Rayshma Rizwan v. Eric Holder, Jr. , 428 F. App'x 466 ( 2011 )

Case: 10-60631 Document: 00511511009 Page: 1 Date Filed: 06/16/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2011
No. 10-60631
Summary Calendar Lyle W. Cayce
Clerk
RAYSHMA RIZWAN; ASIM SHEIKH; AYSHA RIZWAN,
Petitioners
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A095 348 886
A095 348 968
A095 348 969
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rayshma Rizwan and her two adult children, Asim Sheikh and Aysha
Rizwan, challenge the denial of their requests for cancellation of removal under
8 U.S.C. § 1229b(b)(1) and withholding of removal under 8 U.S.C. § 1231(b)(3).
The immigration judge (IJ) denied their requests and ordered them removed to
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-60631 Document: 00511511009 Page: 2 Date Filed: 06/16/2011
No. 10-60631
the United Kingdom. The Board of Immigration Appeals (BIA) dismissed their
appeals.1
Rayshma, Asim, and Aysha argue that the IJ abused its discretion by
denying Rayshma’s application for cancellation of removal under 8 U.S.C.
§ 1229b(b)(1) by ruling that Rayshma had not established that her removal
would result in “exceptional and extremely unusual hardship,” id.
§ 1229b(b)(1)(D), to her minor children, who are United States citizens.2 They
argue that the IJ failed to give adequate weight to evidence regarding Rayshma’s
medical condition and other factors that establish that Rayshma’s removal would
cause her minor children the requisite hardship. “Pursuant to 8 U.S.C.
§ 1252(a)(2)(B)(I), this court does not have jurisdiction to review ‘any judgment
regarding the granting of relief under section . . . 1229b.’” Sung v. Keisler, 505
F.3d 372, 377 (5th Cir. 2007) (quoting 8 U.S.C. § 1252(a)(2)(B)(I)). While “[t]his
provision is not applicable where the appeal involves constitutional claims or
questions of law,” Rayshma, Asim, and Aysha’s “cancellation of removal under
§ 1229b(b) does not involve a constitutional claim or a question of law.” See
Sung, 505 F.3d at 377 (citing 8 U.S.C. § 1252(a)(2)(D)). “[T]herefore, this court
does not have jurisdiction to review this claim.” See id. Accordingly, we decline
to remand Asim and Aysha’s requests for cancellation of removal as they lack a
qualifying relative. See 8 U.S.C. § 1229b(b)(1)(d).
The three family members also argue that the BIA erred in denying their
requests for withholding of removal under § 1231(b)(3). “If [an] applicant [for
withholding of removal] is determined to have suffered past persecution in the
1
The three family members also requested asylum and relief under the Convention
Against Torture, but they do not seek review of the denial of those claims.
2
Asim and Aysha concede that they are only entitled to cancellation of removal under
§ 1229b(b)(1) if Rayshma’s application for adjustment of status was granted. See 8 U.S.C.
§ 1229b(b)(1)(D) (requiring, as a condition of eligibility for cancellation of removal, “exceptional
and extremely unusual hardship to the alien’s spouse, parent, or child, who is a citizen of the
United States or an alien lawfully admitted for permanent resident”).
2
Case: 10-60631 Document: 00511511009 Page: 3 Date Filed: 06/16/2011
No. 10-60631
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion, it shall be
presumed that the applicant’s life or freedom would be threatened in the future
in the country of removal,” and the Government “shall bear the burden” of
rebutting that presumption. 8 C.F.R. § 1208.16(b)(1). However, where, as here,
“the applicant's fear of future threat to life or freedom is unrelated to the past
persecution,” no such presumption applies, and “the applicant bears the burden
of establishing that it is more likely than not that he or she would suffer such
harm.” Id. § 1208.16(b)(1)(iii). Whether an alien has demonstrated eligibility
for withholding of removal is a factual determination that we review for
substantial evidence. Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)
(citing Zamora-Morel v. INS, 905 F.2d 833, 838 (5th Cir.1990)). Under the
substantial evidence standard, “ reversal is improper unless we decide not only
that the evidence supports a contrary conclusion, but also that the evidence
compels it.” Id. (internal quotation marks omitted); see also 8 U.S.C.
§ 1252(b)(4)(B) (“the administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary”). In this
case, the BIA found that the three family members failed to show that it was
more likely than not that their life or freedom would be threatened by
persecution based on their religion, and Rayshma, Asim, and Aysha have failed
to show that “any reasonable adjudicator would be compelled to conclude to the
contrary.”
PETITION DISMISSED IN PART AND DENIED IN PART.
3