Khan v. Elwood , 77 F. App'x 86 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
9-12-2003
Khan v. Elwood
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4216
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Recommended Citation
"Khan v. Elwood" (2003). 2003 Decisions. Paper 273.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-4216
___________
MOHAMMAD ZOHAIB KHAN,
Appellant
v.
KENNETH ELWOOD, District Director,
Immigration and Naturalization Services
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court Judge: The Honorable Sylvia H. Rambo
(D.C. Civil No. 02-cv-01734)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 22, 2003
Before: ALITO, FUENTES, Circuit Judges,
and SURRICK,* District Judge.
(Opinion Filed: September 11, 2003)
________________________
OPINION OF THE COURT
________________________
*
Hon. R. Barclay Surrick, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:
Mohammad Zohaib Khan (“Khan”) filed a petition for writ of habeas corpus under 28
U.S.C. § 2241 in the Middle District of Pennsylvania. On November 4, 2002, the District
Court denied Khan’s Petition. On appeal, Khan argues that the District Court erred in failing
to find that the Board of Immigration Appeals (“BIA”) applied an erroneous legal standard in
denying Khan protection under the Convention Against Torture (“CAT”). We disagree with
Khan and will, therefore, affirm.
Khan is a native and citizen of Pakistan. He was admitted to the United States as a
lawful permanent resident in 1996. In September 2000, Khan was convicted in Delaware of
possession with intent to distribute marijuana and sentenced to a five-year term of
imprisonment, which was later suspended. On March 7, 2001, the Immigration and
Naturalization Service (“INS”) served Khan with a notice to appear for removal proceedings
charging that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he
had been convicted of an aggravated felony, and pursuant to 8 U.S.C. § 1227(a)(2)(B)(i)
because he had been convicted of violating a state controlled substance law.
The Immigration Judge (“IJ”) terminated the aggravated felony charge, but found that,
based on the Delaware drug conviction, the INS had established that Khan was removable under
8 U.S.C. § 1227(a)(2)(B)(i). Thereafter, Khan requested asylum, withholding of removal, and
protection under the CAT. With respect to his CAT claim, Khan asserted that he would come
to the attention of the Pakistani government upon his return due to his criminal activity in the
United States and that the government would likely arrest and torture him. On November 26,
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2001, the IJ denied Khan’s requests for asylum and withholding of removal, but granted him
protection under the CAT.
The INS appealed the IJ’s termination of the aggravated felony charge and grant of
protection under the CAT to the BIA. On June 24, 2002, the BIA sustained the INS’s appeal
and vacated the portion of the IJ’s order withholding Khan’s removal pursuant to the CAT.
Because Khan’s applications for asylum, withholding of removal, and protection under the CAT
had all been denied, the BIA declined to address the INS’s argument that the IJ improperly
terminated the aggravated felony charge. The BIA ordered Khan removed to Pakistan.
Khan petitioned this Court to review the BIA’s final removal order. On September 23,
2002, this Court dismissed Khan’s petition for lack of subject matter jurisdiction pursuant to
8 U.S.C. § 1252(a)(2)(C). The INS took Khan into custody in September of 2002 in York,
Pennsylvania. Accordingly, Khan filed a petition for a writ of habeas corpus in the Middle
District of Pennsylvania. On November 4, 2002, the District Court denied Khan’s habeas
petition.
There is no question that “district courts may exercise habeas jurisdiction over
petitions alleging violations of CAT.” Ogbudimkpa v. Ashcroft, No. 02-1181, 2003 WL
21995303, at *9 (3d Cir. Aug. 22, 2003); see also Wang v. Ashcroft, 320 F.3d 130, 141 (2d
Cir. 2003); Saint Forth v. Ashcroft, 329 F.3d 191, 200 (1st Cir. 2003); Cornejo-Barreto v.
Seifert, 218 F.3d 1004, 1015-16 (9th Cir. 2000). The scope of a district court’s habeas
jurisdiction extends to claims concerning “errors of law, including the erroneous application
or interpretation of statutes.” INS v. St. Cyr, 533 U.S. 289, 302 (2001). We have jurisdiction
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over this appeal from the District Court’s final order denying the habeas petition under 28
U.S.C. §§ 1291, 2253(a). We exercise plenary review over the District Court’s decision. See
Carter v. Vaughn, 62 F.3d 591, 593 (3d Cir. 1995); Hankins v. Fulcomer, 941 F.2d 246, 249
(3d Cir. 1991).
Khan argues that the District Court erred in denying his habeas petition because the BIA
“abused its discretion in ruling contrary to regulation that Khan did not meet his burden of
proof in establishing withholding of removal.” (Khan’s Brief at 13).
In order to obtain relief under the CAT, an applicant must establish “that it is more
likely than not that he or she would be tortured if removed to the proposed country of
removal.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (quoting 8 C.F.R. §
208.16(c)(2)). This standard does not include a subjective component, but rather requires that
the applicant show entitlement to relief by objective evidence. See id. Accordingly, in order
to avail himself of relief under the CAT, it was Khan’s burden to demonstrate by means of
objective evidence that he would more likely than not be tortured if removed to Pakistan.
The BIA correctly stated the “more likely than not” standard in its decision. (App. at
Exhibit F, p. 1). Applying the standard to Khan’s case, the BIA found that “[a]lthough evidence
of record supports the Immigration Judge’s conclusion that the Pakistani police torture
detainees, [Khan] has provided no evidence demonstrating a probability either that he will
personally be detained upon his removal to Pakistan or, if he is detained, that he will personally
be in a class of detainees who are likely to be tortured.” Id. at 2. The BIA held that “. . . the
absence of evidence establishing a likelihood that [Khan] will be at personal risk of torture by
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or with the acquiescence of the Pakistani government constitutes a failure of proof.” Id. The
BIA’s analysis and findings demonstrate that it carefully reviewed the record and complied with
the legal standard for analyzing CAT applications.
We agree with the INS that Khan’s habeas petition is nothing more than a “thinly
disguised sufficiency of the evidence argument.” (INS’s brief at 13). But, as the District
Court correctly observed, a sufficiency of the evidence argument is properly raised on direct
appeal, not in a habeas petition. Accordingly, we will not review any further the BIA’s
determination that Khan did not satisfy his burden of demonstrating that he would more likely
than not be tortured if returned to Pakistan.
Because the BIA applied the correct legal standard, we will affirm the District Court’s
denial of Khan’s habeas petition.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
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