. 2005).
Beyond the bare facts that her husband was imprisoned for 15 days in 1999 and that he is
currently charged with a political crime in Pakistan, Sultana provided no information about her ex-
husband’s past persecution. Her testimony thus lacks detail about the severity of persecution that
her husband experienced. On this record, her ex-husband’s persecution was not severe or lengthy
enough to provide the sole support for a finding that Sultana herself suffered past persecution. See
Bal, 207 F. App’x at 630-31 (holding that although the applicant’s family member suffered past
persecution, it was not severe enough to support the applicant’s claim of past persecution). The
finding of the IJ and the BIA that Sultana did not suffer past persecution is thus supported by
substantial evidence.
2. Future persecution
Sultana next claims asylum based on a well-founded fear of future persecution “due to
political opinions imputed to her by enemies of her ex-husband.” A well-founded fear of future
persecution “must be both subjectively genuine and objectively reasonable.” See, e.g., Abay, 368
F.3d at 637 (quoting Mikhailevitch, 146 F.3d at 389)). The IJ’s finding that Sultana had established
neither the subjective nor objective component of this standard is supported by substantial evidence.
First, Sultana presented no evidence that her ex-husband’s political opinions would be imputed to
her if she were to return to Pakistan. Sultana was not active in the Pakistan Muslim League while
living in Pakistan, and she presented no evidence that she has been politically active while living in
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the United States or that she plans to be active upon returning to Pakistan. Second, even if she had
established that her ex-husband’s political opinions would be imputed to her, she failed to
demonstrate “reasonably specific information showing a real threat of individual persecution.” See,
e.g., Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004) (quoting Dokic v. INS, 999 F.2d 539 (6th
Cir. 1993)). On this issue, Sultana’s only relevant point is that revenge is common in Pakistan:
Since my ex-husband has political connections, it can happen that . . . his party
member, they can kill me. You know, that would take revenge on him. . . . [I]n
Pakistan, there is no limit on revenge. . . . It is very common that if you don’t listen
to this political party people, then they normally abduct and they rape the woman and
nobody could lodge even a complaint with police over there.
This testimony is not specific enough to demonstrate that Sultana herself is at risk of persecution.
The fact that Sultana’s ex-husband suffered harm in Pakistan is not, without more, sufficient
to support her claim of fear of future persecution. “[A]bsent a pattern of persecution tied to the
asylum applicant himself or herself, acts of violence against family members do not necessarily
demonstrate a well-founded fear of persecution.” Akhtar v. Gonzales, 406 F.3d 399, 405 (6th Cir.
2005) (quoting Gebremaria v. Ashcroft, 378 F.3d 734, 739 (8th Cir. 2004)). The applicant in Akhtar
claimed a fear of future persecution based on his membership in a political family. Although
Akhtar’s father had been murdered and his mother wounded due to their political activities, Akhtar
himself was apolitical and therefore could not show that the political opinions of his parents would
be imputed to him or that he would suffer persecution as a result. This court upheld the BIA’s denial
of asylum, reasoning: “Although certainly relevant to assessing his status as a refugee, Akhtar
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‘cannot rely solely on the persecution of [his] family members to qualify for asylum.’” Id. at 406
(alterations in original) (quoting Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)).
The facts of Sultana’s case are strikingly similar to those in Akhtar. Sultana never assisted
her husband in his political activities, and she was never threatened or harmed while her husband
was active in the Pakistan Muslim League. None of her family members are currently participating
in the organization. And three of Sultana’s children, as well as members of her ex-husband’s family,
continue to live in Pakistan unharmed. In short, there is no objective evidence that anyone in
Pakistan would seek to punish or harm Sultana. To the contrary, the evidence suggests that Sultana
would not face persecution if she were to return. See Jing Hu v. Holder, No. 08-3890, 2009 WL
2189718, at *4-5 (6th Cir. July 22, 2009) (unpublished) (holding that the applicant had not
established a well-founded fear of future persecution where she presented no objective evidence that
authorities “have any interest in punishing” her and where she provided no evidence that family
members remaining in the country were still being persecuted). The finding of the IJ that Sultana
failed to establish a well-founded fear of future persecution is thus supported by substantial evidence.
C. Sultana’s membership in the purported social group of single women in Pakistan
without a male protector
Still another basis for Sultana’s claim of asylum is the future persecution that she would
allegedly face as a member of the social group of single women living in Pakistan without a male
protector. Both the IJ and the BIA found that Sultana “failed to show that she falls into the category
claimed.” The record on this issue does not compel a contrary conclusion.
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To establish the allegation that her family has abandoned her, Sultana primarily relies on a
letter that she claims to have received from one of her brothers in Pakistan, stating that the family
will “have nothing to do with you.” But both the IJ and the BIA found this letter to be unreliable,
noting that Sultana could not explain inconsistencies in the spelling of the sender’s name nor why
it was written in English if Sultana struggles to read English. The IJ also noted inconsistencies
between the handwriting in the letter and the handwriting on the envelope, concluding that “[t]he
court does not believe that the respondent has demonstrated that this letter is what it purports to be
and this is the only crucial evidence or credible evidence indicating that the brothers, who are
currently in Pakistan, would not give her assistance.”
The IJ was clearly within his authority to analyze the authenticity of the letter. See, e.g.,
Selami v. Gonzales, 423 F.3d 621, 625-26 (6th Cir. 2005) (upholding an adverse credibility
determination where the IJ found a newspaper article presented by the applicant to be fraudulent).
Given that this was Sultana’s primary evidence that her family has abandoned her and that her four
brothers in Pakistan would not protect her, her claim that she would be without male protectors in
Pakistan is significantly weakened.
Apart from the letter, other evidence suggests that Sultana’s family, including her male
relatives, has not completely abandoned her and could provide her with protection in Pakistan.
Sultana, for example, has received support while living in the United States from her sister who lives
with her and from her ex-husband’s brother. Sultana’s other sister, who currently lives in Pakistan,
sent Sultana the death certificates for their parents, thereby suggesting that this sister also continues
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to support her. Although Sultana said that she could not live with her sister and the sister’s husband
in Pakistan due to their financial difficulties, Sultana provided no objective evidence to support such
an argument.
Because Sultana’s sister living in Pakistan previously provided information pertinent to the
case, the IJ reasonably concluded that Sultana should have sought corroborating evidence from her.
Sultana’s failure to do so hurts her claim that she could not live with her sister and the sister’s
husband in Pakistan. See Dorosh v. Ashcroft, 398 F.3d 379, 382 (6th Cir. 2004) (“‘[W]here it is
reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of
an applicant’s claim, such evidence should be provided. . . . The absence of such corroborating
evidence can lead to a finding that an applicant has failed to meet her burden of proof.’”) (alterations
in original) (quoting In re S-M-J-, 21 I. & N. Dec. 722, 724-26 (B.I.A. 1997)); see also Micakovic
v. Ashcroft, 85 F. App’x 424, 426 (6th Cir. 2003) (upholding the IJ’s denial of asylum on the basis
that even though the applicant was credible, he could reasonably be expected to corroborate his claim
of past persecution through objective evidence or outside testimony).
Sultana also has many cousins who live in Pakistan, and she did not provide any objective
evidence that they would not provide her protection. Finally, Sultana has three children, including
two sons, who currently live in Pakistan. Sultana claims that the IJ erred in suggesting that she
inform her older son of her ex-husband’s infidelity and ask the son to remain in Pakistan and give
her protection. But given the fact that Sultana has the burden of establishing that she falls within the
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claimed social group, the IJ reasonably questioned whether she had fully explored her options for
having protection in Pakistan.
Because Sultana did not carry her burden of showing that she would be without male
protection in Pakistan, we need not decide whether single women living there without a male
protector is a cognizable social group for asylum purposes. The IJ, moreover, found that even if
Sultana was a member of this group and the group was cognizable, the primary source of harm to
these women is their own families seeking revenge, and that Sultana has shown no evidence that
anyone in her own family seeks to harm her. Sultana has therefore not established (1) past
persecution or a well-founded fear of future persecution as a result of her ex-husband’s political
activities, or (2) a well-founded fear of future persecution as a result of membership in the purported
social group of single women living in Pakistan without a male protector.
D. Sultana’s claim for withholding of removal and protection under the CAT
Because Sultana’s asylum claim fails, so too must her claim for withholding of removal. If
an applicant has not established past persecution, a claim for withholding requires evidence that “it
is more likely than not that he or she would be persecuted on account of race, religion, nationality,
membership in a particular social group, or political opinion upon removal.” 8 C.F.R.
§ 1208.16(b)(2). This “more likely than not” standard is a more demanding burden of proof than
what is required to establish asylum. Sarr v. Gonzales, 485 F.3d 354, 361-62 (6th Cir. 2007).
Sultana did not meet the burden of showing future persecution for asylum purposes and therefore
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cannot meet the higher burden for withholding of removal. See id. (rejecting a claim for withholding
of removal because the applicant did not meet the more lenient standard for asylum).
Similarly, because Sultana failed to demonstrate that she qualifies for asylum, her claim for
protection under the CAT must also fail. In order to obtain protection under the CAT, Sultana must
show that it is “more likely than not” that she would be tortured if she were removed to Pakistan.
See Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004) (quoting 8 C.F.R. § 208.16(c)(2)).
Although a CAT claim does not require the applicant to establish membership in one of the five
protected classes for asylum, torture “involves more severe treatment than persecution.” Bassam v.
Holder, No. 08-3924, 2009 WL 2170106, at *6 (6th Cir. July 21, 2009) (unpublished); see also
8 C.F.R. § 1208.18(a)(2) (“Torture is an extreme form of cruel and inhuman treatment and does not
include lesser forms of . . . punishment that do not amount to torture.”).
As discussed above, Sultana did not meet her burden of establishing asylum. She therefore
does not qualify for protection under the CAT. See Bah v. Gonzales, 462 F.3d 637, 643 (6th Cir.
2006) (“Because [the applicant] cannot show that she qualifies for asylum, she cannot meet the more
stringent standards required to qualify for the protection[] . . . under CAT.”).
E. Sultana’s due process arguments
1. Humanitarian asylum
In her appellate brief, Sultana argues that her due process rights were violated “when she was
denied the opportunity to present evidence that she would be eligible for Humanitarian Asylum.”
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Sultana raised a similar argument in her brief before the BIA. Neither the IJ nor the BIA addressed
the issue of humanitarian asylum.
As an initial matter, the record does not reflect that Sultana ever requested and was denied
the opportunity to present such evidence. Humanitarian asylum was not brought up at Sultana’s
2007 merits hearing, and Sultana’s application fails to mention that basis for asylum. Moreover,
Sultana’s brief points to no evidence in the record denying such an opportunity. If she did not
request the opportunity to present such evidence, then her due process rights could not have been
violated by any alleged failure to permit her to do so. See Gilaj v. Gonzales, 408 F.3d 275, 290 (6th
Cir. 2005) (rejecting the applicants’ claim that the IJ violated their due process rights by denying
them the opportunity to present a closing argument where the applicants never requested the
opportunity to do so).
Sultana’s belated claim of humanitarian asylum, furthermore, fails on the merits even if it
was not procedurally waived. Establishing a claim of humanitarian asylum requires several steps.
First, an asylum applicant must establish past persecution “on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 C.F.R. § 208.13(b). The
government must next establish that the applicant’s or home country’s circumstances are such that
the applicant no longer has a well-founded fear of future persecution, or that the applicant could
avoid future persecution by relocating to another part of his or her home country. Id. Finally, the
applicant must establish either “compelling reasons for being unwilling or unable to return to the
country arising out of the severity of the past persecution,” or that there “is a reasonable possibility
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that he or she may suffer other serious harm upon removal.” Id. (emphasis added). “Other serious
harm is ‘harm that is not inflicted on account of race, religion, nationality, membership in a
particular social group, or political opinion, but is so serious that it equals the severity of
persecution.’” Liti v. Gonzales, 411 F.3d 631, 641 (6th Cir. 2005) (quoting Krastev v. INS, 292 F.3d
1268, 1271 (10th Cir. 2002)).
Sultana would therefore have needed to present evidence about past persecution and the
various types of harm allegedly facing her, all of which she was permitted to present in her
application for asylum and at her 2007 merits hearing. So even assuming that Sultana had requested
the opportunity to present evidence for a humanitarian asylum claim, she was not denied that
opportunity.
Where the BIA does not expressly address a claim (assuming that the claim was properly
raised before it), this court ordinarily remands the case back to the BIA. See Martini v. Mukasey,
314 F. App’x 819, 826 (6th Cir. 2008). Remand is not necessary in this case, however, because
based on the IJ’s and the BIA’s finding that Sultana did not suffer past persecution, her claim of
humanitarian asylum cannot succeed. See Ben Hamida v. Gonzales, 478 F.3d 734, 741 (6th Cir.
2007) (holding that the applicants’ humanitarian asylum claim “must fail” because they had not
offered evidence of past persecution). Remand is therefore not necessary. See Martini, 314 F.
App’x at 826 (holding that although the IJ and the BIA did not expressly rule on a humanitarian
asylum claim, remand was not necessary because the applicants had not demonstrated past
persecution).
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2. Alleged bias of the IJ
Sultana’s final argument on appeal is that the IJ violated her due process rights when he
speculated about important facts and when he made improper inferences about the reliability of the
purported letter from Sultana’s brother. She also claims that the IJ showed bias against her when
he suggested that she ask one of her sons to remain in Pakistan to care for her, and that “many
instances of questioning and commentary by the IJ . . . suggest that [she] did not receive a fair
hearing.”
We have previously addressed Sultana’s claims with regard to the letter and the IJ’s
suggestion that Sultana ask one of her sons to remain in Pakistan. As for the argument that the IJ
speculated about important facts or denied Sultana a fair hearing, the record shows these claims to
be without merit. The record as a whole establishes that the IJ carefully considered the relevant facts
and issues, made well-reasoned conclusions, and provided Sultana with a fair opportunity to present
her case.
III. CONCLUSION
For all of the reasons set forth above, we DENY Sultana’s petition for review.
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