Syed Raza v. Merrick Garland

• Court: Court of Appeals for the Fourth Circuit
• Decided: August 29, 2024
• Docket: 23-2238
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-2238

SYED ALI RAZA,

Petitioner,

v.

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Submitted: July 15, 2024 Decided: August 29, 2024

Before WILKINSON and HEYTENS, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Petition for review denied by unpublished per curiam opinion.

ON BRIEF: Sandra Greene, GREENEFITZGERALD ADVOCATES AND CONSULTANTS, York, Pennsylvania, for Petitioner. Brian Boynton, Principal Deputy Assistant Attorney General, Civil Division, Cindy S. Ferrier, Assistant Director, Micah Engler, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

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PER CURIAM:

Syed Ali Raza petitions for review of an order of the Board of Immigration Appeals

dismissing his appeal from the Immigration Judge’s denial of his applications for asylum,

withholding of removal, and protection under the Convention Against Torture. We deny

the petition for review.

I.

Raza, who was born in 1972, is a native and citizen of Pakistan. He is a Shia Muslim,

which is a minority sect in Pakistan; the great majority of the population is Sunni Muslim.

According to Raza, his father was a famous poet in Pakistan, and Raza himself was a

famous religious singer who competed nationally and internationally. Because of threats

from Sunnis, Raza’s father fled to Canada and became a Canadian citizen. His father

returned to Pakistan in 2011 and died a few months later. Raza’s mother remained in

Pakistan until her death in 2022, and two of his siblings still live in Pakistan.

In March 2001, Raza used a fraudulent passport to enter the United States under the

Visa Waiver program. Raza’s application for asylum was denied in 2003. See J.A. 46. In

2016, Raza became a lawful permanent resident of the United States as a result of his third

marriage to a United States citizen. See J.A. 523.

On September 17, 2019, Raza pleaded guilty to aggravated identity theft, see 18

U.S.C. § 1028A(a)(1), and conspiracy to commit access device fraud (the “Fraud

Conspiracy”), see 18 U.S.C. § 1029(a)(2). He was sentenced to a total of 36 months. Rather

than report to prison, Raza fled to Canada. He was apprehended and paroled into the United

States on September 3, 2020. See J.A. 46-47.

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The Department of Homeland Security initiated removal proceedings against Raza

in October 2022, alleging that he was subject to removal as a noncitizen convicted of a

crime of moral turpitude. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). Raza filed applications for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”). Raza claimed that because he was a famous religious singer, he would be subject

to persecution by fundamentalist Sunni groups if he returned to Pakistan.

After a hearing, the IJ concluded that Raza’s conviction for the Fraud Conspiracy

was a crime of moral turpitude and that Raza was therefore subject to removal. See J.A.

57. As to Raza’s asylum claim, the IJ determined that Raza was ineligible because Raza

had previously applied for and been denied asylum. See J.A. 58. The IJ also determined

that the Fraud Conspiracy conviction qualified as an “aggravated felony,” and was thus a

per se “particularly serious crime” that likewise rendered Raza ineligible for asylum. See 8

U.S.C. § 1158(b)(2)(B)(i).

The IJ concluded that Raza was not eligible for withholding of removal. See J.A.

60. The IJ determined that Raza did not suffer past harm rising to the level of persecution,

and, as to the possibility of future persecution, that Raza’s proposed particular social

group—non-traditional Pakistani artists—was too amorphous and not legally cognizable.

The IJ also concluded that even if the proposed social group was cognizable, the evidence

did not establish a likelihood of persecution based on membership in the proposed group

or based on his Shia faith. See J.A. 63-64. Finally, the IJ denied Raza’s CAT claim,

concluding that Raza did not establish a clear probability that he would be tortured if he

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returned to Pakistan or that any torture would be with the acquiescence of public officials.

See J.A. 67-70.

Raza appealed to the Board, which upheld the IJ’s decision. The Board agreed with

the IJ that Raza’s Fraud Conspiracy conviction qualified as an aggravated felony and a per

se particularly serious crime, which rendered Raza ineligible to apply for asylum. See J.A.

10. The Board also agreed that Raza was not eligible for withholding of removal because

his proposed particular social group was not legally cognizable and because Raza did not

show that he would suffer persecution because of membership in that group or because of

his Shia faith. See J.A. 11. The Board also affirmed the IJ’s denial of CAT protection. The

Board agreed that Raza had not shown a clear probability he would be tortured in Pakistan

or that any torture would be by or with the acquiescence of the Pakistani government. See

J.A. 11-12.

Raza thereafter filed this petition for review. Raza does not challenge the

determination that his Fraud Conspiracy conviction rendered him ineligible for asylum;

accordingly, the only issues before this court involve withholding of removal and

protection under the CAT.

II.

Before proceeding to the merits, we pause to address the question of venue. The

Notice to Appear was filed with the Immigration Court in Baltimore, Maryland; Raza was

detained in McElhatten, Pennsylvania; and the IJ presided over the merits hearing remotely

from York, Pennsylvania. See J.A. 54. The IJ concluded that under 8 U.S.C. § 1252(b)(2),

venue for any appeal would lie with the Court of Appeals for the Third Circuit. The IJ

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therefore applied Third Circuit law when analyzing Raza’s claims, but also noted that the

analysis would be the same under Fourth Circuit law. See J.A. 54-55, 65. On review, the

Board applied its precedent to conclude that the filing of the Notice to Appear established

venue in the Fourth Circuit, regardless of the fact that Raza and the IJ were physically

located within the geographical bounds of the Third Circuit. The Board upheld all of the

IJ’s rulings and determined that any error in applying the law of the Third Circuit rather

than the Fourth Circuit was harmless. See J.A. 9-10

8 U.S.C. § 1252(b)(2) provides that a petition for review of an order of removal

“shall be filed with the court of appeals for the judicial circuit in which the immigration

judge completed the proceedings.” Under the law of this circuit, venue lies in the Third

Circuit, because that is where the IJ was located. See Herrera-Alcala v. Garland, 39 F.4th

233, 241 (4th Cir. 2022) (“To answer which geographic circuit a petition for review ‘shall

be filed,’ the statute directs us to where ‘the immigration judge completed the proceedings.’

The actor is the Immigration Judge and the action is ‘complet[ing] the proceedings.’ So the

statute’s text directs us to the geographic location where the Immigration Judge completed

the proceeding.”); id. (“[V]enue is proper where the immigration judge sits in a

teleconference hearing.”).

Improper venue, however, does not implicate our subject-matter jurisdiction.

Congress has vested the federal courts of appeal with subject-matter jurisdiction over

petitions for review of orders of removal, see 8 U.S.C. § 1252(a)(5), and the requirement

for filing the petition in the circuit “in which the immigration judge completed the

proceedings,” id. § 1252(b)(2), is “a nonjurisdictional venue provision,” Sorcia v. Holder,

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643 F.3d 117, 121 (4th Cir. 2011). In this case, the parties do not seek a transfer, and we

do not believe the interests of justice require us to sua sponte transfer to the Third Circuit.

See id. at 122 (“[W]here we have jurisdiction but lack venue, we have inherent authority

to transfer a case to another circuit where both venue and jurisdiction exist. However, . . .

in the exercise of such inherent authority it is appropriate . . . to consider whether the

interest of justice mandates transfer.”) (cleaned up).

After the Board issued its opinion in this case, the Third Circuit weighed in on the

issue and concluded that venue vests in the immigration court where the Notice to Appear

is filed and remains with that court unless a motion to change venue is granted. See Castillo

v. Att’y Gen. of United States, 109 F.4th 127, 133 (3d Cir. 2024) (“[I]n the context of remote

proceedings or hearings, the physical locations of the IJ and other participants are not what

dictates the answer to the question of where the proceedings occur. Instead, we agree with

the First, Second, Seventh, and Ninth Circuits that ‘proceedings’ take place in the

Immigration Court in which the proceedings began, unless there is a formal change of

venue.”). Accordingly, under the law of this circuit, venue lies in the Third Circuit, but

under the law of the Third Circuit, venue lies with us. We do not believe the interests of

justice compel us to transfer this case to a circuit where, under the law of that circuit, venue

would not be proper. And because there is no material difference between the law of this

circuit and that of the Third Circuit on the issues relevant to this appeal and the parties have

briefed this case under Fourth Circuit law, we will apply our own law when resolving this

appeal.

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III.

A.

We first consider Raza’s challenges to the denial of his application for withholding

of removal. “Withholding of removal is available under 8 U.S.C. § 1231(b)(3) to an alien

who shows clear probability of persecution in the proposed country of removal because of

his ‘race, religion, nationality, membership in a particular social group, or political

opinion.’” Lizama v. Holder, 629 F.3d 440, 446 (4th Cir. 2011) (quoting 8 U.S.C. §

1231(b)(3)(A)). Because Raza is removeable because of his conviction for a crime of moral

turpitude, our review of the removal order is limited to constitutional claims and questions

of law. See 8 U.S.C. §§ 1252(a)(2)(C), (D).

The agency concluded that Raza had not shown a clear probability that he would be

persecuted because of his religion if he returned to Pakistan. In his brief, Raza raises no

viable legal or constitutional challenge to that determination.

As to Raza’s claim that he would suffer future persecution because of his

membership in a particular social group, the Board concluded that Raza’s proposed social

group of “non-traditional Pakistani artists” was not a legally cognizable social group

because it “lacks particularity as the terms ‘non-traditional’ and ‘artists’ are amorphous and

ill-defined.” J.A. 11. Whether a proposed social group is sufficiently particular is a legal

question we review de novo. See Herrera-Martinez v. Garland, 22 F.4th 173, 180 (4th Cir.

2022).

“The whole point of the particularity requirement is to ensure that a proposed group

has clear boundaries.” Id. at 183. Accordingly, “[t]his Court has rejected proposed

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particular social groups that share only amorphous characteristics that neither provide an

adequate benchmark for determining group membership nor embody concrete traits that

would readily identify a person as possessing those characteristics.” Id. at 181 (cleaned

up). We agree that Raza’s proposed social group is too vague and lacks the limiting

characteristics necessary to qualify as a “particular social group” under the statute. We

therefore affirm the Board’s determination that “non-traditional Pakistani artists” is not a

particular social group. And because Raza “cannot prevail on his withholding claim

without a valid particular social group,” id. at 185, we need not address his other challenges

to that aspect of the agency’s denial of his application for withholding of removal.

B.

We turn now to Raza’s challenge to the Board’s rejection of his claim that he was

entitled to the protection of the CAT.

To succeed on a CAT claim, an applicant must show that it is more likely than not that he or she would be tortured in the country of removal. Torture is (1) any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person in a manner that is (2) by or with the consent or acquiescence of a public official or other person acting in an official capacity.

Herrera-Martinez, 22 F.4th at 185 (cleaned up). “The agency’s factual findings—including

its predictions about the likelihood of future mistreatment and government acquiescence—

‘are conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.’” Ponce-Flores v. Garland, 80 F.4th 480, 484 (4th Cir. 2023) (quoting 8 U.S.C.

§ 1252(b)(4)(B)). “Under this highly deferential standard . . . , we review factual findings

for substantial evidence, asking whether the administrative record, considered as a whole,

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contains sufficient evidence to support the agency’s factual determinations.” Id. (cleaned

up).

We have considered Raza’s claims and find no error. The IJ considered the evidence

of the conditions in Pakistan, including the evidence of sectarian violence by Sunni

Muslims against Shia Muslims, the threats made against his father and later against his

mother, and the attack against his family’s home. The IJ likewise considered the evidence

showing that Raza has siblings who still live in Pakistan, and they have received no threats

since 2017 and have never received any threats directed at Raza. After considering all of

the relevant evidence and aggregating all potential sources of harm, the IJ concluded that

Raza did not establish a clear probability that he would be tortured if he returned to Pakistan

or that any torture would be with the consent or acquiescence of a public official. These

findings are supported by substantial evidence and are conclusive. See Ponce-Flores, 80

F.4th at 484.

Contrary to Raza’s assertion, neither the IJ nor the Board improperly required him

to prove that he would be tortured because of one of the enumerated grounds required for

asylum and withholding of removal. See Jian Tao Lin v. Holder, 611 F.3d 228, 236 (4th

Cir. 2010) (“Whereas both asylum and withholding of removal require an applicant’s fear

of persecution to be based on an enumerated ground, protection under the CAT is available

for those who can prove that, whatever the motivation, it is more likely than not that he or

she would be tortured if removed to the proposed country of removal.”) (cleaned up). While

the Board’s order did state that the IJ found that Raza “had not shown that it is more likely

than not that he would experience future torture on account of a cognizable protected

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ground,” J.A. 10 (emphasis added), the IJ’s analysis did not, in fact, require Raza to tether

his CAT claim to an enumerated ground. Moreover, the Board made that statement while

discussing the IJ’s treatment of Raza’s withholding of removal claim. See id. (“The

Immigration Judge also denied his application for withholding of removal, finding inter

alia that [Raza] had not shown that it is more likely than not that he would experience future

torture on account of a cognizable protected ground.”). To be entitled to withholding of

removal, a petitioner must show a probability of persecution based on an enumerated

ground; it is thus clear to us that the Board’s use of the word “torture” rather than

“persecution” was simply a scrivener’s error.

The agency’s factual findings are supported by substantial evidence, and neither the

IJ nor the Board made any legal errors when rejecting Raza’s application for protection

under the CAT.

IV.

Finding no error, we deny Raza’s petition for review. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

PETITION FOR REVIEW DENIED