Rehman v. Gonzales

243 F. App'x 647
CourtCourt of Appeals for the Second Circuit
DecidedAugust 2, 2007
DocketNo. 06-2486-ag
StatusPublished

This text of 243 F. App'x 647 (Rehman v. Gonzales) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rehman v. Gonzales, 243 F. App'x 647 (2d Cir. 2007).

Opinion

SUMMARY ORDER

Petitioner Siraj Abdul Rehman, a citizen of Pakistan and a Shi’a Ismaili Muslim, seeks review of a May 4, 2006 order of the BIA affirming the January 21, 2005 decision of Immigration Judge (“IJ”) Patricia A. Rohan denying Rehman’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Siraj Abdul Rehman, No. A 95 961 788 (B.I.A. May 4, 2006), aff'g Nos. A 95 961 788; A 95 961 789 (Immig. Ct. N.Y. City Jan. 21, 2005). We assume the parties’ familiarity with the underlying facts and procedural history in this case.

As an initial matter, Title 8, Section U.S.C § 1158(a)(8) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Notwithstanding that provision, however, this Court retains jurisdiction to review constitutional claims and “questions of law.” 8 U.S.C. § 1252(a)(2)(D). Here, Rehman has merely challenged the IJ’s factual findings and the agency’s exercise of discretion regarding whether he established changed circumstances to excuse the untimely filing of his asylum application. Because Rehman does not raise a question of law or constitutional claim, we lack jurisdiction to review his asylum claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 815, 326-27 (2d Cir.2006). Accordingly, we dismiss the petition for review to this extent.

Section 1158(a)(3) applies only to asylum requests and does not divest this Court of jurisdiction under § 1252(a) to review final orders of removal which deny other forms of relief. See Joaquin-Porras v. Gonzales, 435 F.3d 172, 180-81 (2d Cir.2006). We therefore review Rehman’s remaining claims on the merits.

When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yu Yin Yang v. Gonzales, 431 F.3d 84, 85 (2d Cir.2005); Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Zhou Yun Zhang v. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004). However, we will vacate and remand for new findings if the agency’s reasoning or its fact-finding process was sufficiently flawed. Cao He Lin v. U.S. [650]*650Dep’t of Justice, 428 F.3d 391, 406 (2d Cir.2005); Tian-Yong Chen v. INS, 359 F.3d 121, 129 (2d Cir.2004); see also Xiao Ji Chen, 471 F.3d at 339-40 (agreeing with this principle, but declining to remand, in spite of deficiencies in an adverse credibility determination, because it could be confidently predicted that the IJ would adhere to the decision were the case remanded).

Substantial evidence supports the IJ’s finding that Rehman failed to demonstrate past persecution. Here, the IJ took into account that Rehman had been robbed at his store four times, and was physically attacked during two of these robberies, as well as called an “Agha Khani infidel.” The IJ also noted that Rehman and his wife had been hit by stones thrown by unknown assailants, and that Sunni Muslim teachers did not give his children fair marks. However, Rehman was never arrested, detained, or beaten by the authorities, and he failed to show a “deliberate imposition of a substantial economic disadvantage” that would constitute economic persecution. Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 67 (2d Cir. 2002). As such, the IJ reasonably found that he failed to establish past persecution, and therefore, was not entitled to the presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1); Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) (defining persecution as “a threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive”). But see Beskovic v. Gonzales, 467 F.3d 223, 226 (2d Cir.2006) (emphasizing that a “minor beating” or any physical degradation intended to cause suffering, may rise to the level of persecution if it occurred in the context of an arrest or detention on the basis of a protected ground (quotation marks omitted)). Furthermore, there is no indication that the IJ did not consider the cumulative effect of the events. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005).

Despite her proper finding as to past persecution, the IJ’s determination that Rehman failed to demonstrate a well-founded fear of persecution, whether based on his membership in a particular social group or on his religion, requires remand for several reasons. The IJ misapprehended the record in finding that the acts of violence, harassment and discrimination, were part of the “general, harsh, oppressive conditions shared by most Pakistanis.” To the contrary, the 2002 and 2003 International Religious Freedom Reports on which the IJ relied indicate that sectarian and religious violence was ongoing at the time, with the “worst religious violence [ ] directed against the country’s Shi’a minority, who continued to be disproportionate victims of individual and mass killings.” These background materials also indicate that discriminatory religious legislation “fostered an atmosphere of religious intolerance, which contributed to acts of violence directed against minority Muslim groups, as well as against Christians, Hindus, and members of Muslim offshoot groups.” The reports estimated that ten to fifteen percent of the Muslim population in Pakistan was Shi’a, including some 550,-000 to 600,000 Ismailis. According to the reports, there were instances in which the Pakistani government “failed to intervene in cases of societal violence directed at minority religious groups, particularly Shi’as,” and “the lack of an adequate government response contributed to an atmosphere of impunity for acts of violence and intimidation against religious minorities.”

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Related

Yan Chen v. Alberto Gonzales, Attorney General, 1
417 F.3d 268 (Second Circuit, 2005)
Yose Rizal v. Alberto R. Gonzales, 1
442 F.3d 84 (Second Circuit, 2006)
Edward D. Anderson v. Daniel Benik
471 F.3d 811 (Seventh Circuit, 2006)
S-P
21 I. & N. Dec. 486 (Board of Immigration Appeals, 1996)
FUENTES
19 I. & N. Dec. 658 (Board of Immigration Appeals, 1988)
ACOSTA
19 I. & N. Dec. 211 (Board of Immigration Appeals, 1985)
Beskovic v. Gonzales
467 F.3d 223 (Second Circuit, 2006)

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Bluebook (online)
243 F. App'x 647, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rehman-v-gonzales-ca2-2007.