Khan v. Gonzales

NOT RECOMMENDED FOR PUBLICATION
File Name: 06a0272n.06
Filed: April 19, 2006
No. 05-3233
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Abdul Bayees Khan, Kaniz Fatima Khan, )
Humayara Nikhat Khan, )
)
Petitioners, )
)
v. ) On Petition for Review of Decision of
) Board of Immigration Appeals
Alberto Gonzales, United States Attorney )
General, )
)
Respondent. )
)
)
BEFORE: Merritt, Martin and McKeague, Circuit Judges.
PER CURIAM. Petitioners Abdul Bayees Khan, Kaniz Fatima Khan, Humayara Nikhat
Khan, citizens of Bangladesh, petition the Court under 8 U.S.C. § 1252(a) for review of a final order
of removal issued February 2, 2005, by the Board of Immigration Appeals. The Board’s decision
affirms an order of an Immigration Judge denying their application for asylum, withholding of
removal and protection under the Convention Against Torture, although it appears from their brief
that the Khans appeal only the denial of their asylum application to this Court. The panel has
concluded that oral argument would not place the simple issues in this case in a different light from
the briefs. Therefore, in the interest of judicial efficiency and of saving time and expense to the
No. 05-3233
Khan v. Gonzales
parties, we cancel oral argument previously set for April 25, 2006. Fed. R. App. P. 34(a)(2); 6th Cir.
R. 34(j)(1).
Abdul Khan filed an application for asylum in the United States on February 18, 2002.
Kaniz Khan, his wife, and Humayara Khan, his daughter, were included in the application as
derivative beneficiaries. Abdul Khan claims he has been singled out for persecution by a political
party in Bangladesh that opposes the party to which Khan belongs. He testified that he was injured
in 1990 during clashes between the two political parties and that the opposition party “completely
destroyed” his house. He also testified that he was arrested and beaten by police in 1991 in an effort
to persuade him to testify against his party’s leaders. Khan has produced no documentary or other
evidence to corroborate these claims.
After the opposition party came to power in 1991, Khan testified that he was “locked up”
and, although not harmed himself, another member of his political party taken at the same time was
killed. He claims he was arrested two months later and severely beaten. Khan testified that he
heard, in September 1991, that there was a warrant for his arrest; however, he has produced no
documentary evidence of the existence of a warrant. He arrived in the United States in 1998 on a
non-immigrant visa for which he had applied in August 1991.
The Immigration Judge and the Board of Immigration Appeals determined that petitioners
failed to carry their burden of proof and we agree. Our review is based on a substantial evidence
test combined with an arbitrary and capricious standard. In his opinion, the Immigration Judge
noted that the testimony lacked corroboration. He also found the testimony of the lead petitioner,
Abdul Khan, not credible. The judge identified numerous discrepancies and inconsistencies in the
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No. 05-3233
Khan v. Gonzales
evidence presented, which contributed to his finding that the petitioners were not credible. He also
noted that much of the detailed testimony given at the asylum hearing had not been given to the
asylum officer or put in the asylum application as required. However, it appears that Khan had
included much of what was in his hearing testimony in his asylum application, a fact that was
overlooked by the Immigration Judge or for some other reason not acknowledged by him.
Even if Abdul Khan’s testimony had been credible, the Immigration Judge concluded that
the events and conditions petitioners described did not entitle him to asylum. The incidents
described by Abdul Khan took place in 1990 and 1991, over a decade before the asylum application
was filed in 2002. Khan failed to establish that members of the opposition political party continue
to search for him due to his political affiliation. Moreover, the 2002 Report on Human Rights
Practices for Bangladesh prepared by the United States Department of State provides that in the
2001 election, a four-party alliance government was formed, which includes Khan’s political party.
We agree with the Board that the Immigration Judge did not act arbitrarily in discounting
Khan’s testimony about his house and the extensive nature of the torture he received. There was no
corroborating evidence and the house destruction was not mentioned in the asylum application. We
also agree with the Board that Khan’s political problems in 1990-91 do not mean he would be
persecuted now that his political associates have joined in a coalition government. In sum, Khan
has failed to show that the decision of the Board of Immigration Appeals lacks a substantial basis
in the record.
We therefore affirm the decision of the Board of Immigration Appeals.
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