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Ishitiaq v. Holder

August 25, 2009

MUGHAL MUHAMMAD ISHITIAQ, PETITIONER,
v.
ERICH. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES,*FN1 RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A95-925-134.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED MARCH 30, 2009

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

Mughal Muhammad Ishitiaq seeks review of a final order of the Board of Immigration Appeals, which found Ishitiaq statutorily ineligible for asylum, denied his applications for withholding of removal and relief under the Convention Against Torture, and ordered him removed from the United States. We dismiss Ishitiaq's asylum petition because we lack jurisdiction to review it, and we deny the petition for review as to his withholding of removal and CAT claims because the decision was supported by substantial evidence.

I. BACKGROUND

Mughal Muhammad Ishitiaq, a Sunni Muslim, was born in Pakistan in 1968. His father was a member of the religious group known as Jamat-E-Islami. Ishitiaq was never a member, although he did help his father with some of the group's charitable activities. After Ishitiaq's father became a member of Jamat-E-Islami, it turned from a benevolent organization to a terrorist group. When Ishitiaq was in high school, he was approached by two men who told him that he must join the group and train as a fighter in a Jihad camp. Ishitiaq did not join, and, as a result, in December 1986, Jamat-E-Islami members shot at, but did not injure, him. Three months later, in February 1987, Ishitiaq was kidnapped and beaten by some of the same men from Jamat-E-Islami. He was taken to a defense area and held for several days, but escaped. Ishitiaq then boarded a ship to Istanbul and traveled abroad as a seaman for the next ten years, occasionally returning home to Pakistan to visit friends and family.

Ishitiaq repatriated to Pakistan in January 2000. He learned that Jamat-E-Islami members and informants were living in the area where he stayed. He, his wife and children hid at the home of a friend. In April 2000, a group of armed men came to the friend's home, blind-folded Ishitiaq, and drove him to a house where they allegedly beat him. Ishitiaq again escaped and made his way to the American Embassy. He applied for a visitor's visa and came to the United States on September 20, 2000.

After Ishitiaq overstayed his visa in the United States, removal proceedings began in March 2003. On December 2, 2003, Ishitiaq filed an application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). On October 1, 2007, after the Immigration Judge ("IJ") presiding over his case had granted Ishitiaq several continuances, the IJ denied Ishitiaq's petition for asylum, withholding of removal, and protection under the CAT in an oral decision. The IJ found that Ishitiaq had not filed his application for asylum by the one-year deadline, and no changed or exceptional circumstances justified reconsidering his application. The IJ also determined that Ishitiaq was not eligible for withholding of removal because he had failed to show either the existence of past or the likelihood of future persecution on account of his religion or political opinion. Additionally, the IJ determined that the 2000 event was more "questionable" and concluded that because Ishitiaq did not give a detailed description of that encounter his testimony was not credible. Finally, because Ishitiaq failed to meet the standard for withholding of removal, the IJ denied him relief under the more stringent standard for CAT protection. The IJ did, however, allow voluntary departure.

Ishitiaq appealed the IJ's ruling to the Board of Immigration Appeals ("BIA"). On June 27, 2008, the BIA affirmed the IJ's ruling in an order, relying on the IJ's determinations of fact and law. Ishitiaq petitions for review of the BIA's decision.

II. ANALYSIS

We review the IJ's decision as supplemented by the BIA's analysis. See Krishnapillai v. Holder, 563 F.3d 606, 615 (7th Cir. 2009). We give deference to the IJ's factual determinations, and we uphold the decision if it is sup-ported by substantial evidence. See Ingmantoro v. Mukasey, 550 F.3d 646, 649 (7th Cir. 2008). We will overturn the BIA's decision only if "the record compels a contrary result." Mabasa v. Gonzales, 455 F.3d 740, 744 (7th Cir. 2006) (quoting Brucaj v. Ashcroft, 381 F.3d 602, 606 (7th Cir. 2004)).

A. Ishitiaq's Asylum Application

The Immigration and Nationality Act ("INA") defines a "refugee" as a person who is unable or unwilling to return to his native 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." See 8 U.S.C. § 1101(a)(42)(A). An asylum applicant must show a nexus between his fear of future persecution and one of those five protected grounds. See Torres v. Mukasey, 551 F.3d 616, 629 (7th Cir. 2008).

An alien who is physically present in the United States and seeks asylum must show by clear and convincing evidence that the asylum application has been filed within one year after the date the immigrant arrived in the United States. 8 U.S.C. § 1158(a)(2)(B); Ogayonne v. Mukasey, 530 F.3d 514, 519 (7th Cir. 2008). An application filed after the deadline may be considered if the alien "demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application." 8 U.S.C. § 1158(a)(2)(D); See Ogayonne, 530 F.3d at 519. Courts do not have jurisdiction to review either the determination that an alien's asylum application was untimely or the determination that the belated filing was not justified by changed or extraordinary circumstances. 8 U.S.C. § 1158(a)(3); see also Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir. 2008); Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007). We may review "constitutional claims or questions of law" under 8 U.S.C. ยง 1252(a)(2)(D), but "discretionary or factual determinations continue to fall outside the jurisdiction of the court of appeals ...


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