Ghouri v. Holder, (1st Cir. 2010)

Text

---

 

United States Court of Appeals

For the First Circuit

No. 09-2707

FARRUKH GHOURI,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Selya and Howard, Circuit Judges.

    William P. Joyce was on brief for petitioner.

    William C. Minick, Attorney, Office of Immigration Litigation,

Tony West, Assistant Attorney General, Civil Division, and Linda S.

Wernery, Assistant Director, were on brief for respondent.

 

August 30, 2010

 

 

         LYNCH, Chief Judge. Farrukh Ghouri, of Pakistan,

petitions for review of a November 30, 2009 decision by the Board

of Immigration Appeals (BIA). The BIA upheld a February 25, 2008

Immigration Judge (IJ) decision denying Ghouri's applications for

asylum, withholding of removal, and protection under the Convention

Against Torture (CAT). A Shia Muslim, Ghouri claims that he fears

his brother-in-law will murder him and his wife in an honor killing

because his wife converted from Sunni to Shia Islam when she

married Ghouri. We are without jurisdiction to review the denial

of the untimely claim of asylum. Substantial evidence supports the

determination that Ghouri failed to show eligibility for

withholding of removal or CAT protection. We deny the petition in

part and dismiss it in part.

I.       Ghouri entered the United States on March 14, 2001, on a

temporary visitor visa and overstayed. On March 19, 2003, the

Department of Homeland Security issued a Notice to Appear charging

him with removability, which Ghouri conceded. On July 15, 2004,

Ghouri filed for asylum, withholding of removal, and protection

under the CAT. His asylum application was outside the one-year

statutory deadline. See 8 U.S.C. § 1158(a)(2)(B).

         Ghouri's application gave three grounds for the relief he

sought: his involvement in the Pakistan People's Party, threats and

attacks by his brother-in-law because Ghouri is a Shia Muslim and

because of his wife's conversion to Shia Islam, and visits by the

police to Ghouri's family home for unspecified reasons. In his

brief to this court, Ghouri presses only his claims based on his

brother-in-law's threats and actions, so we restrict our discussion

to this ground.

         The IJ found Ghouri's application and hearing testimony

generally credible. Ghouri married his wife, Saira, in Lahore,

Pakistan in February 1998.

[1]

He was a Shia Muslim, and Saira

converted from Sunni to Shia Islam. Saira's family had intended

for her to marry her cousin and was angry that she married a Shia

and converted. Her brother, Wajid Ali (Wajid), was particularly

furious.

         Before the wedding, Wajid threatened to beat and to kill

Ghouri if he married Saira. After the wedding, at a family

gathering in April, 1998, Wajid again threatened to kill Ghouri,

and at another family gathering that September, Wajid threatened to

kill Ghouri and Saira.

         During the three years between Ghouri and Saira's

marriage and Ghouri's departure for the United States, Ghouri and

Saira lived only a quarter mile from Wajid, and the two men passed

one another on their motorcycles "all the time" without incident.

Wajid never came to their home. While Ghouri's asylum application

stated that Wajid had "punched and hit" him on three occasions at

family gatherings, he testified that Wajid actually injured Ghouri

only once.

         In that incident, Wajid punched Ghouri near his left eye.

Ghouri got two stitches in an emergency room. Another time, Wajid

threw glass and rocks at Ghouri, and the third time, Ghouri escaped

Wajid's attempt to hit him without injury. Each time, family

members would restrain Wajid and take him away. Wajid also hit

Saira on the head and slapped her face at least once at a public

gathering. Ghouri never reported any of these incidents because

they were family matters.

         Ghouri claimed that he could not move to another part of

Pakistan because members of Saira's large and wealthy family lived

throughout the country.

         Ghouri claimed exceptional circumstances -- his

depression -- rendered him incapable of timely applying for asylum,

and he submitted letters from his psychiatrist and family doctor

supporting this claim. He said that he became depressed shortly

after arriving in the United States in 2001, though he did not seek

treatment for depression until 2006.

         The IJ rejected Ghouri's claim that depression prevented

him from timely filing for asylum, finding the psychiatrist's

retrospective depression diagnosis speculative, and concluding that

Ghouri had not established extraordinary circumstances excusing his

late asylum application from the one-year time bar. See 8 U.S.C.

§ 1158(a)(2)(D).

         The IJ found Ghouri ineligible for withholding of

removal, on the grounds that (1) he had not established past

persecution, both because Wajid's death threats were not credible

and because the incidents in total did not rise to the level of

persecution, (2) he had not established that it was more likely

than not that he would suffer future persecution because the

evidence did not support a finding that Wajid would actually try to

kill him, (3) Ghouri's failure to report any of the incidents to

the police prevented him from demonstrating government involvement

in the alleged persecution, and (4) Ghouri could relocate within

Pakistan to avoid Wajid, who was the only person in Saira's family

harassing Ghouri.

         The IJ denied Ghouri's claims under the CAT because he

had not demonstrated that Wajid would more likely than not harm him

in the future or that the Pakistani government or police would

condone or acquiesce in such harm.

         The BIA affirmed, agreeing with the IJ that the

statements from Ghouri's doctors were speculative, and that based

on the record Ghouri had not established extraordinary

circumstances excusing his asylum application from the one-year

time bar. The BIA found no legal error in the IJ's rulings, and no

clear error in the IJ's underlying factual findings. The BIA

specifically affirmed that the incidents involving Wajid did not

rise to the level of persecution and that Ghouri had not shown he

would more likely than not be persecuted in the future, given that

Wajid had lived near him for several years but had not seriously

harmed him. Finally, the BIA found that the record supported the

IJ's denial of protection under the CAT.

II.

         Ghouri challenges the IJ and BIA's determinations that

his asylum application was untimely and that he was ineligible for

withholding of removal or CAT protection because he failed to

establish past persecution or a well-founded fear of future

persecution. We reject each of his claims of error.

[2]

A.       Lack of Jurisdiction over Asylum Claim

         Under 8 U.S.C § 1158(a)(3), this court lacks jurisdiction

over an untimely asylum claim unless the applicant shows a legal or

constitutional defect in the agency's timeliness decision. Makieh

v. Holder, 572 F.3d 37, 42 (1st Cir. 2009); El-Labaki v. Mukasey,

544 F.3d 1, 5 (1st Cir. 2008). Ghouri has identified no such

defect, so we lack jurisdiction to hear this claim.

         The only purported "legal error" Ghouri offers is based

on his incorrect assertion that the IJ and BIA wholly ignored his

claimed "exceptional circumstance" that he suffered from a mental

disability, depression. Not so. The IJ expressly addressed

Ghouri's claimed mental disability. The BIA expressly agreed with

the IJ's finding that the physician letters were speculative, and

that Ghouri had failed to establish extraordinary circumstances.

[3]

We cannot review these assessments.

B.       Withholding of Removal and Protection under the CAT

         When the BIA "adopts the IJ's opinion and discusses some

of the bases for the IJ's decision," we review both the IJ's and

BIA's opinions. Makieh, 572 F.3d at 41 (quoting Scatambuli v.

Holder, 558 F.3d 53, 58 (1st Cir. 2009)) (internal quotation marks

omitted). We review factual findings under the deferential

substantial evidence standard. Id. We reverse only if any

reasonable adjudicator would be compelled to reach a contrary

conclusion. Id.

         We bypass the usual recitations about the legal

requirements the petitioner must meet and get to the merits. The

conclusion that any harm Ghouri suffered did not rise to the level

of persecution is well-supported in the record. Ghouri's brief

identifies three ways he suffered persecution at the hands of his

brother-in-law, Wajid: Wajid threatened Ghouri and his family,

injured or attempted to injure Ghouri in three incidents, and beat

Ghouri's wife. This "persecution" came solely from Wajid. It is

clear that Wajid's family restrained Wajid when he acted in their

presence. Further, Wajid never attempted to harm Ghouri in his

home, he physically confronted Ghouri only rarely and only at large

gatherings, and any harm he inflicted was minimal.

         Ghouri claimed that Wajid punched him once in the face,

threw rocks and glass at him once, and once struck at but did not

injure him.

[4]

As to Saira, the IJ found that Wajid slapped Saira in

the face and head at least once, though Ghouri claimed in his

asylum application that Wajid hit her on several occasions. He

never claimed that she was seriously injured.

         This offensive treatment by Ghouri's brother-in-law

simply was not pervasive or severe enough to compel the BIA to find

that it amounted to persecution, even without comparing these facts

to other cases in which we have upheld BIA findings of no

persecution. And if a comparison is made, the conclusion becomes

even more obvious. See, e.g., Ravix v. Mukasey, 552 F.3d 42, 44-46

(1st Cir. 2009); Limani v. Mukasey, 538 F.3d 25, 31 (1st Cir.

2008); Susanto v. Gonzales, 439 F.3d 57, 59-60 (1st Cir. 2006).

         Ghouri argues the BIA's finding that he would not face

future persecution fails because the BIA erroneously said he had

lived close to Wajid without harm for five years, when, as the IJ

correctly found, it was for three years. This discrepancy does not

undermine the core reasoning of either the BIA or the IJ and

certainly does not compel a different conclusion.

         It follows that Ghouri's claims for CAT relief also fail.

See Makalo v. Holder, No. 09-2034, 2010 WL 2802642, at *3 (1st Cir.

July 19, 2010); Faye v. Holder, 580 F.3d 37, 42 (1st Cir. 2009).

         The petition for review is denied as to the withholding

of removal and CAT claims, and dismissed as to the asylum claim.

Footnotes

[1] '                   There is no information in the record about the current

status of Ghouri's wife and daughter except that they entered the

United States on June 16, 2001, on temporary visitor visas, which

they have overstayed.

[2] '                   Ghouri's argument that the IJ and BIA's carefully

reasoned decisions are not clear enough to permit review is utterly

meritless.

[3] '                   Ghouri makes much of the BIA's apparent misstatement that

Ghouri first sought medical attention for a heart condition, rather

than his depression, in 2006. But this claim of factual

discrepancy does not constitute a claim of legal error. See Ayeni

v. Holder, No. 09-1508, 2010 WL 3220630, at *4 (1st Cir. Aug. 17,

2010).

[4] '                   Ghouri vehemently disputes the IJ's conclusion that,

though Ghouri mentioned three incidents in his asylum application,

his hearing testimony discussed only one incident. The IJ's

conclusion was supportable; further, even if there were three

encounters, that would not compel a finding of persecution.

---