Hussain, Imran S. v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-1865 & 04-3068
IMRAN SAJID HUSSAIN,
Petitioner,
v.
ALBERTO R. GONZALES,1
Respondent.
____________
On Petitions for Review of an Order
of the Board of Immigration Appeals.
No. A 78 945 960
____________
ARGUED FEBRUARY 7, 2005—DECIDED SEPTEMBER 20, 2005
____________
Before ROVNER, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Imran Hussain, a native of
Pakistan, arrived in the United States in August 2001.
Shortly thereafter, the Immigration and Naturalization
Service initiated removal proceedings. Hussain then
petitioned for asylum and other relief, alleging a fear of
persecution on account of his religion, membership in a
particular social group, and political opinion. After find-
ing Hussain’s testimony not credible and unsupported
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), we
have substituted the current Attorney General of the United
States, Alberto R. Gonzales, as the named respondent.
2 Nos. 04-1865 & 04-3068
by corroborating documentation, the immigration judge
denied Hussain’s application. The Board of Immigration
Appeals affirmed the immigration judge’s decision, and
Hussain petitioned this court for review. We find that
Hussain’s due process rights were not violated when the
immigration judge denied his motion for an extension of
time to submit supplemental documentation because he has
not shown he was prejudiced by the immigration judge’s
deadline for document submission. In addition, we conclude
that the denial of his application for asylum
and withholding of removal is supported by substantial
evidence. Therefore, we deny the petition for review.
I. BACKGROUND
Imran Hussain entered the United States in August 2001
without being admitted or paroled, in violation of 8 U.S.C.
§ 1182(a)(6)(A)(i). Shortly thereafter, Hussain was charged
with removability pursuant to 8 U.S.C. § 1227(a)(1).
Hussain conceded he was removable but filed a petition for
asylum and withholding of removal.
At a preliminary hearing on June 21, 2002, the immigra-
tion judge scheduled the merits hearing for December 16,
2002. The immigration judge informed Hussain’s counsel
that he required any supplements to the record to be
filed sixty days before the hearing date, i.e., by October 16,
2002. On October 18, 2002, Hussain’s counsel moved for
an extension of time to file supplemental materials, con-
tending that he was waiting to receive documents from
Pakistan. The immigration judge denied this request.
At his asylum hearing, Hussain testified that he grew
up in Lahore, a city in the Punjab province of Pakistan.
He stated that after completing the tenth grade, he at-
tended college (according to Hussain, the equivalent of
grades eleven and twelve in the United States) in Lahore,
where he became active in the Shia Muslim religion. There,
Nos. 04-1865 & 04-3068 3
he began his involvement with the Tehrik-E-Jafria of
Pakistan (TJP), a Shia group. He testified that he, his
father and grandfather were all active members of the TJP.
Hussain testified that although he was a Shia Muslim,
the majority of Muslims in Pakistan are Sunni Muslim. In
1993, while sitting with Shia friends at his college, Hussain
recounted that Sunni Muslims confronted him about
preaching his religion at the college, warning him to stop
preaching or threatening that it would cost him his life.
After learning about this incident, his parents sent him to
Karachi, Pakistan for two months, where he learned more
about his religion.
When he returned to Lahore in 1994, he began preach-
ing quietly. In the spring of that year, Hussain said he
participated in a rally to commemorate Pakistani Shia
martyrs. He explained that every year, clashes between
Shia and Sunni Muslims occur at the event. That year, he
said, he fell, causing his head to bleed, and he was taken to
a police station where he spent one night before his parents
came to release him. Although he did not speak with any
Sunnis at the rally, he said that he recognized several of
them and Sunnis later told him they had observed his
presence at the rally.
Hussain testified that Sunnis confronted him again in the
fall of 1995 when he organized a seminar to share his
religious beliefs with fellow students at Punjab University.
He stated that organizers had distributed flyers before
the event listing him as the speaker, and about forty or fifty
people were present on the day of the event. Before he could
speak, however, he testified that at least thirty other Sunni
students surrounded the hall where he was to speak.
According to Hussain, they also sealed the parking lot and
university entrances so no one could leave. He testified that
after three or four hours, the Sunni students fired a shot in
the air and allowed the participants to leave. Hussain
4 Nos. 04-1865 & 04-3068
testified that he reported the incident to the police and his
principal, but they took no action.
The following fall, Hussain testified that six people
approached him in his university cafeteria, said they
needed to talk to him, displayed weapons, and forced
Hussain and two friends to go with them to the university’s
hostel. There, he testified that the captors tied Hussain and
his friends to chairs and taped their mouths, and a captor
drilled one friend’s knee with an electrical drill. Hussain
stated that another assailant then pulled a gun and pointed
it at Hussain’s head, then at his knee. Right then, he said,
help arrived. According to Hussain, one of the captors
yelled, “Police have raided the campus,” and the captors
left. Although Hussain had testified that police could not
normally enter the school premises, he explained that
others in the cafeteria may have seen the incident and
notified the principal, and the principal may have then used
his power to bring the police into the school. He also
explained that the eight to ten police officers entered the
building in civilian clothes.
Hussain also testified that he was an active member
of the TJP from 1997 to 2000. He stated that during
those years, he gave speeches before crowds of fifty to
one hundred people. In December 2000, he testified that
Punjab University invited him to give a speech at a seminar
organized by Shia students and printed flyers and invita-
tions with his name. While speaking, Hussain testified that
Sunni members of the Sipah-E-Sihaba of Pakistan (SSP)
whom Hussain recognized from earlier rallies entered the
conference hall with guns and began tearing down the
flyers. Hussain testified that he started to escape but while
doing so, was shot in both legs. He still managed to leave
the campus and to flag down a car before passing out. He
testified that he woke up in a hospital, reported the incident
to police, and the police did nothing. He stated that after
the incident, TJP members warned him to be careful.
Nos. 04-1865 & 04-3068 5
Hussain also testified that after this incident, his parents
visited him in the hospital and told him they had learned
from their neighbors that a van full of people had ap-
proached Hussain’s house, shouting and shooting guns.
Afraid to return home, and advised by the TJP to leave
town, Hussain testified that he headed from the hospital to
Karachi, a trip that takes approximately twenty-five hours
by car. A few months later, Hussain testified that while on
a motorcycle with a friend, they noticed a van following
them. He stated that the van cornered he and his friend in
an alley, and eight or nine people opened the van doors
armed with machine guns. Hussain stated that he recog-
nized the van occupants as the same persons who had
confronted him at his university and at rallies. Hussain
testified that he and his friend barely managed to escape.
After this incident, he testified that the TJP arranged for
him to leave the country by paying a smuggler $18,000.
Hussain testified that if he returned to Pakistan, he
believed he would be tortured and killed. He testified that
his uncle, a prominent Shia Muslim, had been abducted and
beaten by members of a militant Sunni group. When asked
whether he could move to a different part of Pakistan,
Hussain answered that he could not do so because his
enemies had found him when he had tried before to get
away from Lahore.
The immigration judge, finding Hussain’s testimony
not credible and unsupported by corroborating documenta-
tion, denied his request for relief. In addition, the immigra-
tion judge stated that even if he accepted Hussain’s testi-
mony as true, he had not established eligibility for asylum
or withholding of removal. The Board of Immigration
Appeals affirmed the immigration judge’s decision, and
Hussain now petitions this court for review.
6 Nos. 04-1865 & 04-3068
II. ANALYSIS
Hussain raises three issues on appeal. First, he con-
tends that his due process rights were violated when the
immigration judge denied his motion to submit addi-
tional documentation in support of his claim. Next, he
challenges the immigration judge’s adverse credibility
finding, contending it was not supported by the evidence.
Finally, Hussain maintains that he should receive relief
under the Convention Against Torture. Where, as here, the
Board of Immigration Appeals affirms an immigration
judge’s order without a separate opinion, the decision of the
immigration judge constitutes the “final agency determina-
tion” for purposes of our review. Rashiah v. Ashcroft, 388
F.3d 1126, 1131 (7th Cir. 2004).
A. Supplemental Documentation
Hussain first contends he was denied due process when
the immigration judge denied his motion for an extension of
time to file supplemental materials that he was awaiting
from Pakistan. The local operating instructions of the
Chicago Immigration Court state that additional documen-
tation must be submitted no later than ten days before
the hearing. The immigration judge, however, imposed a
sixty day before hearing cutoff, and Hussain contends the
immigration judge’s imposition of a more stringent deadline
than that set by the local operating instructions violated his
right to due process. We review alleged denials of due
process de novo. Hasanaj v. Ashcroft, 385 F.3d 780, 783 (7th
Cir. 2004).
It is well-settled that aliens subject to removal proceed-
ings are entitled to due process. See, e.g., Kuschchak v.
Ashcroft, 366 F.3d 597, 602 (7th Cir. 2004). In this context,
“ ‘due process requires notice reasonably calculated to
provide actual notice of the proceedings and a meaningful
opportunity to be heard.’ ” Id. (quoting Nazarova v. I.N.S.,
Nos. 04-1865 & 04-3068 7
171 F.3d 478, 482 (7th Cir. 1999)). A “meaningful opportu-
nity to be heard” includes a “reasonable opportunity” to
present evidence on the alien’s own behalf. Kerciku v.
I.N.S., 314 F.3d 913, 915 (7th Cir. 2003); Ambati v. Reno,
233 F.3d 1054, 1062 (7th Cir. 2000); see 8 U.S.C.
§ 1229a(b)(4)(B) (alien entitled to “a reasonable
opportunity . . . to present evidence on the alien’s own
behalf”). In order to succeed on a due process claim, how-
ever, “[a] petitioner . . . must do more than show that one of
these tenets had been violated.” Kuschchak, 366 F.3d at
602. Instead, “a petitioner must produce ‘concrete evidence’
indicating that the due process violation ‘had the potential
for affecting’ the outcome of the hearing.” Ambati, 233 F.3d
at 1061 (quoting Kuciemba v. I.N.S., 92 F.3d 496, 501 (7th
Cir. 1996)). In other words, to prevail on a due process
claim, an alien must show prejudice. Capric v. Ashcroft, 355
F.3d 1075, 1088 (7th Cir. 2004).
As the government notes, the regulations provide that
an immigration judge may set his own deadlines for the
submission of evidence. 8 C.F.R. § 1003.31(c) (2004) states:
“The Immigration Judge may set and extend time limits for
the filing of applications and related documents and
responses thereto, if any. If an application or document
is not filed within the time set by the Immigration Judge,
the opportunity to file that application or document shall be
deemed waived.” Although an immigration judge could
conceivably impose a deadline so unreasonable that it would
not afford the alien a “reasonable opportunity” to present
evidence, this is not such a case.
Here, in a hearing on June 21, 2002, the immigration
judge set the matter for a merits hearing on December 16,
2002. He asked Hussain’s counsel if he planned to supple-
ment the record, and Hussain’s counsel responded affirma-
tively. The immigration judge then stated, “I will require
any supplements 60 days before the hearing date, counsel,
by October 16th, year 2002.” Hussain’s counsel agreed. The
8 Nos. 04-1865 & 04-3068
immigration judge thus clearly informed Hussain of the
deadline for submission of additional documents, and
Hussain does not contend otherwise.
On October 18, 2002, two days after the deadline,
Hussain’s counsel filed a motion for an extension of time to
file supplemental materials. The motion stated that he was
“attempting to receive documentation from various sources
in Pakistan supportive of his claim, however, these docu-
ments have been slow in coming.” The immigration judge
denied Hussain’s motion, stating that he had informed
Hussain’s counsel on June 21, 2002 that the call up date for
supplemental documents was October 16, 2002.
By this time, over nine months had elapsed since Hussain
filed his asylum application. Although we recognize that
procuring supporting documentation from overseas can
often be difficult, if not impossible, for an asylum applicant,
see, e.g., Korniejew v. Ashcroft, 371 F.3d 377, 386-87 (7th
Cir. 2004), Hussain was not denied due process in this case
when the immigration judge denied his motion for
an extension of time to file supplemental documentation
from Pakistan. On appeal, Hussain explained that the
documents he hoped to submit from Pakistan included
documents establishing his membership in the TJP. At
his hearing, Hussain testified that he was in regular contact
with his parents and that his father was a member of the
TJP. He has offered no explanation, however, for why his
parents were unable to send him an affidavit attesting to
his membership in the TJP in the nine months after his
application for asylum. See Hassan v. Gonzales, 403 F.3d
429, 436 (6th Cir. 2005) (finding exclusion of letter that
arrived after filing deadline did not violate alien’s right to
due process when over eight months had elapsed since alien
filed application for asylum). In addition, as the immigra-
tion judge later pointed out, Hussain testified that a friend
in Pakistan had enough time to send him $6000 to allow
him to bond out of detention, yet Hussain offered no
Nos. 04-1865 & 04-3068 9
explanation for why his friend had the time to send him
money but did not have the time to send supporting docu-
ments.
Furthermore, there is no evidence that the earlier
deadline prejudiced Hussain, as there is no indication that
he obtained any documents from Pakistan by the time the
immigration judge issued his ruling denying Hussain
asylum, let alone by ten days before the hearing. Although
Hussain did file documents after the October 18, 2002
deadline for submission of documents, none were from
Pakistan. The record reflects that on November 8, 2002, he
filed articles describing conditions in Pakistan and a copy of
a grant of asylum from Canadian authorities to another
Pakistani Shia Muslim. (A.R. 287-306.) He did not file any
documents from Pakistan corroborating his story that day.
In addition, Hussain later filed documentation with the
Board of Immigration Appeals in support of his motion for
reconsideration. On July 12, 2004, in support of this motion,
Hussain filed an expert opinion report from Dr. Paul White
from the University of Sydney, Australia Centre for Peace
and Conflict Studies. Again, however, he did not file any
documents from Pakistan. Therefore, Hussain has not
shown he was prejudiced by the immigration judge’s
imposition of an earlier deadline than that set by the local
immigration court, and his due process claim fails.
B. Adverse Credibility Determination
Hussain also appeals the denial of his applications for
asylum and withholding of removal. The immigration judge
rejected Hussain’s applications for asylum and withholding
of removal because he did not believe Hussain’s story and
Hussain had failed to provide corroborating evidence in
support of his application. Hussain challenges the immigra-
tion judge’s adverse credibility finding, arguing that it was
not supported by the evidence.
10 Nos. 04-1865 & 04-3068
To be eligible for asylum, an applicant must establish
that he is a “refugee” within the meaning of the Immigra-
tion and Nationality Act. 8 U.S.C. § 1158(b)(1); Jamal-
Daoud v. Gonzales, 403 F.3d 918, 922 (7th Cir. 2005). The
Act defines a “refugee” as one who is unable or unwilling to
return to his native country “because of persecution or a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A). The petitioner
carries the burden of establishing eligibility for asylum.
Jamal-Daoud, 403 F.3d at 922; 8 C.F.R. § 208.13(a). Our
review of an immigration judge’s decision to deny asylum is
limited to determining whether the decision is supported by
substantial evidence. Huang v. Gonzales, 403 F.3d 945, 948
(7th Cir. 2005).
An immigration judge’s adverse credibility determination
receives “highly deferential” review so long as it is well-
reasoned. Nigussie v. Ashcroft, 383 F.3d 531, 534 (7th Cir.
2004) (citing Pop v. I.N.S., 270 F.3d 527, 530-31 (7th Cir.
2001)). “[W]e have emphasized that passing expressions
of disbelief do not adequately substitute for an adverse
credibility finding.” Soumahoro v. Gonzales, 415 F.3d 732,
736 (7th Cir. 2005) (citing Iao v. Gonzales, 400 F.3d 530,
534 (7th Cir. 2005); Diallo v. Ashcroft, 381 F.3d 687, 698
(7th Cir. 2004)). That is, an adverse credibility determina-
tion must be supported by “specific, cogent reasons” that
bear “a legitimate nexus to the finding.” Id. Even so, we will
reverse an immigration judge’s credibility findings only in
“extraordinary circumstances.” Hysi v. Gonzales, 411 F.3d
847, 852 (7th Cir. 2005); Tolosa v. Ashcroft, 384 F.3d 906,
909 (7th Cir. 2004).
This case does not present extraordinary circumstances
that would require us to overturn the immigration judge’s
adverse credibility finding. Hussain claims that he was
threatened, intimidated, and injured as a result of his
religious or political beliefs. The immigration judge did not
Nos. 04-1865 & 04-3068 11
believe Hussain’s story, and the inconsistencies and
implausibilities to which the immigration judge pointed
went to the heart of Hussain’s claim. See Capric, 355 F.3d
at 1090. In addition, the immigration judge gave “specific,
cogent” reasons for why he found the account not plausible.
For example, the immigration judge pointed to Hussain’s
testimony that on one occasion, police officers, dressed in
civilian clothes because they were not authorized to be on
the university campus, rescued Hussain from where he was
being held. Hussain had recounted that after one of the
assailants yelled, “police have raided the campus,” eight or
nine officers in civilian clothes rescued Hussain from his
captors. When asked how an assailant would know that the
persons were police officers when they were dressed in
civilian clothes, the immigration judge noted, Hussain could
offer no explanation.
Another story the immigration judge did not believe
concerned Hussain’s testimony of an incident after Hussain
moved from Lahore, Pakistan to Karachi, Pakistan, a
journey Hussain estimated took approximately 25 hours by
car. Hussain testified that while riding on a motorcycle with
a friend in Karachi, he and his friend saw a van following
them. Hussain recounted that the van cornered the motor-
cycle in a dead end alley, and the doors of the van opened.
Eight or nine individuals exited the van, armed with
machine guns, and Hussain testified that he recognized
these persons as the same people from his hometown in
Lahore who had opposed him at the university and in
rallies. According to Hussain’s testimony, he and his friend
barely managed to escape. The immigration judge found it
highly unlikely that the same persons who had attended
school with Hussain 25 hours away by car would arrive in
a new city, identify Hussain by name, chase him in a van,
open the van doors while armed with machine guns, look at
Hussain while they had him cornered him in a dead alley,
and yet allow Hussain to get away.
12 Nos. 04-1865 & 04-3068
The immigration judge also questioned Hussain’s testi-
mony that Sunni sympathizers had shot him with bullets in
both legs. After he was shot, Hussain recounted, he man-
aged to escape the university campus and stop a car before
passing out in the car. The immigration judge stated he did
not believe that Hussain could have traveled the distance
he did if he had truly been shot in both legs. The judge also
noted that Hussain showed both of his legs to the court. The
judge stated that one leg, above the knee, had a minor scar,
and on the other leg “there was barely any mark other than
a small shadow.” Hussain did not present any hospital
documents or offer a medical opinion as to the scars’ cause.
The immigration judge also found questionable Hussain’s
testimony concerning his involvement with the TJP.
Hussain testified that he was an active TJP member and
that the TJP paid a smuggler $18,000 to enable Hussain
to leave Pakistan. However, the immigration judge noted,
when the government attorney pointed to documents
identifying the TJP as an extremist group involved in
killings, he attempted to separate himself from the
group. The immigration judge believed Hussain either lied
about his membership in the group or that he was an active
member of an extremist organization.
In addition to finding Hussain’s accounts implausible, the
immigration judge also pointed to Hussain’s failure
to provide corroborating documentation for any matter
central to his claim when he denied Hussain’s request for
relief. An applicant’s testimony, if credible, “may be suffi-
cient to sustain [the] burden of proof without corroboration.”
8 C.F.R. § 208.13(a); see Gontcharova v. Ashcroft, 384 F.3d
873, 876 (7th Cir. 2004). “[W]hen the IJ does not believe the
applicant or does not know what to believe,” however, “the
applicant’s failure to corroborate his testimony can be
fatal.” Nigussie, 383 F.3d at 537 (citation omitted).
In order to aid our review, we have stated that an immi-
gration judge’s explanation of why it deemed corroborating
Nos. 04-1865 & 04-3068 13
evidence necessary should include, at least: “(1) an explicit
credibility finding; (2) an explanation of why it is reasonable
to expect additional corroboration; and (3) an account of
why the petitioner’s explanation for not producing that
corroboration is inadequate.” Gontcharova, 384 F.3d at 877.
The immigration judge’s explanation here was sufficient.
As we discussed, the immigration judge explicitly found
Hussain not credible. In addition, he explained why cor-
roborating documentation was reasonable and why
Hussain’s explanation for its absence was unreasonable. For
example, Hussain did not submit any documents identifying
him or any relative as a member of the TJP, even though he
was in regular contact with his parents and he testified his
father was a member of the organization. The immigration
judge also noted that Hussain had testified that flyers
containing his name were printed in advance of speeches
during which he was threatened, but he did not submit
copies of the documents or any affidavits from friends who
had witnessed the events. Furthermore, although Hussain
testified he reported several incidents to the police, he did
not submit copies of police reports or any documents
relating to such reports. Similarly, Hussain testified that he
went to the hospital after he was shot and stayed there for
five days, but he did not present any documents from the
hospital or any affidavits from his parents, whom he
testified picked him up at the hospital and had knowledge
of many of the incidents.
When asked why he had not submitted any documenta-
tion, Hussain testified that he was still attempting to
get the documents together. The immigration judge did
not find this explanation sufficient. The judge pointed to
Hussain’s testimony that he was in contact with his parents
often, yet he had failed to obtain any documents from his
parents. In addition, the immigration judge noted Hussain’s
testimony that a friend in Pakistan had sent him $6000
several months earlier to allow Hussain to bond out. The
14 Nos. 04-1865 & 04-3068
immigration judge did not find satisfactory Hussain’s
explanation that the friend had been too busy to send a
letter stating that Hussain belonged to the TJP organiza-
tion, as he had found the time to wire Hussain money.
As we stated earlier, we acknowledge the difficulty
asylum applicants often have in obtaining corroborating
documentation, and we can understand that documents
from foreign hospitals or police can be hard, if not impos-
sible, to obtain. As the immigration judge noted, however,
Hussain was in regular contact with family and friends, yet
none sent either affidavits or the supporting documentation
that he claimed existed. We conclude that the immigration
judge’s adverse credibility determination deserves our
deference.
Hussain’s testimony was necessary to sustain his burden
of establishing either past persecution in Pakistan or a well-
founded fear of future persecution on account of his religion,
political opinions, or membership in a particular social
group. Because he did not believe Hussain’s story and
Hussain failed to submit corroborating documentation, the
immigration judge found Hussain not credible. As a result,
the immigration judge found that Hussain had not estab-
lished past persecution or a well-founded fear of future
persecution. We cannot say that this decision was unsup-
ported by substantial evidence.
Finally, because Hussain fails to meet the more lenient
burden of proof for asylum, he cannot establish that he
is entitled to withholding of removal under 8 U.S.C.
§ 1231(b)(3) or that he is eligible for protection under
the Convention Against Torture. See Hysi, 411 F.3d at 853-
54; Ahmed v. Ashcroft, 348 F.3d 611, 619 (7th Cir. 2003).
III. CONCLUSION
For the foregoing reasons, Hussain’s petition for review is
DENIED.
Nos. 04-1865 & 04-3068 15
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-20-05