Habib v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS October 17, 2005
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 05-60306
Summary Calendar
_____________________
SALIM HABIB
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
(A78 881 588)
_________________________________________________________________
Before KING, Chief Judge, and WIENER and DEMOSS, Circuit Judges.
PER CURIAM:*
Salim Habib seeks review by this court of a final order of
removal entered by the Board of Immigration Appeals. We affirm
the order in its entirety.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
I
Petitioner Habib is a native and citizen of Pakistan, but he
has not lived in Pakistan for almost thirty years. Habib lived
in Dubai for twenty-four years before entering the United States
as a non-immigrant visitor for pleasure on August 19, 1999, with
authorization to remain until August 17, 2000. On February 20,
2003, the Immigration and Naturalization Service served Habib
with a notice to appear before an immigration judge, alleging
that he was a deportable foreign national who had remained in the
country without authorization.
On May 8, 2003, Habib appeared with counsel before an
immigration judge for the first of several substantive
deportation and asylum hearings. On October 31, 2003, the
immigration judge rendered his final decision on the merits of
Habib’s application for asylum and withholding of deportation.
In this decision, the immigration judge denied Habib’s
applications for asylum and withholding of removal but granted
him the privilege of voluntary departure. Habib appealed this
decision to the Board of Immigration Appeals (“BIA” or “Board”),
which dismissed his appeal and issued a final order of removal on
March 15, 2005. On April 13, 2005, Habib filed a petition for
review with this court.
In his petition for review, Habib argues that the Board’s
decision erred in at least five ways: first, by ignoring the
immigration judge’s violation of his due process rights; second,
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by approving the immigration judge’s denial of his change of
venue petition; third, by affirming the immigration judge’s
denial of his petition for asylum; fourth, by ignoring new
evidence; and fifth, by violating his equal protection rights and
failing to extend him the same treatment afforded other types of
asylum and immigration petitioners. Finding no merit in his
petition, we affirm the Board’s final order of removal in its
entirety.
II
We review the decision of the BIA, not the decision by the
immigration judge. See Ogbemudia v. I.N.S., 988 F.2d 595, 598
(5th Cir. 1993); Castillo-Rodriguez v. I.N.S., 929 F.2d 181, 183
(5th Cir. 1991). We consider alleged errors of the immigration
judge only to the extent they affected the judgment of the BIA,
which itself conducts a de novo review of the entire
administrative record. Ogbemudia, 988 F.2d at 598. We do not
find that any of the alleged errors of the immigration judge
affected or prejudiced the decision of the BIA.1 Accordingly, we
will review only the decision of the BIA.
This court will uphold the BIA’s factual finding that an
alien is not eligible for asylum if the finding is supported by
1
In declining to detail the alleged errors of the
immigration judge, we do not intend to imply by omission that
these allegations have any weight or accuracy.
3
substantial evidence. See Gomez-Mejia v. I.N.S., 56 F.3d 700,
702 (5th Cir. 1995). The substantial-evidence standard requires
only that the conclusion be substantially reasonable based on the
evidence presented to the BIA. Carbajal-Gonzalez v. I.N.S., 78
F.3d 194, 197 (5th Cir. 1996).
Petitioner Habib bears the burden of showing “that the
evidence he presented [to the Board] was so compelling that no
reasonable fact finder could fail to find the requisite fear of
persecution.” Jukic v. I.N.S., 40 F.3d 747, 749 (5th Cir. 1994)
(quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)).
We must uphold the BIA’s asylum determination unless Habib shows
that the decision to deny asylum was arbitrary, capricious, or an
abuse of discretion. See Jukic, 40 F.3d at 749. And this he has
utterly failed to do.
Habib has not provided any specific evidence of persecution-
-past, present, or prospective--to the immigration judge, to the
Board, or to this court. Moreover, although he has not resided
in Pakistan for almost three decades, Habib and his family return
to Pakistan once or twice a year, for stays which approximate a
summer vacation. In short, Habib’s claims of persecution are
wholly unpersuasive, and his petition fails to show that the
BIA’s asylum determination was anything but fair and reasonable.
Under the Fifth Amendment, aliens are entitled to due
process of law in deportation proceedings. Reno v. Flores, 507
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U.S. 292, 306-07 (1993). In his petition before this court,
Habib contends that he did not receive due process, largely based
on a deprivation of the right to counsel as well as the denial of
his request for a change of venue. A hearing will be deemed
unfair only if the challenged practices “might have led to a
denial of justice, or there must have been absent an element
deemed essential to due process.” Hernandez-Garza v. I.N.S., 882
F.2d 945, 957 (5th Cir. 1989) (quoting Kielema v. Crossman, 103
F.2d 292, 293 (5th Cir. 1939)). We find no general violation of
due process in the proceedings below, and we certainly cannot
find any violation that would constitute a denial of justice.
Specifically, Habib alleges that his right to counsel was
abrogated because he was questioned without an attorney present
before he was advised of his right to counsel, and because he was
denied the attorney of his choice. We begin by noting that there
is no absolute Sixth Amendment right to counsel in a deportation
proceeding. See Ogbemudia, 988 F.2d at 598. Nevertheless, it is
possible for “the absence of an attorney [to] create a due
process violation if the defect impinged upon the fundamental
fairness of the hearing in violation of the fifth amendment, and
there was substantial prejudice.” Id. (citing Paul v. United
States I.N.S., 521 F.2d 194, 197 (5th Cir. 1975)); see also
Miranda-Lores v. I.N.S., 17 F.3d 84, 85 & n.1 (5th Cir. 1994).
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If a petitioner cannot show that he was substantially
prejudiced by the absence of effective counsel (e.g., because an
appeal clearly would have been futile even with the presence of
counsel), then he cannot prevail on appeal. See Miranda-Lores,
17 F.3d at 85; see also Patel v. I.N.S., 803 F.2d 804, 806-07
(5th Cir. 1986). Habib’s deprivation of counsel argument amounts
to this: on April 3, 2003, the immigration judge met Habib and
determined his address, his marital status, and the undisputed
fact that Habib had overstayed his visitor visa. The immigration
judge then granted a continuance for Habib to find
representation, and the first substantive hearing began on May 8,
2003, from which point Habib was represented by counsel. This
does not rise to the level of substantial prejudice; indeed, it
arguably does not amount to any prejudice whatsoever. Because
Habib has not shown that he was substantially prejudiced by the
lack of an attorney, he has not demonstrated any denial of due
process.
Although Habib does not live in California, he requested a
change of venue from Dallas to San Francisco. Pressed to explain
why California provided a more convenient forum, he only stated
that he wanted to move there, in part because his cousin’s
brother also lived there. Because Habib never showed good cause
for a change of venue, we hold there was no abuse of discretion
in refusing his request. See Matter of Rahman, 20 I & N Dec.
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480, 483 (BIA 1992) (stating that discretion to change venue in
deportation proceedings is subject to the existence of good
cause).
Finally, Habib offers a confused and tangled argument that
the BIA should have remanded the case to an immigration judge
because he was about to receive a skilled workers visa. Habib
claims that in vaguely similar contexts, petitioners with family-
based rather than skill-based applications have been granted
rehearings, and he argues that his Equal Protection rights were
violated by the Board when it declined to provide him with a
rehearing. This argument is characterized by great energy, but
it is completely lacking in clarity and any semblance of a
coherent legal foundation.
Although misguided and unfounded, the zeal behind this
argument, and the petition as a whole, puts us in mind of the
immigration judge’s finding: “[c]ertainly [Habib] does seem to
desperately wish to migrate to the United States.” (Oral
Decision of the Immigration Judge at 6.) We are not
unsympathetic to this sincere desire. Unfortunately, in his
efforts to settle in this country Habib has broken its laws. We
find nothing in his energetic petition to protect him from the
consequences of these actions.
III
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In conclusion, petitioner Habib has provided no reason to
overturn the order the Board of Immigration Appeals, which is
hereby
AFFIRMED.
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