                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3869




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                                                               NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                      No. 06-3869
                                      ___________

                                MOHAMMAD SHERAZ,
                                              Petitioner,

                                            v.

                   ATTORNEY GENERAL OF THE UNITED STATES
                                            Respondent.

                         On Petition for Review of an Order of the
                              Board of Immigration Appeals
                                (Agency No. A79-488-762)
                       Immigration Judge: Honorable Mirlande Tadal
                        ____________________________________

                      Submitted Pursuant to Third Circuit LAR 34.1(a)
                                      May 21, 2008

               Before: FUENTES, ALDISERT and GARTH, Circuit Judges

                               (Opinion filed May 22, 2008)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Mohammad Sheraz petitions for review of a final order by the Board of

Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition in

part and dismiss it in part.
       Sheraz, a citizen of Pakistan, illegally entered the United States in 1999 and

entered removal proceedings in 2004. Sheraz conceded removability but sought

withholding of removal and protection under the Convention Against Torture (“CAT”).

In summary, Sheraz claimed that he, a Sunni Muslim, had married a Shi’a woman against

the wishes of their families. As a result, he experienced violence attributable to his in-

laws, particularly his father-in-law, a high-ranking Pakistani military official. He claimed

that his in-laws caused him to suffer a beating resulting in two broken legs, and that they

may have killed his wife. The Immigration Judge (“IJ”) denied relief, largely because she

did not find Sheraz credible.

       Sheraz, through counsel, submitted to the BIA a notice of appeal of the IJ’s

decision. He declined to submit briefing but included a three-page statement primarily

raising for appeal issues concerning the adverse credibility determination. See A.R.

0005-11. The BIA rendered a decision on July 26, 2006, affirming the IJ’s decision,

denying Sheraz’s applications for withholding of removal and protection under the CAT,

and ordering removal. This petition for review followed.

                                             II.

       Sheraz disputes the denial of his applications for withholding of removal and

protection under the CAT. He claims that: (1) the IJ erroneously failed to examine

whether the beating he claims to have suffered qualified as torture; and (2) the IJ applied

the incorrect legal standard with regard to the government’s acquiescence in Sheraz’s

claimed mistreatment by his in-laws. However, as the Government correctly notes, these

                                              2
arguments pertain to the IJ’s alternative holding concerning the legal merits of Sheraz’s

claims. The IJ’s primary holding – which was the holding that the BIA expressly

affirmed – focused on Sheraz’s lack of credibility. The only issues properly before us are

those that the BIA chose to rely upon. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d

Cir. 2003).

       However, we need not reach the issue of whether we may address Sheraz’s

arguments about the IJ’s alternative holding because Sheraz failed to exhaust his

administrative remedies by first raising his arguments before the BIA. See Abdulrahman

v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). Sheraz was entitled to proceed before

the BIA without submitting a brief. See Bhiski v. Ashcroft, 373 F.3d 363, 368 (3d Cir.

2004). However, he was required to place the BIA on notice of the issues. Id. Nothing

in his notice of appeal remotely suggested the two legal arguments he now presents. A.R.

0010-11. We therefore dismiss these claims for failure to exhaust administrative

remedies. Abdulrahman, 330 F.3d at 595.

                                            III.

       Sheraz also argues a denial of due process due to the ineffective assistance of

counsel, which he claims led to the IJ’s adverse credibility determination, citing Fadiga v.

Atty. Gen’l of the United States, 488 F.3d 142 (3d Cir. 2007). Once again, we must

determine whether Sheraz was required to first present this issue to the BIA. See

Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).

       An alien may suffer a violation of his constitutional right to due process where his

                                             3
counsel was so ineffective that he could not reasonably present his case. Zheng v.

Gonzales, 422 F.3d 98, 106 (3d. Cir. 2005). Generally, constitutional claims are beyond

the BIA’s jurisdiction and not subject to the exhaustion requirement. Bonhometre, 414

F.3d at 448 n.7. However, there is an exception for claims that could have been corrected

by the BIA. Khan v. Atty. Gen’l of the United States, 448 F.3d 226, 236 (3d Cir. 2006).

Ineffective assistance of counsel claims fall in this exception and must be raised before

the BIA.1 See Lu v. Ashcroft, 259 F.3d 127, 132 (3d Cir. 2001). Sheraz did not exhaust

his administrative remedies, so we dismiss his due process claim for lack of jurisdiction.2

Zheng, 422 F.3d at 107-08.

                                             IV.

       The sole issue Sheraz raises here that he also previously raised before the BIA, if




  1
    Sheraz primarily relies upon Yang v. Gonzales, 478 F.3d 133 (2d Cir. 2007).
However, in the Second Circuit, as here, ineffective assistance of counsel claims must be
raised before the BIA in the first instance. Id. at 142.
  2
    We note that Sheraz did not provide sufficient evidence to raise an ineffective
assistance of counsel claim. To raise such a claim in a motion to reopen before the BIA,
the alien generally must: (1) provide an affidavit attesting to the relevant facts; (2) inform
former counsel of the allegations and allow him the opportunity to respond; and
(3) provide information about whether a complaint has been filed with disciplinary
authorities regarding the representation, or if not, why not. Zheng v. Gonzales, 422 F.3d
98, 106 (3d Cir. 2005) (citing Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988)).
While the Lozada factors need not be applied formulaically, Zheng, 422 F.3d at 106,
Sheraz did not present any such evidence. Although Sheraz appended to his brief a notice
concerning disciplinary action against his former counsel due to a conviction for “fraud
and misuse of visas/permits,” that notice does not purport to relate to Sheraz.

                                              4
somewhat obliquely,3 concerns corroborating evidence. Sheraz contends that the IJ

required corroborating evidence – particularly of the existence of his marriage – but did

not permit Sheraz sufficient time to obtain it or explain its absence, and then relied upon

the lack of corroboration in denying relief.4 The BIA affirmed the IJ’s decision at least in

part because of a lack of corroborating evidence. See A.R. 0002.

       A failure to provide corroborating evidence may undermine an otherwise credible

alien’s case where: (1) the IJ identifies facts for which it is reasonable to expect

corroboration; (2) the applicant fails to corroborate; and (3) the applicant fails to

adequately explain the failure to corroborate. Chukwu v. Atty. Gen’l of the United States,

484 F.3d 185, 191-92 (3d Cir. 2007). It is reasonable to expect corroboration where the

facts are central to the applicant’s claim. Id. at 192.

       Sheraz submitted his applications in December 2004. The IJ held a scheduling

conference in March 2005, when she set the hearing date and asked Sheraz’s counsel if he

intended to submit additional evidence. A.R. 0079-80. He declined. Sheraz thus had

notice of the hearing and time during which to gather evidence. His hearing took place


  3
    Sheraz argued: “The judge erred in not finding respondent’s testimony credible. The
judge stated that respondent’s inability to show the marriage proves that he was not
married on the contrary, the marriage took place in a very usually way [sic] and the
respondent was unable to return to obtain the marriage certificate.” A.R. 0010.
  4
    Sheraz attempted to submit to the BIA corroborating evidence in support of his
claims, which the BIA rejected for failure to establish that the evidence was new and not
previously available. See A.R. 0002. In his opening brief, Sheraz does not argue that the
BIA committed any error in failing to consider the new evidence, so this issue is waived.
See Voci v. Gonzales, 409 F.3d 607, 610 n.1 (3d Cir.2005).

                                               5
on April 20, 2005, where he was once again represented by counsel. See A.R. 0129.

       Sheraz provided corroborating evidence to support certain aspects of his claim,

including a character certificate from a police office in Pakistan showing that he had not

been previously arrested. See A.R. 0109-110, 0173. Yet Sheraz failed to provide other

salient evidence, particularly of his marriage, of his father-in-law’s role as a high-ranking

Pakistani military official, and of his wife’s death. See A.R. 0120-21, 0126-27, 0128.

The IJ reasonably expected such corroborating evidence – particularly evidence of his

marriage, which provided the central basis for his claim that he was subject to persecution

and torture because he married outside his religion. See A.R. 0155.

       Although the IJ asked him why he did not produce such evidence, Sheraz

essentially provided no explanation. For example, when the IJ asked why he provided a

police character certificate but no copy of his marriage certificate, he simply responded

“maybe I could go see if he could make a copy of it.” A.R. 0127. This does not address

why he did not procure the evidence before his hearing. In addition, to the extent Sheraz

expressed fear that obtaining evidence would put him at risk in Pakistan, the IJ found his

testimony implausible because Sheraz could not explain why he could obtain official

documents from Pakistani police but could not similarly procure a copy of his marriage

certificate. See A.R. 0043-44. Thus, the IJ properly identified to Sheraz the reasonable

evidence for which she expected corroboration, asked him to explain its absence, and

Sheraz failed to provide an adequate explanation. See Chukwu, 484 F.3d at 191-92.

       Finally, apart from the issue of corroborating evidence, Sheraz does not dispute the

                                             6
adverse credibility determination. “An alien’s credibility, by itself, may satisfy his burden,

or doom his claim.” Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc).5 Here,

the unchallenged adverse credibility determination dooms Sheraz’s claim.

                                             V.

       For the foregoing reasons, we will dismiss the petition in part and deny it in part




   5
     Assessment of an applicant’s credibility is undertaken separately from the assessment
of corroborating evidence. Chen v. Gonzales, 434 F.3d 212, 221 (3d Cir. 2005). A
credibility determination entails review of factors such as internal consistency, inherent
improbability, tone, and demeanor. See id. at 220. The IJ recognized that Sheraz’s lack
of corroborating evidence “is not ground for the Court to make an adverse [finding] of
credibility,” A.R. 0045, and the BIA noted that both the lack of credibility and the
absence of corroborating evidence supported the holding that he failed to meet his burden
of proof. A.R. 0002. Nevertheless, even if the IJ or BIA had improperly blurred the line
between the credibility and corroboration analyses, where the credibility determination is
supported by substantial evidence in the record, this Court may deny the petition for
review without remand to the BIA. See Chen, 434 F.3d at 221. Here, the BIA observed
that the adverse credibility determination is supported by substantial evidence, including,
for example, Sheraz’s inconsistent statements to immigration authorities concerning
whether he was ever married. See A.R. 0002.




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