Shahryar v. Ashcroft

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS May 29, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
02-60526
Summary Calendar
QAZI SHAHRYAR HAFIZ,
Petitioner,
VERSUS
JOHN ASHCROFT, U S ATTORNEY GENERAL,
Respondent.
02-60527
Summary Calendar
GULNAHAR SHAHRYAR,
Petitioner,
VERSUS
JOHN ASHCROFT, U S ATTORNEY GENERAL,
Respondent.
02-60528
Summary Calendar
QAZI MOHAMED SHAHANSHAH SHAHRYAR,
Petitioner,
VERSUS
JOHN ASHCROFT, U S ATTORNEY GENERAL,
Respondent.
02-60529
Summary Calendar
QAZI MOHAMMAD SHAHZADA SHAHRYAR,
Petitioner,
VERSUS
JOHN ASHCROFT, U S ATTORNEY GENERAL,
Respondent.
Appeals from the United States District Court
For the Board of Immigration Appeals
A93-247-601
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
In these four cases we are asked to review whether 1) the
Board of Immigration Appeals erred in finding the Petitioner Hafiz
ineligible for asylum; and 2) whether all the Petitioners’
1
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opinion should not be published and is not precedent except under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.
2
constitutional rights were violated in the timing of the filing of
these proceedings. There being substantial evidence to support the
Board’s findings and no reviewable issue concerning the timing of
these proceedings, we affirm.
I.
Petitioners, natives and citizens of Bangladesh, remained in
the United States beyond the expiration date of their nonimmigrant
visas. In removal proceedings before an Immigration Judge,
Petitioners conceded removability and Petitioner Hafiz sought
political asylum, withholding of removal, or, at the very least,
voluntary departure. The consolidated cases are those of Hafiz’s
wife and two sons.2 The Immigration Judge denied the applications
for asylum and withholding of removal but found Petitioners
eligible for voluntary departure. Petitioners appeal denial of
the request for asylum (not withholding of removal) and the
procedural due process issue (discussed in Part IV).
Petitioner Hafiz’s request for asylum was based on his alleged
fear for his life if he returned to Bangladesh. Although the
Immigration Judge found Hafiz to be credible, he held that the
facts shown did not entitle him to asylum. The Board of
Immigration Appeals affirmed the Immigration Judge’s decision
without opinion, making the Immigration Judge’s determination the
2
If the primary applicant is granted asylum, his wife and
children may also be granted asylum. 8 U.S.C. § 1158(b)(3)(2000).
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final agency decision to be reviewed by this Court. Mikhael v.
INS, 115 F.3d 299, 302 (5th Cir. 1977).
II.
We review factual findings of the Board of Immigration Appeals
to determine whether they are supported by substantial evidence.
INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117
L. Ed. 2d 38 (1992). We review conclusions of law de novo.
Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996). Once
an alien demonstrates eligibility for asylum, the decision to grant
asylum is within the discretion of the Attorney General. 8 U.S.C.
§ 1158(b)(i); Guevara-Flores v. INS, 786 F.2d 1242, 1250 (5th Cir.
1986), cert. denied, 480 U.S. 930, 107 S. Ct. 1565, 94 L. Ed. 2d 757
(1987); Castillo-Rodriguez v. INS, 929 F.2d 181, 184 (5th Cir.
1991).
III.
The Attorney General may confer asylum upon any “refugee,” who
is someone “unwilling to return to . . . [a] country because 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). The
“well-founded fear” standard has both a subjective and an objective
component, i.e., that the applicant actually fears persecution, and
that such fear is objectively reasonable. Lopez-Gomez v. Ashcroft,
263 F.3d 442, 445 (5th Cir. 2001).
The objective element of well-founded fear is satisfied if “a
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reasonable person in [Hafiz’s] circumstances would fear persecution
if she were to be returned to her native country.” Guevara-Flores,
786 F.2d at 1249. Hafiz’s fear is based on his membership in two
groups, the group of “returnees” whom he believes have been or will
be targeted by the Awami League, and the group of former officers
involved in the arrest or prosecution of Awami gang members who
committed crimes. R. 96.
The Immigration Judge found that Petitioner received a threat
in 1980 from members of the Awami League. The Immigration Judge
found that Hafiz did not suffer past persecution, however, noting
that Hafiz had not been arrested, detained, or harmed in any way,
and that from 1982 to 1989, Hafiz was not threatened or harmed
while residing in Bangladesh. R. 91, 95.
Turning to the question of future persecution, the Immigration
Judge found no evidence3 of targeting of former military members
who were involved in the prosecution of Awami League members
accused of crimes. The court noted that Hafiz did testify
3
The Immigration Judge properly noted that evidence could be
presented through either testimony or documentation. Contrary to
Hafiz’s contention, the Immigration Judge did not require that
corroborative documents be produced. R. at 94 (“[H]is testimony
may be sufficient if it is believable, consistent, and sufficiently
detailed.”); 96 (Evidence “may be presented . . . through
documentation or through the respondent’s testimony.”); 97-98 (“If
he cannot meet [his burden] by documentation he must be able to
give the Court specific examples of individuals and that would have
to be detailed with names, places, and times.”).
The court’s remark that no documentation showed that an
individual such as Hafiz was being targeted, in context,
constituted part of the court’s conclusion that neither testimony
nor documentation met this part of Petitioner’s burden.
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generally that the group of former officers involved were being
targeted. But upon questioning, the Petitioner provided no
specifics (such as names, places, or times), and referred the court
only to a document that did not substantiate the statement. R. 96-
98. The court held that, without evidence of past persecution,
Hafiz would have to show examples of individuals in his group
(former military members involved in the prosecution of Awami
League members accused of crimes) who had been targeted by the
Awami League. R. 96-98. The court therefore concluded that it
lacked evidence that individuals situated similarly to Hafiz have
been or will be targeted in the future. R. 98.
The court correctly exacted specifics as part of the burden of
proof:
At a minimum [to show persecution], there must be some
particularized connection between the feared persecution
and the alien's race, religion, nationality or other
listed characteristic. Demonstrating such a connection
requires the alien to present “specific, detailed facts
showing a good reason to fear that he or she will be
singled out for persecution."
Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994) (quoting Zulbeari
v. INS, 963 F.2d 999, 1000 (7th Cir.1992); see also Acewicz v. INS,
984 F.2d 1056, 1061 (9th Cir. 1993) (requiring presentation of
specific facts demonstrating either past persecution or a well-
founded fear of future persecution).
Concerning Hafiz’s fear of return to Bangladesh, the
Immigration Judge noted that Hafiz had remained in Bangladesh for
many years after receiving the 1980 threat. The fact that Hafiz
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waited seven years after coming to the United States before seeking
political asylum lead the court to believe that Hafiz was not
serious about claiming asylum.
Hafiz also complains that the Immigration Judge’s decision is
based on an incorrect burden of proof because the court required
him to show a “clear probability” rather than a “reasonable
probability” of persecution. This contention misapprehends the
opinion. The court correctly distinguished the burden for asylum
(“well founded fear”) from the burden for withholding of
removability (“clear probability” and “more likely than not”). R.
94, 98. See Faddoul 37 F.3d at 188 (explaining that the “clear
probability” of persecution necessary for withholding of removal
represents “a higher objective likelihood of persecution than the
‘well-founded fear’ standard”).
Under the substantial evidence standard, we will not reverse
the Immigration Judge’s decision, because we do not find that the
evidence compels a contrary conclusion. Elias-Zacharias, 502 U.S.
at 481 n.1, 483-84; Carbajal v. Gonzalez, 78 F.3d at 197.
IV.
Petitioners next contend that their due process and equal
protection rights were violated because they were precluded from
pursuing applications for suspension of deportation. They complain
that the INS’s delay in filing the proceedings against them until
after the effective date of IIRIRA (the Illegal Immigration Reform
and Immigrant Responsibility Act) meant that, because of the change
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in the law, they were placed in removal rather than deportation
proceedings. Since they were not placed in deportation proceedings
(as they would have been under the former law), Petitioners are
ineligible to file for suspension of deportation.
Hafiz had presented himself to the INS before the effective
date of IIRIRA, requesting the INS to place him in proceedings to
determine his status. Proceedings commence, however, when the INS
files a charging document with the immigration court. DeLeon-
Holguin v. Ashcroft, 253 F.3d 811, 815 (5th Cir. 2001). That
determinative event in the Petitioners’ cases occurred after the
change in the law.
The INS’s decision when to commence proceedings is a matter
committed to its discretion, and thus not subject to judicial
review. 8 U.S.C. § 1252(g) ("no court shall have jurisdiction to
hear any cause or claim by or on behalf of any alien arising from
the decision or action by the Attorney General to commence
proceedings, adjudicate cases, or execute removal orders against
any alien"); see Reno v. American-Arab Anti-Discrimination
Committee, 525 U.S. 471, 487, 119 S. Ct. 936, 945, 192 L. Ed. 2d 940
(1999)(“Respondents' challenge to the Attorney General's decision
to ‘commence proceedings’ against them falls squarely within §
1252(g) . . . .“); Jimenez-Angeles v. Ashcroft, 291 F.3d at 594,
599 (9th Cir. 2002) (reading § 1252(g) as removing jurisdiction over
claim that the INS was immediately obligated to initiate
deportation proceedings against alien once she presented herself to
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the INS); see also Heckler v. Chaney, 470 U.S. 821, 831, 833, 105
S. Ct. 1649, 1655, 84 L. Ed. 2d 714 (1985) (agency decisions to
enforce through civil or criminal process unsuitable for judicial
review).
V.
Substantial evidence supports the Immigration Judge’s denial
of Petitioners’ request for asylum. No other issue presented is
subject to judicial review. Accordingly, the decision of the Board
is
AFFIRMED.
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