Aziz v. Mukasey ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2008
No. 07-60551 Charles R. Fulbruge III
Clerk
ABDUL AZIZ
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 040 950
Before JONES, Chief Judge, JOLLY, Circuit Judge, and MONTALVO, District
Judge.*
PER CURIAM:**
Abdul Aziz seeks review of an order by the Board of Immigration Appeals
(BIA) adopting and affirming an Immigration Judge’s (IJ’s) order to deny Aziz’s
applications for asylum and for withholding of removal. We DISMISS IN PART
and DENY IN PART.
*
United States District Judge, Western District of Texas, sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 07-60551
I.
Aziz is a native and citizen of Pakistan. He was admitted to the United
States as a nonimmigrant visitor on February 12, 2001, with permission to
remain in the country until January 11, 2002. He remained in the United States
beyond that date without authorization. In October 2004, immigration officials
initiated removal proceedings by charging Aziz, under 8 U.S.C. § 1227(a)(1)(B),
with removability as a nonimmigrant alien who remained in the United States
longer than authorized. Aziz conceded removability in October 2005, and he
applied for asylum and withholding of removal.
Aziz contends that, as a member of Pakistan’s Shi’a Ismaili Muslim
minority, he probably would suffer religious persecution at the hands of Sunni
Muslim extremists if he were removed to Pakistan. He testified before the IJ
that: Sunni extremists had threatened to bomb Shi’a places of worship, had
bombed Shi’a places of worship, and had opened fire on Shi’a gatherings; Sunni
violence against Shi’as was escalating; Aziz had been “lucky” to escape harm
from Sunni extremists so far; “anything” could happen to him if he were to
return to Pakistan; and he would not be safe from religious persecution
anywhere in Pakistan. Aziz also testified, however, that his mother-in-law,
father-in-law, and two sisters-in-law lived in Pakistan; all were Shi’a Ismaili;
and none had suffered harm because of their religion. The IJ found Aziz
generally to be a credible witness.
In addition to Aziz’s testimony, the IJ considered U.S. Department of State
reports describing the conditions in Pakistan. During the time periods that the
reports covered, Shi’a Muslims accounted for approximately ten percent of
Pakistan’s population of 150 million people. Approximately 550,000 to 600,000
Shi’as were Shi’a Ismaili. Sunni Muslims committed numerous acts of violence
against Shi’as in Pakistan. As the Department of State summarized in its 2004
International Religious Freedom Report for Pakistan,
2
No. 07-60551
Relations between different religious groups frequently
were tense, acts of sectarian and religious violence
continued, and over 100 deaths were attributed to
sectarian violence during the period covered by this
report. The worst religious violence was directed
against the country’s Shi’a minority which continued to
be disproportionately the victims of individual and
mass killings.
In the light of Aziz’s testimony and of the U.S. Department of State
reports, the IJ found that “there is a general risk of harm that is connected with
religious tensions in Pakistan.” Nevertheless, “considering all of the
circumstances in this case, [Aziz] has failed to establish a clear probability of
persecution if he returns to Pakistan.” The IJ therefore denied Aziz’s application
for withholding of removal.
The IJ also denied Aziz’s application for asylum. Quoting § 208(a)(2)(B)
of the Immigration and Nationality Act, the IJ noted that an alien must apply
for asylum within one year of arriving in the United States. Extraordinary
circumstances may excuse an alien’s failure to apply for asylum within one year,
but the alien bears the burden of demonstrating those extraordinary
circumstances. Because Aziz arrived in the United States in February 2001, the
IJ reasoned, Aziz’s application for asylum had been due by February 2002. Aziz
did not file an application for asylum until October 2005. The IJ reviewed the
facts before the immigration court and concluded that Aziz had not
demonstrated extraordinary circumstances excusing his delay in applying for
asylum. The IJ therefore denied Aziz’s asylum application as untimely.
Aziz appealed to the BIA. In a per-curiam opinion, the BIA adopted and
affirmed the IJ’s decisions. Aziz timely filed a petition for review with this
Court.
3
No. 07-60551
II.
“We generally have authority to review only the decision of the BIA. When
the IJ’s ruling affects the BIA’s decision, however, we also review the decision
of the IJ.” Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007) (footnote omitted).
We review an IJ’s decision that the BIA adopts. Efe v. Ashcroft, 293 F.3d 899,
903 (5th Cir. 2002). Here, the BIA adopted and affirmed the IJ’s decision to
deny Aziz’s applications for asylum and for withholding of removal. Provided
that we otherwise have jurisdiction, we therefore review the IJ’s decision to deny
asylum and withholding of removal.
A.
We do not have jurisdiction to review an IJ’s determination about an
asylum application’s timeliness when that determination is “based on [the] IJ’s
assessment of facts and circumstances.” Nakimbugwe v. Gonzales, 475 F.3d 281,
284 (5th Cir. 2007). Here, Aziz filed an application for asylum more than one
year after arriving in the United States. The IJ reviewed the facts before the
immigration court and found that, based on the facts presented, Aziz had
presented no extraordinary circumstances excusing Aziz’s delay in applying for
asylum. The IJ therefore denied Aziz’s application.
Because the IJ’s denial of Aziz’s asylum application was based upon an
assessment of facts and circumstances, we lack jurisdiction to review the IJ’s
decision. We dismiss Aziz’s petition for review insofar as it challenges the denial
of asylum.
B.
Aziz also challenges the denial of his application for withholding of
removal. An application for withholding of removal must be granted when“the
alien’s life or freedom would be threatened in [the country of removal] because
of the alien’s race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The alien bears the burden of
4
No. 07-60551
proving his life or freedom would be threatened if he is removed.
Id. § 1231(b)(3)(C). To meet this burden, the alien must establish a clear
probability—that it is “more likely than not”—that his life or freedom would be
threatened upon removal. INS v. Stevic, 467 U.S. 407, 429-30 (1984). He may
do so by proving that he would be singled out individually for persecution or by
proving that he belongs to a group of people against whom “there is a pattern or
practice of persecution . . . such that it is more likely than not [the alien’s] life
or freedom would be threatened upon return to that country.” 8 C.F.R.
§ 1208.16(b)(2).
We review an IJ’s factual findings only for “substantial evidence.” Gomez-
Mejia v. INS, 56 F.3d 700, 702 (5th Cir. 1995). Whether an alien demonstrates
a clear probability of persecution upon return to the country of removal is a
factual finding. See Efe, 293 F.3d at 906. The IJ here denied Aziz’s application
for withholding of removal because, the IJ found, the facts before the
immigration court did not establish a clear probability Aziz would suffer
persecution upon removal to Pakistan. We therefore must deny Aziz’s petition
for review unless the evidence supporting his application for withholding of
removal is so overwhelming that “any reasonable adjudicator would be
compelled to conclude” that his application should have been granted. 8 U.S.C.
§ 1252(b)(4)(B).
We have carefully reviewed the administrative record. A reasonable
adjudicator could find that, even if Aziz demonstrated he belongs to a group of
people against whom there is a pattern or practice of persecution in Pakistan,
Aziz did not demonstrate the persecution against that group was any more
than—to borrow the language of the IJ—“sporadic.” In other words, a
reasonable adjudicator could find that Aziz has failed to demonstrate “a pattern
or practice of persecution . . . such that it is more likely than not [Aziz’s] life or
freedom would be threatened upon return” to Pakistan. 8 C.F.R.
5
No. 07-60551
§ 1208.16(b)(2)(ii) (emphasis added). We therefore deny Aziz’s petition for
review insofar as it challenges the denial of withholding of removal.
III.
The petition for review is DISMISSED IN PART and DENIED IN PART.
6