                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-4-2009

Fatima v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1950




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1950
                                      ___________

                                 TAHSEEN FATIMA,
                                               Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                    Respondent

                      ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                             (Agency No. A97-438-984)
                    Immigration Judge: Honorable Eugene Pugliese
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    June 1, 2009
                 Before: BARRY, SMITH and GARTH, Circuit Judges

                              (Opinion filed: June 4, 2009)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Tahseen Fatima, a Pakistani native and citizen, petitions for review of a final order

of the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”)

denial of her application for asylum, withholding of removal and protection under the
Convention Against Torture (“CAT”). For the following reasons, we will deny the

petition.

       Fatima entered the United States in April 1997, and in March 2004 the Department

of Homeland Security charged her as removable under 8 U.S.C. § 1182(a)(6)(A)(i). At a

hearing before the IJ, Fatima conceded removability and applied for asylum, withholding

of removal, and protection under the CAT. Before the IJ, Fatima testified that she was a

Sunni Muslim from Gujrat, Pakistan; that she was single and divorced from her husband,

Ahmad Ehsan, whom she married in Pakistan; and that because she disobeyed her parents

by running away from home and marrying Ehsan, who was from a different caste, her

male relatives in Pakistan would kill her for dishonoring her parents’ wishes regarding

her marriage. Fatima also stated that she could not relocate to a different region in

Pakistan because her family and extended family had contacts throughout the country. In

addition to her testimony, Fatima submitted the State Department’s 2003 Report on

Human Rights Practices for Pakistan and internet articles on honor killings, or “Karo

Kari,” in Pakistan. (Administrative Record at 69.)

       The IJ denied her asylum application as untimely and found that Fatima failed to

show changed or extraordinary circumstances which would excuse the untimeliness. (Id.

at 71.) In regard to Fatima’s application for withholding of removal, the IJ found that she

failed to provide any corroborating evidence to supplement her testimony that she feared

persecution from her family members. Accordingly, the IJ found that Fatima failed to



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meet her burden of proof with regard to withholding of removal or the CAT. (Id. at 74.)

       Fatima appealed to the BIA, which adopted and affirmed the IJ’s decision. (Id. at

2). Before the BIA, Fatima attempted to introduce documents which she did not produce

before the IJ. These documents included copies of passports and Social Security cards for

her two children, her birth certificate, Ehsan’s birth certificate, a marriage certificate, a

birth certificate for one of her children, and a report from the United Kingdom entitled

“Pakistan Country Report.” Fatima also requested that the BIA remand her case to the IJ

so it could consider the new documents she submitted. (Id. at 12.) The BIA, adopting

and affirming the IJ’s decision, found that Fatima failed to meet the burden of proof

required to attain withholding of removal and denied her motion to remand because she

did not establish that the documents were previously unavailable or that they would have

changed the outcome of her application. (Id. at 2.) Fatima has filed a pro se petition for

review from the BIA’s order.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a). We uphold the BIA’s

determinations if they are supported by reasonable, substantial, and probative evidence on

the record considered as a whole. Yusupov v. Att’y Gen., 518 F.3d 185, 197 (3d Cir.

2008). Under the substantial evidence standard, “the BIA’s finding must be upheld

unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v.

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v. Elias-Zacarias, 502 U.S.

478, 481 n.1 (1992)). Where the BIA substantially adopts the findings of the IJ, we



                                               3
    review the decisions of both the IJ and the BIA. He Chun Chen v. Ashcroft, 376 F.3d

    215, 222 (3d Cir. 2004). We review motions to remand removal proceedings under an

    abuse of discretion standard. See Vakker v. Att’y Gen., 519 F.3d 143, 146 (3d Cir. 2008).

             While Fatima attempts to challenge the BIA’s denial of her asylum application, it

    is well settled that we do not have jurisdiction to review the IJ and BIA’s determination

    that such an application was not filed within the one-year limitations period. See 8 U.S.C.

    § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003). To be eligible

    for withholding of removal, Fatima must demonstrate that there is a clear probability that

    her life would be threatened upon her removal to Pakistan on account of her race,

    religion, nationality, membership in a particular social group, or political opinion. Chen v.

    Gonzales, 434 F.3d 212, 216 (3d Cir. 2005).1

             Fatima asserts that the BIA and IJ failed to consider her testimony and supporting

    documentation about Karo Kari. It is clear from the IJ and the BIA’s decisions, however,

    that both considered her testimony and found it insufficiently supported by corroborating

    evidence. See Sandie v. Att’y Gen., 562 F.3d 246, 252 (3d Cir. 2009) (Even if an

    applicant’s testimony is credible, it may not be sufficient to meet the applicant’s burden

    of proof.)

             Substantial evidence supports the BIA’s determination that Fatima failed to meet

    her burden of proof with sufficient corroborating evidence. The BIA’s rule regarding



       1
1          Fatima does not raise any arguments before this Court with regard to her CAT claim.

                                                  4
corroborating evidence contemplates a three-part inquiry: “1) identification of the facts

for which ‘it is reasonable to expect corroboration;’ 2) an inquiry as to whether the

applicant has provided information corroborating the relevant facts; and, if [she] has not,

3) an analysis of whether the applicant has adequately explained [her] failure to do so.”

Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001) (citation omitted). Here, the BIA

pointed out that Fatima failed to produce testimony or affidavits from witnesses with

knowledge of her family’s anger over her marriage. (Administrative Record at 2.) As the

IJ noted, at the time of the hearing, Fatima had been living in the United States for eight

years, and during that time “she would have spoken to a friend, or a co-worker, or a

religious adviser, with regard to the problems that she had suffered in Pakistan because of

her marriage and because of her family.” (Id. at 73.) Thus, it was not unreasonable for

the BIA and the IJ to expect corroboration on this point.

       Fatima testified that her attorney did not inform her that she needed to submit

documents; however, she did not file an ineffective assistance of counsel claim with the

BIA. Moreover, the documents she submitted only prove that she has two children who

are American citizens and that she was married to a man named Ahmed Ehsan. She did

not submit any evidence which shows that her family would attempt to harm her if she

returned to Pakistan. Therefore, substantial evidence supports the BIA’s finding that

Fatima did not adequately explain her failure to produce corroborating evidence.

       Similarly, the BIA did not abuse its discretion in denying Fatima’s motion to



                                              5
remand. A motion to remand filed while an appeal is pending before the BIA is

functionally equivalent to a motion to reopen. Korytnyuk v. Ashcroft, 396 F.3d 272, 282

(3d Cir. 2005). A motion to reopen “shall not be granted unless it appears to the Board

that evidence sought to be offered is material and was not available and could not have

been discovered or presented at the former hearing.” See 8 C.F.R. § 1003.2(c)(1).

Because Fatima failed to prove that the documents she submitted to the BIA could not

have been previously discovered, the BIA did not abuse its discretion in denying the

motion.

      For the foregoing reasons, we will deny Fatima’s petition for review.




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