Hossain v. Ashcroft

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60671
Summary Calendar
SYED ABUL HOSSAIN; SHAHANAZ KAZAL BEGUM,
Petitioners,
VERSUS
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
(A73 646 990)
May 29, 2002
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Syed Abul Hossain1, a native and citizen of Bangladesh,
*
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opinion should not be published and is not precedent except under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
Although this opinion refers only to Syed Abul Hossain, the case
involves a joint deportation proceeding where Hossain’s request for
asylum and withholding of deportation was joined with that of his
wife, Shahanaz Kazal Begum, who is seeking derivative asylum on the
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entered the United States in May 1994, under a visitor’s visa, and
filed an application for asylum and withholding of deportation in
September 1994. In August 1995, the INS issued an Order to Show
Cause charging Hossain with deportability under former section
241(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. §
1251(a)(1)(B), for failure to timely depart the United States.
Hossain’s application was denied by the Immigration Judge
(hereinafter “IJ”) upon a finding that Hossain failed to satisfy
his burden of proof in establishing a claim for asylum. On appeal,
the Board of Immigration Appeals (hereinafter “BIA”) concluded that
Hossain failed to demonstrate his eligibility for asylum, and
dismissed his appeal. Hossain now challenges the BIA’s decision.2
The Attorney General may grant asylum to an alien who is a
refugee. 8 U.S.C. § 1158(b)(1). The term alien is defined as “any
person not a citizen or national of the United States.” 8 U.S.C.
§ 1101(a)(3). An alien is a refugee when he or she “is unable or
unwilling to return to, and is unable or unwilling to avail himself
or herself of the protection of, that 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(b)(42).
“The level of proof required to satisfy the requirements for
withholding of deportation is more stringent than for asylum
purposes.” Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997)
(citations omitted). To avoid deportation, “an alien must
basis of Hossain’s application pursuant to 8 C.F.R. § 208.21.
2
In the alternative, Hossain requests a grant of 30 days
additional voluntary departure in the event that this Court renders
an adverse decision on appeal.
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establish a clear probability of persecution.” INS v. Stevic, 467
U.S. 407, 413 (1984). Thus, where an alien fails to satisfy the
requirements for asylum, he or she will also have failed to satisfy
the requirements for withholding of deportation. The BIA’s
determination that Hossain was ineligible for asylum must be upheld
if supported by reasonable, substantial, and probative evidence on
the record considered as a whole, and can be reversed only if the
evidence presented by Hossain would compel a reasonable fact-finder
to conclude that the requisite fear of persecution existed. See
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal
quotations and citations omitted).
In support of his asylum claim, Hossain testified that he
joined the student branch of the Jatiyo Party in Bangladesh in
1982, and became a regular member and “organizing secretary” in
1987. Hossain testified that prior to leaving Bangladesh in 1994,
he was apprehended and detained for two days, experienced a number
of beatings, and witnessed the destruction and closing of his
business as a result of his membership in the Jatiyo Party.
Hossain further testified that the Jatiyo Party offices, where he
worked as the organizing secretary, were raided by the police in
March 1994, and a warrant was issued for his arrest due to a cache
of weapons being found there. Newspaper clippings and photographs
depicting Jatiyo Party members demonstrating against the then
ruling party, the Bangladesh National Party (hereinafter “BNP”),
were also submitted in support of Hossain’s asylum application.
Hossain contends that he was persecuted on account of his
political opinions and that he has a well-founded fear of future
persecution if deported. Hossain further contends that we should
reverse the BIA’s decision and grant asylum because the evidence
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presented satisfied his burden of proof, and the BIA erred in
dismissing his appeal. We disagree.
Under the substantial evidence standard, reversal of the BIA’s
decision requires that the evidence presented must compel a
reasonable fact-finder to conclude that Hossain suffered past
persecution or has a well-founded fear of future persecution
because of a protected ground. See Elias-Zacarias, 502 U.S. at
483. Although Hossain presented evidence in support of his
assertions of past persecution, and fear of future persecution,
determination of whether that evidence is sufficient to warrant a
grant of asylum remains for the BIA. Rivas-Martinez v. INS, 997
F.2d 1143, 1148 (5th Cir. 1993).
After reviewing the record of proceedings, the IJ’s decision,
and Hossain’s contentions on appeal, the BIA determined that the IJ
properly evaluated the facts and correctly concluded that Hossain
failed to establish either past persecution or a well-founded fear
of future persecution on account of a protected ground.
Specifically, the BIA noted that the IJ considered: 1)
inconsistencies in Hossain’s testimony; 2) the lack of
corroboration with respect to the alleged warrant for Hossain’s
arrest; 3) the fact that Hossain remained in Bangladesh for six
weeks without incident or arrest following the alleged issuance of
the arrest warrant; 4) the Awami League’s supplantation of the BNP
as the ruling party in Bangladesh; 5) the Awami League’s consent to
permit members of the Jatiyo Party to participate in the country’s
government; and 6) the change in conditions in Bangladesh rebutting
Hossain’s fear of future persecution.3 Finding that Hossain failed
3
Hossain asserts that the BNP regained control as the ruling
party in Bangladesh on approximately October 1, 2001, and invites
us to take judicial notice of the BNP’s return to power. We
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to satisfy his burden of proof, the BIA did not find it necessary
to adopt the IJ’s adverse credibility findings, and dismissed
Hossain’s appeal.
Any disagreement we might have with the BIA’s appraisal of the
facts is not a sufficient ground for reversal. A reasonable fact-
finder could have found the evidence presented by Hossain
sufficient to establish past persecution or a well-founded fear of
future persecution. We do not find, however, that the evidence
presented by Hossain would compel a fact-finder to do so.
Accordingly, the decision of the BIA is AFFIRMED, and any
grant of additional time for voluntary departure is left to the
discretion of the INS.
decline the invitation as “[t]he proper venue for proffering new
evidence is not the Fifth Circuit on appeal, but the BIA through a
motion to reopen the case.” Faddoul v. INS, 37 F.3d 185, 190 (5th
Cir. 1994) (citing Rivera-Cruz v. INS, 948 F.2d 962, 968 (5th Cir.
1991).
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