Shahzad Akram v. Loretta Lynch ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1482
SHAHZAD AKRAM; KINZA SHAHZAD,
Petitioners,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: November 17, 2016 Decided: December 15, 2016
Before KING, KEENAN, and HARRIS, Circuit Judges.
Petition dismissed in part and denied in part by unpublished per
curiam opinion.
Joshua A. Berman, BLAINE L. GILBERT & ASSOCIATES, PA, Baltimore,
Maryland, for Petitioners. Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Erica B. Miles, Senior Litigation
Counsel, Enitan O. Otunla, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shahzad Akram (“Akram”) and Kinza Shahzad (“Shahzad”),
husband and wife, are natives and citizens of Pakistan. They
petition for review of an order of the Board of Immigration
Appeals (Board) dismissing their appeal from the immigration
judge’s (IJ) decision denying their applications for asylum,
withholding of removal, and protection under the Convention
Against Torture (CAT). For the reasons set forth below, we
dismiss in part and deny in part the petition for review.
On administrative appeal, the Board agreed with the IJ that
Akram’s asylum application was untimely and that the Petitioners
did not establish extraordinary circumstances that would excuse
the late asylum application. The Board also agreed with the IJ
that, even if the asylum application was timely, Akram failed to
establish past persecution on account of a protected ground or
that he has a well-founded fear of persecution.
Under 8 U.S.C. § 1158(a)(3) (2012), the Attorney General’s
decision regarding whether an alien has complied with the one-
year time limit for filing an application for asylum or has
established changed or extraordinary circumstances justifying
waiver of that time limit is not reviewable by any court. See
Mulyani v. Holder, 771 F.3d 190, 196-97 (4th Cir. 2014);
Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). Although
8 U.S.C. § 1252(a)(2)(D) (2012) provides that nothing in
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§ 1252(a)(2)(B), (C), “or in any other provision of [the
Immigration and Nationality Act] which limits or eliminates
judicial review, shall be construed as precluding review of
constitutional claims or questions of law,” we have held that
the question of whether an asylum application is untimely or
whether the changed or extraordinary circumstances exception
applies “is a discretionary determination based on factual
circumstances.” Gomis, 571 F.3d at 358 (emphasis omitted); see
Mulyani, 771 F.3d at 197. Accordingly, our “power to review an
IJ’s determination . . . survive[s] the limitation in
§ 1158(a)(3) only if the appeal present[s] a constitutional
claim or question of law,” Mulyani, 771 F.3d at 197, which the
Petitioners failed to do here. Therefore, we are without
jurisdiction to review that finding. Insofar as the Petitioners
seek review of the denial of asylum, we dismiss the petition for
review.
While we do not have jurisdiction to consider the denial of
the untimely asylum application, we retain jurisdiction to
consider the denial of withholding of removal, as this claim is
not subject to the one-year time limitation. * See 8 C.F.R.
§ 1208.4(a) (2016).
*
The Petitioners did not appeal to the Board the denial of
protection under the CAT and do not raise this issue in their
brief. Thus, the issue is abandoned. See United States v. Al-
(Continued)
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“Withholding of removal is available under 8 U.S.C.
§ 1231(b)(3) if the alien shows that it is more likely than not
that h[is] life or freedom would be threatened in the country of
removal because of h[is] race, religion, nationality, membership
in a particular social group, or political opinion.” Gomis, 571
F.3d at 359 (internal quotation marks omitted); see 8 U.S.C.
§ 1231(b)(3) (2012). An alien “must show a ‘clear probability
of persecution’ on account of a protected ground.” Djadjou v.
Holder, 662 F.3d 265, 272 (4th Cir. 2011) (quoting INS v.
Stevic, 467 U.S. 407, 430 (1984)). “This is a more stringent
standard than that for asylum. . . . [and], while asylum is
discretionary, if an alien establishes eligibility for
withholding of removal, the grant is mandatory.” Gandziami-
Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th Cir. 2006)
(citations omitted).
We afford “a high degree of deference” to a determination
that an alien is not eligible for withholding of removal, and
review administrative findings of fact under the substantial
evidence standard. Gomis, 571 F.3d at 359. Under the
substantial evidence test, affirmance is mandated “if the
Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (observing that
contentions not raised in argument section of opening brief are
abandoned).
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evidence is not so compelling that no reasonable factfinder
could agree with the [Board]’s factual conclusions.” Gandziami-
Mickhou, 445 F.3d at 354 (internal quotation marks omitted).
We conclude that substantial evidence supports the finding
that the Petitioners failed to establish a nexus between the
incidents of persecution or their fear of persecution and a
protected ground and that the record does not compel a different
result. Thus, we deny in part the petition for review.
Accordingly, we dismiss in part and deny in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
PETITION DISMISSED IN PART
AND DENIED IN PART
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