Abdul Khan v. Eric H. Holder ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 06-3966 & 07-2252
A BDUL H. K HAN, Y ASMEEN H ASEEB,
S ARAH H ASEEB, and SANA H ASEEB,
Petitioners,
v.
M ARK F ILIP, Acting Attorney General
of the United States,
Respondent.
Petitions for Review of Orders of
the Board of Immigration Appeals.
Nos. A96-494-318, A96-494-319, A96-494-320 & A96-494-321
A RGUED JANUARY 18, 2008—D ECIDED JANUARY 29, 2009
Before B AUER and SYKES, Circuit Judges.Œ
S YKES, Circuit Judge. Abdul Khan is a native and citizen
of Pakistan who entered the United States with his
Œ
Circuit Judge Ann Claire Williams recused herself after oral
argument and has not participated in deciding this appeal. This
decision is being issued by a quorum of the panel. See 28
U.S.C. § 46(d).
2 Nos. 06-3966 & 07-2252
family in 1998. They remained here after their visitors’
visas expired, and in 2003 Khan applied for asylum,
withholding of removal, and protection under the Con-
vention Against Torture (“CAT”). His family members are
derivative applicants. An Immigration Judge (“IJ”) heard
the claims and denied relief, concluding that Khan’s
asylum application was untimely and the delay was not
excused by extraordinary circumstances; that Khan failed
to show he had suffered politically motivated persecution
in Pakistan; and that Khan had failed to show a clear
probability that he would be persecuted or tortured if
he returned to Pakistan.
The Board of Immigration Appeals (“BIA”) affirmed.
Khan then moved to reopen, presenting what he character-
ized as new evidence about his physical and mental
condition that he claimed undermined the IJ’s decisions.
The BIA declined to reopen the case. Khan asks us to
review each of these decisions.
We dismiss in part and deny in part the petitions for
review. Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to
review the BIA’s determinations that Khan’s asylum
claim was untimely and the delay was not excused by
extraordinary circumstances. The REAL ID Act of 2005,
Pub. L. No. 109-13, § 106(a)(1)(ii), 119 Stat. 231, 310-11,
permits judicial review of constitutional claims or ques-
tions of law; Khan’s challenges to the immigration
agency’s timeliness and “extraordinary circumstances”
determinations address only factual and discretionary
issues and therefore lie outside our review jurisdic-
tion. See Vasile v. Gonzales, 417 F.3d 766 (7th Cir. 2005). We
Nos. 06-3966 & 07-2252 3
also conclude that substantial evidence supports
the agency’s denial of withholding of removal and pro-
tection against removal under the CAT. Finally, to the
extent we have jurisdiction to review the denial of Khan’s
motion to reopen, we conclude that the BIA did not
abuse its discretion in determining that Khan’s “new
evidence” was neither new nor material.
I. Background
Khan is a Mohajir, a term used to describe Pakistanis
of Indian descent. Because Mohajirs faced difficulties
competing with other Pakistanis for jobs and political
influence, some Mohajirs joined the Mohajir Quami
Movement (“MQM”), an organization ostensibly devoted
to expanding the influence of its members. Khan joined
the MQM in 1985 and assumed an active role in the
organization; he assisted the party by distributing flyers,
making speeches, transporting voters to polls, raising
funds, and displaying political signs.
Beginning in the early 1990s, some elements of the
MQM began turning to violence as a means of achieving
the organization’s goals. Khan’s brother, a former MQM
member, was beaten by the organization when he
refused to follow MQM orders to kidnap a political
opponent; he later fled to England. The MQM’s violent
turn and the mistreatment of his brother prompted Khan
to resign from the organization; he told MQM members
he needed to care for his ill father. Nevertheless, Khan
continued to provide monthly financial support to the
MQM.
4 Nos. 06-3966 & 07-2252
Khan first came to the United States in June 1995 after
the Pakistani government falsely arrested him and de-
tained him for nearly two days.1 Khan returned to Pakistan
17 days later when he learned his father had suffered a
heart attack. Upon his return, MQM members began
harassing him. For example, when Khan explained that
he needed to care for his ailing father, an MQM member
threatened to kill Khan’s father. Later, in December 1997,
Khan and his family were carjacked by men Khan said
he recognized as MQM members. Khan was warned not
to report the crime to the police, but he did so anyway.
The cumulative impact of these events prompted Khan
to make arrangements to leave Pakistan. He quit his job
in December 1997 and came to the United States by him-
self in February 1998 to prepare for his family’s reloca-
tion. However, Khan returned to Pakistan in March 1998
because his youngest daughter was ill. Back in Pakistan,
Khan asked police about the progress of the investiga-
tion into his stolen car. He believes MQM members saw
him go to the police, and in May Khan was abducted by
1
The Pakistani government had begun cracking down on
MQM violence and mistakenly arrested Khan, thinking he
was his brother (though there is no evidence his brother was
implicated in MQM violence). Khan was beaten and kicked
during his two-day detention, and was released only after his
family paid a bribe. Khan’s present claims, however, are not
premised on this incident; he does not argue that the Pakistani
government will subject him to persecution if he is removed
to his native country. His claims for relief from removal are
instead based on the abuse he fears from the MQM.
Nos. 06-3966 & 07-2252 5
the MQM and held for nearly three days. During his
detention, his captors accused him of reporting their
activities to the police, severely beat him and threatened
to kill him, and warned him never to speak to the police
again. For emphasis, they showed him a box containing
severed fingers. Khan’s family notified authorities
about his abduction, but Khan never filed a complaint
about the kidnapping with the police or reported it to
the medical personnel who treated his injuries after his
release.
This incident finally convinced Khan to move his
family to the United States. Khan entered this country in
June 1998 with his wife and two daughters, and they
overstayed their visitors’ visas. Khan had little trouble
obtaining numerous jobs, renting an apartment, and
supporting his family. But Khan’s friends noticed that
his experiences in Pakistan caused him to develop symp-
toms of depression, avoid social contact, and have dif-
ficulty making decisions.
One of Khan’s friends urged him to apply for asylum
based on his mistreatment by the MQM, but Khan waited
several years to pursue that option. In June 2002 the
Attorney General announced the National Security Entry-
Exit Registration System, which required aliens from
certain countries (including Pakistan) to register with
immigration officials. See Registration and Monitoring
of Certain Non-Immigrants, 67 Fed. Reg. 52,584-601
(Aug. 12, 2002). This development prompted Khan to
apply for asylum, and in March 2003 (several months
before he was required to register and nearly five years
6 Nos. 06-3966 & 07-2252
after arriving in the United States) he submitted an ap-
plication for asylum, withholding of removal, and pro-
tection against removal under the CAT.
In May 2005 an IJ denied all of Khan’s applications. The
asylum claim had been filed well beyond the one-year
time limit established by 8 U.S.C. § 1158(a)(2)(B), and the
IJ rejected it as untimely. Khan asserted that he did not
know about the one-year deadline and that his poor
mental health—his depression and fear of being
returned to Pakistan—compromised his ability to
timely file for asylum. He argued that these were the
sort of “extraordinary circumstances” that should excuse
the late filing under 8 U.S.C. § 1158(a)(2)(D), but the IJ
disagreed. Turning to Khan’s withholding-of-removal
claim, the IJ questioned the credibility of certain aspects
of Khan’s testimony but nonetheless accepted it; the IJ
held that the attacks were not sufficiently severe to be
considered persecution and were not motivated by
Khan’s political beliefs. The IJ also rejected Khan’s claim
of an objectively reasonable fear of future persecution.
Finally, the IJ concluded that Khan had not shown it
was more likely than not that he would be tortured if
he were removed to Pakistan. Accordingly, the IJ entered
an order of removal. The BIA adopted and affirmed the
IJ’s decision, and Khan filed a petition for review.
While Khan’s petition for review was still in the
briefing stage, he asked the BIA to reopen his removal
proceeding based on what he claimed was new evi-
dence—affidavits with additional mental health re-
ports—supporting his allegation that his mental anguish
Nos. 06-3966 & 07-2252 7
should excuse his untimely asylum application. Khan
also argued that the reports addressed the IJ’s skepticism
about the credibility of certain aspects of his testimony.
The BIA denied the motion to reopen, holding that the
“new evidence” was merely repetitious and did not
provide a basis for upsetting the IJ’s determinations. The
BIA noted that the IJ had accepted Khan’s testimony
about the assaults and the medical reports did not under-
mine the IJ’s alternative conclusion that the attacks
were not motivated by political opinion. Khan filed a
petition for review of this decision as well, and we
ordered the petitions consolidated.
II. Discussion
A. Asylum claim
Khan first challenges the immigration agency’s failure
to reach the merits of his asylum claim. The IJ dismissed
Khan’s asylum application because it was not filed
within a year after Khan arrived in the United States as
required by 8 U.S.C. § 1158(a)(2)(B). The IJ had the dis-
cretion to ignore this deadline if Khan established that
his delay was due to “extraordinary circumstances,” id.§ 1158(a)(2)(D), but the IJ did not think Khan presented
sufficiently compelling circumstances to excuse his
nearly five-year delay. The BIA affirmed. Khan challenges
the agency’s determination that he lacked “extraordinary
circumstances” for the untimely filing, arguing that the
IJ did not give appropriate weight to the evidence
8 Nos. 06-3966 & 07-2252
showing Khan suffered from a serious mental disability
because of his mistreatment while in Pakistan.
The problem for Khan is that we lack jurisdiction to
review the IJ’s timeliness determination. Under 8 U.S.C.
§ 1158(a)(3), we have no jurisdiction to review any deci-
sion the agency makes under § 1158(a)(2), including
decisions relating to whether the applicant has demon-
strated “extraordinary circumstances” excusing a delay
in filing an asylum application. The REAL ID Act of 2005
preserved our jurisdiction to review “constitutional
claims” or “questions of law.” See 8 U.S.C. § 1252(a)(2)(D).
But as we explained in Vasile v. Gonzales, 417 F.3d 766,
factual determinations (such as whether the asylum
application was filed within the one-year deadline) and
discretionary decisions (such as whether the alien has
demonstrated “extraordinary circumstances” justifying
the delay) do not fall within the exception to the juris-
dictional bar for constitutional claims or questions of
law under § 1252(a)(2)(D). See id. at 768-79.
Khan urges us to reconsider our holding in Vasile. He
argues that Vasile, which discussed the question-of-law
exception created by the REAL ID Act, gave insufficient
attention to the legislative history of the Act. A closer
look at that legislative history, Khan claims, demonstrates
that Congress intended the term “questions of law” to
encompass not only questions of statutory interpretation
but also questions concerning the application of law to a
set of facts—or mixed questions of law and fact.
We decline Khan’s invitation to revisit Vasile. Section
1158(a)(2)(D) provides: “An application for asylum of an
Nos. 06-3966 & 07-2252 9
alien may be considered . . . if the alien demonstrates to
the satisfaction of the Attorney General either the existence
of changed circumstances which materially affect the
applicant’s eligibility for asylum or extraordinary cir-
cumstances relating to the delay in filing an application
within [the one-year period].” (Emphasis added.) The
terms “may” and “to the satisfaction of” strongly indicate
that decisions under § 1158(a)(2)(D) are, as we said in
Vasile, “inherently discretionary” and not reviewable. 417
F.3d at 768. Every circuit to consider this issue save one
has agreed with our interpretation.2
2
See, e.g., Zhu v. Gonzales, 493 F.3d 588, 596 n.31 (5th Cir. 2007)
(noting that federal appellate courts lack jurisdiction “to
review timeliness determinations that are based on an assess-
ment of the facts and circumstances of a particular case”); Xiao
Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006)
(“This petitioner’s challenge is merely an objection to the IJ’s
factual findings and the balancing of factors in which discre-
tion was exercised.”); Ferry v. Gonzales, 457 F.3d 1117, 1130
(10th Cir. 2006) (holding that a petitioner’s argument that a
pending adjustment-of-status application excused his
untimely asylum application “is a challenge to an exercise of
discretion that remains outside our scope of review”);
Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (amend-
ing Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), a case
cited in Vasile, to clarify that courts lack jurisdiction to review
“asylum applications denied for untimeliness only when the
appeal seeks review of discretionary or factual questions” and
declining to exercise jurisdiction over a claim that the IJ incor-
rectly applied the “changed circumstances” provision);
(continued...)
10 Nos. 06-3966 & 07-2252
Far from supporting Khan’s interpretation, the
legislative history accompanying the REAL ID Act con-
firms our reading of the statute. See H. R EP. 109-72, at 174-
76 (2005). The House Conference Report discussing the
REAL ID Act describes what the term “questions of law”
meant in the statutory provision that would become
§ 1252(a)(2)(D). The report indicates that although Con-
gress had considered adding the word “pure” before
“questions of law,” the modifier was left out because it
was understood that “a ‘question of law’ is a question
regarding the construction of a statute” and therefore
“[t]he word ‘pure’ adds no meaning.” H. R EP. 109-72, at
(...continued)
Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (finding
that a claim that the petitioners showed changed circumstances
or extraordinary circumstances was discretionary); Ignatova
v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (finding that the
presence of changed circumstances “is a discretionary judg-
ment of the Attorney General”); Chacon-Botero v. U.S. Att’y
Gen., 427 F.3d 954, 957 (11th Cir. 2005) (“The timeliness of an
asylum application is not a constitutional claim or question of
law covered by the Real ID Act’s changes.”).
As far as we can tell, only the Ninth Circuit has concluded
that the inquiry contemplated by § 1158(a)(2)(D) is not a
discretionary one. See Ramadan v. Gonzales, 479 F.3d 646, 656 (9th
Cir. 2007). However, we are not persuaded by its reasoning.
As we just noted, seven other circuits agree with our inter-
pretation, and the Ninth Circuit’s refusal to rehear Ramadan
en banc prompted a strongly worded dissent from nine judges,
see Ramadan v. Keisler, 504 F.3d 973 (9th Cir. 2007) (O’Scannlain,
J., dissenting from denial of rehearing en banc).
Nos. 06-3966 & 07-2252 11
175. The report also explains that this provision was
designed “to permit judicial review over those issues
that were historically reviewable on habeas—constitutional
and statutory-construction questions, not discretionary
or factual questions.” Id.Khan suggests nonetheless that Congress was trying to
incorporate more than constitutional and statutory-inter-
pretation questions into the phrase “questions of law.”
Accepting that Congress wanted to maintain judicial
review of claims “historically reviewable on habeas,” Khan
seizes upon language from INS v. St. Cyr, 533 U.S. 289(2001), stating that habeas relief was traditionally
available for “detentions based on errors of law, including
the erroneous application or interpretation of statutes.” Id.
at 302 (emphasis added). The legislative history does
suggest that Congress drew on St. Cyr when adopting
the provision that would become § 1252(a)(2)(D), but not
for the point Khan makes. The conference report
indicates Congress sought to address the Supreme Court’s
concern in St. Cyr that the elimination of judicial review
over legal issues would raise serious constitutional prob-
lems; there is nothing to suggest, however, that the
phrase “questions of law” as that term is used in
§ 1252(a)(2)(D) includes mixed questions of law and fact.
To the contrary, the conference report mentions so-called
mixed questions of law and fact as follows: “When a
court is presented with a mixed question of law and fact,
the court should analyze it to the extent there are legal
elements, but should not review any factual elements.”
H. R EP. 109-72, at 175.
12 Nos. 06-3966 & 07-2252
We acknowledge that the line between legal ques-
tions—which we can review—and discretionary or
factual determinations—which we cannot—is occasionally
difficult to draw. In many cases, such as this one, we
can determine our lack of jurisdiction fairly readily
because it is clear we are being asked to review either
factual determinations or the manner in which the
agency weighed the various factors that inform the
exercise of its discretion. See, e.g., Ogayonne v. Mukasey,
530 F.3d 514, 519 (7th Cir. 2008); accord Xiao Ji Chen v. U.S.
Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006). Some
discretionary determinations do present underlying,
reviewable questions of law, such as those in which the
agency is alleged to have applied the wrong legal standard.
See Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007) (recog-
nizing that we retain jurisdiction to determine whether
the IJ erred in requiring “exceptional circumstances”
instead of “extraordinary circumstances”). But the jurisdic-
tional bar cannot be overcome by trying to “shoehorn” a
factual or discretionary determination “into the ‘question
of law’ category” or claiming that a question of law exists
simply because the agency failed to “apply the law,” as
Khan does here.3 Vasile, 417 F.3d at 768; see also Chen, 471
3
Khan identifies what he thinks are purely legal errors stem-
ming from erroneous interpretations of 8 C.F.R. § 1208.4(a)(5).
This regulation addresses situations in which an IJ may
excuse the failure to file a timely asylum application based on
“extraordinary circumstances.” Khan argues that the IJ re-
quired him to provide more evidence excusing his delay than is
(continued...)
Nos. 06-3966 & 07-2252 13
F.3d at 329-30 (“[W]hen analysis of the arguments raised
by the petition for judicial review reveals that they do not
in fact raise any reviewable issues, the petitioner cannot
overcome this deficiency and secure review by using the
rhetoric of a ‘constitutional claim’ or ‘question of law’ to
disguise what is essentially a quarrel about fact-finding
or the exercise of discretion.”).
Because Khan presents a challenge that “is merely an
objection to the IJ’s factual findings and the balancing
of factors in which discretion was exercised,” we lack
jurisdiction to review it.4 Chen, 471 F.3d at 332 (dismissing
3
(...continued)
called for by the regulations. This is an argument about
the sufficiency of the evidence, not the interpretation of the
regulation.
4
Anticipating this result, Khan argues that our holding creates
serious constitutional problems. The REAL ID Act replaced
the system of challenging deportation orders via habeas
approved in INS v. St. Cyr, 533 U.S. 289, with a system that
permits federal appellate courts to review constitutional
claims and questions of law on petitions for review from the
immigration agency. See H. R EP . 109-72, at 175. Drawing again
on language from St. Cyr, Khan argues that the traditional scope
of habeas allowed challenges to “detentions based on errors
of law, including the erroneous application or interpretation of
statutes.” St. Cyr., 533 U.S. at 302 (emphasis added). This
statement was part of a broader commentary by the Court that
the only method through which an alien could challenge a
deportation order until the 1950s was a habeas petition. Khan
(continued...)
14 Nos. 06-3966 & 07-2252
for lack of jurisdiction a similar challenge to an untimeli-
ness determination). Khan’s claim that his mental
anguish constituted an “extraordinary circumstance”
preventing him from filing a timely asylum application
raises no legal issue; it is, instead, a quintessentially
factual and discretionary issue.5 See, e.g., Ogayonne, 530
4
(...continued)
argues that if we lack jurisdiction to review mixed questions
of law and fact, § 1252(a)(2)(D) is not an adequate substitute
for habeas.
We think Khan mischaracterizes this aspect of St. Cyr. The
Court expressed concern that any action by Congress that
would “entirely preclude review of a pure question of law by
any court would give rise to substantial constitutional ques-
tions,” id. at 300; the Court did not suggest that the inability to
review mixed questions of law and fact would raise constitu-
tional concerns. The concern about judicial review of purely
legal questions has been alleviated by § 1252(a)(2)(D), which
authorizes review of constitutional claims and questions of law.
5
Khan thinks this case falls into an exception recognized by
some of our sister circuits to permit review of the agency’s
application of law to facts if the facts are undisputed. See Liu
v. INS, 508 F.3d 716, 722 (2d Cir. 2007) (recognizing the possibil-
ity of exercising jurisdiction over discretionary decisions based
on “unambiguous mischaracterizations” of the record, such as
when an IJ states that his decision is based on a lack of testi-
mony on a topic yet the record unambiguously reveals the
existence of such testimony); cf. Ramadan v. Gonzales, 479 F.3d
646, 657 (9th Cir. 2007) (noting that the factual basis of the
petition was undisputed and proceeding to determine whether
(continued...)
Nos. 06-3966 & 07-2252 15
F.3d at 519; Zeqiri v. Mukasey, 529 F.3d 364, 369 (7th Cir.
2008); Pavlyk v. Gonzales, 469 F.3d 1082, 1086-87 (7th Cir.
2006); Sokolov v. Gonzales, 442 F.3d 566, 568-69 (7th Cir.
2006); Vasile, 417 F.3d at 768-69.
B. Withholding-of-removal and CAT claims
There is no jurisdictional bar preventing us from re-
viewing the IJ’s decision to reject Khan’s withholding-of-
removal and CAT claims. Where the BIA affirms and
adopts the decision of the IJ, as it did in this case, we
review the IJ’s decision as supplemented by the BIA.
BinRashed v. Gonzales, 502 F.3d 666, 670 (7th Cir. 2007). Our
examination of the agency’s decision is limited to deter-
mining whether its conclusion is supported by substan-
tial evidence. Sankoh v. Mukasey, 539 F.3d 456, 468 (7th
Cir. 2008). Under this extremely deferential standard, we
will uphold the agency’s decision if it is “supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.” BinRashed, 502 F.3d at 670
5
(...continued)
the facts constitute “changed circumstances”). We take no
position on this exception; this is not a case of undisputed
facts. Khan offered multiple factual bases for excusing his
late application ranging from his purported ignorance of the
statutory deadline to the difficulties posed by his mental
problems. The IJ had to evaluate the evidence and testimony
and make factual findings (such as determining whether Khan
was in fact ignorant of the deadline and determining the
severity of Khan’s mental problems).
16 Nos. 06-3966 & 07-2252
(internal quotation marks omitted). Reversal is warranted
only if “the evidence compels a different result,” and we
will not overturn the agency’s findings just because we
might have reached a different conclusion. Balogun v.
Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).
An alien is entitled to withholding of removal under the
INA if he can show a “clear probability” that his “life or
freedom would be threatened . . . 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);
Aung v. Gonzales, 495 F.3d 742, 746 (7th Cir. 2007). Simi-
larly, an alien is entitled to protection against removal
under the CAT if he can show it is “more likely than not”
that he will be tortured if removed. Aung, 495 F.3d at 747.
Although these standards are the same, both impose a
more stringent test than the “well-founded fear” standard
employed in asylum cases. See Firmansjah v. Gonzales,
424 F.3d 598, 605 (7th Cir. 2005).
There are two ways that an alien can show he is
entitled to withholding of removal. First, he can show
that he was subject to past persecution, which triggers
a rebuttable presumption of future persecution. See 8
C.F.R. § 1208.16(b)(1); Irasoc v. Mukasey, 522 F.3d 727, 729-
30 (7th Cir. 2008). Second, in the absence of any evidence
of past persecution, an alien can show that it is more
likely than not that he will suffer future persecution if
removed. See 8 C.F.R. § 1208.16(b)(2); BinRashed, 502 F.3d
at 671. We have said that persecution entails “punish-
ment or the infliction of harm for political, religious, or
other reasons that this country does not recognize as
Nos. 06-3966 & 07-2252 17
legitimate.” De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir.
1993). And while persecution can be established from a
single particularly vicious incident, see Dandan v. Ashcroft,
339 F.3d 567, 573 (7th Cir. 2003), not every example of
mistreatment rises to the level of persecution, see Nakibuka
v. Gonzales, 421 F.3d 473, 476 (7th Cir. 2005) (“An asylum
applicant need not show that her life or freedom were
threatened, but the harm she suffered must rise above
the level of ‘mere harassment’ and must result from
more than unpleasant or even dangerous conditions in
her home country.”).
The IJ rejected Khan’s past-persecution arguments,
concluding that the attacks Khan suffered at the hands
of the MQM did not amount to persecution and that
Khan failed to establish that his attackers were
motivated by his political beliefs. Whether substantial
evidence supports the first conclusion is a close question,
but we need not address it; the record does not compel a
contrary result as to the second conclusion, and the
agency’s rejection of Khan’s claim of past persecution can
be sustained on this basis alone. To be considered persecu-
tion, an alien’s mistreatment must be “because of the
alien’s . . . political opinion.” 8 U.S.C. § 1231(b)(3)(A). Khan
testified that he quit the MQM and stopped contributing
money to the organization because he disagreed with
its violent tactics. He argues that the chain of events
culminating in his kidnapping compels the conclusion
that he was targeted because of his political beliefs.
Substantial evidence supports the IJ’s opposite conclu-
sion, however. Khan testified that the MQM extorted
18 Nos. 06-3966 & 07-2252
money and property from Pakistanis indiscriminately,
which undermines his argument that he was targeted
for his opposition to MQM’s violent actions. The record
suggests that the MQM was motivated more by
financial gain rather than political philosophy. The
MQM demanded payment from every person in Khan’s
neighborhood, including those who had never joined the
organization, and MQM members began assaulting Khan
only after he stopped his payments and approached the
police—not when he left the organization.6 Furthermore,
the apparent goal of Khan’s kidnapping was to deter
him from contacting the police regarding the carjacking.
The evidence indicates that the MQM wanted to avoid
criminal prosecution of its members for their carjacking
and kidnapping activities—a conclusion confirmed by
Khan’s testimony that police had launched an effort to
crack down on the organization’s violent actions—rather
than to punish Khan for his political opinion. See, e.g., Doe
v. Gonzales, 484 F.3d 445, 447-48 (7th Cir. 2007) (homicides
motivated solely by a desire to eliminate witnesses to
a crime were not on account of protected ground).
Despite his failure to establish past persecution, Khan
can still demonstrate he is entitled to withholding of
removal if he shows that it is more likely than not that he
6
In an unpublished order, we previously refused to find
political persecution when the MQM extorted money from all
neighboring businesses. See Rehman v. Keisler, 252 F. App’x 752,
754 (7th Cir. 2007) (“[A]n alien’s refusal to cooperate with a
political party does not, without more, compel a conclusion
of political persecution.”).
Nos. 06-3966 & 07-2252 19
would suffer persecution upon his return to Pakistan.
However, the IJ rejected Khan’s arguments, and the
record does not compel a contrary conclusion. Khan claims
he fears returning to Pakistan because the MQM has a
policy of attacking those who inform police about its
activities. Yet Khan has not lived in Pakistan since 1998,
and it is hard to see how the MQM could think he has
any information of value to provide the police at this
point. We doubt that police are still investigating a
carjacking that is more than a decade old—or more impor-
tantly, that the MQM still remembers Khan’s decision to
report it. We also note that despite the numerous threats
Khan claims the MQM has made against him, MQM
members have never harmed any of Khan’s extended
family still remaining in Pakistan. In any event, because
Khan fears MQM retaliation based on his decision to
report a carjacking and not because of his political opinion,
his fear of persecution is not based on a protected ground
entitling Khan to withholding from removal.
Finally, Khan challenges the IJ’s conclusion that he is
not entitled to protection against removal under the
CAT. “Torture,” as the term is used by the CAT, includes
“any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . .
by or at the instigation of or with the consent or acquies-
cence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1). Although
Khan’s arguments focus on showing that he will likely
suffer “persecution” and ignore whether he is likely to
suffer “torture,” a petitioner’s failure to show a clear
probability of future persecution also means he cannot
20 Nos. 06-3966 & 07-2252
show a likelihood that he will be tortured. See, e.g., Mitev
v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995) (citing torture as
an example of persecution).
C. Motion to reopen
Khan’s final argument is that the BIA erroneously
denied his motion to reopen his removal proceeding. The
BIA has discretion to reopen a removal proceeding
when an alien presents new evidence that “is material
and was not available and could not have been dis-
covered or presented at the former hearing.” 8 C.F.R.
§ 1003.2(a), (c)(1). In his motion to reopen, Khan provided
affidavits from two individuals who treated him at a
clinic devoted to helping people in Khan’s position—
although Khan did not seek this treatment until 2006, well
after his removal hearing concluded. These affidavits
describe the physical evidence of and symptoms
associated with Khan’s kidnapping and diagnose his
mental illnesses. This, in Khan’s view, constituted new
evidence on the issue of whether his mental illness pre-
vented him from filing a timely asylum application and
whether the MQM persecuted him. The BIA disagreed.
We pause to note that we have limited jurisdiction to
review this claim. See Pilch v. Ashcroft, 353 F.3d 585, 586-87
(7th Cir. 2003) (holding that no jurisdiction exists to
consider a denial of a motion to reopen based on dis-
cretionary determinations); accord Durant v. INS, 393
F.3d 113, 115 (2d Cir. 2004) (orders of removal and denials
of motions to reopen “are sufficiently connected” that
permitting review of the latter when the INA bars review
Nos. 06-3966 & 07-2252 21
of the former “would provide an improper backdoor
method of challenging a removal order”); Rodriguez v.
Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001) (“It is axiomatic
that if we are divested of jurisdiction to review an
original determination by the Board . . . , we must also be
divested of jurisdiction to review the Board’s denial of a
motion to reopen on the [same grounds].”). In this con-
text, our review is limited to determining whether the BIA
offered a sufficient reason for declining to reopen
Khan’s case. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir.
2007).
The BIA may decline to reopen a removal proceeding
if it concludes the petitioner failed to provide
previously unavailable, material evidence, and we
review the BIA’s refusal to reopen on these grounds for
an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323
(1992); Kebe, 473 F.3d at 857. We will uphold the BIA’s
decision “ ‘unless it was made without rational explana-
tion, inexplicably departed from established policies, or
rested on an impermissible basis such as invidious dis-
crimination.’ ” Pavlyk, 469 F.3d at 1091 (quoting Boykov v.
Ashcroft, 383 F.3d 526, 530 (7th Cir. 2004)). The Supreme
Court has said that motions to reopen are disfavored, and
thus Khan faces a heavy uphill battle to convince us
that the BIA erred. Doherty, 502 U.S. at 323.
We are convinced the BIA did not abuse its discretion.
First, Khan did not go to the treatment center until after
his original removal hearing, strongly suggesting that he
did not pursue his claims with the requisite diligence. See
8 C.F.R. § 1003.2(c)(1) (stating that new information
22 Nos. 06-3966 & 07-2252
should be incapable of having been “discovered or pre-
sented at the former hearing”). Second, the “new evidence”
was not material. Although the IJ concluded the attacks
Khan suffered were not sufficiently severe to constitute
persecution, he also concluded that Khan had not estab-
lished that the attacks were politically motivated or that
Khan was likely to suffer politically motivated persecution
if returned to Pakistan. The affidavits submitted with
the motion to reopen do not address these latter con-
clusions and therefore do not undermine the IJ’s
ultimate decision to deny relief. Similarly, the IJ’s con-
clusion that Khan’s asylum application was untimely
was based on his determination that Khan had not estab-
lished that his emotional and psychological problems
justified the four-year delay in filing the application. The
affidavits discussing Khan’s mental state do not address
whether it would have been unreasonable to expect him
to file a timely asylum application in light of that
mental state. Finally, the “new evidence” was not new.
The affidavits reported that Khan suffered from
symptoms associated with depression, anxiety, and
frustration, but also noted that he was able to obtain and
maintain employment, care for his children, and focus
on his future; the IJ considered similar information
at Khan’s removal hearing.
For the foregoing reasons, the petitions for review are
D ISMISSED in part for lack of jurisdiction and D ENIED
in part.
1-29-08