Shahryar vs. Ashcroft, (5th Cir. 2003)

Docket Number: 02-60529

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United States Court of Appeals Fifth Circuit FILED May 29, 2003 Charles R. Fulbruge III Clerk UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

02-60526 Summary Calendar QAZI SHAHRYAR HAFIZ, Petitioner, VERSUS JOHN ASHCROFT, U S ATTORNEY GENERAL, Respondent. 02-60527 Summary Calendar GULNAHAR SHAHRYAR, Petitioner, VERSUS JOHN ASHCROFT, U S ATTORNEY GENERAL, Respondent. 02-60528 Summary Calendar QAZI MOHAMED SHAHANSHAH SHAHRYAR, Petitioner, VERSUS JOHN ASHCROFT, U S ATTORNEY GENERAL, Respondent. 02-60529 Summary Calendar QAZI MOHAMMAD SHAHZADA SHAHRYAR, Petitioner, VERSUS JOHN ASHCROFT, U S ATTORNEY GENERAL, Respondent.

Appeals from the United States District Court For the Board of Immigration Appeals A93-247-601 Before DAVIS, DUHÃ‰, and DeMOSS, Circuit Judges.

PER CURIAM: 1 In these four cases we are asked to review whether 1) the Board of Immigration Appeals erred in finding the Petitioner Hafiz ineligible for asylum; and 2) whether all t he PetitionersÂ’ constitutional rights were violated in the timing of the filing of these proceedings. There being substantial evidence to support the BoardÂ’s findings and no reviewable issue concerning the timing of these proceedings, we affirm.

I. Petitioners, natives and citizens of Bangladesh, remained in the United States beyond the expiration date of their nonimmigrant visas. In removal proceedings before an Immigration Judge, Petitioners conceded removability and Petitioner Hafiz sought political asylum, withholding of removal, or, at the very least, voluntary departure. The consolidated cases are those of HafizÂ’s wife and two sons. 2 The Immigration Judge denied the applications for asylum and withhold ing of removal but found Petitioners e ligible for voluntary departure. Petitioners appeal denial of the request for asylum (not withholding of removal) and the procedural due process issue (discussed in Part IV).

Petitioner HafizÂ’s request for asylum was based on his alleged f ear for his life if he returned to Bangladesh. Although the Immigration Judge found Hafiz to be credible, he held that the facts shown did not e ntitle him to asylum. The Board of Immigration Appeals affirmed the Immigration JudgeÂ’s decision without opinion, making the Immigration JudgeÂ’s determination the final age ncy decision to be reviewed by this Court. M ikhael v. INS , 115 F.3d 299, 302 (5 th Cir. 1977).

II. We review factual findings of the Board of Immigration Appeals to determine whether they are supported by substantial evidence.

INS v. Elias-Zacarias , 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L.Ed.2d 38 (1992). We review conclusions of law de novo.

Carbajal-Gonzale z v. INS , 78 F.3d 194, 197 (5 t h Cir. 1996). Once an alien demonstrates eligibility for asylum, the decision to grant asylum is within the discretion of the Attorney General. 8 U.S.C. § 1158(b)(i); Guevara-Flores v. INS , 786 F.2d 1242, 1250 (5 th Cir. 1986), cert. denied , 480 U.S. 930 , 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987); Castillo-Rodriguez v. INS , 929 F.2d 181, 18 4 (5 th Cir. 1991).

III. The Attorney General may confer asylum upon any § 1101(a)(42)(A). The Â“well-founded fearÂ” standard has both a subjective and an objective component, i.e. , that the applicant actually fears persecution, and that such fear is objectively reasonable. L opez-Gomez v. Ashcroft , 263 F.3d 442, 445 (5 th Cir. 2001). The objective element of well-founded fear is satisfied if Â“a reasonable person in [HafizÂ’s] circumstances would fear persecution if she were to be returned to her native country.Â” G uevara-Flores , 786 F.2d at 1249. HafizÂ’s fear is based on his membership in two groups, the group of Â“returneesÂ” whom he believes have been or will be targeted by the Awami League, and the group of former officers involved in the arrest or prosecution of Awami gang members who committed crimes. R. 96. The Immigration Judge found that Petitioner received a threat in 1980 from me mbers of the Awami League. The Immigration Judge found that Hafiz did not suffer past persecution, however, noting that Hafiz had not been arrested, detained, or harmed in any way, and tha t from 1982 to 1989, Hafiz was not threatened or harmed while residing in Bangladesh. R. 91, 95. Turning to the question of future persecution, the Immigration Judge found no evidence 3 of targeting of former military members who were involved in the prosecution of Awami League members accused of crimes. The court noted that Hafiz did testify generally that the group of former officers involved were being targeted. But upon questioning, the Petitioner provided no specifics (such as names, places, or times), and referred the court only to a document that did not substantiate the statement. R. 96- 98. The court held that, without evidence of past persecution, Hafiz would have to show examples of individuals in his group (former military members involved in the prosecution of Awami League members accused of crimes) who had been targeted by the Awami League. R. 96-98. The court therefore concluded that it lacked evidence that individuals situated similarly to Hafiz have been or will be targeted in the future. R. 98. The court correctly exacted specifics as part of the burden of proof: At a minimum [to sh ow persecution], there must be some particularized connection between the feared persecution and the alien's race, religion, natio nality or other listed characteristic. Demonstrating such a connection requires the alien to present Â“specific, detailed facts showing a good reason to fear that he or she will be singled out for persecution." Faddoul v. INS , 37 F.3d 185, 188 (5 th Cir. 1994) (quoting Zulbeari v. INS , 963 F.2d 999, 1000 (7th Cir.1992); see also Acewicz v. INS , 984 F.2d 1056, 1061 (9 th Cir. 1993) (requiring pr esentation of specific facts demonstrating either past persecuti on or a wellfounded fear of future persecution).

Concern ing HafizÂ’s fear of return to Bangladesh, the Immigration Judge noted that Hafiz had remained in Bangladesh for many years after receiving the 1980 threat. The fact that Hafiz waited seven years after coming to the United States before seeking political asylum lead the court to believe that Hafiz was not serious about claiming asylum. Hafiz also complains that the Immigration JudgeÂ’s decision is based on an incorrect burden of proof because the court required him to show a Â“clear probabilityÂ” rather than a Â“reasonable probabilityÂ” of persecution. This contention misapprehends the opinion. The court correctly distinguished the burden for asylum (Â“well founded fearÂ”) from the burden for withholding of removability (Â“clear probabilityÂ” and Â“more likely than notÂ”). R. 94, 98. S ee Faddoul 37 F.3d at 188 (explaining that the Â“clear probabilityÂ” of persecution necessary for withholding of removal represents Â“a higher objective likelihood of persecution than the Â‘well-founded fearÂ’ standardÂ”).

Under the substantial evidence standard, we will not reverse the Immigration JudgeÂ’s decision, because we do not find that the evidence compels a contrary conclusion. E lias-Zacharias , 502 U.S. at 481 n.1, 483-84; Carbajal v. Gonzalez , 78 F.3d at 197.

IV. Petitioners next contend that t heir due process and equal protect ion rights were violated because they were precluded from pursuing applications for suspension of deportation. They complain that the INSÂ’s delay in filing the proceedings against them until after the effective date of IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act) meant that, because of the change in the law, they were placed in removal rather than deportation proceedings. Since they were not placed in deportation proceedings (as they would have been under the former law), Petitioners are ineligible to file for suspension of deportation.

H afiz had presented himself to the INS before the effective date of IIRIRA, requesting the INS to place him in proceedings to determine his status. Proceedings commence, however, when the INS files a charging document with the immigration court. D eLeon- Holguin v. Ashcroft , 25 3 F.3d 811, 815 (5 t h Cir. 2001). That determinative event in the Petitioners§ 1252(g) ("no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien"); see Reno v. American-Arab Anti-Discrimination Committee , 525 U.S. 471, 487, 119 S.Ct. 936, 945, 192 L.Ed.2d 940 (1999)(§ 1252(g) . . . .§ 1252(g) as removing jurisdiction over claim that the INS was immediately obligated to initiate deportation proceedings against alien once she presented herself to the INS); see also Heckler v. Chaney , 470 U.S. 821, 831, 833, 105 S.Ct. 1649, 1655, 84 L.Ed .2d 714 (1985) (agency decisions to enforce through civil or criminal process unsuitable for judicial review).

V. Substantial evidence supports the Immigration JudgeÂ’s denial of PetitionersÂ’ request for asylum. No other issue presented is subject to judicial review. Accordingly, the decision of the Board is AFFIRMED.

1 Pursuant to 5 TH C IR . R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4

2 If the primary applicant is granted asylum, his wife and children may also be granted asylum. 8 U.S.C. § 1158(b)(3)(2000)

3 The Immigration Judge properly noted that evidence could be presented through either testimony or documentation. Contrary to HafizÂ’s contention, the Immigration Judge did not require that corroborative documents be pr oduced. R. at 94 (Â“[H]is testimony may be sufficient if it is believable, consistent, and sufficiently detailed.Â”); 96 (Eviden ce Â“may be presented . . . through documentation or through the respondentÂ’s testimony.Â”); 97-98 (Â“If he cannot meet [his burden] by documentation he must be able to give the Court specific examples of individuals and that would have to be detailed with names, places, and times.Â”). The courtÂ’s remark that no documentation showed that an individual such as Hafiz was being targeted, in context, constituted part of the courtÂ’s conclusion that neither testimony nor documentation met this part of PetitionerÂ’s burden