                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-8-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5068




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                                                           NOT PRECEDENTIAL

  UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                                No. 05-5068



                               SHER KHAN,
                                       Petitioner
                                    v.

          ATTORNEY GENERAL OF THE UNITED STATES,
                                Respondent



                    On Petition for Review of an Order
                   of the Board of Immigration Appeals
                            (No. A79-733-619)
                 Immigration Judge: Hon. Rosalind K. Malloy



                Submitted Under Third Circuit LAR 34.1(a)
                             March 5, 2007

Before: SLOVITER and AMBRO, Circuit Judges, and BRODY,* District Judge

                           Filed: March 8, 2007


                                 OPINION




            *
              Hon. Anita B. Brody, United States District Court for the
      Eastern District of Pennsylvania sitting by designation.
SLOVITER, Circuit Judge

       Sher Khan petitions for review of the order of the Board of Immigration Appeals

(“BIA”) adopting and affirming the Immigration Judge’s (“IJ”) decision denying his

applications for asylum, withholding of removal, and relief under the Convention Against

Torture (“CAT”). We will deny the petition.

                                              I.

       Khan, a native and citizen of Pakistan, entered the United States on April 23, 2000,

with a C-1 visa, but filed for permanent residency in Canada because his friends told him

it was easier to become a permanent resident in Canada than in this country. Khan

maintains that he did not know that he could file for asylum in the United States while his

application for permanent residency in Canada was pending. His application for

permanent residency in Canada was rejected on March 11, 2002.

       The Immigration and Naturalization Service (“INS”) initiated removal proceedings

against Khan by filing a Notice to Appear against Khan on February 13, 2003. Khan

conceded the charge of removability and filed applications for asylum, withholding of

removal, and protection under the CAT on May 20, 2003, concededly more than a year

after his entry in this country.

       Khan had a hearing before the IJ at which he testified that he fears that if he

returns to Pakistan, he will be persecuted by the Pakistani government due to his

membership and leadership in the Pakistan People’s Party (“PPP”), a political party that

opposes military government. He further testified that he had been arrested on December

                                              2
25, 1996, for “causing problems” and “making people uncomfortable,” and that he was

detained for three days, beaten with a piece of wood, and warned that unless he stopped

working for the party, he would be arrested again. A.R. at 253-54. He was arrested a

second time on February 5, 1998 after he was involved in a protest against the

government. When the police arrived they started beating people and shooting into the

air, and he was wounded when a gunshot hit his left hand. The police took him for

treatment to the hospital, from which he “escaped” later that night. Id. at 254.

       After the hearing the IJ issued an oral decision denying asylum, withholding of

removal, and CAT relief. The IJ determined that Khan had filed his application beyond

the one-year filing deadline and that neither of the exceptions applied because he had not

shown any “extraordinary circumstances” warranting a waiver nor had he established

changed country conditions. A.R. at 341. The IJ further found that Khan’s testimony that

the Pakistani government was likely to find, arrest, and persecute him upon his return to

Pakistan was implausible given that the Pakistani government had granted Khan both a

passport and a continuous discharge certificate for his job. The IJ concluded that based

on the Pakistani government’s apparent willingness to allow Khan to travel in and out of

the country regularly, Khan’s suggestion that he was wanted by the Pakistani government

was incredible, and therefore she denied Khan’s application for withholding of removal

or protection under the CAT. The BIA adopted and affirmed the IJ’s decision.

                                             II.

       This court has jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Where the BIA

                                             3
affirms and adopts the IJ’s decision, as in this case, we review the IJ’s decision as if it

were the decision of the BIA itself. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir. 2004);

Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003). Whether an applicant qualifies for

asylum, withholding of removal, or relief under the CAT is a determination, which this

court will review under the substantial evidence standard. Shardar v. Ashcroft, 382 F.3d

318, 323 (3d Cir. 2004). Under this standard, the IJ’s finding must be upheld unless “the

evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,

242 F.3d 477, 484 (3d Cir. 2001); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1

(1992).

                                              III.

       Because the parties are familiar with the applicable law, we will not restate it here

and turn instead to the decision in this case. Khan contends that the IJ erred in denying

his applications for asylum and withholding of removal on their merits.

       First, Khan argues that he has shown the existence of past persecution because of

his imputed political opinion, based on his membership in the PPP, and that there is no

evidence of changed country conditions such that he would not be subject to such

persecution in the future. Noting that Khan had not presented evidence of his alleged

hospitalizations and that his account of his “escape” from the hospital was vague, the IJ

found that Khan had not established past persecution. Given that Khan was granted a

passport and continuous discharge certificate and permitted to leave and enter Pakistan

freely for several years, the IJ concluded that the Pakistani government was not interested

                                               4
in capturing, detaining, or persecuting Khan. Moreover, according to the Department of

State report on human rights practices, the PPP has been a full participant in Pakistan’s

politics and government since the 1997 Pakistan national elections, and there has been no

evidence of political reprisals against current members or leaders of the PPP.

       The IJ’s conclusions with regard to past and future persecution were reasonable,

and the evidence does not compel a conclusion to the contrary. Therefore, even assuming

arguendo Khan can establish “extraordinary circumstances” justifying his delay in filing

for asylum, Khan has not met his burden of showing eligibility for asylum under the test

enunciated in Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004), which requires a

showing of past incident(s) that constitute persecution.

       Khan argues that his reliance on misinformation given to him by friends as to

whether he could apply for asylum or permanent residency in the United States at the

same time that his application for permanent residency was pending in Canada constitutes

“extraordinary circumstances” because he is a lay person who is unfamiliar with United

States immigration laws. Under In re Y-C-, 23 I. & N. Dec. 286, 287-88 (BIA 2002)

and 8 C.F.R. § 208.4(a)(5), the burden is on the petitioner to show that “the circumstances

were not intentionally created by the alien through his or her own action or inaction, that

those circumstances were directly related to the alien’s failure to file the application

within the 1-year period, and that the delay was reasonable under the circumstances.”

Even though the IJ held that Khan was statutorily ineligible for asylum because he had

not filed within the one-year period, she evaluated his qualifications for asylum in the

                                              5
withholding of removal context and stated that he failed to establish eligibility for asylum

even on discretionary grounds. Therefore, it is unnecessary to consider Khan’s

“extraordinary circumstances” argument. Because Khan has not met his burden of

showing eligibility for asylum, he necessarily does not qualify for withholding of

removal.

       Finally, Khan argues that the IJ erred in denying his application for withholding

under the CAT because he established that it was more likely than not that he would be

tortured if removed to Pakistan, due to his imputed political opinion. The IJ found that

Khan had “failed to demonstrate that anyone would be interested in torturing him for any

reason should he return to Pakistan” and that he therefore had not established eligibility

for relief under the CAT. A.R. at 348. The Pakistan government granted Khan a passport

and permitted him to leave and enter the country freely for his job. Despite his

participation in the 1998 demonstration, Khan testified that the police took him to a

hospital for treatment following his injury and did not testify that there was any effort to

torture him. This, along with the State Department’s report on human rights practices in

Pakistan, supports the IJ’s reasonable conclusion that the Pakistani officials are not

interested in capturing and/or torturing Khan.

                                             IV.

       Because the evidence does not compel a conclusion to the contrary, we will deny




                                              6
the petition for review.1




                    1
                        The BIA’s order stated, inter alia,

                    [T]he alien is permitted to voluntarily depart from the
                    United States, without expense to the Government, within
                    60 days from the date of this order or any extension beyond
                    that time as may be granted by the Department of Homeland
                    Security (DHS). See section 240B(b) of the Immigration
                    and Nationality Act; 8 C.F.R. §§ 1240.26(c), (f). In the
                    event the alien fails to so depart, the alien shall be removed
                    as provided in the Immigration Judge’s order.

             A.R. at 3. We leave it to the Agency to determine whether
             voluntary departure is still available.

                                                7
