Islam v. Gonzales

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1 In his briefs submitted to this court Petitioner does not
challenge the denial of his claims for protection under the CAT and
for voluntary departure; these claims are therefore deemed waived.
See Yohey v. Collins, 985 F.2d 222, 223-24 (5th Cir. 1993); FED. R.
APP. P. 28(a) (briefing requirements).
United States Court of Appeals
Fifth Circuit
F I L E D
March 9, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60703
MOHAMMED ISLAM,
Petitioner,
versus
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
- - - - - - - - - -
Petition for Review of an Order of
the Board of Immigration Appeals
- - - - - - - - - -
Before JONES, Chief Judge, WIENER and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Mohammed Islam seeks review of an order of the
Board of Immigration Appeals (“BIA”) affirming the denial by an
immigration judge (“IJ”) of his application for asylum, withholding
of removal, protection under the Convention Against Torture
(“CAT”), and voluntary departure. We dismiss his petition
regarding the denial of asylum for lack of jurisdiction and we
affirm the order denying withholding of removal.1

-- 1 of 9 --

2
I. FACTS AND PROCEEDINGS
Petitioner is a 38-year-old native and citizen of Bangladesh.
He entered the United States legally in May of 2000 pursuant to an
H-4 visa, which permitted him to accompany his wife, who had
obtained a job and came here on an H-1 work visa. Their visas were
valid until December 2002. After overstaying his visa, Petitioner
was issued a Notice to Appear in April of 2003. He admitted the
charges and conceded removability, but in February of 2004
Petitioner filed an application for asylum, withholding of removal,
protection under the CAT, and voluntary departure, claiming refugee
status because of his fear of political persecution were he to be
removed to Bangladesh.
Before the IJ, Petitioner claimed that his trouble with the
Bangladesh Nationalist Party (“BNP”), which is currently in power,
began when he became active as a student leader in the Awami
League, an opposition party. He testified about various incidents
that purportedly occurred while he was in college, including a 1986
arrest for inciting student protests against the government and a
beating he suffered a few months later at the hands of BNP
supporters who had prevented him from sitting for his academic
exams. After receiving medical treatment Petitioner fled to his
uncle’s home in another city for two months. Later that year,
stated Petitioner, he was beaten and threatened again by a group of
BNP supporters. Petitioner also described an incident in 1987 in
which a gang of rivals forced its way into his parents’ home,
interrogated them about his whereabouts, and destroyed furniture,

-- 2 of 9 --

2 Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
3
windows, and a television set. Petitioner stated that when he
tried to file a complaint with the police, who he alleges were
controlled by the BNP, they refused to take his complaint.
In 1989 Petitioner left Bangladesh for the former Soviet
Union, where he continued his studies. He stated that he feared
returning home, and that during a 1992 visit for his sister’s
wedding, he was forced to depart quickly when members of the
opposition party learned that he was there. He did not return
again until after the election of 1996, when the Awami League
gained control of the government. According to Petitioner, he
resumed his active role in the party, including service as
Organizing Secretary for his hometown, from 1998 through 2000.
While back in Bangladesh Petitioner got married, and in May of 2000
accompanied his wife to Dallas, Texas, where she had obtained a job
as a programmer. Their visas expired in December 2002.
After being ordered to appear on the charge of overstaying his
visa, Petitioner applied for the several methods of relief noted
above. The IJ denied the application after a hearing, and
Petitioner appealed to the BIA, which adopted the findings of the
IJ and affirmed his oral decision. In July of 2005 Petitioner
filed the instant petition for review.
II. ANALYSIS
A. Standard of Review
We ordinarily review BIA decisions without considering the
findings of the IJ.2 When the BIA’s decision specifically adopts

-- 3 of 9 --

3 Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
4 Girma v. INS, 283 F.3d 664, 666 (5th Cir. 2002).
5 Id. (quoting Mikhael v. INS, 115 F.3d 299, 304 (5th Cir.
1997)).
6 8 U.S.C. § 1158(a)(2)(B) (2005).
7 Id. § 1158(a)(2)(D).
8 8 C.F.R. § 208.4(a)(5)(iv) (2005).
4
the findings of the IJ, however, they are appropriately subject to
our review.3 The IJ’s legal conclusions are reviewed de novo; his
factual conclusions are reviewed for substantial evidence.4 “Under
the substantial evidence standard applicable to reviews of denials
of asylum, we must defer to the [IJ]’s factual findings unless the
evidence is so compelling that no reasonable fact finder could fail
to find otherwise.”5
B. Merits
1. Denial of Petitioner’s Application for Asylum as Time-Barred
An alien is required to file an application for asylum within
one year after the date of his arrival in the United States.6 An
exception to this limitations provision applies “if the alien
demonstrates to the satisfaction of the Attorney General ...
extraordinary circumstances relating to the delay in filing an
application within the period specified.”7 One extraordinary
circumstance that qualifies for this exception is the applicant’s
having maintained lawful immigrant or nonimmigrant status pursuant
to a valid visa.8 Still, an alien claiming such extraordinary
circumstances must file his application “within a reasonable period

-- 4 of 9 --

9 Id. § 208.4(a)(5).
10 See Order of BIA, July 11, 2005.
11 8 U.S.C. § 1158(a)(3) (2005).
12 Yuqing Zhu, 382 F.3d at 528 (citing 8 U.S.C. §
1231(b)(3)(A).
13 Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (citation
omitted); Mikhael, 115 F.3d at 306.
5
given those circumstances,”9 and in this case the IJ found that
Petitioner failed to do so.10 The statute governing applications
for asylum provides that “no court shall have jurisdiction to
review” a determination by the Attorney General that an application
is time-barred.11 The BIA’s order in this case expressly held
Petitioner’s asylum application time-barred, a determination that
strips us of jurisdiction to conduct a judicial review. We thus
dismiss Petitioner’s asylum claim for lack of jurisdiction.
2. Order Denying Withholding of Removal is Supported by Substantial
Evidence
Unlike an application for asylum, there is no time bar for
withholding of removal. We therefore have jurisdiction to review
denial of such relief.12 “To be eligible for withholding of
removal, an applicant must demonstrate a ‘clear probability’ of
persecution upon return. ... A clear probability means that it is
more likely than not that the applicant’s life or freedom would be
threatened by persecution” if he were removed to his country of
origin.13 “There must be some particularized connection between the
feared persecution and the alien’s race, religion, nationality or
other listed characteristic. Demonstrating such a connection

-- 5 of 9 --

14 Id. (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir.
1994)).
15 Efe, 293 F.3d at 903.
16 See Order of April 28, 2004, at 9.
17 Id.
6
requires the alien to present specific, detailed facts showing a
good reason to fear that he or she will be singled out for
persecution.”14 The IJ’s determination that Petitioner failed to
make such a showing is supported by substantial evidence. As
explained below, we affirm the IJ’s denial of Petitioner’s
application for withholding of removal.
a. IJ’s Credibility Determinations
Petitioner asserts that the BIA erred in affirming the IJ’s
determination that he was not a credible witness. On appeal, the
IJ’s decisions concerning an alien’s credibility are entitled to
great deference,15 and there is nothing in the record that casts
serious doubt on such determinations in this case. The IJ noted
inconsistencies in Petitioner’s testimony concerning events of
persecution or harassment that he had allegedly suffered, which
inconsistencies caused the IJ to doubt that the events actually
occurred.16 The IJ observed that the testimony was “extremely
general and lacking in detail and the respondent cannot seem to
remember from one telling to the next” when important incidents
occurred. In general, the IJ found Petitoner’s testimony “spacy in
terms of relating these incidents.”17 Particularly given the great

-- 6 of 9 --

18 Roy, 389 F.3d at 138 (quoting Efe, 293 F.3d at 904, 906).
19 Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001).
20 See 8 U.S.C. § 1158(b)(1)(B)(i)-(ii) (2005).
21 Order of April 28, 2004, at 7.
7
degree of deference to which the IJ’s credibility assessments are
entitled, we perceive no reason to question this finding.
b. Petitioner’s Failure to Establish Past Persecution
The standard for “[w]ithholding of removal is a higher
standard than [for] asylum, ... which requires a showing of past
persecution or a well-founded fear of persecution.”18 “To show a
well-founded fear of persecution, an alien must have a subjective
fear of persecution, and that fear must be objectively
reasonable.”19 The burden of proof is on the applicant, and unless
his testimony is deemed credible, persuasive, and specific, he must
provide corroborating evidence.20 Given the heightened standard for
withholding of removal, an applicant who fails to satisfy the
“well-founded fear” standard for asylum necessarily fails to
satisfy his burden with respect to withholding of removal.
The IJ found it “a little bit of a stretch to assume that
people are still going to be after respondent because of activities
he was undertaking when he was 17 and 18 and 19 and 20 years old
when he is now 36 and it is the year 2004.”21 The IJ simply was not
satisfied with the evidence offered to corroborate Petitioner’s
claim. In particular, the IJ noted that “we have really nothing
from Bangladesh except these two first information reports and a

-- 7 of 9 --

22 Id.
23 Id.
24 Id.
25 The name on the arrest warrant was “Mohammed Saiful Islam,”
but aside from Petitioner’s testimony there was no evidence that
the individual named was in fact Petitioner.
26 Order of April 28, 2004, at 5.
8
couple of letters,” which he found unhelpful.22 He also gave little
credence to an undated letter addressed “To Whom It May Concern,”
which gave “no reference to this respondent’s personally having had
any particular problems in Bangladesh or ... arrest warrants or
anything else.”23 The IJ was similarly concerned that none of
Petitioner’s family members who are in Bangladesh submitted
affidavits or other supporting evidence.24
One item of potentially probative corroborating evidence was
an arrest warrant issued in Bangladesh on July 24, 2001,
purportedly naming Islam and accusing him and others of a serious
crime.25 This potential evanesced, however, when the IJ noted that
the warrant was issued at a time when the Awami League was in
control of the government and Petitioner had been in the United
States for 14 months.26
In addition to the absence of any meaningful corroborating
evidence objectively showing a threat of persecution, the IJ
determined that Petitioner had not met his burden of demonstrating
even a subjective fear. The IJ observed that Petitioner “was in
and out of Bangladesh at least on three occasions[, which] would
suggest to the Court that he is talking about ancient history here

-- 8 of 9 --

27 Id. at 10.
28 Mikhael, 115 F.3d at 304.
9
and by his own conduct he has not manifested any very high level of
concern that these incidents are going to happen again.”27 As the
evidence presented was not “so compelling that no reasonable fact
finder could fail to find otherwise,”28 we shall not disturb the
IJ’s determination that Petitioner failed to satisfy his burden of
proof. Thus, the IJ’s order denying withholding of removal is
affirmed.
III. CONCLUSION
We are without jurisdiction to review the denial of
Petitioner’s application for asylum as time-barred, so we dismiss
Petitioner’s asylum application. As for Petitioner’s claim for
withholding of removal, our careful review of the record and
consideration of the arguments presented in the parties’ briefs
satisfies us that the IJ’s order denying such relief is supported
by substantial evidence and thus must be affirmed.
DISMISSED in part; AFFIRMED in part.

-- 9 of 9 --