TORRUELLA, Circuit Judge.
The petitioners in this case, natives and citizens of Bangladesh, seek review of a final order of removal issued by the Board of Immigration Appeals ("BIA"). See 8 U.S.C. § 1252(a)(1). The BIA affirmed the denial by an immigration judge ("IJ") of the petitioners' applications for cancellation of removal, asylum, withholding of removal, and relief pursuant to the Convention Against Torture ("CAT"). After
Mohammed Suzaul Hasan ("Hasan"), the lead petitioner in this case, entered the United States, on or about August 4, 1992, with his wife, Tanjila, and son, Tameem. The three were admitted to this country as non-immigrant visitors with authorization to remain in the United States until February 3, 1993. Hasan and his family overstayed their visas. In the interim, a daughter, Tashfia, was born to the family on July 2, 1993 in Los Angeles, California.
Over a decade later, on May 25, 2007, the government filed Notices to Appear ("NTA") in immigration court, charging Hasan, Tanjila, and Tameem (collectively, "Petitioners") with removability pursuant to section 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). The three were placed in removal proceedings and, in pleadings submitted to the IJ on June 17, 2007, they admitted the factual allegations in the NTA, conceding their removability as charged.
On June 30, 2008, Petitioners filed individual applications seeking cancellation of removal under section 240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1). Hearings on the merits of Hasan's pending application for asylum, withholding of removal, and CAT protection, as well as Hasan and Tanjila's applications for cancellation of removal,
Hasan declared that he came to the United States because of political persecution in Bangladesh by opposition parties. Hasan began his political career in 1985 with the Youth Front of the Jatiya Party,
Hasan was once again attacked and attempts were made against his life in April of 1992. Consequently, he left Bangladesh with his wife and son on July 30, 1992, and made for Belgium, from which country the family found its way to the United States on a valid, non-immigration visa.
Hasan testified that, at the time of his hearing, Bangladesh had a "caretaker government," that all political activities were "suspended" and restricted, and that the Jatiya Party was "not in power at all." The government, in contrast, presented the U.S. State Department's 2007 Country Report on Human Rights Practices for Bangladesh, which indicated that after the 2001 elections, which were supervised by a nonparty caretaker government, the BNP had formed a four-party coalition government with the Jamaat-e-Islami, the Bangladesh Jatiya Party, and the Islami Oikko Jote. The 2007 Country Report also recounted the implementation of electoral and political reforms. In addition, the government pointed to newspaper articles chronicling a historic democratic election held on December 29, 2008, as well as statements in the 2008 Country Report on Human Rights Practices for Bangladesh that the elections were "considered by international and domestic observers as free and fair," blemished only by "isolated irregularities" and "sporadic violence." Asked specifically what harm might befall him if he returned to Bangladesh, Hasan stated that he did not "know what will happen." He identified the BNP and Jamaat-e-Islami as "the main threat" for him and averred that members of these organizations would not like it "if [he] g[o]t into politics again."
As to Tashfia, Hasan's daughter and a U.S. citizen, declarations by herself and Petitioners reflected that she had never traveled to Bangladesh, knew little about the country, and is not comfortable speaking the native language, nor can she read or write in Bengali. If the Petitioners were repatriated to Bangladesh, Tashfia would accompany them as there is no one in the United States that could care for her. Hasan expressed fears that political rivals might kidnap Tashfia in order to hurt him, or that she might be kidnapped simply for being perceived as a foreigner from a rich country. Hasan also worried
On June 17, 2009, the IJ issued a written decision denying Hasan's request for asylum, withholding of removal, and CAT protection, denying Hasan and Tanjila's request for cancellation of removal, but granting Petitioners voluntary departure.
The IJ determined that Petitioners were ineligible for cancellation of removal because they failed to demonstrate that their removal would result in "exceptional and extremely unusual hardship," 8 U.S.C. § 1229b(b)(1)(D), to their one qualifying relative, Tashfia, that would be "substantially different from, or beyond, that which would normally be expected" from repatriation, Matter of Monreal-Aguinaga, 23 I. & N. Dec. 56, 62 (B.I.A.2001) (citing H.R. Conf. Rep. No. 104-828 discussing intended reach of INA section 240A(b)(1)(D)). The IJ held that Petitioners could not establish that removal would cause Tashfia to be submitted to the necessary level of economic hardship since the record reflected that Hasan did not allege any adverse medical conditions; possessed a high degree of education as a CPA and college graduate; and was the co-owner of his family's house in Bangladesh. The IJ also considered Petitioners' strong family ties in Bangladesh, including Hasan's brothers, sisters, and father who all currently reside there, and the fact that a number of these relatives held skilled positions.
Regarding Petitioners' eligibility for asylum under the INA's section 208, 8 U.S.C. § 1158, the IJ determined that, assuming Petitioners had sustained their burden of establishing past persecution, the government had nevertheless established by a preponderance of the evidence that there had been a fundamental change in circumstances in Bangladesh such that Petitioners no longer had a well-founded fear of persecution on account of a statutorily cognizable ground. See id. § 1158(b)(1)(A) (in order to establish eligibility for asylum under INA section 208, an alien must be a refugee within the meaning of INA section 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A)); id. § 1101(a)(42)(A) (defining "refugee" as any person who is unwilling or unable to return to his or her country of nationality due to "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion"); see also Zarouite v. Gonzales, 424 F.3d 60, 63 (1st Cir.2005) (well-founded fear can be shown on the basis of "past persecution, which gives rise to a presumption of future persecution. . . sufficient for the applicant's case unless rebutted by the Attorney General (e.g., by showing changed conditions)" (citing 8 C.F.R. § 208.13(b)(1)(i)(A))).
Specifically, the IJ noted that while Hasan had described harassment, abuse, and physical harm at the hands of members of various opposition political factions, every one of the cited incidents took place between 1988 and 1992. The IJ found that, since that time, the record revealed substantial
The IJ also found that none of the Petitioners had marshaled sufficient evidence to establish that, almost seventeen years later, they held an independent, well-founded fear of future persecution in Bangladesh, at least not one that the IJ considered objectively reasonable. See Sugiarto v. Holder, 586 F.3d 90, 94 (1st Cir. 2009) (explaining that even if an applicant cannot establish past persecution, "[he or] she can [] establish eligibility for asylum based on a `well-founded fear of future persecution' based on a protected ground" (citing 8 C.F.R. § 1208.13(b)(2))); see also id. (an applicant must establish that "[the] fear is both (1) subjectively genuine and (2) objectively reasonable, meaning that a reasonable person in the applicant's circumstances would fear persecution"). The IJ determined that the fact that Hasan had not been politically active in Bangladesh, whether for the Jatiya Party or any other entity, for over seventeen years, significantly undercut the reasonableness of his claimed fear. See Hasan v. Gonzales, 236 Fed.Appx. 696, 697 (2d Cir.2007) (citing with approval IJ's finding that petitioner's absence for ten years from relevant political activity suggests he would not face persecution in Bangladesh). In addition, the IJ noted that Petitioners have many family members who presently work and live safely and peacefully in Bangladesh, a fact that worked against their argument that Bangladesh would be unsafe for them or their family upon repatriation. See Ali v. Gonzales, 190 Fed.Appx. 13, 16 (1st Cir.2006) (denying review of denial of asylum claim, noting fact that petitioner's parents, brother, and uncle currently reside safely in Bangladesh negates claim of a well-founded fear).
Finally, the IJ denied Petitioners' claim for withholding of removal because they had failed to sustain their eligibility for asylum relief, and thus failed to meet the heightened standard for withholding of removal pursuant to INA's section 241(b)(3), 8 U.S.C. § 1231(b)(3). See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir.2005) ("[A] claim for withholding of removal places a more stringent burden of proof on an alien than does a counterpart claim for asylum."). Similarly, their claim for relief under the CAT failed because the IJ found that Petitioners presented "little, if any," evidence indicating that it was more likely than not that they would suffer torture at the hands of the government, or with the consent or acquiescence of the government, should they be repatriated to Bangladesh. See Romilus v. Ashcroft, 385 F.3d 1, 8 (1st Cir.2004) (relating this as the standard for relief under the CAT).
Petitioners appealed the IJ's decision to the BIA on July 13, 2009. The IJ's decision was affirmed and the appeal dismissed on April 27, 2010.
Petitioners contend that the BIA applied an improper legal standard in reviewing the IJ's hardship determination regarding cancellation of removal and thus violated their due process rights. They also contend that the BIA erred in affirming the IJ's determination regarding Petitioners' claims for asylum relief, withholding of removal, and protection under the CAT. We address their arguments in turn.
"Cancellation of removal is a form of discretionary relief, the granting of which allows a non-resident alien, otherwise removable, to remain in the United States." Ayeni v. Holder, 617 F.3d 67, 70 (1st Cir. 2010). The Attorney General may cancel removal of an alien if he or she (1) has resided in the United States for a continuous period of not less than ten years; (2) has been a person of good moral character during that period; (3) has not been convicted of certain enumerated crimes; and (4) has established that removal would result in exceptional and extremely unusual hardship to a qualifying family member (i.e., U.S.-citizen spouse, parent, or child). 8 U.S.C. § 1229b(b)(1). It is the last of these requirements that is at issue here.
Generally, no court has jurisdiction to review agency-level hardship determinations made in the cancellation of removal context. Id. § 1252(a)(2)(B) (stating that "no court shall have jurisdiction to review. . . any judgment regarding the granting of relief" under the cancellation of removal provision); see Parvez v. Keisler, 506 F.3d 93, 96 (1st Cir.2007) ("When the BIA denies cancellation of removal based on the factual determination that an alien fails to demonstrate the requisite hardship, we lack jurisdiction to review its decision."). The one exception to this jurisdiction-stripping provision is that an appropriate court of appeals may review petitions that raise claims premised on either constitutional questions or questions of law. 8 U.S.C. § 1252(a)(2)(D) (establishing that no provision "which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon petition for review"). However, "[u]nder the terms of this limited jurisdictional grant, discretionary or factual determinations continue to fall outside the jurisdiction of the courts of appeals." Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir.2005) (internal quotation marks and citation omitted). Thus, only if the petition fits within the exception do we have jurisdiction, and "[t]he presence vel non of either a constitutional or legal question is a matter of substance, not a function of labeling." Ayeni, 617 F.3d at 70-71.
Petitioners attempt to bring themselves within this exception by asserting that the BIA's affirmance of the IJ's decision regarding extreme and unusual hardship violated their Fifth Amendment Due Process rights. Specifically, they argue the BIA did not adequately address as a hardship factor the potential harm that could befall Tashfia if she had to travel to Bangladesh. In support of this, Petitioners contend that the IJ's decision primarily mentioned facts relating to economic hardship, while the BIA made only "cursory" mention of Petitioners' fear for Tashfia's safety. This, they contend, amounts to the application of an incorrect legal standard and a violation of their due process rights.
As the government correctly argues in opposition, this claim comprises nothing more than a challenge to the correctness
We have repeatedly held that "[c]loaking [a factual claim] in the garb of legal error does not alter its nature." Id. at 73 (holding petitioner's claim was factual in nature, where he alleged the BIA had failed to accord sufficient weight to the seriousness of his son's asthma); see also Rashad v. Mukasey, 554 F.3d 1, 5 (1st Cir.2009) (holding allegation that the agency failed to fully evaluate an aspect of petitioner's claim to be "another way of saying that the agency got the facts wrong"); Parvez, 506 F.3d at 97 (allegation that the BIA failed to consider supporting evidence regarding familial changes in Bangladesh held to be factual in nature). Petitioner's claim is simply "a disguised challenge to fact finding," id., with no legal or constitutional grounding. As such, it cannot support this Court's exercise of jurisdiction to review the BIA's denial of Petitioners' appeal regarding their failed application for cancellation of removal.
We give deferential review to the BIA's findings of fact and credibility under the "substantial evidence" standard. Bonilla v. Mukasey, 539 F.3d 72, 76 (1st Cir. 2008). Under this approach, "Board determinations of statutory eligibility for relief from deportation, whether via asylum or withholding of removal, are conclusive if `supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Guzman v. I.N.S., 327 F.3d 11, 15 (1st Cir.2003) (quoting I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). This means that "we will not reverse unless `the record evidence would compel a reasonable factfinder to make a contrary determination.'" Id. (quoting Aguilar-Solis v. I.N.S., 168 F.3d 565, 569 (1st Cir.1999)). Ordinarily, "[w]e review the decision of the BIA and not that of the IJ, but to the extent that the BIA deferred to or adopted the IJ's reasoning, we review those portions of the IJ's decision as part of the final decision of the BIA." Bonilla, 539 F.3d at 76 (internal quotation marks and citations omitted).
As noted previously, "[t]o establish eligibility for asylum, an alien must prove either past persecution, which gives rise to an inference of future persecution, or establish a well founded fear of future persecution on account of [his or] her race, religion, nationality, membership in a social group, or political opinion." Sugiarto, 586 F.3d at 94 (internal quotation marks and citation omitted) (citing 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b)). "If an applicant can prove past persecution, a regulatory presumption that the applicant has a well-founded fear of future persecution is triggered." Guzman, 327 F.3d at 15 (citing 8 C.F.R. § 208.13(b)(1)).
The BIA in this case determined that the IJ had correctly denied asylum based on a finding that, even assuming Hasan had suffered past persecution, the government successfully rebutted the presumption
Petitioners challenge the BIA's determination by merely arguing that the agency's decision to affirm the IJ "was not supported by substantial evidence." Petitioners provide no argumentation to support this assertion, however, and our own review of the administrative record leads us to conclude otherwise. The IJ had before him reports and news articles substantiating the government's claim of changed country conditions, including country reports prepared by the U.S. State Department. See Banturino v. Holder, 576 F.3d 10, 15 (1st Cir.2009) ("The [BIA] is entitled to rely on the State Department's country reports as proof of country conditions and may give them considerable weight, as long as any evidence adduced to contradict them is considered."). The IJ also took into account all of the testimonial and documentary evidence presented by Petitioners in support of their independent claim of fear of future persecution, and found it unpersuasive. As previously stated, ours is a deferential review and "we must uphold the BIA's determination unless the record points unerringly in the opposite direction." Sugiarto, 586 F.3d at 94 (internal quotation marks and citation omitted); see Banturino, 576 F.3d at 15 ("Where the agency's interpretation of the evidence as a whole is reasonable, we do not disturb it."). The IJ in this case had before it ample evidence from which to draw its conclusions, and we will not disturb the BIA's decision on such bare assertions of factual error.
This conclusion also disposes of Petitioners' withholding of removal claim. As noted earlier, "[w]ithholding of removal, which provides mandatory relief, imposes a higher standard than asylum." Romilus, 385 F.3d at 8. "While eligibility for asylum requires a well-founded fear of future persecution, withholding of removal requires that the alien show a clear probability of
Both the IJ and BIA found that Petitioners had failed to meet their burden for relief under the CAT, since they had not established that it is more likely than not that they would be subject to torture by or with the "acquiescence" of a member of the government of Bangladesh upon their return. See 8 C.F.R. §§ 208.16(c)(2) (indicating burden of proof) & 208.18(a)(1) (defining "torture").
The petition for review of the BIA's determination regarding cancellation of removal is dismissed for lack of jurisdiction, and the remainder of the petition is denied because we hold the BIA's decision was supported by substantial evidence.