Filed: Dec. 30, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-30-2004 Akmal v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1873 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Akmal v. Atty Gen USA" (2004). 2004 Decisions. Paper 29. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/29 This decision is brought to you for free and open access by the Opinions of th
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 12-30-2004 Akmal v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1873 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Akmal v. Atty Gen USA" (2004). 2004 Decisions. Paper 29. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/29 This decision is brought to you for free and open access by the Opinions of the..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
12-30-2004
Akmal v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1873
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Akmal v. Atty Gen USA" (2004). 2004 Decisions. Paper 29.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/29
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1873
___________
SAEED AKMAL,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA,
Respondent
___________
On Petition for Review of a Decision by the
Board of Immigration Appeals
(No. A70-581-742)
___________
Submitted Under Third Circuit LAR 34.1(a)
December 16, 2004
Before: NYGAARD and GARTH, Circuit Judges.
and POLLAK,* District Judge.
(Filed December 30, 2004 )
___________
*Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Saeed Akmal petitions this Court for review of a final removal order issued by the
Board of Immigration Appeals (“Board”). We have jurisdiction pursuant to 8 U.S.C.
§1252. We will deny the petition.
Akmal, a native and citizen of Pakistan, first entered the United States without
inspection in December 1989. In March of 1992 he was deported, but he reentered in
May 1994. He subsequently departed and returned to the United States on four more
occasions between 1996 and 2001.
On September 30, 2001, Akmal arrived in the United States and sought permission
to enter as a returning Lawful Permanent Resident, using false documentation. He was
not admitted, and on October 1, 2001 the INS placed him in removal proceedings.1 At an
October 29, 2002 hearing, the Immigration Judge found him removable and denied his
claims for asylum, withholding of removal, and Convention Against Torture (“CAT”).
1.
Akmal was served a Notice to Appear charging him with being an inadmissable alien
under: (1) INA §212(a)(4)(A), as an alien who is likely to become a public charge; (2)
section 212 (a)(6)(B) and (C), for failing to attend his previous deportation proceedings
and seeking admission by fraud or willful misrepresentation; (3) section
212(a)(7)(A)(i)(I), as an alien not in possession of valid travel documents; and (4)
sections 212(a)(9)(A) and (B), as an alien previously removed and unlawfully present
after such removal.
2
On March 12, 2003, the Board dismissed Akmal’s appeal of the Immigration
Judge’s decision. It found that Akmal failed to establish either past persecution or a well-
founded fear of persecution, on account of any protected ground, if returned to Pakistan.
The Board further found that Akmal failed to sustain his burden of establishing that, more
likely than not, his life or freedom would be threatened if returned to Pakistan, or that he
would be tortured, and therefore found that he was not entitled to withholding of removal
or CAT protection.
We review the factual findings of the Board for substantial evidence. See INS v.
Elias-Zacharias, 502 U.S. 478 (1992). Under this deferential standard of review, we may
not disturb these findings unless any reasonable factfinder would be compelled to
conclude to the contrary.
Id. at 481.
An alien is eligible for discretionary grant of asylum under INA section 208 if he
demonstrates that he is a “refugee.” Ezeagwuna v. Ashcroft, 301 F.3d 116, 125-26 (3d
Cir. 2002); Fatin v. INS,
12 F.3d 1233, 1238 (3d Cir. 1993). A “refugee” is an alien who
is “unable or unwilling” to return to his country of origin “because of persecution or a
well-founded fear of persecution on account of race, religion, nationality, membership in
a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A)(2000);
Fatin,
12 F.3d at 1238.
In order to show past persecution, Akmal had to establish: (1) an incident that
arises to the level of persecution; (2) was committed on account of a protected ground;
3
and (3) was committed either by the Pakistani government or by a group that the
government was unable or unwilling to control. See Berishaj v. Ashcroft, 378 F.3d 314,
323 (3d Cir. 2004) (citing Navas v. INS,
217 F.3d 646, 655 (9 th Cir. 2000)). Akmal
claims that he will be persecuted on account of his HIV+ status and his imputed social
group status as a homosexual or an adulterer. 2 Akmal failed to establish, however, that
there exists, in Pakistan, a particular social group comprised of HIV-infected people that
are so discriminated against or sought out for violence as to amount to persecution. To
support his persecution claim, Akmal relied upon a single incident in which he was
allegedly threatened with death by unnamed individuals at a billiards club if he spoke in
favor of America while he was in Pakistan. This single incident, however, does not
constitute past persecution; the threat was not based on a protected ground and the person
who made the threat is unknown. Accordingly, the Board correctly held that Akmal
failed to establish persecution or a well-founded fear of persecution.
The standard for withholding of removal is more stringent than the “well-founded
fear” of persecution standard required for asylum. Thus, it follows that an alien who fails
to demonstrate eligibility for asylum, also fails to satisfy the more stringent standard for
withholding of removal. Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). Therefore,
2.
While Akmal admits that he is HIV+, he states that he is neither a homosexual nor an
adulterer. Akmal also believes that he will be perceived as a religious infidel for having
transmitted the disease to his wife.
4
becausee Akmal has failed to establish eligibility for asylum, he has also failed to
establish eligibility for withholding of removal.
In order to establish Convention Against Torture (“CAT”) protection eligibility,
Akmal has the burden of establishing that, more likely than not, he would be tortured if
removed to Pakistan. 8 C.F.R. §§ 1208.18(b)(2) and 1208.16(c)(2)(4). This standard is
identical to the “clear probability” standard required for withholding of removal. Cf. INS
v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). Akmal failed to establish any basis for
concluding that, more likely than not, he would be subjected to torture if returned to
Pakistan.
For the foregoing reasons, we will deny the petition.
5
_________________________
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