Ghouri v. Holder , 618 F.3d 68 ( 2010 )

United States Court of Appeals
For the First Circuit
No. 09-2707
FARRUKH GHOURI,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
William P. Joyce was on brief for petitioner.
William C. Minick, Attorney, Office of Immigration Litigation,
Tony West, Assistant Attorney General, Civil Division, and Linda S.
Wernery, Assistant Director, were on brief for respondent.
August 30, 2010
LYNCH, Chief Judge. Farrukh Ghouri, of Pakistan,
petitions for review of a November 30, 2009 decision by the Board
of Immigration Appeals (BIA). The BIA upheld a February 25, 2008
Immigration Judge (IJ) decision denying Ghouri's applications for
asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). A Shia Muslim, Ghouri claims that he fears
his brother-in-law will murder him and his wife in an honor killing
because his wife converted from Sunni to Shia Islam when she
married Ghouri. We are without jurisdiction to review the denial
of the untimely claim of asylum. Substantial evidence supports the
determination that Ghouri failed to show eligibility for
withholding of removal or CAT protection. We deny the petition in
part and dismiss it in part.
I.
Ghouri entered the United States on March 14, 2001, on a
temporary visitor visa and overstayed. On March 19, 2003, the
Department of Homeland Security issued a Notice to Appear charging
him with removability, which Ghouri conceded. On July 15, 2004,
Ghouri filed for asylum, withholding of removal, and protection
under the CAT. His asylum application was outside the one-year
statutory deadline. See 8 U.S.C. § 1158(a)(2)(B).
Ghouri's application gave three grounds for the relief he
sought: his involvement in the Pakistan People's Party, threats and
attacks by his brother-in-law because Ghouri is a Shia Muslim and
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because of his wife's conversion to Shia Islam, and visits by the
police to Ghouri's family home for unspecified reasons. In his
brief to this court, Ghouri presses only his claims based on his
brother-in-law's threats and actions, so we restrict our discussion
to this ground.
The IJ found Ghouri's application and hearing testimony
generally credible. Ghouri married his wife, Saira, in Lahore,
Pakistan in February 1998.1 He was a Shia Muslim, and Saira
converted from Sunni to Shia Islam. Saira's family had intended
for her to marry her cousin and was angry that she married a Shia
and converted. Her brother, Wajid Ali (Wajid), was particularly
furious.
Before the wedding, Wajid threatened to beat and to kill
Ghouri if he married Saira. After the wedding, at a family
gathering in April, 1998, Wajid again threatened to kill Ghouri,
and at another family gathering that September, Wajid threatened to
kill Ghouri and Saira.
During the three years between Ghouri and Saira's
marriage and Ghouri's departure for the United States, Ghouri and
Saira lived only a quarter mile from Wajid, and the two men passed
one another on their motorcycles "all the time" without incident.
1
There is no information in the record about the current
status of Ghouri's wife and daughter except that they entered the
United States on June 16, 2001, on temporary visitor visas, which
they have overstayed.
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Wajid never came to their home. While Ghouri's asylum application
stated that Wajid had "punched and hit" him on three occasions at
family gatherings, he testified that Wajid actually injured Ghouri
only once.
In that incident, Wajid punched Ghouri near his left eye.
Ghouri got two stitches in an emergency room. Another time, Wajid
threw glass and rocks at Ghouri, and the third time, Ghouri escaped
Wajid's attempt to hit him without injury. Each time, family
members would restrain Wajid and take him away. Wajid also hit
Saira on the head and slapped her face at least once at a public
gathering. Ghouri never reported any of these incidents because
they were family matters.
Ghouri claimed that he could not move to another part of
Pakistan because members of Saira's large and wealthy family lived
throughout the country.
Ghouri claimed exceptional circumstances -- his
depression -- rendered him incapable of timely applying for asylum,
and he submitted letters from his psychiatrist and family doctor
supporting this claim. He said that he became depressed shortly
after arriving in the United States in 2001, though he did not seek
treatment for depression until 2006.
The IJ rejected Ghouri's claim that depression prevented
him from timely filing for asylum, finding the psychiatrist's
retrospective depression diagnosis speculative, and concluding that
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Ghouri had not established extraordinary circumstances excusing his
late asylum application from the one-year time bar. See 8 U.S.C.
§ 1158(a)(2)(D).
The IJ found Ghouri ineligible for withholding of
removal, on the grounds that (1) he had not established past
persecution, both because Wajid's death threats were not credible
and because the incidents in total did not rise to the level of
persecution, (2) he had not established that it was more likely
than not that he would suffer future persecution because the
evidence did not support a finding that Wajid would actually try to
kill him, (3) Ghouri's failure to report any of the incidents to
the police prevented him from demonstrating government involvement
in the alleged persecution, and (4) Ghouri could relocate within
Pakistan to avoid Wajid, who was the only person in Saira's family
harassing Ghouri.
The IJ denied Ghouri's claims under the CAT because he
had not demonstrated that Wajid would more likely than not harm him
in the future or that the Pakistani government or police would
condone or acquiesce in such harm.
The BIA affirmed, agreeing with the IJ that the
statements from Ghouri's doctors were speculative, and that based
on the record Ghouri had not established extraordinary
circumstances excusing his asylum application from the one-year
time bar. The BIA found no legal error in the IJ's rulings, and no
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clear error in the IJ's underlying factual findings. The BIA
specifically affirmed that the incidents involving Wajid did not
rise to the level of persecution and that Ghouri had not shown he
would more likely than not be persecuted in the future, given that
Wajid had lived near him for several years but had not seriously
harmed him. Finally, the BIA found that the record supported the
IJ's denial of protection under the CAT.
II.
Ghouri challenges the IJ and BIA's determinations that
his asylum application was untimely and that he was ineligible for
withholding of removal or CAT protection because he failed to
establish past persecution or a well-founded fear of future
persecution. We reject each of his claims of error.2
A. Lack of Jurisdiction over Asylum Claim
Under 8 U.S.C § 1158(a)(3), this court lacks jurisdiction
over an untimely asylum claim unless the applicant shows a legal or
constitutional defect in the agency's timeliness decision. Makieh
v. Holder, 572 F.3d 37, 42 (1st Cir. 2009); El-Labaki v. Mukasey,
544 F.3d 1, 5 (1st Cir. 2008). Ghouri has identified no such
defect, so we lack jurisdiction to hear this claim.
The only purported "legal error" Ghouri offers is based
on his incorrect assertion that the IJ and BIA wholly ignored his
2
Ghouri's argument that the IJ and BIA's carefully
reasoned decisions are not clear enough to permit review is utterly
meritless.
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claimed "exceptional circumstance" that he suffered from a mental
disability, depression. Not so. The IJ expressly addressed
Ghouri's claimed mental disability. The BIA expressly agreed with
the IJ's finding that the physician letters were speculative, and
that Ghouri had failed to establish extraordinary circumstances.3
We cannot review these assessments.
B. Withholding of Removal and Protection under the CAT
When the BIA "adopts the IJ's opinion and discusses some
of the bases for the IJ's decision," we review both the IJ's and
BIA's opinions. Makieh, 572 F.3d at 41 (quoting Scatambuli v.
Holder, 558 F.3d 53, 58 (1st Cir. 2009)) (internal quotation marks
omitted). We review factual findings under the deferential
substantial evidence standard. Id. We reverse only if any
reasonable adjudicator would be compelled to reach a contrary
conclusion. Id.We bypass the usual recitations about the legal
requirements the petitioner must meet and get to the merits. The
conclusion that any harm Ghouri suffered did not rise to the level
of persecution is well-supported in the record. Ghouri's brief
identifies three ways he suffered persecution at the hands of his
3
Ghouri makes much of the BIA's apparent misstatement that
Ghouri first sought medical attention for a heart condition, rather
than his depression, in 2006. But this claim of factual
discrepancy does not constitute a claim of legal error. See Ayeni
v. Holder, No. 09-1508, 2010 WL 3220630, at *4 (1st Cir. Aug. 17,
2010).
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brother-in-law, Wajid: Wajid threatened Ghouri and his family,
injured or attempted to injure Ghouri in three incidents, and beat
Ghouri's wife. This "persecution" came solely from Wajid. It is
clear that Wajid's family restrained Wajid when he acted in their
presence. Further, Wajid never attempted to harm Ghouri in his
home, he physically confronted Ghouri only rarely and only at large
gatherings, and any harm he inflicted was minimal.
Ghouri claimed that Wajid punched him once in the face,
threw rocks and glass at him once, and once struck at but did not
injure him.4 As to Saira, the IJ found that Wajid slapped Saira in
the face and head at least once, though Ghouri claimed in his
asylum application that Wajid hit her on several occasions. He
never claimed that she was seriously injured.
This offensive treatment by Ghouri's brother-in-law
simply was not pervasive or severe enough to compel the BIA to find
that it amounted to persecution, even without comparing these facts
to other cases in which we have upheld BIA findings of no
persecution. And if a comparison is made, the conclusion becomes
even more obvious. See, e.g., Ravix v. Mukasey, 552 F.3d 42, 44-46
(1st Cir. 2009); Limani v. Mukasey, 538 F.3d 25, 31 (1st Cir.
2008); Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006).
4
Ghouri vehemently disputes the IJ's conclusion that,
though Ghouri mentioned three incidents in his asylum application,
his hearing testimony discussed only one incident. The IJ's
conclusion was supportable; further, even if there were three
encounters, that would not compel a finding of persecution.
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Ghouri argues the BIA's finding that he would not face
future persecution fails because the BIA erroneously said he had
lived close to Wajid without harm for five years, when, as the IJ
correctly found, it was for three years. This discrepancy does not
undermine the core reasoning of either the BIA or the IJ and
certainly does not compel a different conclusion.
It follows that Ghouri's claims for CAT relief also fail.
See Makalo v. Holder, No. 09-2034, 2010 WL 2802642, at *3 (1st Cir.
July 19, 2010); Faye v. Holder, 580 F.3d 37, 42 (1st Cir. 2009).
The petition for review is denied as to the withholding
of removal and CAT claims, and dismissed as to the asylum claim.
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