Khan v. Holder

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 26, 2009
No. 08-60929
Summary Calendar Charles R. Fulbruge III
Clerk
SOHAIL RAZA KHAN
Petitioner
v.
ERIC H HOLDER, JR, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A38 907 727
Before DAVIS, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Sohail Raza Khan, a native and citizen of Pakistan, petitions for review of
an order from the Board of Immigration Appeals (BIA) affirming the
immigration judge’s (IJ’s) decision to deny his application for protection under
the Convention Against Torture (CAT).
Khan argues that the BIA wrongly determined that the IJ did not commit
reversible error by failing to consider testimony given at a prior removal hearing
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60929
by Khan’s sister; Khan’s sister refused to testify at the removal hearing that is
at issue on the present appeal because of a purported fear of government
retaliation. Khan asserts that his sister’s prior testimony may have persuaded
the IJ that Khan more likely than not would be tortured if he were returned to
Pakistan. Khan particularly argues that his sister’s testimony (a) corroborated
his claims that he previously was arrested and mistreated by the police, and
(b) showed that the police in Pakistan have maintained an interest in his
whereabouts since he immigrated in 1985 to the United States. Khan also
argues that the BIA’s failure to remand the proceedings to the IJ for a complete
review of his sister’s prior testimony was a violation of his due process rights.
The denial of relief under CAT is reviewed under the substantial evidence
standard. See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 353 (5th Cir. 2002).
This standard requires that the BIA’s conclusion be based upon the evidence
presented and that it be substantially reasonable. Carbajal-Gonzalez v. INS, 78
F.3d 194, 197 (5th Cir. 1996). An alien alleging deprivation of due process in
removal proceedings must make an initial showing that he was substantially
prejudiced by the procedural error that he advances. See De Zavala v. Ashcroft,
385 F.3d 879, 883 (5th Cir. 2004).
The record does not show unequivocally that the IJ did not evaluate the
prior testimony of Khan’s sister and the instant argument thus may be wholly
speculative. However, even if the IJ did not consider the prior testimony of
Khan’s sister, Khan has not shown that the BIA wrongly held that the IJ’s
disregard of that testimony was reversible error. The testimony would not have
affected the BIA’s disposition of Khan’s claims because the veracity of Khan’s
testimony about his experiences with the Pakistani police and their continued
interest in him were immaterial to the BIA’s denial of relief. The BIA assumed
that Khan testified credibly about those matters and nonetheless held that Khan
had not shown that he likely would be tortured upon removal to Pakistan. The
prior testimony of Khan’s sister, which was largely cumulative of Khan’s
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No. 08-60929
testimony, merely corroborated evidence that the BIA otherwise held was
insufficient to warrant relief. Cf. 8 C.F.R. § 1208.16(c)(2) (noting that an alien’s
credible testimony may be sufficient to sustain burden of proof without
additional corroboration). Moreover, to the extent that Khan’s sister provided
unique testimony about the continued interest of the police in Khan, Khan has
not shown how additional testimony on that issue would have changed the
outcome of the proceedings.
Thus, Khan has failed to show any harm resulting from the IJ’s purported
exclusion of his sister’s testimony. He therefore has not shown that the BIA
wrongly held that the omission did not represent reversible error. Accordingly,
Khan’s petition for review is DENIED.
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