                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                     No. 09-3975
                                    _____________

                              GAZI SARWAR HUSSAN,
                                     Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                               Respondent
                             _____________

                        Petition for Review of an Order of the
                         United States Department of Justice
                            Board of Immigration Appeals
                               (BIA No. A070-910-171)
                      Immigration Judge: Honorable Henry Dogin
                                    _____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 17, 2011

             Before: RENDELL, AMBRO and NYGAARD, Circuit Judges

                          (Opinion Filed: November 21, 2011)
                                   _____________

                              OPINION OF THE COURT
                                  _____________

RENDELL, Circuit Judge.

      Gazi Sarwar Hussan petitions for review of the Board of Immigration Appeals’s

order affirming the decision of the Immigration Judge denying his application for asylum,

withholding of removal, protection under the United Nations Convention Against
Torture, and cancellation of removal. For the following reasons, we will deny the

petition for review.

                                              I.

       Hussan, a native and citizen of Bangladesh, entered the United States on June 3,

1992, without a valid entry document. Hussan is a member of the Jatiya Party, and

claims that he will be persecuted on account of his political opinion if he returns to

Bangladesh, which is controlled by the Bangladesh National Party.

       To support his claim, Hussan testified that he was peacefully leading a political

demonstration on Bangladesh Independence Day, March 26, 1991, to demand the release

of Jatiya Party member and former President Hussain Muhammad Ershad when he and

other members of his party were attacked by BNP members who threw stones and

brandished sticks. Although he declares that they did nothing wrong, Hussan and some

of his fellow demonstrators were arrested and charged with inciting a riot in connection

with the March 26 events. Hussan attended some of the pre-trial hearings in his criminal

case, but was again beaten by BNP members as he left one of the hearings, this time

severely, causing injuries to his leg that required him to seek treatment in a hospital.

Hussan testified that he continued to receive threats, and so he stopped attending his

hearings, went into hiding, and ultimately fled.

       The Bangladeshi trial court convicted Hussan’s four co-defendants of crimes

related to the violence that occurred during the March 26 demonstration, but their

convictions were overturned on appeal. The trial court also convicted Hussan, in

absentia, and sentenced him to three years in prison. Because Hussan had already fled

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Bangladesh, however, he was not able to file an appeal. His lawyer in Bangladesh

confirmed that the time to appeal his conviction has expired.

       In addition to his own testimony, Hussan called a former Jatiya Party member,

who testified that the police in Bangladesh held an outstanding warrant for Hussan’s

arrest. Hussan also provided documents from the Bangladeshi court confirming his

conviction as well as letters from the Jatiya Party confirming his position in the party and

corroborating the facts of Hussan’s co-defendants’ convictions and subsequent appeals.

       The IJ denied Hussan relief, finding that Hussan had not proven persecution on

account of political opinion. Instead, the IJ reasoned, the record indicated that

Bangladesh had lawfully prosecuted Hussan for participating in what ultimately became a

riot. The IJ noted that, apart from his own testimony, Hussan had not produced

additional evidence supporting his claim that he was wrongfully prosecuted, or that he

had sustained a leg injury requiring hospital treatment. The IJ also found that Hussan had

failed to demonstrate that his removal would cause his United States citizen children

exceptional or extremely unusual hardship, or that he would be tortured if returned to

Bangladesh. Thus, the IJ determined that Hussan had not met his burden and denied his

application for relief. The BIA affirmed.

                                             II.

       Hussan now petitions this Court for review. Chiefly, Hussan asserts that the IJ and

the BIA improperly required corroborating evidence, and denied his petition on this




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ground without first affording him notice and the opportunity to provide such evidence. 1

Because we find that substantial evidence supports the IJ’s and the BIA’s determination

that Hussan failed to meet his burden of proof on his asylum and withholding of removal

claims, and that his cancellation of removal and CAT claims also fail, we will deny

Hussan’s petition for review. 2

                                            A.

       As the petitioner, Hussan bears the burden of proof to establish a well-founded

fear of persecution as part of his asylum and withholding of removal claims. Shardar v.

Ashcroft, 382 F.3d 318, 323 (3d Cir. 2004). Whether a petitioner has adequately

demonstrated such a fear of persecution is a finding of fact, which we review under the

substantial evidence standard; we will reverse only where “any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

       Hussan argues that the BIA erred by refusing to allow him to supplement the

record and remand his case to the IJ to follow the procedural requirements we set forth in

Abdulai v. Ashcroft. 239 F.3d 542, 554 (3d Cir. 2001) (establishing procedural

requirements for dismissing petition for asylum based on failure to produce corroborating

1
  Hussan raises several additional challenges, including allegations that the IJ improperly
allowed into evidence documents not previously served on him, applied erroneous
standards of law, made erroneous determinations of fact, and that the hearing was
conducted in a prejudicial manner. The BIA, however, found that the adequacy or
inadequacy of proof in the record would ultimately control the disposition of Hussan’s
appeal. The BIA also noted that the record did not reflect any prejudice otherwise
preventing Hussan from presenting his case. We agree, and as such we will focus our
discussion on the burden of proof and corroboration issues.
2
  The BIA had jurisdiction over Hussan’s appeal from the IJ’s determination under
8 C.F.R. § 1003.1. This Court’s jurisdiction arises under 8 U.S.C. § 1252.
                                             4
evidence). But the IJ did not deny Hussan relief based merely on the absence of

corroborating evidence. Instead, the IJ determined that the evidence Hussan presented

did not establish his eligibility for relief.

       We previously denied a petition for review on facts almost identical to those

before us. See Shardar, 382 F.3d at 320. In Shardar v. Ashcroft, the petitioner, also a

member of Bangladesh’s Jatiya Party, claimed fear of persecution based on his political

opinion. Id. To support his claim, the petitioner offered his own testimony, and also

presented documentary evidence including a police report, court records, an outstanding

arrest warrant, and letters from his lawyer, the Jatiya Party, and a medical clinic that

treated the petitioner for injuries. Id. at 321 (highlighting police report, which stated that

petitioner led others to engage in violent protest). The IJ determined that the petitioner

had in no way met his burden of proof because the objective evidence established that the

government sought to prosecute the petitioner for his violent behavior, not to persecute

him for expressing a political opinion. Id. The BIA affirmed. Id. at 322. We denied the

petition for review, finding that substantial evidence supported the BIA’s order. Id. at

323 (“[T]he IJ did not merely deny Shardar’s claim because of the absence of

corroborating evidence. Rather, the documentary evidence that was presented conflicted

with Shardar’s contention that the demonstration was peaceful.”). We also

acknowledged the difference between persecution and prosecution: “As a general

matter, . . . fear of prosecution for violations of ‘fairly administered laws’ does not itself

qualify one as a ‘refugee’ or make one eligible for withholding of deportation.” Id.

(citation omitted).

                                                5
       In light of the similarities between this case and Shardar, we cannot conclude that

this record compels us to reach a conclusion contrary to that of the IJ and the BIA. As in

Shardar, the record in this case indicates that Bangladesh lawfully prosecuted Hussan for

his role in what began as a political demonstration but ended as a riot. Hussan’s

proposed supplemental evidence—including medical records, letters from his co-

defendants, the appellate court judgment reversing his co-defendants’ convictions, and a

party chairman’s affidavit—does not disprove the BIA’s conclusion. Instead, as the BIA

noted, this evidence suggests that had Hussan remained in Bangladesh, he too could have

used the court system to challenge the charges against him.

       Furthermore, prosecution under generally applicable laws only constitutes grounds

for asylum where such prosecution is motivated by a statutorily protected ground, and the

punishment under the law is sufficiently serious to constitute persecution. See id.

(citations omitted). Hussan has made no such showing here. While he may

understandably fear imprisonment in Bangladesh for his conviction arising from the 1991

protest—indeed, it appears that the time for him to appeal the conviction has run—that

fear alone does not demonstrate persecution.

                                            B.

       The BIA also affirmed the IJ’s denial of Hussan’s application for cancellation of

removal because Hussan had not demonstrated that his removal would result in

exceptional and extremely unusual hardship for his United States citizen children. We

lack jurisdiction to review that discretionary determination. See Patel v. Attorney Gen. of

the U.S., 619 F.3d 230, 232 (3d Cir. 2010) (“We lack jurisdiction to review discretionary

                                             6
decisions made pursuant to 8 U.S.C. § 1229b, including ‘exceptional and extremely

unusual’ hardship determinations.”) (citations omitted).

                                            C.

       Lastly, substantial evidence supports the BIA’s denial of CAT relief. Apart from

the evidence offered to support his petition for asylum and withholding of removal,

which fails for the reasons set forth above, Hussan has not provided any additional

evidence demonstrating that it is more likely than not that he would be tortured if

removed to Bangladesh.

                                            III.

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




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