                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2003

Khan v. Elwood
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4216




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                                                                     NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                       No. 02-4216
                                      ___________

                             MOHAMMAD ZOHAIB KHAN,

                                                       Appellant

                                              v.

                         KENNETH ELWOOD, District Director,
                         Immigration and Naturalization Services


                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania

                   District Court Judge: The Honorable Sylvia H. Rambo
                               (D.C. Civil No. 02-cv-01734)
                                       ___________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     July 22, 2003

                        Before: ALITO, FUENTES, Circuit Judges,
                              and SURRICK,* District Judge.

                           (Opinion Filed: September 11, 2003)
                             ________________________

                                OPINION OF THE COURT
                              ________________________



       *
       Hon. R. Barclay Surrick, U.S. District Judge for the Eastern District of
Pennsylvania, sitting by designation.
FUENTES, Circuit Judge:

       Mohammad Zohaib Khan (“Khan”) filed a petition for writ of habeas corpus under 28

U.S.C. § 2241 in the Middle District of Pennsylvania. On November 4, 2002, the District

Court denied Khan’s Petition. On appeal, Khan argues that the District Court erred in failing

to find that the Board of Immigration Appeals (“BIA”) applied an erroneous legal standard in

denying Khan protection under the Convention Against Torture (“CAT”). We disagree with

Khan and will, therefore, affirm.

       Khan is a native and citizen of Pakistan. He was admitted to the United States as a

lawful permanent resident in 1996. In September 2000, Khan was convicted in Delaware of

possession with intent to distribute marijuana and sentenced to a five-year term of

imprisonment, which was later suspended.            On March 7, 2001, the Immigration and

Naturalization Service (“INS”) served Khan with a notice to appear for removal proceedings

charging that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii) because he

had been convicted of an aggravated felony, and pursuant to 8 U.S.C. § 1227(a)(2)(B)(i)

because he had been convicted of violating a state controlled substance law.

       The Immigration Judge (“IJ”) terminated the aggravated felony charge, but found that,

based on the Delaware drug conviction, the INS had established that Khan was removable under

8 U.S.C. § 1227(a)(2)(B)(i). Thereafter, Khan requested asylum, withholding of removal, and

protection under the CAT. With respect to his CAT claim, Khan asserted that he would come

to the attention of the Pakistani government upon his return due to his criminal activity in the

United States and that the government would likely arrest and torture him. On November 26,

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2001, the IJ denied Khan’s requests for asylum and withholding of removal, but granted him

protection under the CAT.

       The INS appealed the IJ’s termination of the aggravated felony charge and grant of

protection under the CAT to the BIA. On June 24, 2002, the BIA sustained the INS’s appeal

and vacated the portion of the IJ’s order withholding Khan’s removal pursuant to the CAT.

Because Khan’s applications for asylum, withholding of removal, and protection under the CAT

had all been denied, the BIA declined to address the INS’s argument that the IJ improperly

terminated the aggravated felony charge. The BIA ordered Khan removed to Pakistan.

       Khan petitioned this Court to review the BIA’s final removal order. On September 23,

2002, this Court dismissed Khan’s petition for lack of subject matter jurisdiction pursuant to

8 U.S.C. § 1252(a)(2)(C). The INS took Khan into custody in September of 2002 in York,

Pennsylvania. Accordingly, Khan filed a petition for a writ of habeas corpus in the Middle

District of Pennsylvania. On November 4, 2002, the District Court denied Khan’s habeas

petition.

       There is no question that “district courts may exercise habeas jurisdiction over

petitions alleging violations of CAT.” Ogbudimkpa v. Ashcroft, No. 02-1181, 2003 WL

21995303, at *9 (3d Cir. Aug. 22, 2003); see also Wang v. Ashcroft, 320 F.3d 130, 141 (2d

Cir. 2003); Saint Forth v. Ashcroft, 329 F.3d 191, 200 (1st Cir. 2003); Cornejo-Barreto v.

Seifert, 218 F.3d 1004, 1015-16 (9th Cir. 2000). The scope of a district court’s habeas

jurisdiction extends to claims concerning “errors of law, including the erroneous application

or interpretation of statutes.” INS v. St. Cyr, 533 U.S. 289, 302 (2001). We have jurisdiction

                                             -3-
over this appeal from the District Court’s final order denying the habeas petition under 28

U.S.C. §§ 1291, 2253(a). We exercise plenary review over the District Court’s decision. See

Carter v. Vaughn, 62 F.3d 591, 593 (3d Cir. 1995); Hankins v. Fulcomer, 941 F.2d 246, 249

(3d Cir. 1991).

       Khan argues that the District Court erred in denying his habeas petition because the BIA

“abused its discretion in ruling contrary to regulation that Khan did not meet his burden of

proof in establishing withholding of removal.” (Khan’s Brief at 13).

       In order to obtain relief under the CAT, an applicant must establish “that it is more

likely than not that he or she would be tortured if removed to the proposed country of

removal.” Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d Cir. 2002) (quoting 8 C.F.R. §

208.16(c)(2)). This standard does not include a subjective component, but rather requires that

the applicant show entitlement to relief by objective evidence. See id. Accordingly, in order

to avail himself of relief under the CAT, it was Khan’s burden to demonstrate by means of

objective evidence that he would more likely than not be tortured if removed to Pakistan.

       The BIA correctly stated the “more likely than not” standard in its decision. (App. at

Exhibit F, p. 1). Applying the standard to Khan’s case, the BIA found that “[a]lthough evidence

of record supports the Immigration Judge’s conclusion that the Pakistani police torture

detainees, [Khan] has provided no evidence demonstrating a probability either that he will

personally be detained upon his removal to Pakistan or, if he is detained, that he will personally

be in a class of detainees who are likely to be tortured.” Id. at 2. The BIA held that “. . . the

absence of evidence establishing a likelihood that [Khan] will be at personal risk of torture by

                                               -4-
or with the acquiescence of the Pakistani government constitutes a failure of proof.” Id. The

BIA’s analysis and findings demonstrate that it carefully reviewed the record and complied with

the legal standard for analyzing CAT applications.

       We agree with the INS that Khan’s habeas petition is nothing more than a “thinly

disguised sufficiency of the evidence argument.” (INS’s brief at 13). But, as the District

Court correctly observed, a sufficiency of the evidence argument is properly raised on direct

appeal, not in a habeas petition. Accordingly, we will not review any further the BIA’s

determination that Khan did not satisfy his burden of demonstrating that he would more likely

than not be tortured if returned to Pakistan.

       Because the BIA applied the correct legal standard, we will affirm the District Court’s

denial of Khan’s habeas petition.




TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.



                                                          /s/ Julio M. Fuentes
                                                          Circuit Judge


                                                -5-
