Filed: Jan. 25, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D In the January 25, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 04-60849 Summary Calendar _ EMRANA KHAN AND MOHAMMED FAKHRUL AHASAN, Petitioners, VERSUS ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals m A78 316 201 m A78 316 200 _ Before SMITH, GARZA, and PRADO, Emrana Khan, together with her husband Circuit J
Summary: United States Court of Appeals Fifth Circuit F I L E D In the January 25, 2006 United States Court of Appeals Charles R. Fulbruge III for the Fifth Circuit Clerk _ m 04-60849 Summary Calendar _ EMRANA KHAN AND MOHAMMED FAKHRUL AHASAN, Petitioners, VERSUS ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals m A78 316 201 m A78 316 200 _ Before SMITH, GARZA, and PRADO, Emrana Khan, together with her husband Circuit Ju..
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United States Court of Appeals
Fifth Circuit
F I L E D
In the January 25, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 04-60849
Summary Calendar
_______________
EMRANA KHAN AND MOHAMMED FAKHRUL AHASAN,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
____________________________________
Petition for Review of an Order of
the Board of Immigration Appeals
m A78 316 201
m A78 316 200
______________________________
Before SMITH, GARZA, and PRADO, Emrana Khan, together with her husband
Circuit Judges. Mohammed Fakhrun Ahasan as a derivative
beneficiary, petitions for review of the denial
PER CURIAM:* by the Board of Immigration Appeals (“BIA”)
of her application for asylum, withholding of
*
Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
*
and is not precedent except under the limited (...continued)
(continued...) circumstances set forth in 5TH CIR. R. 47.5.4.
removal and protection under the Convention ity, Chowdhury’s status as a member of parlia-
Against Torture (“CAT”). We deny the peti- ment in Bangladesh notwithstanding. The IJ
tion. ordered petitioners removed to the United
Kingdom, or in the alternative Bangladesh, in
I. May 2003. The BIA affirmed.1
Khan and Ahasan are natives and citizens of
Bangladesh. Before leaving Bangladesh in II.
1998, Khan and Ahasan were threatened and Generally, we have authority to review only
physically assaulted on numerous occasions by the decision of the BIA. Where, as here,
Kamal Chowdhury (also known as Shahjahan however, the BIA adopts the IJ’s decision in
Chowdhury), a distant cousin of Khan’s father full, we also review the IJ’s decision. See Mik-
who had wanted to marry Khan. Chowdhury hael v. INS, 115 F.3d 299, 302 (5th Cir.
often employed “mastans,” criminal gangsters 1997).
for-hire, to assist him in terrorizing the young
couple. Although we review the legal conclusions
of the BIA and the IJ de novo, see id., we re-
The abuse did not cease even after Khan view their factual findings for substantial
moved from her home to another city in Ban- evidence. See Zhang v. Gonzales, 432 F.3d
gladesh to complete her education. Khan and 339, 343-44 (5th Cir. 2005). Under the sub-
Ahasan ultimately left Bangladesh with the un- stantial evidence standard, “reversal [of the IJ]
derstandable goal of fleeing Chowdhury. is improper unless we decide ‘not only that the
evidence support s a contrary conclusion, but
After a failed attempt to seek asylum in [also] that the evidence compels it.’” Id. at
Canada, Khan and Ahasan entered the United 344 (quoting Zhao v. Gonzales,
404 F.3d 295,
States in March 2002. Ahasan was subse- 306 (5th Cir. 2005)). The alien bears the bur-
quently picked up by immigration officials in den of proving the requisite compelling nature
Texas, and he and Khan were charged in April of the evidence. See Chun v. INS,
40 F.3d 76,
2002 with removability under 8 U.S.C. 78 (5th Cir. 1994).
§ 1182(a)(6)(A)(1) as aliens in the United
States without being admitted or paroled. The Attorney General has complete discre-
tion whether to grant asylum. To be eligible
At their initial hearing before an immigra- for asylum, an alien must prove that he is “un-
tion judge (“IJ”), Khan and Ahasan conceded able or unwilling to return to . . . [his] country
removability. Khan filed an application for because of persecution or a well-founded fear
asylum, with Ahasan as a derivative benefi- of persecution on account of race, religion, na-
ciary, and they applied for withholding of re- tionality, membership in a particular social
moval and for protection under CAT. group, or political opinion.” 8 U.S.C. § 1101-
After an evidentiary hearing, the IJ denied 1
petitioners’ applications on the ground that the In the appeal to the BIA, Ahasan did not raise
the denial of his own application for withholding of
abuse they had received at the hands of
removal and protection under CAT. Therefore, he
Chowdhury was motivated purely by personal
is before this court only in the capacity of a deriv-
animus and could not be considered conduct ative beneficiary of his wife’s application for asy-
by a public official acting in an official capac- lum.
2
(a)(42)(A). A well-founded fear of persecu- evidence of past torture, an inability to relo-
tion exists if the alien has a subjective fear of cate to a safer part of the country, human
persecution that is objectively reasonable. See rights abuses within the country, and any other
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 relevant information. See 8 C.F.R.
(5th Cir. 2001). § 208.16(c)(3).
Unlike asylum, withholding of removal is The IJ determined that Khan is ineligible for
not discretionary. An alien may not be re- asylum and withholding of removal because
moved to a particular count ry if it is deter- the evidence demonstrated that Chowdhury
mined that “the alien’s life or freedom would had terrorized Khan on account of his jealousy
be threatened in that country because of the and anger at the fact that she had chosen to
alien’s race, religion, nationality, membership marry another man. The IJ found no indica-
in a particular social group, or political opin- tion that Chowdhury targeted Khan for abuse
ion.” 8 U.S.C. § 1231(b)(3)(A). To be eligi- because of her race, religion, nationality,
ble for withholding of removal, an alien must membership in a social group, or political
demonstrate an objective “clear probability” of opinion.
persecution in the proposed country of re-
moval. IRS v. Stevic, 467 U.S. 407, 413 Khan asserts she was in fact persecuted be-
(1984). cause of her membership in a social group,
namely women who live under male domina-
To obtain relief under CAT, an alien must tion. She, however, has brought forward no
demonstrate not that he is a member of one of compelling evidence on which we could deter-
the five protected categories of individuals ar- mine that Chowdhury focused his cruel atten-
ticulated in the eligibility standards for asylum tions on her merely because she is a woman, as
and withholding of removal, but rather that it opposed to the more specific and personal
is more likely than not that he will be tortured motives, however despicable, he had for lash-
if he is removed to his home country. See Efe ing out at her. Accordingly, we have no basis
v. Ashcroft, 293 F.3d 899, 907 (5th Cir. for reversing the IJ’s denial of her application
2002).2 To meet this burden, he may produce for asylum and withholding of removal.
With regard to the application for relief un-
2
The applicable regulation defines torture as der CAT, the IJ found there was no evidence
that Chowdhury had abused Khan while acting
any act by which severe pain or suffering, in his official capacit y as a member of par-
whether physical or mental, is intentionally in- liament or at the instigation or acquiescence of
flicted on a person for such purposes as obtain- another public official acting in an official ca-
ing from him or her or a third person informa- pacity. Khan has not pointed us to evidence
tion or a confession, punishing him or her for
an act he or she or a third person has committed
or is suspected of having committed, or in-
2
timidating or coercing him or her or a third per- (...continued)
son, or for any reason based on discrimination consent or acquiescence of a public official or
of any kind, when such pain or suffering is other person acting in an official capacity.
inflicted by or at the instigation of or with the
(continued...) 8 C.F.R. § 208.18(a)(1) (2000).
3
sufficient to controvert that determination.3
Therefore, the IJ’s denial of Khan’s application
for relief under CAT must likewise be upheld.
The petition for review is DENIED.
3
Khan has offered only one basis for overturn-
ing the IJ’s decision. Citing Ontunez-Tursios v.
Ashcroft, 303 F.3d 341, 354 (5th Cir. 2002), she
asserts that the “willful blindness” of the Bangla-
deshi police to Chowdhury’s constant abuse of the
couple constitutes official acquiescence in Chowd-
hury’s activities. Khan has not, however, brought
to our attention any evidence, other than her and
Ahasan’s statements, indicating that the failure of
the police to apprehend Chowdhury resulted from
intentional neglect.
4
