Babo v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 23, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 05-60465
Summary Calendar
____________________
ANAND BABO; HAMAN BABO
Petitioners
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals,
BIA No. A79 556 429; BIA No. A79 556 431
_________________________________________________________________
Before KING, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Anand Babo and his son, Haman Babo, petition this court for
review of an order from the Board of Immigration Appeals (“BIA”)
affirming the decision of the Immigration Judge (“IJ”) to deny
their applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). By
*
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that this opinion should not be published and is not precedent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.
-1-
separate motion carried with the case, the Babos contend, in the
alternative, that this case should be transferred to the district
court as a habeas corpus petition pursuant to 28 U.S.C. § 2241 if
this court determines that it lacks jurisdiction over the appeal.
For the following reasons, we DISMISS the petition for review
insofar as it seeks review of the Babos’ asylum claim and DENY
the balance of the petition for review and the accompanying
motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
Petitioners Anand Babo and his son, Haman Babo, were both
born in Karachi, Pakistan. They entered the United States
together as temporary visitors on July 21, 2000, and were
authorized to remain only until January 19, 2001. Both men
remained in the United States past that date without explicit
authorization from the Immigration and Naturalization Service
(“INS”).1 The DHS issued separate Notices to Appear on March 10,
2003 and filed with the immigration court in Dallas, Texas, on
April 1, 2003, to commence removal proceedings against the Babos
1
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security (“DHS”). See
Homeland Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451,
471, 116 Stat. 2135 (2002). The Bureau of Immigration and
Customs Enforcement (“BICE”) in the DHS assumed the INS’s
detention, removal, enforcement, and investigative functions.
See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th Cir. 2004).
Because the removal proceedings in this case began after the
reorganization, we will henceforth refer to the current agencies
in this opinion for the sake of accuracy.
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as nonimmigrants that remained in the United States for a time
longer than permitted under section 237(a)(1)(B) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1227(a)(1)(B).2 The Babos filed their asylum applications in
open court on October 9, 2003, long after the one-year limitation
on filing under section 208(a)(2)(B) of the INA, 8 U.S.C.
§ 1158(a)(2)(B), had lapsed.
On January 5, 2004, the IJ conducted a consolidated removal
hearing and issued a written order and decision that (1) denied
the petitioners’ requests for asylum relief as time-barred and
(2) rejected the petitioners’ claims for withholding of removal
and protection under the CAT. Notwithstanding Anand Babo’s
generalized assertions during his testimony that the situation
had worsened since leaving Pakistan in July of 2000, the IJ
determined that the evidence in the record demonstrated that the
basis of his fear of mistreatment if he returned to Pakistan
already existed at the time he arrived in July of 2000. Thus,
the IJ found that the petitioners’ were bound by the one-year
limitation on filing.
The IJ next addressed the withholding of removal and CAT
claims. The IJ acknowledged that, as practicing Hindus, the
Babos are indeed a religious minority in their Muslim-dominated
2
The petitioners conceded removability on this ground and
petition this court to review only the BIA’s affirmance of the
IJ’s denial of asylum, withholding of removal, and CAT relief.
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native country of Pakistan. When tensions escalated between
Hindus and Muslims in Pakistan following the destruction of the
Babri Mosque in December of 1992, Anand Babo testified that he
was particularly targeted and threatened because he was
purportedly the secretary of a Hindu graveyard that certain
Muslim shopkeepers were encroaching upon. Although Anand Babo
testified that he was shot at by these Muslim individuals in 2000
and allegedly reported the incident to the authorities,3 the IJ
noted that this incident was neither included in his handwritten
affidavit nor corroborated by any documentary evidence in the
record.4 Moreover, the IJ also found a discrepancy with a
document that supposedly certified that Anand Babo was an active
member in the Hindu community and joint secretary of a particular
Hindu organization.
After carefully reviewing the evidence, the IJ determined
that, even putting aside some of his doubts about the credibility
of Anand Babo’s testimony, the alleged acts of persecution
against him seemed to have arisen in response to a real estate
dispute over the cemetery plot, rather than on account of his
religion. Thus, the IJ found that the Babos had failed to
3
Anand Babo also testified that the police did not take
any specific action following his report.
4
Besides expressing a general familiarity with the Hindu-
Muslim conflict in Pakistan and a preference for continuing his
education in the United States, Haman Babo’s testimony largely
tracked that of his father.
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establish a clear probability of persecution on the basis of
religion if they returned to Pakistan and accordingly denied
their requests for withholding of removal. The IJ similarly
rejected the CAT claims because the petitioners had failed to
demonstrate how the police were supposed to know who to arrest
based on the limited information from Anand Babo following the
alleged shooting incident in 2000. Despite denying all requests
for protective relief, the IJ granted voluntary departure to the
Babos with specific instructions to leave the United States on or
before March 5, 2004.
On April 29, 2005, the BIA adopted and affirmed the decision
of the IJ. The Babos timely filed a petition for review of the
BIA’s decision.5
II. DISCUSSION
First, we lack jurisdiction to review the Babos’ asylum
claims because the BIA adopted the IJ’s conclusion that those
claims were time barred. See 8 U.S.C. § 1158(a)(3) (“No court
shall have jurisdiction to review any determination of the
Attorney General under paragraph (2).”); see also Nugroho v.
5
A panel from this court denied the petitioners motion for
a stay of deportation on July 14, 2005. The BIA subsequently
denied the petitioners’ motion to reopen on July 21, 2005, and
further ordered that they would be barred from applying for
adjustment of status pursuant to section 240B(d) of the INA, 8
U.S.C. § 1229c(d). The petitioners have not challenged these
orders in the instant appeal, which would have otherwise been
consolidated with this appeal. See 8 U.S.C. § 1252(b)(6); Roy v.
Ashcroft, 389 F.3d 132, 136 n.3 (5th Cir. 2004).
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Gonzales, No. 04-60248, 2006 WL 319267, at *1 (5th Cir. Feb. 13,
2006) (citing Zhu v. Ashcroft, 382 F.3d 521, 527 (5th Cir.
2005)). The IJ determined that the basis for Anand Babo’s fear
of persecution upon a return to Pakistan already existed when he
arrived in the United States in July of 2000. Thus, the IJ
determined that the Babos failed to demonstrate “either the
existence of changed circumstances which materially affected
[their] eligibility for asylum or extraordinary circumstances
relating to the delay in filing” necessary to overcome the one-
year limitation. 8 U.S.C. § 1158(a)(2)(B),(D). Accordingly,
this court must dismiss the petitioners’ asylum claims for lack
of jurisdiction.6
We retain jurisdiction to review the withholding of removal
and CAT claims.7 See 8 U.S.C. § 1252; Roy, 389 F.3d at 137.
6
In their reply brief and accompanying motion to transfer,
the petitioners urge that this court has jurisdiction to consider
the timeliness of their asylum claim following the passage of the
REAL ID Act, Pub. L. 109-13, 119 Stat. 231 (May 11, 2005). See 8
U.S.C. § 1252(a)(2)(D) (providing for judicial review of
“constitutional claims or questions of law raised upon a petition
for review”). Following the passage of the REAL ID Act, however,
previous panels of this court have noted that this provision does
not preserve jurisdiction over an IJ’s determination of the
timeliness of an asylum application. See, e.g. Nugroho, 2006 WL
319267, at *1; Bregu v. Gonzales, No. 05-60697, 2006 WL 237949,
at *1 (5th Cir. Jan. 31, 2006); Maredia v. Gonzales, No. 04-
60847, 2005 WL 3505398, at *1 (5th Cir. Dec. 23, 2005) (“We
cannot review whether the petitioner’s application for asylum was
timely filed or whether an exception to the one-year filing
requirement applied.”).
7
Because we have jurisdiction to review the remaining
withholding of removal and CAT claims, we deny the petitioners’
motion to transfer the case to the district court as a habeas
-6-
“Withholding of removal is a higher standard than asylum.” Efe
v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002). The petitioners
must prove a “clear probability of persecution” based on their
religion or some other enumerated ground upon removal to
Pakistan. INS v. Stevic, 467 U.S. 407, 413 (1984); see also 8
U.S.C. § 1231(b)(3)(A); Efe, 293 F.3d at 906. We review the
BIA’s conclusion on such claims for substantial evidence. See
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Under substantial
evidence review, we will reverse the BIA only “when the evidence
is ‘so compelling that no reasonable fact finder could fail to
find’ the petitioner statutorily eligible for relief.” Roy, 389
F.3d at 138 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992)). Moreover, “[w]e cannot substitute our judgment for that
of the BIA or IJ with respect to the credibility of the witnesses
or ultimate factual findings based on credibility
determinations.” Chun, 40 F.3d at 78; see also Efe, 293 F.3d at
903 (noting that courts afford “great deference to an immigration
judge’s decisions concerning an alien’s credibility”).
As practicing Hindus, the Babos allegedly fear persecution
on the basis of their religion if removed to Pakistan, which
remains a predominantly Muslim country. Given the lack of
corpus petition pursuant to 28 U.S.C. § 2241. See Rosales v.
Bureau of Immigration and Customs Enforcement, 426 F.3d 733, 736
(5th Cir. 2005) (discussing the effect of the REAL ID Act and
noting that this court is the “exclusive forum” for petitioners
to challenge removal orders).
-7-
documentary evidence to support Anand Babo’s testimony about the
alleged shooting incident in 2000 and lingering questions over
the veracity of a particular piece of evidence, however, the IJ
drew an adverse credibility determination about the existence of
past persecution and concluded that the petitioners had failed to
demonstrate a clear probability of persecution on the basis of
their Hindu beliefs if removed to Pakistan. The IJ also
determined that the harassment was at least partially motivated
by a real estate dispute over the cemetery land, rather than
simply animosity toward the Babos because they were Hindus. Even
under a mixed motive analysis, the petitioners must still present
evidence “of such weight that it compels the fact-finder to
conclude that the applicant suffered past persecution or has a
well-founded fear of future persecution on account of a protected
ground.” Girma v. INS, 283 F.3d 664, 668 (5th Cir. 2002)
(finding the BIA’s denial withholding of removal relief to be
consistent with a mixed motive analysis) (emphasis added).
Therefore, we conclude that the BIA’s affirmance of the IJ’s
decision to deny withholding of removal relief was supported by
substantial evidence in the record.
Finally, we separately address the remaining CAT claims
because such claims are distinct “from the claims for asylum and
withholding of removal and should receive separate analytical
attention.” Efe, 293 F.3d at 906-07. CAT claims differ from
asylum and withholding of removal in two principal respects: (1)
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CAT claims require a showing of the “higher bar” of torture,
rather than persecution; and (2) CAT regulations do not require
the torture to fall within one of the enumerated grounds for
withholding of removal. Id. The applicant must demonstrate
“that it is more likely than not that he or she would be tortured
if removed to the proposed country of removal.” Id. (quoting 8
C.F.R. § 208.16(c)(2)). Because of the sketchy details
surrounding the alleged police indifference following the
shooting and the aforementioned credibility doubts surrounding
the testimony, the IJ concluded that the petitioners had not
established the requisite likelihood of torture upon removal to
Pakistan. Thus, we conclude that the BIA’s decision to affirm
the IJ’s denial of CAT protection was supported by substantial
evidence.
III. CONCLUSION
For the foregoing reasons, we DISMISS the petition for
review insofar as it seeks review of the denial of asylum and we
DENY the balance of the petition for review and the accompanying
motion to transfer.
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