Mughal Ishitiaq v. Eric Holder, Jr. ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2834
M UGHAL M UHAMMAD ISHITIAQ,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,1
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A95-925-134
A RGUED M ARCH 30, 2009—D ECIDED A UGUST 25, 2009
Before K ANNE, W OOD , and W ILLIAMS, Circuit Judges.
W ILLIAMS, Circuit Judge. Mughal Muhammad Ishitiaq
seeks review of a final order of the Board of Immigration
Appeals, which found Ishitiaq statutorily ineligible for
1
We substitute Eric H. Holder, Jr., the current Attorney General
of the United States, as the Respondent in this action. See Fed. R.
App. P. 43(c)(2).
2 No. 08-2834
asylum, denied his applications for withholding of
removal and relief under the Convention Against
Torture, and ordered him removed from the United
States. We dismiss Ishitiaq’s asylum petition because
we lack jurisdiction to review it, and we deny the
petition for review as to his withholding of removal
and CAT claims because the decision was supported by
substantial evidence.
I. BACKGROUND
Mughal Muhammad Ishitiaq, a Sunni Muslim, was
born in Pakistan in 1968. His father was a member of the
religious group known as Jamat-E-Islami. Ishitiaq was
never a member, although he did help his father with
some of the group’s charitable activities. After Ishitiaq’s
father became a member of Jamat-E-Islami, it turned
from a benevolent organization to a terrorist group.
When Ishitiaq was in high school, he was approached
by two men who told him that he must join the group
and train as a fighter in a Jihad camp. Ishitiaq did not
join, and, as a result, in December 1986, Jamat-E-Islami
members shot at, but did not injure, him. Three months
later, in February 1987, Ishitiaq was kidnapped and
beaten by some of the same men from Jamat-E-Islami.
He was taken to a defense area and held for several days,
but escaped. Ishitiaq then boarded a ship to Istanbul
and traveled abroad as a seaman for the next ten years,
occasionally returning home to Pakistan to visit friends
and family.
Ishitiaq repatriated to Pakistan in January 2000. He
learned that Jamat-E-Islami members and informants
No. 08-2834 3
were living in the area where he stayed. He, his wife
and children hid at the home of a friend. In April 2000, a
group of armed men came to the friend’s home, blind-
folded Ishitiaq, and drove him to a house where they
allegedly beat him. Ishitiaq again escaped and made
his way to the American Embassy. He applied for a visi-
tor’s visa and came to the United States on September 20,
2000.
After Ishitiaq overstayed his visa in the United
States, removal proceedings began in March 2003. On
December 2, 2003, Ishitiaq filed an application for
asylum, withholding of removal and relief under the
Convention Against Torture (“CAT”). On October 1, 2007,
after the Immigration Judge (“IJ”) presiding over his case
had granted Ishitiaq several continuances, the IJ denied
Ishitiaq’s petition for asylum, withholding of removal,
and protection under the CAT in an oral decision. The
IJ found that Ishitiaq had not filed his application for
asylum by the one-year deadline, and no changed or
exceptional circumstances justified reconsidering his
application. The IJ also determined that Ishitiaq was not
eligible for withholding of removal because he had
failed to show either the existence of past or the likeli-
hood of future persecution on account of his religion
or political opinion. Additionally, the IJ determined that
the 2000 event was more “questionable” and concluded
that because Ishitiaq did not give a detailed description
of that encounter his testimony was not credible. Finally,
because Ishitiaq failed to meet the standard for with-
holding of removal, the IJ denied him relief under the
4 No. 08-2834
more stringent standard for CAT protection. The IJ did,
however, allow voluntary departure.
Ishitiaq appealed the IJ’s ruling to the Board of Immigra-
tion Appeals (“BIA”). On June 27, 2008, the BIA affirmed
the IJ’s ruling in an order, relying on the IJ’s determina-
tions of fact and law. Ishitiaq petitions for review of the
BIA’s decision.
II. ANALYSIS
We review the IJ’s decision as supplemented by the
BIA’s analysis. See Krishnapillai v. Holder, 563 F.3d 606,
615 (7th Cir. 2009). We give deference to the IJ’s factual
determinations, and we uphold the decision if it is sup-
ported by substantial evidence. See Ingmantoro v.
Mukasey, 550 F.3d 646, 649 (7th Cir. 2008). We will over-
turn the BIA’s decision only if “the record compels a
contrary result.” Mabasa v. Gonzales, 455 F.3d 740, 744 (7th
Cir. 2006) (quoting Brucaj v. Ashcroft, 381 F.3d 602, 606
(7th Cir. 2004)).
A. Ishitiaq’s asylum application
The Immigration and Nationality Act (“INA”) defines
a “refugee” as a person who is unable or unwilling to
return to his native 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.” See 8 U.S.C. § 1101(a)(42)(A).
An asylum applicant must show a nexus between his
No. 08-2834 5
fear of future persecution and one of those five pro-
tected grounds. See Torres v. Mukasey, 551 F.3d 616, 629
(7th Cir. 2008).
An alien who is physically present in the United States
and seeks asylum must show by clear and convincing
evidence that the asylum application has been filed
within one year after the date the immigrant arrived in
the United States. 8 U.S.C. § 1158(a)(2)(B); Ogayonne v.
Mukasey, 530 F.3d 514, 519 (7th Cir. 2008). An application
filed after the deadline may be considered if the alien
“demonstrates to the satisfaction of the Attorney General
either the existence of changed circumstances which
materially affect the applicant’s eligibility for asylum
or extraordinary circumstances relating to the delay
in filing an application.” 8 U.S.C. § 1158(a)(2)(D); See
Ogayonne, 530 F.3d at 519. Courts do not have juris-
diction to review either the determination that an
alien’s asylum application was untimely or the deter-
mination that the belated filing was not justified
by changed or extraordinary circumstances. 8 U.S.C.
§ 1158(a)(3); see also Ghaffar v. Mukasey, 551 F.3d 651, 654
(7th Cir. 2008); Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th
Cir. 2007). We may review “constitutional claims or
questions of law” under 8 U.S.C. § 1252(a)(2)(D), but
“discretionary or factual determinations continue to
fall outside the jurisdiction of the court of appeals enter-
taining a petition for review.” Ogayonne, 530 F.3d at 519
(quoting Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.
2005)). The BIA’s factual determination that an alien
failed to file his asylum application within one year and
the board’s decision that he does not qualify for a time
extension are unreviewable. Id.
6 No. 08-2834
The IJ found, and Ishitiaq does not dispute, that Ishitiaq
entered the United States on September 20, 2000, with
a visitor’s visa with the permission to remain until
March 19, 2001, but did not file his application for
asylum until December 2, 2003, well beyond the one-year
deadline. The BIA affirmed this finding, and we may
not review this determination.
Ishitiaq argues, however, that the IJ and BIA committed
a reviewable error of law by applying the “changed
circumstances” provisions of § 1158(a)(2)(D) to earlier
events affecting Ishitiaq’s ability to file on time rather
than future events occurring after the one-year filing time
frame. The “changed circumstances” to which Ishitiaq
refers are the declaration of martial law in Pakistan on
November 3, 2007, and the assassination of former
Prime Minister Benazir Bhutto on December 27, 2007.
The IJ did not believe these events demonstrated a
change in country conditions material to Ishitiaq’s
asylum application. The BIA reaffirmed this finding and
stated: “Moreover, these events do not serve to explain
or excuse his delay in waiting to file his application until
December 2003, inasmuch as these two events occurred
some 4 years after he filed his asylum application.” Ishitiaq
argues that the BIA misunderstood the regulation by
requiring the changed circumstances to explain his late
filing, rather than “materially affect[ing] the applicant’s
eligibility for asylum” as § 1158(a)(2)(D) states.
We find no error of law. The BIA properly recognized
that Ishitiaq failed to explain how the declaration
of martial law and Bhutto’s assassination affected his
No. 08-2834 7
eligibility for asylum. Because a question of fact or an
application of law to fact regarding the extraordinary
or changed circumstances exceptions does not raise a
legal claim, we cannot review it. See Viracacha v. Mukasey,
518 F.3d 511, 514 (7th Cir. 2008) (finding that changed
country conditions occurring after the deadline for
timely filing were not material, and the IJ did not make a
legal mistake in arriving at that conclusion). As to the
BIA’s additional reason that these two events did not
affect Ishitiaq’s application because they occurred four
years after he filed for asylum, we believe the BIA was
addressing the “extraordinary circumstances” exception.
See 8 U.S.C. § 1158(a)(2)(D) (an asylum application
filed after the one-year deadline may be considered if
the applicant shows “extraordinary circumstances
relating to the delay in filing an application”). The BIA
was explaining that the declaration of martial law did not
excuse Ishitiaq’s late filing, the only other possible basis
for finding Ishitiaq statutorily eligible for asylum. See 8
C.F.R. § 1208.4(a)(5). The BIA did not misapprehend
the regulations, and Ishitiaq cannot overcome the juris-
dictional bar against reviewing discretionary decisions
by cloaking rationale he does not agree with as a legal
error. See Ghaffar, 551 F.3d at 655. Because Ishitiaq did not
raise a constitutional claim or question of law, we
dismiss the petition for review of his asylum application
for lack of jurisdiction.
B. Ishitiaq’s withholding of removal and CAT claims
Although we lack jurisdiction over the asylum appli-
cation, we may review the denial of Ishitiaq’s with-
8 No. 08-2834
holding of removal and CAT claims. An alien is entitled to
withholding of removal if he can show a “clear probabil-
ity” that his “life or freedom would be threatened . . .
because of the alien’s race, religion, nationality, member-
ship in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A); Khan v. Filip, 554 F.3d 681, 690
(7th Cir. 2009). This standard is more stringent than the
asylum inquiry. See Selimi v. Ashcroft, 360 F.3d 736, 741
(7th Cir. 2004). An alien can meet this standard by
showing that he was subject to past persecution, which
triggers a rebuttable presumption of future persecution.
8 C.F.R. § 1208.16(b)(1); Khan, 554 F.3d at 690; Irasoc v.
Mukasey, 522 F.3d 727, 729-30 (7th Cir. 2008). Or, in the
absence of evidence of past persecution, an alien can
show that it is more likely than not that he will suffer
persecution if removed. 8 C.F.R. § 1208.16(b)(2); Khan,
554 F.3d at 690; BinRashed v. Gonzales, 502 F.3d 666, 671
(7th Cir. 2007). “Persecution entails punishment or the
infliction of harm for political, religious, or other reasons
that this country does not recognize as legitimate.” Khan,
554 F.3d at 690 (quoting De Souza v. INS, 999 F.2d 1156,
1158 (7th Cir. 1993) (internal quotation marks omitted)).
An applicant “need not show that her life or freedom
were threatened, but the harm she suffered must rise
above the level of mere harassment and must result
from more than unpleasant or even dangerous condi-
tions in her home country.” Nakibuka v. Gonzales, 421
F.3d 473, 476 (7th Cir. 2005).
Here, the IJ determined that Ishitiaq had not been
subjected to past persecution on account of his politics
or religion and did not establish a likelihood of future
persecution. Regarding past persecution, the IJ stated:
No. 08-2834 9
I would say that what little [Ishitiaq] has given in
terms of the details of that encounter in April of
2000, does not establish that he was tortured,
perhaps, beaten as he said but certainly not tor-
tured as that terms [sic] has been defined in the
dictionary or even in case law. I don’ [sic] find
that he has been subjected to past persecution
which would give rise to a realistic likelihood of
mistreatment in Pakistan.
Ishitiaq argues on appeal that the IJ committed legal error
by determining that Ishitiaq had not suffered past “perse-
cution” because he had not been “tortured.” By equating
those two terms, Ishitiaq argues, the IJ placed an
impermissibly high burden on him to prove past persecu-
tion. Because Ishitiaq contends the factual evidence
compels the conclusion that he did indeed suffer past
persecution, he also asserts that the burden should shift
to the government to rebut the presumption that he will
be persecuted if returned to Pakistan.
Ishitiaq’s arguments fail for several reasons. As an
initial matter, Ishitiaq’s claim was procedurally defaulted
when he failed to raise the issue before the BIA. 8 U.S.C.
§ 1252(d)(1) (“A court may review a final order of
removal only if . . . the alien has exhausted all admin-
istrative remedies available to the alien as of right”);
Ghaffar, 551 F.3d at 655 (“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 em-
powered to grant the alien meaningful relief.”). The failure
to exhaust may be overlooked only when the alien raises
constitutional claims because “the final say on constitu-
10 No. 08-2834
tional matters rests with the courts.” Ghaffar, 551 F.3d at
655 (quoting Singh v. Reno, 182 F.3d 504, 510 (7th Cir.
1999)). In his appeal to the BIA, Ishitiaq’s argument
regarding his past persecution focused solely on distin-
guishing his situation from that of the two cases on which
the IJ relied.2 Although it is clear that Ishitiaq did not
waive his past persecution argument, he certainly did not
challenge the IJ’s alleged misapprehension that past
persecution must equate to torture.
Even so, Ishitiaq’s claim is without substantive merit.
Although the IJ did state that, in his determination, Ishitiaq
had not been “tortured,” we do not read the IJ as requiring
torture to establish past persecution. Rather, the IJ
gave several valid reasons to bolster his conclusion that
Ishitiaq did not suffer persecution. First, Ishitiaq did not
show that the incidents of which he complained were
on account of his politics or religion. Ishitiaq does not
claim to be a political activist. Indeed, he contends that
Jamat-E-Islami members targeted him in order to recruit
him, and he does not argue that he refused to join
because of his political opinion. See INS v. Elias-Zacarias,
502 U.S. 478, 481-82 (1992) (guerrilla group’s attempt to
recruit applicant did not necessarily constitute “persecu-
2
The IJ compared Ishitiaq’s case to Ahmed v. Ashcroft, 94
F. App’x 361 (7th Cir. 2004) (unpublished opinion) (determining
substantial evidence proved past persecution because of his
and his family’s affiliation with high-ranking members of
the People’s Pakistan Party), and Meghani v. INS, 236 F.3d 843
(7th Cir. 2001) (evidence that applicant had been beaten by
members of opposition party was insufficient to establish that
he suffered political persecution).
No. 08-2834 11
tion on account of political opinion”). Ishitiaq presented no
evidence that he declined to join Jamat-E-Islami because
of his political views or that the group targeted him
because of his political opinion. On the contrary, he
testified that the group wanted him because of his youth
and size and that he refused to join because he did not
want to train as a fighter in a Jihad camp. Nor is there
any evidence that he faced persecution because he was
a Sunni Muslim. The IJ also noted that Sunni Muslims,
like Ishitiaq, comprise 77% of the Pakistani population.
As to the likelihood of future persecution, which Ishitiaq
failed to fully brief on appeal, the IJ explained that the
kidnapping and beatings in 1987 occurred fourteen years
before his arrival in the United States. We agree that this
timing weakens Ishitiaq’s claim of future persecution
and also note that Ishitiaq returned to Pakistan several
times after those incidents. Moreover, the IJ aptly pointed
out that Ishitiaq’s father, who is a member of Jamat-E-
Islami, remains in Pakistan unharmed (as do Ishitiaq’s
wife, children, brothers and sisters). See Toptchev v. INS,
295 F.3d 714, 722 (7th Cir. 2002).
Because the record was sufficient to establish that
Ishitiaq had not suffered past persecution or the likeli-
hood of future persecution, we will not set aside the
denial of Ishitiaq’s petition for withholding of removal
and protection under CAT.3
3
For the same reasons Ishitiaq failed to establish past persecu-
tion or the likelihood of future persecution to make him
eligible for withholding of removal, we uphold the IJ’s deter-
(continued...)
12 No. 08-2834
III. CONCLUSION
Therefore, we D ISMISS Ishitiaq’s petition for review of
his asylum claim and D ENY the petition for review of
his withholding of removal and CAT claims.
(...continued)
mination in regard to his CAT claim. See 8 C.F.R. § 1208.16(c)(2)
(an applicant is eligible under CAT if “it is more likely than
not that he or she would be tortured if removed”). Moreover,
Ishitiaq failed to allege the Pakistani government would
torture him or acquiesce to his torture as needed for protec-
tion under CAT. See 8 C.F.R. § 1208.18(a)(1) (infliction of pain
or suffering meets definition of torture when “inflicted by or
at the instigation of or with the consent or acquiescence of
a public official”).
8-25-09