Asif Muhammed v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION OCT 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASIF MUHAMMED and FARHANA No. 09-72138
ASIF,
Agency Nos. A079-628-793
Petitioners, A079-628-794
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 11, 2013**
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Muhammed Asif and Farhana Asif,1 natives and citizens of Pakistan, petition
for review of the decision of the Board of Immigration Appeals (BIA) affirming
the immigration judge’s (IJ) (1) denial of Muhammed’s application for asylum as
time-barred and (2) denial of Muhammed’s applications for withholding of
removal and protection under the Convention Against Torture (CAT), because he
was not credible. We have jurisdiction under 8 U.S.C. § 1252. We deny the
petition for review.
1. We lack jurisdiction to review the IJ’s and the BIA’s determination that
Muhammed’s asylum application was time-barred. See 8 C.F.R. § 208.4(a)(4), (5);
see also Ramadan v. Gonzales, 479 F.3d 646, 657-58 (9th Cir. 2007) (per curiam).
However, we have jurisdiction to determine whether Muhammed has demonstrated
an exception to the time bar, because there are no relevant facts in dispute. See id.
at 650. Muhammed argues that exceptions, changed circumstances and/or
extraordinary circumstances, should excuse his untimely filing. We disagree.
First, Muhammed did not establish extraordinary circumstances, because he
did not reasonably pursue asylum after he lost his legal status. Extraordinary
circumstances do not include pursuing other avenues to maintain legal status.
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Farhana Asif, Muhammed’s wife, is a derivative on his application for
asylum, and did not independently file her own applications.
2
Second, Muhammed failed to establish changed circumstances that materially
affect his claim for asylum. Muhammed points to an increase of anti-American
sentiment. However, substantial evidence supports the IJ’s conclusion that this
change did not constitute a material change because Muhammed had experienced
difficulties prior to coming to the United States based on his employment with
American and British companies (for which he no longer works).
2. Substantial evidence supports the BIA’s determination that Muhammed
failed to establish eligibility for withholding of removal, because Muhammed
failed to present credible testimony to support his claim. The IJ appropriately used
the country reports to discredit Muhammed’s general assertion that the Muhajir
Qaumi Movement - Haqiqi (MQM-H) never engaged in violence. See Jibril v.
Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005); Zheng v. Ashcroft, 397 F.3d 1139,
1143 (9th Cir. 2005). The record shows that Muhammed was active in the
MQM-H as a unit leader and stayed informed about day-to-day events in Pakistan.
Therefore, substantial evidence supports the IJ’s finding that his testimony that he
was unaware of the violence between the two rival MQM groups was implausible.
Because Muhammed asserts his membership in MQM-H is the basis of his
persecution, the role MQM-H plays in Pakistan goes to the heart of the matter. In
addition to finding that Muhammed’s testimony was inconsistent with country
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reports, the IJ conducted an individualized analysis and concluded that
Muhammed’s testimony was internally inconsistent and implausible. After
confrontation, Muhammed did not provide a reasoned explanation for the
inconsistencies. Therefore, in light of the adverse credibility finding,
Muhammed’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Substantial evidence supports the BIA’s determination that Muhammed
failed to establish eligibility for protection under CAT. Muhammed’s CAT claim
was based on the same evidence as his asylum and withholding of removal claims.
Muhammed further cannot demonstrate eligibility for protection under CAT based
on the State Department reports. See Dhital v. Mukasey, 532 F.3d 1044, 1051-52
(9th Cir. 2008). The record does not compel a different conclusion.
PETITION FOR REVIEW DENIED.
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