                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5051




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                  __________

                                      No. 05-5051
                                      __________

                                MOHAMMAD DAUD,
                                            Petitioner,

                                           vs.

                             ALBERTO R. GONZALES,
                         Attorney General of the United States,
                                                      Respondent.
                                    __________

                         On Petition for Review of an Order of
                          the Board of Immigration Appeals
                              U.S. Department of Justice
                               (BIA No. A95-829-903)
                                      __________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                November 27, 2006


     Before: FUENTES and GARTH, Circuit Judges, and POLLAK, District Judge1

                           (Opinion Filed: December 5, 2006)
                                      __________

                                       OPINION
                                      __________




      1
       The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
Garth, Circuit Judge:

       Mohammed Daud appeals from a decision of the Board of Immigration Appeals

adopting and affirming the decision of an Immigration Judge which denied his

applications for asylum, withholding of removal, and protection under the United Nations

Convention Against Torture. He also appeals the Board’s denial of his motion to remand

the case to the Immigration Court to consider his Application to Adjust Status. We will

deny in part and dismiss in part the petition for review.

                                              I.

       Daud was born in Pakistan on March 20, 1949. He entered the United States as a

non-immigrant visitor on March 27, 2001, on a B-2 visa that expired on June 26, 2001.

Nearly two years later, on March 19, 2003, Daud was served with a Notice to Appear by

the Immigration and Naturalization Service (“INS”). The Notice to Appear alleged that

Daud was removable pursuant to section 237(a)(1)(B) of the Immigration and Nationality

Act (“INA”), because he had remained in the United States past the expiration of his visa.

       On July 23, 2003, Daud filed an application for asylum, withholding of removal

and protection under the United Nations Convention Against Torture (“CAT”). In his

application, Daud stated that he was a member of the Pakistan Armed Forces and that, in

this capacity, he oversaw the arrest of a powerful narcotics and weapons smuggler named

Pakistan Khan. Daud stated that, as a result of arresting Khan, he and his family began

receiving threats from the Taliban, who were supporters of Kahn and with whom Khan

was associated. Daud stated that he reported these threats to the police, but that they

                                             -1-
would not provide protection because they, too, were affiliated with the Taliban.

       On February 25, 2004, a hearing with respect to Daud’s applications was held

before an Immigration Judge. Daud testified as follows. In 1989, Daud was a

commander in the Frontier Corps of the Pakistani army, assigned to conduct operations in

northwest Pakistan. He was ordered by his superiors to arrest Pakistan Khan, whom he

described as a notorious narcotics and gun smuggler. Daud stated that Khan then

threatened him with death in an effort to dissuade him from attempting the arrest. As a

result of these threats, in July 1989, Daud moved his family to his home village of Baffai.

In August 1989, after two unsuccessful attempts, Daud’s unit arrested Khan along with

ten or twelve of his associates. Although Daud provided the IJ with evidence of his

service in the Pakistani military, he was unable to provide any documentation about Khan

or his arrest.

       Daud testified that, after the arrest, people associated with Khan started threatening

him, stating that they would kill him and his male family members. Daud stated that he

was afraid because Khan was affiliated with and had many supporters among the Taliban.

Daud’s commander then transferred him to another part of Pakistan called Chidraf, where

he served until his retirement in 1992. He then returned to his hometown of Baffai.

       Daud testified that on December 14, 1994, after Khan’s release from prison, he

received a threatening phone call from one of Khan’s Taliban supporters. On another

occasion, in February or March 1995, Khan’s men actually entered his home. Daud

testified that he called the police, but that they did nothing because they are under the

                                             -2-
influence of the Taliban. As a result of these occurrences, Daud moved to several places

throughout Pakistan, including Mirpur, Hazara, and Karachi. Daud testified that Khan’s

men followed him to each of these places. Daud then obtained a visa to accompany his

brother, who required medical treatment, to the United States.

       Daud testified that, if he returns to Pakistan, Khan’s men will kill him and his

family. Daud admitted to the IJ, however, that he had never been physically harmed by

Khan or his associates. Daud also testified that his family had begun negotiations with

Khan for a “Dastoor,” which he described as a negotiation to repay “damage.” According

to Daud, Khan has demanded that Daud’s youngest daughter marry him, and that Daud

pay restitution of 50 Locs. Daud stated that he has no intention of complying with either

of these demands.

       On the hearing date, Daud also submitted an affidavit to explain why he filed his

application for asylum nearly two years after he arrived in the United States – more than a

year past the one-year filing deadline imposed by the INA. In the affidavit, Daud stated

that he was hoping the political situation in Pakistan would improve and enable him to

return, but that this has not happened. Indeed, Daud asserted that “the Taliban supporters

are increasing in Pakistan every day.”




                                            -3-
                                             II.

       The IJ rendered an oral decision on February 25, 2004, denying Daud’s

applications for asylum, withholding of removal, and relief under the CAT. The IJ denied

Daud’s application for asylum on several grounds. First, the IJ found that Daud had not

filed his application within one year of arriving in the United States as required. The IJ

rejected Daud’s claim that the increased power of the Taliban constituted a changed or

extraordinary circumstance justifying the late filing. The IJ reasoned that, having fled

Pakistan for fear of imminent death, Daud should have filed his asylum application

immediately.

       The IJ also rejected Daud’s asylum petition on the merits. The IJ found Daud’s

testimony not credible, both because he failed to provide independent documentation

about Khan or his arrest, and also because of several “material discrepancies” between

Daud’s testimony and his application for asylum. For example, while Daud’s application

states that he moved to Mirpur in January 1995, his testimony, at least initially, was that

he moved to Mirpur only after receiving threats and “being followed” in February or

March 1995. Daud attempted to explain this inconsistency by stating that the threats

occurred after he moved to Mirpur while he was on a visit back to Baffai. Additionally,

in his application, Daud stated that he “ignored” the threatening December 14, 1994

phone call, whereas he testified that the phone call was one of the reasons he fled to

Mirpur. Because of these inconsistencies, as well as Daud’s failure to provide

documentation of Khan’s existence, arrest, or subsequent threats, the IJ found Daud’s

                                             -4-
testimony not credible.

       The IJ also held that, even if Daud’s testimony were true, he would still be unable

to meet his burden of showing a well-founded fear of persecution if returned to Pakistan.

The IJ found that the threats directed against Daud, and the fear “that people might be

following him” were insufficient to meet his burden of proof.2 The IJ therefore denied

Daud’s application for asylum. The IJ also denied relief under the CAT, finding that

Daud had failed to show that Khan is a member of, or acting on behalf of, the Pakistani

government. Daud timely appealed the IJ’s decision to the Board of Immigration Appeals

(“BIA”).

                                            III.

       While his appeal to the BIA was pending, Daud filed a motion with the BIA

seeking to have his case remanded to the IJ for consideration of his recently filed

application to adjust status. This application was based upon Daud’s marriage to a United

States citizen, on May 17, 2004, nearly three months after the IJ issued his decision.

       On October 17, 2005, the BIA adopted and affirmed the IJ’s opinion. The BIA

affirmed the IJ’s finding that Daud’s asylum application was time-barred, and that neither

extraordinary nor changed circumstances had been demonstrated to excuse the untimely



       2
        The IJ also found that, even if Daud would be subject to persecution in some pro-
Taliban areas of Pakistan, he could relocate to another, safer, area within the country.
Additionally, the IJ held that Daud had not established the required nexus between the
alleged persecution and any of the statutory grounds meriting asylum protection: race,
religion, nationality, membership in a particular social group, or political opinion.

                                            -5-
filing. The BIA also affirmed the IJ’s alternative holding that Daud failed to meet his

burden of proof of eligibility for asylum, withholding of removal, or protection under the

CAT.

       The BIA also denied Daud’s motion to remand to pursue adjustment of status

based upon his marriage to a United States citizen. The BIA held that the “the motion is

not supported by clear and convincing evidence that the marriage is bona fide to

overcome the presumption of marriage fraud that arises when a marriage occurs during

proceedings.” This appeal followed.

                                            IV.

       We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. §

1252. Where, as here, the BIA adopts, in part, the IJ’s findings, we review the decision of

the IJ, as well as any additional reasoning offered by the BIA. Chen Yun Gao v.

Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002); Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2

(3d Cir. 2001).

       “Whether an asylum applicant has demonstrated past persecution or a

well-founded fear of future persecution is a factual determination reviewed under the

substantial evidence standard.” Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001);

Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998). Under this standard, the BIA’s

determination that Daud is not eligible for asylum must be upheld if “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.”

Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006) (citing INS v. Elias-Zacarias,

                                            -6-
502 U.S. 478, 481 (1992)). It can be reversed only if the evidence presented would

require a reasonable factfinder to conclude that the requisite fear of persecution existed.

Elias-Zacarias, 502 U.S. at 481; Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005);

Abdille, 242 F.3d at 483-484 (“Under the substantial evidence standard, the BIA’s

finding must be upheld unless the evidence not only supports a contrary conclusion, but

compels it.”). Adverse credibility determinations are findings of fact and, as such, are

likewise reviewed for substantial evidence. Balasubramanrim v. INS, 143 F.3d 157, 161

(3d Cir. 1998); Chen Yun Gao, 299 F.3d at 272.

       Under CAT, an applicant bears the burden of establishing by objective evidence

“that it is more likely than not that he or she would be tortured if removed to the proposed

country of removal.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003) (quoting

Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir. 2002)); 8 C.F.R. § 1208.16(c)(2).

                                             V.

       Daud first raises two constitutional claims, both asserting violations of due

process. Daud’s first claim is that the transcription of his testimony at the February 25,

2004 hearing, and the IJ’s oral decision of the same date, had so many mistakes and was

of such poor quality that it prevented the BIA from conducting a meaningful review of

the record. Daud’s second due process claim is that the removal proceedings against him

were commenced only as a result of his participation in the National Security Entry Exit

Registration System (“NSEERS”). Daud asserts that NSEERS, which imposes certain

“special” registration requirements upon foreign nationals of certain designated countries,
discriminates unconstitutionally on the basis of religion or national origin.3

       The government argues that the court is without jurisdiction to consider these

claims because they were never raised in the first instance before the BIA. Under 8

U.S.C. § 1252(d), “[a] court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.” To exhaust a

claim, an applicant must first raise the issue before the BIA, Alleyne v. INS, 879 F.2d

1177, 1182 (3d Cir. 1989); Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005), so

as to give it “the opportunity to resolve a controversy or correct its own errors before

judicial intervention.” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir. 2004).

       However, exhaustion of administrative remedies is not always required when the

petitioner advances a due process claim. Khan v. United States AG, 448 F.3d 226, 236

(3d Cir. 2006); Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990); Vargas v. United States

Dep’t of Immigration & Naturalization, 831 F.2d 906, 908 (9th Cir. 1987) (“[D]ue

process claims generally are exempt from [the exhaustion requirement] because the BIA

does not have jurisdiction to adjudicate constitutional issues.”); see also Bonhometre, 414

F.3d at 448 n.7.

       Whether a given due process claim is subject to the exhaustion requirement is

dependent on the nature of the asserted violation. A due process claim alleging a



       3
        Daud’s claim that NSEERS discriminates on the basis of religion is incorrect. For
example, North Korea, a non-Islamic country, is subject to NSEERS while Turkey, a
predominantly Islamic country, is not. NSEERS does, however, apply only to individuals
of certain nationalities or places of origin.

                                             -9-
procedural error that is correctable through the administrative process is fully subject to

the exhaustion requirement. Khan, 448 F.3d at 236 (“[B]ecause this claim, stripped of its

‘due process’ label, is a claim of procedural error that could have been addressed by the

BIA on appeal, the requirement that Khan exhaust remedies applies.); Bonhometre, 414

F.3d at 448 (“Mr. Bonhometre's procedural due process claims thus could have been

argued before the BIA, and his failure to do so is thus fatal to our jurisdiction over this

petition.”); Sewak, 900 F.2d at 670. As explained in Vargas v. U.S. Dep't of Immigration

& Naturalization, 831 F.2d 906 (9th Cir. 1987):

                     [A] petitioner cannot obtain review of procedural
                     errors in the administrative process that were not
                     raised before the agency merely by alleging that
                     every such error violates due process. “Due
                     process” is not a talismanic term which
                     guarantees review in this court of procedural
                     errors correctable by the administrative tribunal.

Id. at 908.

       Where, however, an alleged due process violation is a “fundamental constitutional

claim” that the BIA is powerless to address, there is no exhaustion requirement, and the

claim need not be raised in the first instance before the BIA. Hadayat v. Gonzales, 458

F.3d 659, 665 (7th Cir. 2006); Vargas, 831 F.2d at 908; Sewak, 900 F.2d at 670.

       Here, Daud’s claim that he was denied due process because the poor quality of the

transcription of the proceedings before the IJ prevented the BIA from reviewing an

accurate record “is a claim of procedural error that could have been addressed by the BIA

on appeal.” Khan, 448 F.3d at 236. Daud’s failure to exhaust that claim by raising it in


                                             -10-
his appeal to the BIA therefore precludes us from reviewing it. 8 U.S.C. § 1252(d).

       Daud’s due process claim regarding the unconstitutionality of the NSEERS

program, however, is a “fundamental constitutional claim,” Kandamar v. Gonzales, No.

05-2523, 2006 U.S. App. LEXIS 24261 (1st Cir. September 26, 2006); Hadayat, 458 F.3d

at 665, that could not have been resolved by the administrative tribunal. Accordingly,

Daud’s failure to exhaust his remedies as to this claim does not preclude us from

reviewing it.4

                                             VI.

       Daud claims that the removal proceedings brought against him violate his

constitutional rights under the Fifth Amendment because he came to the INS’s attention

only as a result of his registration in the NSEERS system which, Daud asserts,

impermissibly discriminates on the basis of national origin. NSEERS imposes certain



       4
         The government also contends that, apart from the exhaustion requirement,
Daud’s failure to assert his constitutional claims to the BIA constitutes a waiver of those
arguments. See, e.g., In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003) (holding that the
failure to identify or argue an issue in an opening brief constitutes waiver of that
argument on appeal); Brenner v. Local 514, United Bhd. of Carpenters & Joiners, 927
F.2d 1283, 1298 (3d Cir. 1991) (“[F]ailure to raise an issue in the district court constitutes
a waiver of the argument.”).
        In the immigration context, however, this court has always identified the doctrine
of waiver – i.e., failure to raise an argument before the BIA, with the exhaustion
requirement of 8 U.S.C. § 1252(d). See Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d
Cir.2005) (“To exhaust a claim ... an applicant must first raise the issue before the BIA or
IJ.”); Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (“[A]n alien is
required to raise and exhaust his or her remedies as to each claim or ground for relief if he
or she is to preserve the right of judicial review of that claim.”); Alleyne v. INS, 879 F.2d
1177, 1182 (3d Cir.1989) (noting that the exhaustion requirement “bars consideration of
particular questions not raised in an appeal to the Board”).

                                             -11-
“special registration” requirements upon non-immigrant aliens from certain,

predominantly Arab or Islamic, countries. NSEERS requires such individuals to register

and report to the INS 30 days after their arrival in this country and at certain specific

intervals thereafter. See Registration and Monitoring of Certain Nonimmigrants, 67 Fed.

Reg. 52584 (Aug. 12, 2002) (codified at 8 C.F.R. §§ 214.1(f), 264.1(f)); 67 Fed. Reg.

70526 (Nov. 22, 2006). The parties do not dispute that Pakistan is one of the countries

designated under NSEERS. See 67 Fed. Reg. 77641, 77643 (December 18, 2002).5

       Aliens in deportation proceedings are entitled to the equal protection safeguard

contained within the Due Process Clause of the Fifth Amendment. Mathews v. Diaz, 426

U.S. 67, 77 (1976); Lu v. Ashcroft, 259 F.3d 127, 131 (3d Cir. 2001) (“[P]etitioners in

deportation proceedings enjoy Fifth Amendment Due Process protections.”); DeSousa v.

Reno, 190 F.3d 175, 184 (3d Cir. 1999)(“It is undisputable that our constitution provides

due process and equal protection guarantees to aliens as well as citizens.”). However, in

the immigration context, Congress and the Executive may, in at least some circumstances,

draw classifications based upon an alien’s nationality or place of origin.

       As an initial matter, judicial review of classifications drawn by the political

branches of government in the immigration context is extremely limited. See INS v.

Aguirre-Aguirre, 526 U.S. 415, 425 (1999) ( “[W]e have recognized that judicial


       5
        In December 2003, NSEERS’s 30-day and annual re-registration requirements
ceased. Individuals registered in NSEERS are now only required to appear for re-
registration when deemed necessary by the Department of Homeland Security, which
succeeded the INS in overseeing the program. See 68 Fed. Reg. 67577 (December 2,
2003).

                                             -12-
deference to the Executive Branch is especially appropriate in the immigration context”

(citation omitted)); Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has repeatedly

emphasized that ‘over no conceivable subject is the legislative power of Congress more

complete than it is over’ the admission of aliens.”); see also Diaz, 426 U.S. at 79.

       In Harisiades v. Shaughnessy, 342 U.S. 580 (1952), the Supreme Court explained

the reasons for the great deference afforded the political branches in matters relating to

aliens and immigration:

                     [A]ny policy toward aliens is vitally and
                     intricately interwoven with contemporaneous
                     policies in regard to the conduct of foreign
                     relations, the war power, and the maintenance of
                     a republican form of government. Such matters
                     are so exclusively entrusted to the political
                     branches of government as to be largely immune
                     from judicial inquiry or interference.

Id. at 588-89.

       In the present case, Congress has granted the Attorney General broad powers in

setting special registration requirements applicable to specific sub-classes of aliens. 8

U.S.C.§ 1305 provides:

                     The Attorney General may in his discretion, upon
                     ten days notice, require the natives of any one or
                     more foreign states, or any class or group thereof,
                     who are within the United States and who are
                     required to be registered under this title, to notify
                     the Attorney General of their current addresses
                     and furnish such additional information as the
                     Attorney General may require (emphasis added).


Id. See also id. § 1303(a) (authorizing the Attorney General to prescribe special

                                             -13-
regulations and forms for the registration of “aliens of any other class not lawfully

admitted to the United States for permanent residence”) (emphasis added). These

provisions unquestionably authorize the implementation of the NSEERS program here at

issue.

         Neither the Supreme Court nor this Court has yet decided on the appropriate

standard of review for claims brought by aliens in immigration proceedings asserting that

discrimination on the basis of national origin violates the equal protection guarantee of

the Fifth Amendment. It is not necessary for us to decide this issue, however, because we

hold that our jurisdiction to consider claims of selective enforcement based on national

origin is foreclosed by Reno v. American-Arab Anti-Discrimination Comm., 525 U.S.

471 (1999). In that case, several aliens brought suit against the Attorney General alleging

that they had been targeted for deportation because of their affiliation with the group

Popular Front for the Liberation of Palestine, in violation of their Fifth Amendment

rights. The Court held that it lacked jurisdiction to consider most selective-enforcement

claims under 8 U.S.C. § 1252(g), which provides:


                      Except as provided in this section . . . no court
                      shall have jurisdiction to hear any cause or claim
                      by or on behalf of any alien arising from the
                      decision or action by the Attorney General to
                      commence proceedings, adjudicate cases, or
                      execute removal orders against any alien under
                      this Act.

         The Court rejected the aliens’ argument that § 1252(g) must be read to permit

review of their claims because failure to provide a forum for their selective-enforcement

                                             -14-
claims would raise constitutional issues: “[A]n alien unlawfully in this country has no

constitutional right to assert selective enforcement as a defense against his deportation.”

American-Arab Anti-Discrimination Comm., 525 U.S. at 488; id. at 491-92 (“When an

alien's continuing presence in this country is in violation of the immigration laws, the

Government does not offend the Constitution by deporting him for the additional reason

that it believes him to be a member of an organization that supports terrorist activity.”)

Here, Daud concedes that he overstayed his visa by more than two years and is therefore

in this country unlawfully; it was for this reason that he was ordered removed. We

therefore lack jurisdiction to consider Daud’s Fifth Amendment claim.

       Although the Court did not foreclose “the possibility of a rare case in which the

alleged basis of discrimination is so outrageous that the foregoing considerations can be

overcome,” id. at 491, the classifications drawn by the NSEERS program cannot in

anyway be characterized as “outrageous.” All other courts of appeals to consider the

issue have held likewise. Kandamar, 2006 U.S. App. LEXIS 24261 at *21-22; Hadayat,

458 F.3d at 665 (7th Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 439-40 (5th Cir.

2006); Ali v. Gonzales, 440 F.3d 678, 681 n.4 (5th Cir. 2006); Zafar v. AG, 461 F.3d

1357, 1367 (11th Cir. 2006). We therefore dismiss Daud’s discrimination claim for lack

of jurisdiction.

                                             VII.

       Daud argues that the IJ and BIA erred on both grounds for denying his asylum

application: his failure to file a timely application and on the merits. As to the timeliness


                                             -15-
of Daud’s asylum application, we hold that our jurisdiction to consider Daud’s claims is

foreclosed by 8 U.S.C. § 1158(a)(3). We also agree with the alternative finding of the IJ

and BIA, that Daud has failed to meet his burden of proof, under the applicable standards,

for asylum, withholding of removal, or protection under CAT.

       Daud concedes that he filed his application for asylum more than one year late. 8

U.S.C. § 1158(a)(2)(B)(alien must demonstrate “by clear and convincing evidence that

the [asylum] application has been filed within 1 year after the date of the alien's arrival in

the United States.”). He asserted before the IJ and BIA, however, that he falls within an

exception to the filing deadline for “changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in

filing an application.” Id. § 1158(a)(2)(D). Both the IJ and BIA rejected this argument.

       Congress provided in 8 U.S.C. § 1158(a)(3) that “[n]o court shall have jurisdiction

to review any determination of the Attorney General” under § 1158(a)(2) – i.e., with

respect to the one-year filing deadline for asylum applications. See Sukwanputra v.

Gonzales, 434 F.3d 627, 635 (3d Cir. 2006). We are therefore without jurisdiction to

disturb the BIA’s holding that Daud’s application is time-barred.

       In any event, the record supports the IJ’s and BIA’s determination that Daud is not

entitled to asylum, withholding of removal, or relief under CAT. As the IJ noted, Daud

failed to provide any corroboration of the existence of Pakistan Khan or Daud’s

involvement in his arrest. Several material inconsistencies between Daud’s testimony and

his application cast further doubt upon the accuracy of his account. The adverse


                                             -16-
credibility determination by the IJ and BIA is therefore supported by substantial evidence.

Balasubramanrim, 143 F.3d at 161; Chen Yun Gao, 299 F.3d at 272.

       Even if his testimony were believed, however, Daud would still not be eligible for

relief, because he has not established a “well-founded fear of persecution,” Abdille, 242

F.3d at 483, or that it is “more likely than not that he . . . would be tortured if removed to

the proposed country of removal.” Zubeda, 333 F.3d at 471. None of the conduct Daud

complains of – threats, being followed, entry into his home – give rise to a well-founded

fear of persecution or suggest that he would be subject to torture if removed to Pakistan.

Supported as they are by substantial evidence, the determinations of the IJ and BIA must

be affirmed.

                                            VIII.

       Daud also seeks review of the BIA’s denial of his motion to remand to the

Immigration Court to pursue adjustment of status based upon his marriage to a United

States citizen. The BIA denied the motion because the marriage had taken place on May

17, 2004, during the pendency of removal proceedings, and could therefore not be the

basis for adjustment of status unless upon a showing by “clear and convincing evidence to

the satisfaction of the Attorney General” that the “marriage was not entered into for the

purpose of procuring the alien's admission as an immigrant.” 8 U.S.C. § 1255(e). The

BIA held that Daud’s motion was “not supported by clear and convincing evidence that

the marriage is bona fide to overcome the presumption of marriage fraud that arises when

a marriage occurs during proceedings.”


                                             -17-
       The decision to grant or deny an adjustment of status pursuant to § 1255 is a

discretionary one. Pinho v. Gonzales, 432 F.3d 193, 203 (3d Cir. 2005)(“In the case of

adjustment of status, an eligible immigrant may have his application denied within the

discretion of the agency.”). By its plain language, § 1252(a)(2)(B)(i) bars judicial review

of such a discretionary decision. See id. (“Notwithstanding any other provision of law . .

. no court shall have jurisdiction to review . . . any judgment regarding the granting of

relief under section . . . 1255.”); Zheng Zheng v. Gonzales, 422 F.3d 98, 111 (3d Cir.

2005). Therefore we are without jurisdiction to review Daud’s challenge to the BIA’s

denial of discretionary relief unless he has presented a constitutional claim or a question

of law under the REAL ID Act. § 1252(a)(2)(D). See Ng v. AG of the United States, 436

F.3d 392, 394 (3d Cir. 2006). Daud has presented no such claim or question.

       Because we do not have jurisdiction over the BIA’s denial of the relief Daud seeks

– i.e., adjustment of status under § 1255, we also do not have jurisdiction to review the

BIA’s denial of his motion to remand to the Immigration Court to pursue that relief.

Martinez-Maldonado v. Gonzales, 437 F.3d 679, 683 (7th Cir. 2006)(“[W]e lack

jurisdiction over motions to reopen and reconsider in cases where we lack jurisdiction to

review the underlying order.”); Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001)

(“It is axiomatic that if we are divested of jurisdiction to review an original determination

of the Board that an alien has failed to establish that he would suffer extreme hardship if

deported, we must also be divested of jurisdiction to review the Board's denial of a

motion to reopen on the ground that the alien has still failed to establish such a


                                             -18-
hardship.”); Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997) (“[W]here Congress

explicitly withdraws our jurisdiction to review a final order of deportation, our authority

to review motions to reconsider or to reopen deportation proceedings is thereby likewise

withdrawn”).

                                             IX.

       For the foregoing reasons, Daud’s petition for review will be dismissed as to his

constitutional claims with respect to faulty transcription and discrimination, the denial of

his application for asylum, and the denial of his motion to remand, and will be denied as

to his claims for withholding of removal and protection under the CAT.




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