Jawaid Ghaffar v. Eric Holder, Jr. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3474
JAWAID G HAFFAR,
Petitioner,
v.
M ICHAEL B. M UKASEY,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
No. A95 925 173
A RGUED S EPTEMBER 22, 2008—D ECIDED D ECEMBER 29, 2008
Before E ASTERBROOK, Chief Judge, and R OVNER and
W ILLIAMS, Circuit Judges.
R OVNER, Circuit Judge. Jawaid Abdul Ghaffar seeks
review of a final order of removal from this country
issued by the Board of Immigration Appeals (the “BIA” or
“Board”). We deny the petition for review.
I.
We note at the outset that the factual summary in
Ghaffar’s opening brief is not supported by record cita-
2 No. 07-3474
tions and therefore fails to comply with Fed. R. App. P.
28(a)(7) and Circuit Rule 28(c). See Correa v. White, 518
F.3d 516, 518 (7th Cir. 2008) (per curiam). However,
given the grounds on which we dispose of his petition
for review, our own summary of the facts may be brief.
Ghaffar is a native and citizen of Pakistan. He arrived
in the United States with his wife and children on Janu-
ary 19, 2001, as a nonimmigrant visitor with permission
to remain in this country for no more than six months.
Ghaffar overstayed his visa and, on April 4, 2003, the
Department of Homeland Security issued him a Notice
to Appear charging that his continued presence in the
United States was unauthorized and that he was subject
to removal pursuant to section 237(a)(1)(B) of the Im-
migration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(1)(B). Ghaffar conceded his removability but
sought relief in the form of asylum pursuant to section 208
of the INA, 8 U.S.C. § 1158, restriction on removal (for-
merly known as withholding of removal) pursuant to
section 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), and with-
holding of removal pursuant to the United Nations Con-
vention Against Torture, and Other Cruel, Inhuman, or
Degrading Treatment or Punishment, 23 I.L.M. 1027 (1984)
(“CAT”). Ghaffar contended that while in Pakistan he
had been repeatedly harassed and threatened by his
wife’s ex-husband because Ghaffar is a Shiah Muslim,
whereas his wife, her two sons, and her ex-husband
are Sunni Muslims, and the ex-husband did not want
the sons (who lived with Ghaffar and his wife) being
raised by a Shiite. Ghaffar asserted that if forced to return
to Pakistan, he was at risk of suffering violence at the
No. 07-3474 3
hand of his wife’s former spouse. The Immigration Judge
(“IJ”) conducted an evidentiary hearing at which both
Ghaffar and his wife testified in support of his applica-
tion for asylum and withholding of removal. For reasons
that are not explained by the record, the testimony of
Ghaffar’s wife was not transcribed.
The IJ denied Ghaffar’s request for relief from deporta-
tion. He found first that Ghaffar’s asylum application
had not been filed within one year of his arrival in the
United States as required by section 208(a)(2)(B) of the
INA, and that Ghaffar had not shown extraordinary
circumstances sufficient to allow the late filing per
section 208(a)(2)(D). 8 U.S.C. § 1158(a)(2)(B) & (D). Alterna-
tively, the IJ concluded that the asylum request failed on
its merits. Ghaffar had not shown that he was subject to
past persecution in Pakistan or that he likely would be
subject to persecution in the future if forced to return
to that country. The IJ was skeptical of the notion that the
ex-husband of Ghaffar’s wife posed any real danger to
the couple: although Ghaffar and his wife had testified
that her ex-husband had a history of violent behavior
and had repeatedly threatened Ghaffar and his wife (and,
they believed, had murdered her cousin), there was little
or no evidence to support what the IJ viewed as the self-
serving testimony of Ghaffar and his wife or to show
that the police would not intervene to protect them if,
indeed, the ex-husband posed a threat to their safety.
The judge also specifically found Ghaffar’s testimony to
be incredible in a number of respects. Because Ghaffar had
not established the well-founded fear of persecution
necessary to qualify for asylum, he necessarily had failed
4 No. 07-3474
to establish the clear probability of persecution necessary
to qualify for restriction on removal. Finally, because
Ghaffar had not shown that he was likely to be tortured
upon his return to Pakistan, he had not established his
eligibility for relief under the CAT.
The Board of Immigration Appeals (the “BIA” or the
“Board”) dismissed Ghaffar’s appeal. The BIA found that
Ghaffar had failed to meet the burden of proof for
asylum, even assuming his application was timely, a
subject that the Board did not address. Because he failed
to meet the lower burden of proof for asylum, he neces-
sarily failed to meet the higher burdens of proof for
restriction on removal and protection under the CAT. The
BIA noted that the testimony of Ghaffar’s wife had
been taken off the record, but also that Ghaffar made no
claim that he had been deprived of a full and fair hearing
due to the omission. The Board was also satisfied that
the omission did not materially hinder its ability to
dispose of the issues raised in Ghaffar’s appeal. Finally,
although Ghaffar had tendered an affidavit on appeal in
an effort to establish that he had been deprived of the
effective assistance of counsel in the proceedings before
the IJ, the Board declined either to pass on the claim of
ineffectiveness or to remand to the IJ for further pro-
ceedings on that claim. The Board explained that it was
precluded from engaging in factfinding of its own on
appeal. At the same time, Ghaffar had not attempted to
demonstrate how his attorney’s claimed ineffectiveness
had affected the outcome of his case, nor did his motion
meet the threshold requirements that the Board had
established for ineffectiveness claims in Matter of Lozada,
No. 07-3474 5
19 I & N Dec. 637, 639 (BIA 1988), review denied, 857 F.2d 10
(1st Cir. 1988).
II.
Ghaffar did not file his application for asylum within
the one-year period specified by section 208(a)(2)(B) of the
Immigration & Nationality Act, 8 U.S.C. § 1158(a)(2)(B).
Ghaffar entered the United States with his wife and
children on January 19, 2001, but he did not apply for
asylum until June 19, 2003, nearly two and one-half years
later. The Immigration Judge found the evidence that
Ghaffar submitted insufficient to establish extraordinary
circumstances that would excuse the late filing of his
application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R.
§ 1208.4(a)(5). Ghaffar now argues that the Immigration
Judge’s analysis was flawed because it failed to take
into account two circumstances that interfered with his
ability to file an application for asylum within one year
of his arrival in this country: first, the illness of his youn-
gest daughter, and second, the tremendous turmoil in
this country resulting from the terrorist attacks of Septem-
ber 11, 2001, including in particular the ostracism and
fears experienced by Muslims in the United States,
a circumstance of which Ghaffar believes the IJ should
have taken judicial notice.
We lack jurisdiction to review either the determination
that his asylum application was untimely (which Ghaffar
does not dispute) or the determination that the belated
filing of his asylum application was not justified by
changed or extraordinary circumstances. 8 U.S.C.
§ 1158(a)(3); see Ogayonne v. Mukasey, 530 F.3d 514, 519
6 No. 07-3474
(7th Cir. 2008); Kaharudin v. Gonzales, 500 F.3d 619, 623
(7th Cir. 2007), cert. denied, 128 S. Ct. 2959 (2008). We do,
of course, have the authority to review questions of law
or constitutional claims that relate to these determina-
tions, 8 U.S.C. § 1252(a)(2)(D); see Viracacha v. Mukasey, 518
F.3d 511, 514 (7th Cir.), cert. denied, 129 S. Ct. 451 (2008), but
Ghaffar does not raise any such questions. He contends
only that the IJ should have reached a different result
based on the circumstances he believes excuse his late
filing. But rather than raising a constitutional concern or
other question of law, we view this simply as a chal-
lenge to the IJ’s rationale in concluding that Ghaffar’s
failure to file a timely asylum application was not excused.
As we have said, this is beyond our jurisdiction to review.
Ghaffar goes on to argue that he was deprived of a fair
hearing before the IJ in two respects. He points first to the
failure to make a record of his wife’s testimony,1 and
secondly he argues that the IJ was biased against him as
evidenced by certain remarks that the IJ made in his
decision.
An alien ordered removed from this country is re-
quired to exhaust the administrative remedies available
to him before seeking judicial review of the removal order.
1
We know that the testimony of Ghaffar’s wife was transcribed,
but we cannot determine on the present record whether or not
an audio recording was made of the testimony. The audio
recordings of the hearing before the IJ are not part of the
record before us, and the parties could not tell us whether or
not the testimony of Ghaffar’s wife was recorded.
No. 07-3474 7
8 U.S.C. § 1252(d)(1). The duty to exhaust includes the
obligation to first present to the BIA any argument against
the removal order as to which the Board is empowered
to grant the alien meaningful relief. See, e.g., Padilla v.
Gonzales, 470 F.3d 1209, 1213-14 (7th Cir. 2006). The
failure to exhaust may sometimes be overlooked when
the alien is making a constitutional argument, because
the Board does not have the last word as to such argu-
ments; “the final say on constitutional matters rests
with the courts.” Singh v. Reno, 182 F.3d 504, 510 (7th Cir.
1999); see also, e.g., Kokar v. Gonzales, 478 F.3d 803, 808 (7th
Cir. 2007). However, where the alien is making a due
process claim based on a procedural failing that the
Board could have remedied, thereby obviating the con-
stitutional claim, then the failure to exhaust will not be
excused. See Feto v. Gonzales, 433 F.3d 907, 912 (7th Cir.
2006) (citing Capric v. Ashcroft, 355 F.3d 1075, 1087 (7th Cir.
2004)); see also Hadayat v. Gonzales, 458 F.3d 659, 665
(7th Cir. 2006).
Ghaffar’s complaint regarding the failure to make a
record of his wife’s testimony is the type of issue that he
was required to present to the Board in the first in-
stance. The claim is procedural in nature, and as such is the
type of claim that the Board could address and routinely
does address. See, e.g., Matter of Cruz, 16 I & N Dec. 463
(BIA 1977) (remanding to IJ so that defects in record,
including lack of written transcript of hearing before IJ,
could be corrected); see also Matter of Holani, 17 I & N Dec.
426 (BIA 1980); Matter of Charles, 16 I & N Dec. 241 (BIA
1977). The Board itself noted that Ghaffar had presented no
claim concerning the failure to make a record of his wife’s
8 No. 07-3474
testimony, which strongly suggests that the Board was
willing and able to deal with such a claim. Indeed, Ghaffar
does not take issue with the Board’s power to remedy this
problem. He suggests only that his counsel before the BIA
might not have realized that his wife’s testimony had not
been recorded. But that suggestion is belied by (1) the
repeated references to the testimony of Ghaffar’s wife in
the IJ’s decision, (2) the absence of that testimony from the
hearing transcript that was sent to Ghaffar’s counsel
months before he filed a brief in support of Ghaffar’s
appeal to the BIA, and (3) the Board’s own observation that
the testimony had not been transcribed. Ghaffar failed to
exhaust his remedies before the Board on this claim, and
consequently he failed to preserve his right to judicial
review. E.g., Capric, 355 F.3d at 1087.
Ghaffar’s claim that the IJ was biased against him
was also one that was within the Board’s authority to
address. The Board’s decisions recognize the parties’ right
to an unbiased judge who resolves the case based on the
law and the evidence put before him rather than ex-
ternal considerations. See Matter of Exame, 18 I & N Dec.
303, 306-07 (BIA 1982); see also Matter of G-, 20 I & N Dec.
764, 780-81 (BIA 1993); Matter of Bader, 17 I & N Dec. 525,
527 (BIA 1980); Matter of Rhee, 16 I & N Dec. 607, 611
(BIA 1978). There are literally dozens of Board decisions
resolving claims of bias. When bias has been established,
the Board has the authority to remand a case for a new
hearing before a different IJ, and our research reveals
that the BIA has done so on multiple occasions, albeit in
unpublished decisions. Cf. Sosnovskaia v. Gonzales, 421
F.3d 589, 594 (7th Cir. 2005) (suggesting that on remand
No. 07-3474 9
Board exercise its power of assignment to send case to
different IJ “in order to avoid any perception of lingering
bias”). Because this claim was within the Board’s power
to address, Ghaffar was required to present it to the
Board, and having failed to do so he may not raise it for
the first time here. See Amaya-Artunduaga v. U.S. Att’y Gen.,
463 F.3d 1247, 1251 (11th Cir. 2006) (per curiam); Bencosme
de Rodriguez v. Gonzales, 433 F.3d 163, 164-65 (1st Cir.
2005) (per curiam); Abdulrahman v. Ashcroft, 330 F.3d 587,
595 n.5 (3d Cir. 2003); Sanchez-Cruz v. INS, 255 F.3d 775,
780 (9th Cir. 2001).
Finally, we see no basis on which to disturb the BIA’s
disposition of Ghaffar’s ineffective assistance of counsel
claim. We review for abuse of discretion the Board’s
decision to deny Ghaffar’s request for a remand so that
the IJ could consider the claim. Pop v. INS, 279 F.3d
457, 460 (7th Cir. 2002). The Board has held that an
alien must do three things before it will consider an inef-
fectiveness claim: (1) submit an affidavit establishing
that he had an agreement with counsel to represent him
and detailing its terms; (2) present evidence that he has
given notice to his counsel of the ineffectiveness claim
and an opportunity to respond to the allegations, and
include any response he has received; and (3) if the attor-
ney violated his ethical or legal obligations, show that
he has filed a complaint with the governing disciplinary
authorities or explain why he has not done so. Matter of
Lozada, supra, 19 I & N Dec. at 639; see also Matter of Assaad,
23 I & N Dec. 553, 556-60 (BIA 2003), review dismissed, 378
F.3d 471 (5th Cir. 2004) (per curiam). We have sustained
the validity of these requirements. See Stroe v. INS, 256
10 No. 07-3474
F.3d 498, 501 (7th Cir. 2001); Henry v. INS, 8 F.3d 426, 440
(7th Cir. 1993). As we noted in Magala v. Gonzales, 434
F.3d 523, 525-26 (7th Cir. 2005), there is no constitutional
right to counsel in a removal proceeding, but “[t]he Board
may grant relief as a matter of sound discretion[.]” See also
Jezierski v. Mukasey, 543 F.3d 886, 889-90 (7th Cir. 2008),
petition for cert. filed (U.S. Nov. 17, 2008) (No. 08-656).
Ghaffar did not comply with any of the Lozada require-
ments. Consequently, the Board acted well within its
rights to deny his motion for remand.
III.
For the reasons set forth herein, we D ENY Ghaffar’s
petition for review.
12-29-08