                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4638




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                                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   NO. 03-4638
                                  ____________

                         MUHAMMAD TAHIR AWAN,
                                      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
                            (Agency No. A79 117 558)
                        ___________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              September 26, 2005

           Before: RENDELL, FUENTES and GARTH, Circuit Judges.

                             (Filed: October 4, 2005)


                                _______________

                           OPINION OF THE COURT
                               _______________

PER CURIAM

    Muhammad Tahir Awan, a citizen of Pakistan, petitions for review of a final order
of the Board of Immigration Appeals. We will deny the petition for review.

                                             I.

       Awan came to the United States in 2001, and he was subsequently charged with

inadmissibility as an alien who entered the United States without inspection. See INA

§ 212(a)(6)(A)(i) [8 U.S.C. § 1182(a)(6)(A)(i)]. During proceedings before an

immigration judge (IJ), Awan conceded removability but sought asylum, withholding of

removal, and protection under the Convention Against Torture. Awan’s applications

relied on his allegations that he was arrested and detained three times, and abused on at

least two of those occasions, by a former Pakistani government as a consequence of his

political affiliations. The IJ denied relief, holding that Awan offered an unbelievable

account of persecution. A.R. 37-42. In the alternative, the IJ held that the subsequent

change in government in Pakistan meant that, even if Awan had been persecuted in the

past, he no longer had a reasonable fear of future persecution. A.R. 36-37, 42. The BIA

affirmed without opinion. A.R. 2. Awan timely petitioned for review.1

                                            II.

       Because the BIA did not provide any independent analysis, we review the decision

of the IJ as if it were the BIA’s decision. Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d

Cir. 2001). Our standard of review is narrow. We must sustain the IJ’s removal order if




  1
   Previously, this proceeding was dismissed on Awan’s motion pursuant to Fed. R.
App. P. 42(b). Thereafter, he sought and obtained permission to reopen the proceeding.

                                             2
there is substantial evidence in the record to support it. Abdille v. Ashcroft, 242 F.3d

477, 483 (3d Cir. 2001). “Substantial evidence is more than a mere scintilla and is such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998) (quotation omitted).

This is a deferential standard, and the IJ’s “finding must be upheld unless the evidence

not only supports a contrary conclusion, but compels it.” Abdille, 242 F.3d at 483-84

(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)).

       To qualify for asylum, a petitioner must be unwilling to return to his country

“because of persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion.” INA

§ 101(a)(42)(A) [8 U.S.C. § 1101(a)(42)(A)]. The fear must be both subjective and

“supported by objective evidence that persecution is a reasonable possibility.” Lin v.

INS, 238 F.3d 239, 244 (3d Cir. 2001) (quotation omitted). To obtain withholding of

removal, an applicant must establish that his “life or freedom would be threatened” on the

basis of the categories listed in the asylum statute. INA § 241(b)(3)(A) [8 U.S.C.

§ 1231(b)(3)(A)]. To obtain protection under the Convention Against Torture, an

applicant must show it is more likely than not that he will be subjected to torture on

removal. Auguste v. Ridge, 395 F.3d 123, 149 (3d Cir. 2005).

                                            III.

       The IJ’s adverse credibility determination rests on substantial evidence. See Dia v.



                                             3
Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en banc) (discussing the standard in the

context of an adverse credibility determination). Among other things, the IJ concluded

that Awan’s story of persecution was unbelievable, given his admission at the

immigration hearing that he left and returned to Pakistan twice during the sequence of

arrests. A.R. 33-36. Notably, Awan testified that the first of these trips out of Pakistan—

occurring after, at least, the second arrest—was a month-long pleasure trip to Indonesia.

A.R. 81-82. The second trip—also occurring after the second, or possibly the third,

arrest—was to Denmark, and Awan returned to Pakistan after only either 14 or 15 days.

A.R. 80, 82-83. Awan testified that he left Pakistan for Denmark to flee persecution but

quickly returned when his mother suffered problems with her blood pressure. A.R. 81.

The IJ doubted that anyone who had actually suffered what Awan alleged (arrests, stints

in detention, and beatings) would have returned to the site of his persecution either (a)

after a vacation (or any other trip abroad) or (b) on the occasion of anything less than a

catastrophic illness of a close family member. A.R. 33-36. The IJ’s conclusion was

reasonable. See Berishaj v. Ashcroft, 378 F.3d 314, 324 (3d Cir. 2004) (noting that an

adverse credibility determination may properly rest on the implausibility or inherent

improbability of an alien’s story). Certainly, the evidence presented by Awan during the

removal proceedings did not “compel” a contrary conclusion. See Abdille, 242 F.3d at

483-84.

       The IJ also relied on a significant inconsistency in Awan’s hearing testimony.



                                              4
Awan first testified that his third arrest by Pakistani officials occurred in December 2000,

over three years after the first two arrests. A.R. 99; see also A.R. 100 (Awan, insisting

that his written asylum application also stated that the third arrest occurred in 2000).

When the IJ pointed out that his asylum application indicated something different, Awan

backtracked, first indicating that the arrest occurred in December 1998 and then settling

on December 1997.2 A.R. 101. This inconsistency goes “to the heart” of Awan’s asylum

claim, making it an appropriate basis for the IJ’s credibility determination. Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002).3 Given this notable inconsistency, as well as

the implausible testimony noted in the preceding paragraph, and the deferential standard

of review that governs, we could not possibly disturb the IJ’s adverse credibility

determination.

                                             IV.

       In denying relief, the IJ relied in the alternative on her conclusion that—even if

Awan had suffered persecution by a prior regime—the Government had satisfied its

  2
   Awan attempted to explain his contradictory testimony by suggesting that his “brain
[was] not functioning properly,” A.R. 102, but he provided no evidence of any memory or
neuropsychological problem. The IJ was not “compel[led]” to accept this unusual
explanation. Abdille, 242 F.3d at 484.
  3
    The Real ID Act of 2005 created a new INA § 208(b)(1)(B) [8 U.S.C.
§ 1158(b)(1)(B)] that apparently requires us to give even greater deference to an IJ’s
credibility determinations, even to determinations relying on inconsistencies and
omissions that do not go “to the heart of” an alien’s claims. Whatever the impact of this
new provision, however, it does not apply to cases such as this one, where the asylum
application was filed long before the enactment of the Real ID Act. Real ID Act of 2005,
Pub. L. No. 109-13, Div. B, § 101, 119 Stat. 231 (May 11, 2005).

                                              5
burden of establishing that changed country conditions in Pakistan meant that he could

not have a well-grounded fear of future persecution. A.R. 36-37. As the Government

notes, see Respondent’s Brief, 10-11, Awan has not taken issue with this holding by the

IJ. See Petitioner’s Brief, passim. By failing to address this issue in his brief, Awan has

waived any argument that the IJ’s alternate conclusion constituted error. See Bohler-

Uddeholm America, Inc. v. Ellwood Group, Inc., 247 F.3d 79, 108 n.15 (3d Cir. 2001)

(on the consequences of failing to brief an issue). We note, in any event, that there is

ample evidence in the administrative record that the regime which allegedly targeted

Awan (i.e., the government of Nawaz Sharif) has been superseded by a new government

that is largely hostile to the predecessor government’s aims. A.R. 173-215 (2002 State

Department Report); see also Berishaj, 378 F.3d at 327 (requiring that changed country

conditions rebut the applicant’s particular grounds for fearing future persecution).4

                                             V.

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




  4
    Because Awan did not meet his burden of making out an asylum claim, he necessarily
failed to allege facts sufficient to make the more demanding showing necessary for
withholding of removal. See, e.g., Etugh v. INS, 921 F.2d 36, 40 (3d Cir. 1990).
Furthermore, as the IJ concluded, see A.R. 42, nothing in the record suggests any
probability that Awan will be tortured. We note, too, that the IJ properly considered
whether—apart from any incredible testimony offered by Awan—there was objective
evidence that Awan would probably be tortured on removal to Pakistan. See
Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir. 2004) (noting that even an
alien who gave incredible testimony might face torture for some objectively determinable
reason).

                                             6
