Ali v. Gonzales

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2490
MANASH ALI,
Petitioner,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch and Howard, Circuit Judges.
Salim Sheikh on brief for petitioner.
William C. Erb, Jr., Trial Attorney United States Department
of Justice, Civil Division, Office of Immigration Litigation, Peter
D. Keisler, Assistant Attorney General, Civil Division and Anthony
W. Norwood, Senior Litigation Counsel, on brief for respondent.
August 25, 2006
Per Curiam. Manash Ali, a native of Pakistan and citizen
of Bangladesh, petitions for review of a final order of the Board
of Immigration Appeals affirming an immigration judge's decision to
deny his applications for asylum, withholding of removal, and
relief under the Convention Against Torture (CAT). We deny the
petition.
Ali testified at his asylum hearing that he was raised in
Bangladesh, where he and his family were active members of the
Jatiya political party. Ali was involved in recruiting new party
members, attended political meetings, and went to demonstrations
with his father, a local party leader. In 1986, Ali's father ran
for a seat in the Bangladeshi Parliament. Though his father was
not elected, his mother served as a "selected woman" member of
Parliament from 1986 to 1990. Also during that time, Ali's uncle
was an information minister for the government.
In 1989, there was significant social unrest in
Bangladesh due to a power struggle among the Jatiya Party (which
was then in power), the Bangladesh National Party (BNP), and the
Awami League. During this period, the Bangladeshi police protected
the Ali family home. In June, while traveling by car with several
other members of the Jatiya Party, Ali passed through a BNP
demonstration. The demonstrators pulled Ali out of the car and
beat him with rocks and sticks. Ali thereafter applied for a
student visa. Over a year later, in September 1990, Ali obtained
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the visa and entered the United States. The visa authorized him to
remain in the country only until June 1995, but he never left.
The BNP came into power in 1990. Late in 1992, police in
Bangladesh issued a warrant for Ali's arrest. Ali believes that
the arrest warrant was motivated by his ties to the Jatiya Party,
as most members of the party, including his younger brother and
uncle, were served with arrest warrants. According to Ali, his
brother and uncle were imprisoned, beaten, and denied food, clean
water, and adequate sleeping conditions. Ali testified that
shortly after his parents were served with his arrest warrant, he
filed an application for political asylum and withholding of
removal with the Immigration and Naturalization Service.1 Even
though his warrant was served over a decade ago, Ali claims
governmental officials continue to look for him.
In July 2002, removal proceedings were commenced against
Ali for overstaying his visa. Conceding removability, Ali renewed
his requests for asylum and withholding of removal, and added a new
request for relief under the CAT.
Following a hearing, the immigration judge denied these
requests in an order that characterized Ali's testimony as "general
and meager and unconvincing," and that found that the alleged
1
In March 2003, the functions of the INS were transferred to
the new Department of Homeland Security. See Homeland Security Act
of 2002, Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified
as amended at 6 U.S.C. § 291(a)).
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beating in 1989 did not rise to the level of persecution. The
judge also rejected Ali's assertion of a well-founded fear of
future persecution, questioning the authenticity of the proffered
arrest warrant as an original or authenticated copy because it
contained the notation "signature illegible" rather than a
signature, illegible or not. The judge also disbelieved Ali's
contention that the warrant caused him to file the asylum
application, in view of the fact that the application was filed
more than eight months prior to the date of the warrant. Moreover,
the judge found no reason to believe that the warrant had been
issued because of Ali's political affiliation. Finally, the judge
found no evidence establishing that any government official of
Bangladesh was seeking to torture Ali. In lieu of removal, the
judge granted Ali voluntary departure. The Board affirmed without
opinion.
Where the Board summarily adopts the immigration judge's
decision, we review the reasoning of the immigration judge. See
Chen v. Gonzales, 418 F.3d 110, 113 (1st Cir. 2005). A denial of
asylum must stand unless "the petitioner's evidence would compel a
reasonable factfinder to conclude that relief was warranted."
Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). Therefore,
we will uphold the immigration judge's determinations so long as
they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." INS v.
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Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks
omitted).
Eligibility for asylum requires proof 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), 1158(b)(1). Applicants can
satisfy that burden either by proving past persecution or a well-
founded fear of persecution that is both subjectively genuine and
objectively reasonable. See Ang v. Gonzales, 430 F.3d 50, 57 (1st
Cir. 2005).
Ali asserts that his testimony should be deemed credible
and that he provided sufficient evidence to demonstrate both past
persecution and a well-founded fear of future persecution. He also
argues that he should have been granted withholding of removal or
relief under CAT.
Ali testified to a single incident of alleged
persecution: his beating in 1989 by a group of BNP demonstrators.
Evidence of a single encounter is ordinarily not sufficient to
establish persecution, particularly where, as here, the applicant
remained in the country for a significant period of time following
the incident. See Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir.
2005) (differentiating "systematic treatment that rose to the level
of past persecution" from "isolated incidents"); Bocova v.
Gonzales, 412 F.3d 257, 263 (1st Cir. 2005) ("[M]istreatment
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ordinarily must entail more than sporadic abuse in order to
constitute persecution."). Just as importantly, Ali provided scant
evidence linking this incident to his political beliefs. Other
than his own conclusory and unexplained testimony that the BNP
demonstrators recognized him, among six occupants of a vehicle, as
a member of the Jatiya Party, Ali did not offer any evidence that
the beating was motivated by his political affiliation. See
Romilus v. Ashcroft, 385 F.3d 1, 7 (1st Cir. 2004) (holding that an
asylum applicant is required to "provide some evidence of" his
persecutor's motivations) (quoting Elias-Zacarias, 502 U.S. at
483). Vague and unsubstantiated testimony does not compel a
conclusion that Ali was persecuted because of his politics. See
Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir. 1999).
Ali also failed to demonstrate a well-founded fear of
persecution based on his political beliefs. Even assuming that the
proffered arrest warrant is authentic, there is no evidence that it
was issued because of Ali's political affiliation or that Ali would
be unfairly prosecuted.2 See Ngure v. Ashcroft, 367 F.3d 975, 991
(8th Cir. 2004) ("Criminal prosecution for violation of a fairly
administered law does not constitute persecution.").
Likewise, the immigration judge was not compelled to find
a well-founded fear on the basis of Ali's testimony regarding the
2
Ali acknowledged that the warrant charges him with violations
of the Bangladesh Penal Code, but he did not provide information
concerning specifically what crimes he allegedly committed.
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arrest and imprisonment of his uncle and brother. Again, there is
no evidence, apart from Ali's conclusory statements, that their
political beliefs triggered their arrests and their alleged
mistreatment.3 Ali admitted that his brother and his uncle were
freed from prison years ago, and that they, along with Ali's
parents, currently reside safely in Bangladesh. Indeed, Ali's
mother and brother work at a school that is registered with the
government of Bangladesh. Finally, the United States Department of
State Country Reports undercut Ali's claims. They indicate that
the international community deemed the 2001 elections in Bangladesh
fair and free, and that Bangladesh is now governed by a four-party
alliance which includes the Jatiya Party.
Because Ali has not satisfied the standard for asylum, he
cannot not meet the more stringent standard for withholding of
removal. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005). Ali's claim for entitlement to relief under the CAT
also fails. To obtain such relief, an applicant must establish, by
specific objective evidence, that it is "more likely than not" that
he will be tortured by or with the consent or acquiescence of a
public official upon his return to the proposed country of removal.
See Romilus, 385 F.3d at 8. The immigration judge properly found
that Ali had offered no evidence establishing that anyone in
3
Given the existence of several internal inconsistencies and
implausibilities in Ali's testimony overall, we cannot fault the
immigration judge for viewing that testimony with skepticism.
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Bangladesh, much less a government official, is seeking to torture
him.4
The petition for review is denied.
4
Ali also argues that he should have been granted asylum as a
matter of discretion. Because Ali failed to present this argument
to the Board, we will not consider it. See Opere v. INS, 267 F.3d
10, 14 (1st Cir. 2001).
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