Ahmad, et al v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
January 25, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-60487
Summary Calendar
______________
MUKHTAR AHMAD, FARZANA MUKHTAR, AND DANYAL AHMAD,
Petitioners,
VERSUS
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of the
Board of Immigration Appeals
m A71 471 729
m A96 051 414
m A96 051 415
_________________________
Before SMITH, GARZA, and PRADO,
Circuit Judges.
PER CURIAM:*
Mukhtar Ahmad, his wife Farzana Mukhtar,
and his son Danyal Ahmad (collectively,
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
(continued...)
*(...continued)
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

-- 1 of 4 --

2
“Ahmad”)1 petition for review of the denial by
the Board of Immigration Appeals (“BIA”) of
their application for asylum, withholding of
removal, and relief under the Convention
Against Torture (“CAT”). Because the deci-
sion of the immigration judge (“IJ”) turned
primarily on an adverse credibility determina-
tion with substantial support in the record, we
deny the petition for review.
Ahmad is a native and citizen of Pakistan
and former active member of the Pakistan Peo-
ples Party (“PPP”). He claims he was kid-
naped and beaten severely by associates of
Shabir Ahmad (“Shabir”), a member of the Ja-
mati Islamic party, for criticizing Shabir and
his political party. Since that time, Ahmad, as
a professor at a public university, allegedly re-
ceived threats against him and his family for
his progressive political views. He came with
his family to the United States on visitors’ vi-
sas that have expired. He admits removability
but has timely filed for asylum.
The IJ denied Ahmad’s claims based pri-
marily on a finding of adverse credibility. The
IJ noted that Ahmad did not leave Pakistan for
the United States until nearly six months after
receiving a visitor’s visa, despite allegedly
fearing persecution. When asked why he did
not file for asylum until one day before the
statutory deadline, he appeared to vacillate,
saying first that he was unaware of the asylum
remedy and later that he thought only political
figures could apply for asylum.
The IJ also found the description of Ah-
mad’s difficulties vague and found unreliable
the testimony of the one telephone witness he
provided. Finally, the IJ concluded that even
if Ahmad were credible, the harassment al-
leged would not rise to the level of persecu-
tion.
The BIA adopted and affirmed the IJ’s find-
ings of fact, with the caveat that if the IJ had
found Ahmad’s testimony credible, the facts
alleged were sufficient to prove persecution.
With this one exception, we treat the opinion
of the IJ as the final agency action for
purposes of this appeal.2
We review for substantial evidence the fac-
tual basis of the IJ’s denial of Ahmad’s claims
for asylum, withholding of removal, and pro-
tection under CAT. Zhang v. Gonzales, 432
F.3d 339, 343-44 (5th Cir. 2005). We will re-
verse the BIA only if we find that no reason-
able factfinder could disagree with the result,
i.e., that the evidence must compel the con-
trary conclusion. Chun, 40 F.3d at 78. When
reviewing an IJ’s credibility determination, we
are particularly deferential. Id.
There are two parts to a successful asylum
claim. First, the alien must establish eligibility
by proving that he is “unable or unwilling to
return to . . . [his home] country because of
persecution or a well-founded fear of persecu-
tion on account of race, religion, nationality,
membership in a particular social group, or po-
litical opinion.” 8 U.S.C. § 1101(a)(42)(A).
A well-founded fear of persecution involves “a
subjective fear of persecution, and that fear
1 Farzana Mukhtar and Danyal Ahmad are
derivative beneficiaries of Mukhtar Ahmad’s I-589
application for asylum and withholding of removal.
Our analysis applies equally to all claimants.
2 Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)
(“We may review actions of the IJ only when they
have some impact on the BIA’s decision . . . . In
this case, the BIA specifically adopted the credi-
bility findings of the IJ; therefore, we may review
the findings of the IJ.”) (internal citation omitted).

-- 2 of 4 --

3
must be objectively reasonable.” Lopez-Go-
mez v. Ashcroft, 263 F.3d 442, 445 (5th Cir.
2001). Second, the Attorney General or his
delegate, the IJ, must decide, in his sole dis-
cretion, to grant the claim.3
The standard of proof for withholding of
removal is “more stringent” than the standard
for asylum claims. Mikhael, 115 F.3d at 306.
The alien must prove by a “clear probability”
that he will, in fact, be persecuted if returned
to his home country. Id. (internal citation
omitted).4 Under CAT an alien must show it
is more likely than not that he will suffer tor-
ture, as opposed to mere persecution, if re-
moved to his home country. Efe v. Ashcroft,
293 F.3d 899, 907 (5th Cir. 2002).
The IJ’s credibility determination is sup-
ported by substantial evidence. It is not unrea-
sonable to conclude that Ahmad, a university
professor, knew of the existence of the asylum
remedy well before he filed, despite his state-
ment to the contrary; at any rate, his later
equivocation called his credibility into ques-
tion.5
Ahmad argues that this credibility determi-
nation does not relate to an event central to his
asylum claim and therefore cannot impeach his
entire testimony. We disagree. That Ahmad
waited nearly a year to file for asylum and six
months after receiving a visitor’s visa to leave
Pakistan for the United States, calls into
question whether he has a “subjective fear of
persecution” as required for asylum. Lo-
pez-Gomez, 263 F.3d at 445.
We assume arguendo, as the BIA found,
that Ahmad has alleged facts sufficient to con-
stitute persecution.6 But, as the BIA notes, an
alien’s uncorroborated testimony must be
credible before an IJ can grant asylum.7 For
the reasons mentioned above, we are not com-
pelled to find that Ahmad testified credibly,
and he presents no satisfactory corroborating
evidence to carry his burden of proof.8
Because Ahmad mentions his withholding
of removal and CAT claims only in his state-
ment of the issues without developing either
claim in the body of the brief, those issues are
3 Zhao v. Gonzales, 404 F.3d 295, 306 (5th
Cir. 2005); Mikhael v. INS, 115 F.3d 299, 303
(5th Cir. 1997).
4 See also Faddoul v. INS, 37 F.3d 185, 188
(5th Cir. 1994) (“This standard contains no sub-
jective component but requires a higher objective
likelihood of persecution than the ‘well-founded
fear’ standard.”) (internal citation omitted).
5 Ahmad argues that this finding infringes on
his right to file for asylum at any time before the
statutory deadline. The IJ’s reasoning, however,
does not go to the timeliness of the application, but
only to the probative value of Ahmad’s testimony.
6 For this reason, we need not rely on the IJ’s
finding that Ahmad’s description of his difficulties
is impermissibly vague.
7 8 C.F.R. § 208.13(a) (“The testimony of the
applicant, if credible, may be sufficient to sustain
the burden of proof without corroboration.”) (em-
phasis added).
8 As the IJ noted, the one telephone witness
Ahmad presented, Rahim Kahn, filed an affidavit
identical (except for name and date) to one filed
earlier by Qasim Khan. Also, Rahim Khan’s testi-
mony and affidavit together suggest that Ahmad
and Shabir live in the same village, but Ahmad
never mentioned this fact. Although these discrep-
ancies may be the result of confusion over similar
names, the IJ’s interpretation of the available
evidence is reasonable.

-- 3 of 4 --

4
waived on appeal.9 We note, however, that
where an alien fails to meet his burden of prov-
ing eligibility for asylum, he ordinarily does not
meet the stricter standards established for
withholding of removal and relief under
CAT.10
The petition for review is DENIED.
9 See Thuri v. Ashcroft, 380 F.3d 788, 793 (5th
Cir. 2004) (finding CAT claim waived for insuf-
ficient briefing); United States v. Beaumont, 972
F.2d 553, 563 (5th Cir. 1992) (“Failure of an ap-
pellant to properly argue or present issues in an
appellate brief renders those issues abandoned.”).
10 See Castillo-Rodriguez v. INS, 929 F.2d 181,
185 (5th Cir. 1991) (explaining that in affirming
BIA’s finding that alien is ineligible for asylum,
“we necessarily conclude that he is ineligible for
withholding of deportation as well”); Efe, 293 F.3d
at 907 (noting that unlike asylum or withholding of
removal claims, “CAT does not require
persecution, but the higher bar of torture”).

-- 4 of 4 --