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


4-16-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1205




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"Shahzad v. Atty Gen USA" (2009). 2009 Decisions. Paper 1532.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1532


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                    No. 08-1205
                                    ___________

                             MUHAMMAD SHAHZAD
                                        Petitioner
                                   vs.

                ATTORNEY GENERAL OF THE UNITED STATES
                   ____________________________________

                      On Petition for Review of an Order of the
                           Board of Immigration Appeals
                            (Agency No. A96-260-000)
                   Immigration Judge: Honorable Eugene Pugliese
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  April 15, 2009
               Before: FUENTES, WEIS and GARTH, Circuit Judges

                             (Opinion filed April 16, 2009)

                                 ________________

                                     OPINION
                                 ________________

PER CURIAM

             Muhammad Shahzad, a native of Pakistan, entered the United States in

April 2001. On March 31, 2003, Shahzad was charged as removable for overstaying his

admission period. Shahzad conceded removability and applied for asylum, withholding

                                          1
of removal, and relief under the Convention Against Torture (CAT). Shahzad argued that

he would be persecuted if returned to Pakistan based on his membership and activities in

the Nawaz branch of the Muslim League. After a hearing, the IJ found Shahzad

removable, denied relief, and ordered Shahzad removed to Pakistan. After the BIA

dismissed the appeal, Shahzad filed a timely petition for review.

              The IJ found Shahzad’s asylum application untimely. Generally, we lack

jurisdiction to review a decision by the IJ or the BIA that an asylum application is

untimely. 8 U.S.C. § 1158(a)(3). We have jurisdiction to review constitutional claims

and questions of law but not factual or discretionary determinations related to the

timeliness of an asylum application. Sukwanputra v. Gonzales, 434 F.3d 627, 634 (3d

Cir. 2006). Shahzad argues that the IJ erred in not admitting his arguments regarding

changed country conditions into evidence. During the hearing, the IJ noted that

Shahzad’s attorney had provided a memorandum on the changed country conditions but

had not attached anything to support the claim. C.A.R. at 97, 354-55. The IJ refused to

consider the memorandum as evidence. Shahzad did not discuss the relevant events in his

testimony. The BIA did not err in refusing to consider arguments on changed country

conditions that were unsupported by the record.

              Shahzad also applied for withholding of removal and relief under the CAT.

To be eligible for withholding of removal, Shahzad must demonstrate that it is more

likely than not that his life would be threatened in Pakistan on account of race, religion,



                                              2
nationality, membership in a particular social group, or political opinion. Tarrawally v.

Ashcroft, 338 F.3d 180, 186 (3d Cir. 2003); 8 U.S.C. § 1231(b)(3)(A). To be eligible for

withholding of removal under the CAT, Shahzad must demonstrate that it is more likely

than not that he would be tortured if removed to Pakistan. 8 C.F.R. § 208.16(c)(2). We

may reverse the BIA’s decision only if the record permits but one reasonable conclusion,

which was not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481

(1992).

                  Shahzad testified that he started working for the Muslim League in 1995.

He arranged rallies and later became an assistant general secretary. He stated that in

October 1999, the leaders of his party were arrested after there was a change in power in

the government. He asserted that he went to another city for a few months after a warrant

was issued for his arrest on charges of instigating people against Musharraf. He testified

that others were arrested, tortured and sent to jail. Later, at a rally, he was hit with a stick

by the police and needed stitches near his eye. He stated that the police bothered his

parents every month and threatened them with jail if they didn’t give the police his

address. He testified that he would have problems if he returned because Musharraf was

still in power.

                  Shahzad argues that the IJ found him incredible without justification.

While the IJ made comments which indicated that he doubted Shahzad’s credibility, it is

not clear that he made an explicit adverse credibility finding. “The case certainly does



                                                 3
present credibility problems here and the Court does not feel comfortable coming to any

conclusion that this testimony was credible or that the respondent’s accounts were

trustworthy.” C.A.R. at 75. However, the BIA did not rely on any adverse credibility

finding. Rather, the BIA agreed with the IJ that Shahzad had not met his burden for

withholding of removal.

              As proof of past persecution, Shahzad points to affidavits from members of

the Muslim League and arrest warrants in the record. C.A.R. at 237-41, 251-53.

However, these documents do not compel a finding that Shahzad is entitled to

withholding of removal or relief under the CAT. As noted by the IJ, Shahzad was unable

to give many details of his activities with the Muslim League. The affidavits of the other

Muslim League members do not give any additional details of Shahzad’s activities and do

not describe any persecution Shahzad suffered beyond his allegations of an arrest warrant

being issued and his family being harassed. We conclude that Shahzad cannot show that

the current record compels a finding that it is more than likely that he will be persecuted

or tortured if he is returned to Pakistan.

              For the above reasons, we will deny the petition for review.
