Zaidi, Syed v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3062
SYED ZAIDI,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General of the
United States of America,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
No. A76-772-713
____________
ARGUED MAY 19, 2004—DECIDED JULY 26, 2004
____________
Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Syed Zaidi is a citizen of Pakistan
and a practicing Shia Muslim. He entered the United States
in April 1997 as a non-immigrant visitor and overstayed his
visa. The Immigration and Naturalization Service (the
“INS”) commenced removal proceedings against him in July
2000, and Mr. Zaidi applied for asylum in February 2002.
The Immigration Judge (the “IJ”) determined that Mr.
Zaidi’s application for asylum was untimely but that he was
still eligible for withholding of removal. See 8 U.S.C.
§ 1231(b)(3). The IJ later denied Mr. Zaidi relief; the Board
2 No. 03-3062
of Immigration Appeals (the “BIA”) affirmed the decision
of the IJ and dismissed his appeal. Mr. Zaidi now seeks
review in this court; he submits that he suffered past pers-
ecution and has a well-founded fear of future persecution.
For the reasons set forth in the following opinion, we deny
the petition for review.
I
BACKGROUND
The INS commenced removal proceedings against Mr.
Zaidi in July 2000, but he was able to delay adjudication of
his status for a year-and-a-half while he attempted to im-
migrate to Canada. At one hearing in April 2001, Mr. Zaidi
unequivocally told the IJ that he did not intend to seek
asylum or withholding of removal. In January 2002, Mr.
Zaidi informed the IJ that his application for permanent
residency status in Canada had been “cancelled.” The IJ re-
fused any further delay in the removal proceedings. Only
then did Mr. Zaidi announce that he wanted to apply for
asylum in the United States. The IJ granted him one last
continuance to prepare his asylum application and sched-
uled a hearing for three weeks later.
At the asylum hearing, Mr. Zaidi conceded removability
and testified that, if he returns to Pakistan, he will suffer
religious persecution because he is a Shia Muslim. He
testified that an anti-Shia group called the Sipah-e-Sahaba
(“SSP”) beat him in 1989 because of his religion. However,
he offered no additional details about the beating, except to
say that the incident had prompted him to move to Saudi
Arabia. While living in Saudi Arabia, Mr. Zaidi occasionally
revisited Pakistan. He did not experience another beating on
any of those occasions. He did testify, however, that mem-
bers of the SSP harassed his family during his absence in
No. 03-3062 3
1991 and then again in either 1995 or 1996. Mr. Zaidi
learned from his family that SSP members had entered his
family’s home with guns, ransacked the house, and threat-
ened to shoot Mr. Zaidi if they ever found him. Mr. Zaidi also
testified that he has relatives who currently live in Pakistan
and remain free from harm, but they travel around the
country to remain safe.
The IJ determined that Mr. Zaidi’s application for asylum
was untimely under § 208 of the Immigration and Nationality
Act (the “INA”), see 8 U.S.C. § 1158(a)(2)(B), because it had
not been filed within one year of the applicant’s arrival in
the United States. The IJ further concluded that Mr. Zaidi
had not demonstrated “changed circumstances” or “extra-
ordinary circumstances” that might justify an extension of
the deadline. See id. § 1158(a)(2)(D). Recognizing that Mr.
Zaidi was still eligible for withholding of removal, see 8
C.F.R. § 208.3(b), the IJ concluded that, although he found
no inaccuracies or inconsistencies in Mr. Zaidi’s testimony,
Mr. Zaidi had failed to meet his burden of proof and that his
claim for relief was undermined by several factors. First, Mr.
Zaidi had filed his application only at the last minute when he
was unable to delay his removal hearing any longer. A related
concern of the IJ was that, just nine months before he decided
to seek asylum, Mr. Zaidi had told the judge that he did not
intend to seek asylum. The IJ also noted that Mr. Zaidi
offered nothing but his own testimony to support his claim.
Finally, the IJ noted that Mr. Zaidi’s family members
currently live in Pakistan free from harm. The IJ denied Mr.
Zaidi all relief and concluded that the asylum application
was “frivolous” and that it was filed for the improper
purpose of delaying his inevitable removal. The BIA
dismissed Mr. Zaidi’s appeal without writing its own
opinion.
4 No. 03-3062
II
ANALYSIS
Before this court, Mr. Zaidi reargues the merits of his
asylum claim, but he fails to acknowledge that the IJ found
his application untimely. We cannot reach the merits of Mr.
Zaidi’s asylum claim, however, because we lack jurisdiction
to reassess the timeliness of his application. According to
the statute setting the one-year time limit, “[n]o court shall
have jurisdiction to review any determination of the
Attorney General under paragraph (2) [of 8 U.S.C.
§ 1158(a)].” 8 U.S.C. § 1158(a)(3). Paragraph 2 contains the
one-year time limit and the exceptions in cases of changed
or extraordinary circumstances. See id. § 1158(a)(2)(B) & (D).
Although there is a “ ‘strong presumption that Congress did
not mean to prohibit all judicial review’ of administrative
action,” Am. Soc’y of Cataract & Refractive Surgery v. Thomp-
son, 279 F.3d 447, 452 (7th Cir. 2002) (quoting Bowen v.
Michigan Acad. of Family Physicians, 476 U.S. 667, 672 (1986)),
that presumption can be overcome by “ ‘clear and convinc-
ing evidence’ ” to the contrary, id. (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 141 (1967)). Specific language in a
statute that indicates an intent to preclude judicial review
satisfies the clear and convincing evidence requirement. See
id. We now join our sister circuits in holding that the “no
court shall have jurisdiction to review” language of
§ 1158(a)(3) is sufficiently specific to show that Congress
intended to preclude judicial review of agency action under
§ 1158(a)(2). See Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.
2003); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.
2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003);
Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003);
Fahim v. United States Attorney Gen., 278 F.3d 1216, 1218
(11th Cir. 2002) (per curiam); Hakeem v. INS, 273 F.3d 812,
815 (9th Cir. 2001); Ismailov v. Reno, 263 F.3d 851, 855 (8th
No. 03-3062 5
Cir. 2001). Thus, insofar as Mr. Zaidi is pressing his asylum
claim on appeal, we lack jurisdiction to answer the anteced-
ent question of whether his application was timely.
Even though his asylum application was untimely, Mr.
Zaidi was eligible to request withholding of removal. See 8
C.F.R. § 208.3(b); Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.
2004). He now challenges the IJ’s decision not to grant him
that relief. A person may receive withholding of removal
under section 241(b)(3) of the INA, see 8 U.S.C. § 1231(b)(3),
if he can establish a “clear probability” that he will suffer
persecution if returned to his home country. Niam, 354 F.3d
at 654 (internal quotation marks and citation omitted). If the
applicant can establish that he has been subject to past
persecution, there is a presumption, subject to rebuttal by
the Government, that the persecution would continue upon
the applicant’s return. See 8 C.F.R. § 208.16(b)(1)(i).
Mr. Zaidi first submits that he has demonstrated past
religious persecution because he endured a beating in 1989
that was prompted by his identity as a Shia Muslim. He
never has provided even minimal details about the severity
of the beating. Without sufficient elaboration, we cannot
discern why this single instance ought to be considered of
such severity as to constitute persecution. We have said that,
although one incident can rise to the level of persecution if it
is sufficiently severe, an applicant must offer details about
the incident to establish its severity. See Dandan v. Ashcroft,
339 F.3d 567, 574 (7th Cir. 2003). Mr. Zaidi simply has not
provided sufficient detail to establish that the single alleged
beating rises to the level of persecution.
Mr. Zaidi next argues that he has demonstrated a well-
founded fear of future persecution. Without elaboration, he
contends that the “Immigration Judge failed to consider
other important evidence which showed that Zaidi has a
well-founded fear of future persecution, especially due to
6 No. 03-3062
current countrywide and worldwide developments.”
Appellant’s Br. at 17. He continues: “The important aspects
of Pakistan’s political instability should be given great
weight and deference in determining Zaidi’s eligibility for
a granting of asylum.” Id. Mr. Zaidi does not, however, offer
more specific detail as to what evidence he thinks the IJ
failed to consider. Under the circumstances here, we think that
the IJ was on solid ground in determining that Mr. Zaidi’s
own testimony was insufficient to establish that he would
face persecution in Pakistan. Indeed, his testimony was
undermined by the fact that his family remains in Pakistan
unharmed. Although credible testimony from an applicant
“may be sufficient to sustain the burden of proof without
corroboration,” 8 C.F.R. § 208.16(b), when the IJ “does not
believe the applicant or does not know what to believe, the
applicant’s failure to corroborate his testimony can be fatal
to his asylum application.” Chebchoub v. INS, 257 F.3d 1038,
1042 (9th Cir. 2001) (internal quotation marks and citation
omitted); see also Capric v. Ashcroft, 355 F.3d 1075, 1085 n.4
(7th Cir. 2004); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th
Cir. 2003). In this case, the IJ questioned Mr. Zaidi’s credibil-
ity because he had delayed so long in filing his application
and because he previously had asserted that he was not
going to seek asylum. In sum, Mr. Zaidi has not identified
any error in the IJ’s conclusion that he failed to meet his
burden of showing a “clear probability” of future persecu-
tion.
Finally, Mr. Zaidi asserts that he was denied a fair asylum
hearing because the IJ gave him only three weeks to pre-
pare. To prevail on a due process claim, Mr. Zaidi must
show prejudice, see Roman v. INS, 233 F.3d 1027, 1033 (7th
Cir. 2000), but he has not offered any details about what tes-
timony or corroborative evidence he could have obtained
with more time. Nor has he shown how such evidence
would have changed the outcome of his case. Therefore, Mr.
No. 03-3062 7
Zaidi has not shown that he was denied due process by the
IJ’s scheduling decision.
Conclusion
For the foregoing reasons, we deny Mr. Zaidi’s petition for
review.
PETITION FOR REVIEW DENIED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-04