Raza v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 22, 2006
_______________________
Charles R. Fulbruge III
Clerk
No. 05-60132
_______________________
MAHMOOD RAZA
Petitioner,
versus
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent.
________________________________________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
BIA No. A78 141 371
_________________________________________________________________
Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Mahmood Raza petitions for review of the order
of the Board of Immigration Appeals (“BIA”), affirming the judgment
of the Immigration Judge (“IJ”) denying his application for asylum
and withholding of removal. We dismiss his petition regarding the
denial of asylum for lack of jurisdiction and we deny his petition
for review of the order denying withholding of removal.
*
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opinion should not be published and is not precedent except under the limited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. BACKGROUND
The facts are undisputed. Raza is a citizen of Pakistan
who entered the United States legally in 1997 as a nonimmigrant
with authorization to stay in the United States for not more than
six months. Raza filed an application for asylum and withholding
of removal on October 9, 2003. On March 15, 2004, the IJ denied
Raza a full asylum hearing on the basis that he did not file the
asylum application within one year of entry and did not qualify for
any exception to the one year rule by proving changed circumstances
or extraordinary circumstances. The IJ also found that Raza was
not eligible for withholding of removal because he failed to
establish a clear probability of persecution if he returned to
Pakistan. Raza appealed to the BIA, which affirmed without opinion
on January 28, 2005. Raza subsequently filed a motion to
reconsider with the BIA, which denied the motion with an opinion on
March 21, 2005. Raza now petitions this court for review of the
order from the BIA affirming the judgment of the IJ to deny his
application for asylum and withholding of removal.
II. DISCUSSION
A. Jurisdiction over BIA’s Finding of Facts
This court lacks jurisdiction to review alien asylum
claims, found by the BIA to be time barred. See 8 U.S.C. §
1158(a)(3) (“No court shall have jurisdiction to review any
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determination of the Attorney General under paragraph (2)
[providing for exceptions, including the time bar, to an alien’s
right to apply for asylum].”). There is a narrow exception where
the reasoning of the BIA is unclear. Zhu v. Ashcroft, 382 F.3d
521, 527 (5th Cir. 2005) (remanding to the BIA because its
affirmance without opinion left the court with “no way of knowing
whether the BIA affirmed the IJ’s decision on a non-reviewable
basis, i.e., untimeliness). In the instant case, however, the BIA
stated in its order that “[Raza’s] asylum application is time-
barred.” In addition, the BIA further stated that Raza was not
entitled to any exceptions as “he has not shown changed
circumstances which have materially affected his eligibility for
asylum, or that extraordinary circumstances prevented the filing of
the application within the 1 year time limit.” Thus, unlike Zhu,
the BIA made it clear that the basis for its affirmance of the IJ’s
judgment was untimeliness, and therefore, this court lacks
jurisdiction.
Raza argues that this court has jurisdiction under the
REAL ID Act.1 Although the REAL ID Act retroactively restored this
1
Real ID Act Section 106(a)(1)(iii) amended 8 U.S.C. § 1252(respecting judicial review of final orders of removal) by adding a new
provision, § 1252 (a)(2)(D), as follows:
Nothing in subparagraph (B) or C [of § 1252(a)(2)], or in any
other provision on [Immigration and Nationality Act] (other than
this section) which limits or eliminates judicial review, shall be
construed as precluding review of constitutional claims or questions
of law raised upon a petition for review filed with an appropriate
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court’s jurisdiction to review constitutional claims and questions
of law regarding final orders of removal in many circumstances
where such review otherwise would be barred, the determination
whether Raza demonstrated that he filed his claim within one year
of arrival, or that exceptional circumstances precluded such a
finding, does not involve such a constitutional claim or legal
question. The affirmance by the BIA based on untimeliness is a
factual question and therefore not subject to judicial review under
the REAL ID Act. We therefore DISMISS Raza’s asylum petition for
lack of jurisdiction.
B. Withholding of Removal Claim
The BIA’s order denying Raza’s withholding of removal,
however, is reviewable by this court. 8 U.S.C. § 1252; Roy v.
Ashcroft, 389 F.3d 132, 135 (5th Cir. 2004). “Although this Court
generally reviews decisions of the BIA, not immigration judges, it
may review an immigration judge’s decision when, as here, the BIA
affirms without additional explanation.” Thuri v. Ashcroft,
380 F.3d 788, 791 (5th Cir. 2004) (quoting Moin v. Ashcroft,
335 F.3d 415, 418 (5th Cir. 2003)). The IJ’s factual conclusions
are reviewed for substantial evidence. Girma v. INS, 283 F.3d 664,
666 (5th Cir. 2002). “Under the substantial evidence standard ...
court of appeals in accordance with this section.
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we must defer to the [IJ]’s factual findings unless the evidence is
so compelling that no reasonable fact finder could fail to find
otherwise.” Id. (quoting Mikhael v. INS, 115 F.3d 299, 304 (5th
Cir. 1997)).
The Attorney General must withhold removal of an alien
who proves a clear probability of persecution upon removal to his
home country. See 8 U.S.C. § 1231(b)(a)(A). To qualify for
withholding of removal, an applicant must establish a clear
probability of persecution, which means that persecution is “more
likely than not.” INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107
S. Ct. 1207, 1209 (1987). Raza based his withholding petition on
changed conditions in Pakistan after the September 11, 2001
terrorist attack in the United States. The IJ stated in his
opinion that “[Raza] bases his fear of return to Pakistan on the
possibility that he would be targeted by Islamic extremists,
because of his moderate views, and [Raza] has provided some
evidence in the way of newspaper articles about general conditions
of Pakistan.” The IJ concluded: “it appears that [Raza] fears
general conditions of violence in Pakistan. He has . . . not cited
any instances of any[one] targeting him or his family.” It is
established that “people who are fleeing general conditions of
violence cannot establish a well-founded fear of persecution.”
Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987).
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The decisions of the IJ and BIA that Raza failed to
establish a clear probability of his individual persecution based
on his religion, political opinion, or membership in a particular
social group if he returns to Pakistan are supported by substantial
evidence. We therefore DENY Raza’s petition for withholding of
removal.
CONCLUSION
We are without jurisdiction to review the denial of
Raza’s application for asylum as time-barred, so we dismiss Raza’s
asylum application. Satisfied that the IJ’s order is supported by
substantial evidence, we deny Raza’s petition for withholding of
removal.
DISMISSED in part; DENIED in part.
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