Hamdani v. Gonzales

150 F. App'x 367
CourtCourt of Appeals for the Fifth Circuit
DecidedOctober 19, 2005
Docket05-60197
StatusUnpublished

This text of 150 F. App'x 367 (Hamdani v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hamdani v. Gonzales, 150 F. App'x 367 (5th Cir. 2005).

Opinion

PER CURIAM: *

Petitioner Ada Johar Hamdani challenges the decision of the Board of Immigration Appeals (“BIA”) adopting and affirming the Immigration Judge’s (“LJ”) decision to deny his application for withholding of removal. For the reasons stated below, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ada Johar Hamdani is a twenty-one-year-old native and citizen of Pakistan who entered the United States without inspection on December 3, 2000. Upon his arrival in the United States, Hamdani moved to Houston, Texas, to live with a family member. On July 5, 2002, the Immigration and Naturalization Service (“INS”), 1 believing *368 that Hamdani had overstayed his visitor’s visa, charged Hamdani with removability as an alien present in violation of the law under 8 U.S.C. § 1227(a)(1)(B) (2000). At his first appearance before an IJ on January 14, 2003, Hamdani received a sixty-day continuance to allow his pending labor certification application to be processed. 2 At the next hearing, held in March, Hamdani denied that he had entered the United States on a visitor’s visa and overstayed that visa; instead he asserted that he had entered the United States without inspection. The IJ granted the government’s request for a merits hearing.

At the merits hearing on June 17, 2003, the government filed an amended charge of removability, this time under 8 U.S.C. § 1182(a)(6)(A)(i), alleging that Hamdani was an alien who had arrived in the United States without being admitted or paroled. Hamdani admitted these allegations and conceded his removability. The IJ then granted a continuance to allow Hamdani to file an asylum application. At the next hearing, August 19, 2003, Hamdani conceded that he was not eligible for asylum because he had failed to file an application within one year of his arrival in the United States.

The IJ granted another continuance and held a hearing on Hamdani’s request for withholding of removal under 8 U.S.C. § 1231(b)(3)(A) on December 2, 2003. At the hearing, Hamdani testified that he was a Shi‘a Muslim and had fled to the United States because he felt that his life had been in danger in Pakistan. According to Hamdani, the minority Shi'a Muslims often suffer harassment at the hands of the Sunni Muslims, who make up eighty-four percent of Pakistan’s population. Hamdani claimed that Sunni Muslims had beaten him at a bus stop on his way to college on two separate occasions and that the police did not adequately respond to his complaints. He claimed that his brother had suffered similar treatment and that his father had heard gunshots outside of a mosque one day. Hamdani also offered into evidence a police report concerning the death of his uncle, who Hamdani speculates was killed by Sunni Muslims in July 1999. He further testified that since September 11, 2001, the tension between Sunni and Shi'a Muslims in the region has escalated, and he is afraid to return to Pakistan because the government does not adequately protect the Shi'a minority from violence and harassment. In support of his testimony, Hamdani submitted news articles and a State Department report discussing the discontent between the two Muslim sects in Pakistan.

The IJ found that Hamdani was removable pursuant to 8 U.S.C. § 1182(a)(6)(A)(i) and that he was ineligible for asylum because he had failed to file an application for asylum within one year of his arrival in the United States. The IJ, drawing a distinction between persecution and mere harassment, also denied Hamdani’s application for withholding of removal because Hamdani failed to show a clear probability that he would be persecuted if he returned to Pakistan. A.R. 43-44. The IJ then granted Hamdani’s request for voluntary departure. The BIA subsequently adopted and affirmed the IJ’s decision. Hamdani filed a petition for review of the BIA’s decision with this court.

II. DISCUSSION

A. Standard of Review

We review the BIA’s factual findings to determine if they are supported by sub *369 stantial evidence. INS v. Elias-Zacharias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Mikhael v. INS, 115 F.3d 299, 302 (5th Cir .1997). “Under substantial evidence review, we may not reverse the BIA’s factual determinations unless we find not only that the evidence supports a contrary conclusion, but that the evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir.1994) (emphasis in original). Thus, the petitioner must prove that the evidence he presented was so compelling that no reasonable factfinder could reach a different conclusion. 8 U.S.C. § 1252(b)(4)(B) (2000) (“[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. ...”); Elias-Zacharias, 502 U.S. at 483-84, 112 S.Ct. 812; Chun, 40 F.3d at 78.

“We have authority to review only an order of the BIA, not the IJ, unless the IJ’s decision has some impact on the BIA’s decision.” Mikhael, 115 F.3d at 302; see also Chun, 40 F.3d at 78. Here, because the BIA adopted and affirmed the IJ’s decision, we must review the IJ’s decision for substantial evidence. Id.

B. Analysis

Hamdani argues that the IJ erred by (1) applying an improper standard of proof in determining that he was not eligible for withholding of removal under 8 U.S.C. § 1231(b)(3)(A); (2) finding that he would not suffer persecution if he returned to Pakistan when substantial evidence did not support this finding; and (3) denying a continuance of his withholding of removal case pending a decision on his labor certification application in violation of his due process rights. 3

To establish eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3)(A), an alien must demonstrate that he would face a “clear probability” of persecution on account of his “race, religion, nationality, membership in a particular social group, or political opinion” if removed. 8 U.S.C.

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150 F. App'x 367, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hamdani-v-gonzales-ca5-2005.