Hamidur Miah v. Alberto Gonzales ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2649
No. 06-3712
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Hamidur Miah, also known as *
Syed Mia, *
*
Petitioner, *
* Petitions for Review of Orders
v. * of the Board of Immigration Appeals.
*
Michael B. Mukasey, Attorney *
General of the United States of *
America, *
*
Respondent. *
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Submitted: October 15, 2007
Filed: March 25, 2008
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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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LOKEN, Chief Judge.
Hamidur Miah, a native and citizen of Bangladesh, was admitted to the United
States in 1989 as a non-immigrant student. After attending colleges in Florida and
Minnesota, he started a computer company, which violated his non-immigrant student
status. The Department of Homeland Security (“DHS”) commenced removal
proceedings and later charged Miah with an additional ground for removal, his
conviction of two crimes involving moral turpitude. See 8 U.S.C. § 1227(a)(2). Miah
conceded removability and filed an application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”).
The immigration judge (“IJ”) denied Miah asylum and withholding of removal,
granted CAT relief, and ordered him removed to any country except Bangladesh.
Both parties appealed. The Board of Immigration Appeals (“BIA”) dismissed Miah’s
appeal, sustained the government’s appeal, and entered a final order of removal. Miah
petitioned for judicial review of the BIA’s decision. One month later, he married a
United States citizen and filed a motion to reopen with the BIA based on his wife’s
pending petition for an immediate relative visa on his behalf. The BIA denied the
motion to reopen. Miah petitioned for judicial review of that decision. We
consolidated and now deny the two petitions for review.
I. The Removal Order
A. Asylum and Withholding of Removal. Miah appeals the BIA’s
determination that he is ineligible for asylum or withholding of removal to
Bangladesh. First, Miah claims that he is a victim of past persecution who has a well-
founded fear of future persecution on political grounds if removed to Bangladesh.
Miah contends he was an active member of the Bangladesh National Party (“BNP”)
and, while a student in Dhaka, the capital city, he was kidnaped and beaten by a
student wing of the then-dominant Awami League party during a 1987 rally. Though
he was released that same day, did not sustain injuries, and did not file a police report,
Miah testified that he fears the Awami League may kidnap him again because his
family continues to support the BNP.
Second, Miah claims a well-founded fear of future persecution by Hazi Abdul
Hashem Hashu, a Dhaka ward commissioner who has attempted to seize two small
parcels of land that Miah purchased in 1994. Miah testified that Hashu has removed
name plates identifying Miah’s ownership and chased servants of Miah’s family off
the land with guns, knives, and bombs; that Hashu supporters confronted the family
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chauffeur and his wife, then living on one parcel, shot the chauffeur, and beat his wife;
and that Hashu associates robbed and beat Miah’s brother, mistakenly believing he
was Miah. Miah’s father has attempted to use the Bangladeshi courts to thwart
Hashu’s efforts to seize the property, but without success. The record includes a State
Department letter reporting that the American embassy in Dhaka has identified Hashu
as “the current Ward 43 Commissioner,” a “very influential person involved as the
head of a criminal gang,” and an “active leader” of the now-ruling BNP party. The
BIA rejected these claims on multiple grounds.
1. The BIA agreed with the IJ that Miah is ineligible for asylum because he did
not show “extraordinary circumstances” excusing his failure to apply for asylum
within one year of arriving in the United States. See 8 U.S.C. § 1158(a)(2). Miah
argues the BIA erred because changed conditions in Bangladesh excuse his untimely
application. The government responds that 8 U.S.C. § 1158(a)(3) deprives us of
jurisdiction to review this determination. The government is correct. See, e.g., Bejet-
Viali Al-Jojo v. Gonzales, 424 F.3d 823, 826-27 (8th Cir. 2005). This contention is
without merit. The denial of asylum must be upheld.
2. To be eligible for withholding of removal to a particular country, an alien
must show a “clear probability” that he would suffer persecution on account of a
protected ground such as political opinion or membership in a social group. See 8
U.S.C. §§ 1101(a)(42)(A), 1231(b)(3)(A); Alemu v. Gonzales, 403 F.3d 572, 576 (8th
Cir. 2005). Agreeing with the IJ, the BIA ruled that Miah is not eligible for
withholding of removal to Bangladesh because: (I) his testimony of past political
persecution by the Awami League in 1987 was not credible and, even if true, did not
rise to the level of persecution, and (ii) he does not have a well-founded fear of future
persecution by Hashu on account of a protected ground because the record does not
establish that wealthy landowners comprise a particular social group in Bangladesh
or that Hashu’s harassment of Miah’s family was anything more than “violent conduct
by a single ruthless criminal . . . driven by the desire to accumulate land.” Miah
challenges both rulings. We review the agency’s fact finding under the deferential
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substantial evidence standard. Menendez-Donis v. Ashcroft, 360 F.3d 915, 918-19
(8th Cir. 2004). To overcome the BIA’s adverse determination, Miah must show “that
the evidence he presented was so compelling that no reasonable factfinder could fail
to find the requisite fear of persecution.” INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992).
Miah argues that his kidnaping and abuse by supporters of the Awami League
established his claim of past persecution. We disagree. First, the agency’s adverse
credibility finding must be upheld because it is “supported by a specific, cogent reason
for disbelief” -- discrepancies in testimony by Miah and a supporting witness
regarding the alleged political kidnaping. Fofanah v. Gonzales, 447 F.3d 1037, 1040
(8th Cir. 2006) (quotations omitted). Second, substantial evidence supports the BIA’s
finding that, even if true, this isolated incident does not compel a finding of past
persecution. See Ngure v. Ashcroft, 367 F.3d 975, 990 (8th Cir. 2004); Tawm v.
Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004). Having failed to prove past persecution,
Miah is not entitled to a presumption that his life or freedom will be threatened in the
future if he is removed to Bangladesh. See 8 C.F.R. § 1208.16(b)(1)(I).
Miah argues that the BIA erred in concluding that the harm he fears from Hashu
if removed to Bangladesh is not persecution on account of a protected ground because,
as a landowner, he is a member of a particular social group. He relies on Tapiero de
Orejuela v. Gonzales, 423 F.3d 666, 668-73 (7th Cir. 2005), where the court held that
wealthy educated cattle farmers in Columbia were members of a particular social
group for asylum purposes because they were targeted for persecution on that ground
by entrenched communist guerillas. The record in this case falls far short of
demonstrating that property owners in Bangladesh are subject to comparable,
systematic persecution. The evidence shows, at most, that Miah’s family has been
harassed by a greedy and powerful criminal, Hashu. This is not a compelling showing
of persecution on account of a protected ground. See Vonhm v. Gonzales, 454 F.3d
825, 828 (8th Cir. 2006). Thus, Miah failed to prove a “clear probability” that he
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would suffer persecution on account of his political opinions or membership in a
social group if removed to Bangladesh.
B. CAT Relief. Miah argues the BIA erred when it reversed the IJ’s
determination that he warrants withholding of removal relief under the CAT based
upon the likelihood he would be tortured by Hashu if removed to Bangladesh. An
alien is eligible for CAT relief if he establishes “that it is more likely than not that he
or she would be tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). The likely torture need not be linked to a statutorily protected
ground, but it must be “inflicted by or at the instigation of or with the consent or
acquiescence of a public official.” 8 C.F.R. § 1208.18(a)(1); see Castellano-Chacon
v. INS, 341 F.3d 533, 551-52 (6th Cir. 2003). We must affirm the BIA’s decision
unless “the evidence was so compelling that a reasonable factfinder must have found
the alien entitled to relief under the Convention.” Ngure, 367 F.3d at 992.
The BIA concluded that Miah does not qualify for CAT relief on multiple
grounds, but we need consider only one -- the absence of evidence that Hashu’s
alleged violent criminal conduct is done at the instigation of or with the consent or
acquiescence of a public official. “A government does not acquiesce in the torture of
its citizens merely because it is aware of torture but powerless to stop it, but it does
cross the line into acquiescence when it shows willful blindness toward the torture of
citizens by third parties.” Mouawad v. Gonzales, 485 F.3d 405, 413 (8th Cir. 2007)
(quotations omitted). Here, the BIA found insufficient evidence of government
acquiescence in Hashu’s criminal activities:
[A]lthough Hashu is an elected official, his rogue efforts to take control
of other people’s property fall outside of his official duties. Moreover,
even if we considered Hashu to be acting in an official capacity, the
government’s efforts to investigate and prosecute him for his illegal
activities militate against a finding that it would consent or acquiesce to
Hashu’s efforts to torture [Miah] in the future. See Matter of S-F, 22
I&N Dec. 1306, 1312-13 (BIA 2000); 8 C.F.R. § 1208.18(a)(7)
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(providing that acquiescence requires that a public official, prior to the
activity constituting torture, has awareness of such activity and thereafter
breaches the legal responsibility to intervene).
After careful review, we conclude that substantial evidence supports this decision.
There is evidence that Bangladeshi officials have been unable to control the activities
of Hashu’s criminal gang, “but this is insufficient to compel a finding of willful
blindness toward the torture of citizens by third parties.” Menjivar v. Gonzales, 416
F.3d 918, 923 (8th Cir. 2005). The Department of State letter reporting that Hashu is
a leader of the ruling BNP party does not compel a finding that the Bangladeshi
government either instigates or acquiesces in Hashu’s private criminal activities.
For these reasons, we deny the petition to review the final order of removal.
II. The Motion to Reopen
In his second petition for review, Miah contends that the BIA erred when it
refused to reopen his removal proceeding so that he may apply for adjustment of
status.1 When a resident alien marries a U.S. citizen, the citizen spouse may file a
Form I-130 petition for an “immediate relative” visa that makes the alien eligible to
apply for adjustment of status to that of lawful permanent resident. See 8 U.S.C.
§§ 1151(b)(2)(A)(I), 1154(a)(1)(A), 1255(a). However, to deter fraudulent marriages,
1
The government argues that the REAL ID Act, 8 U.S.C. § 1252(a)(2)(B),
deprived us of jurisdiction to review this claim because “decisions on motions to
reopen are discretionary.” We disagree. The statute applies to decisions “the
authority for which is specified under this subchapter to be in the discretion of the
Attorney General.” (emphasis added). The discretion to grant or deny motions to
reopen or reconsider is conferred by the Attorney General’s regulations, not by statute.
See 8 C.F.R. § 1003.2. Thus, we have continued our long-standing practice of
reviewing the denial of motions to reopen for abuse of the BIA’s discretion. See, e.g.,
Zine v. Mukasey, --- F.3d ---, No. 06-3002, 06-4127, slip op. at 9 (8th Cir. Feb. 19,
2008); Solano-Chicas v. Gonzales, 440 F.3d 1050, 1055-56 (8th Cir. 2006).
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Congress has barred aliens who marry during removal proceedings from obtaining this
adjustment of status unless they can establish “by clear and convincing evidence to
the satisfaction of the Attorney General that the marriage was entered into in good
faith and . . . was not entered into for the purpose of procuring the alien’s admission
as an immigrant.” 8 U.S.C. § 1255(e)(3).
Petitions for immediate relative visas are decided by INS (now DHS) local
officers. 8 C.F.R. § 204.1. When an alien’s spouse obtains an immediate relative visa
during the alien’s removal proceeding, the visa constitutes primary evidence that the
marriage is bona-fide for purposes of applying the § 1255(e)(3) exception. Patel v.
Ashcroft, 375 F.3d 693, 696-97 (8th Cir. 2004). However, in Matter of Arthur, 20 I
& N Dec. 475, 479 (BIA 1992), the BIA held that a motion to reopen a removal
proceeding for the purpose of obtaining a § 1255(e)(3) adjustment of status will not
be granted unless there is prior INS (DHS) approval of the visa petition. Because
motions to reopen must be filed within ninety days, and because delays often attend
the visa petition approval process, the BIA concluded in In re Velarde-Pacheco, 23 I
& N Dec. 253, 255 (BIA 2002), that its ruling in Arthur was “depriv[ing] a small class
of respondents, who are otherwise prima facie eligible for adjustment, of the
opportunity to have their adjustment applications reviewed by an Immigration Judge.”
Accordingly, the BIA held that a properly filed motion to reopen may be granted prior
to visa petition approval if the motion is timely, not numerically barred, not barred on
other procedural grounds, presents clear and convincing evidence of a strong
likelihood the marriage is bona fide, and DHS “either does not oppose the motion or
bases its opposition solely on Matter of Arthur.” Id. at 256. Miah argues that the BIA
abused its discretion in refusing to grant his motion to reopen under Velarde.
We reject this contention for two reasons. First, this case is readily
distinguishable from Velarde, where the unadjudicated visa petition was filed while
the alien’s appeal of the removal order was pending before the BIA. Thus, the alien
in Velarde was a member of the “small class of [deprived] respondents.” Id. at 255.
Here, on the other hand, Miah did not marry until after the BIA entered its final order
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of removal. Though Miah petitioned for judicial review before the marriage and thus
his removal proceeding was still pending for purposes of 8 U.S.C. § 1255(e), he was
not deprived of any opportunity by DHS delay in processing his wife’s visa petition
because the removal proceeding concluded before the Form I-130 petition was filed.
Velarde carved a narrow exception to the agency’s general rule in Arthur. The BIA
did not abuse its discretion in declining to extend the Velarde exception beyond its
intended purpose.
Second, DHS opposed Miah’s motion to reopen on multiple grounds --
insufficient evidence of the bona fides of Miah’s recent marriage, the timing of that
marriage, his not-credible testimony before the IJ, and his criminal history. Applying
the discretionary factors enumerated in Velarde, the BIA did not abuse its discretion
by denying the motion to reopen based upon what it called the “persuasive points”
raised by DHS in its brief. See Bhiski v. Ashcroft, 373 F.3d 363, 370-72 (3d Cir.
2004). “Motions for reopening of immigration proceedings are disfavored [because]
every delay works to the advantage of the [removable] alien who wishes to remain in
the United States.” INS v. Doherty, 502 U.S. 314, 322-23 (1992).
We deny the petitions for review.
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