Khan, 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 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,
Circuit Judges.
PER CURIAM:*
Emrana Khan, together with her husband
Mohammed Fakhrun Ahasan as a derivative
beneficiary, petitions for review of the denial
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termined that this opinion should not be published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.

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removal and protection under the Convention
Against Torture (“CAT”). We deny the peti-
tion.
I.
Khan and Ahasan are natives and citizens of
Bangladesh. Before leaving Bangladesh in
1998, Khan and Ahasan were threatened and
physically assaulted on numerous occasions by
Kamal Chowdhury (also known as Shahjahan
Chowdhury), a distant cousin of Khan’s father
who had wanted to marry Khan. Chowdhury
often employed “mastans,” criminal gangsters
for-hire, to assist him in terrorizing the young
couple.
The abuse did not cease even after Khan
moved from her home to another city in Ban-
gladesh to complete her education. Khan and
Ahasan ultimately left Bangladesh with the un-
derstandable goal of fleeing Chowdhury.
After a failed attempt to seek asylum in
Canada, Khan and Ahasan entered the United
States in March 2002. Ahasan was subse-
quently picked up by immigration officials in
Texas, and he and Khan were charged in April
2002 with removability under 8 U.S.C.
§ 1182(a)(6)(A)(1) as aliens in the United
States without being admitted or paroled.
At their initial hearing before an immigra-
tion judge (“IJ”), Khan and Ahasan conceded
removability. Khan filed an application for
asylum, with Ahasan as a derivative benefi-
ciary, and they applied for withholding of re-
moval and for protection under CAT.
After an evidentiary hearing, the IJ denied
petitioners’ applications on the ground that the
abuse they had received at the hands of
Chowdhury was motivated purely by personal
animus and could not be considered conduct
by a public official acting in an official capac-
ity, Chowdhury’s status as a member of parlia-
ment in Bangladesh notwithstanding. The IJ
ordered petitioners removed to the United
Kingdom, or in the alternative Bangladesh, in
May 2003. The BIA affirmed.1
II.
Generally, we have authority to review only
the decision of the BIA. Where, as here,
however, the BIA adopts the IJ’s decision in
full, we also review the IJ’s decision. See Mik-
hael v. INS, 115 F.3d 299, 302 (5th Cir.
1997).
Although we review the legal conclusions
of the BIA and the IJ de novo, see id., we re-
view their factual findings for substantial
evidence. See Zhang v. Gonzales, 432 F.3d
339, 343-44 (5th Cir. 2005). Under the sub-
stantial evidence standard, “reversal [of the IJ]
is improper unless we decide ‘not only that the
evidence support s a contrary conclusion, but
[also] that the evidence compels it.’” Id. at
344 (quoting Zhao v. Gonzales, 404 F.3d 295,
306 (5th Cir. 2005)). The alien bears the bur-
den of proving the requisite compelling nature
of the evidence. See Chun v. INS, 40 F.3d 76,
78 (5th Cir. 1994).
The Attorney General has complete discre-
tion whether to grant asylum. To be eligible
for asylum, an alien must prove that he is “un-
able or unwilling to return to . . . [his] country
because of persecution or a well-founded fear
of persecution on account of race, religion, na-
tionality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101-
1 In the appeal to the BIA, Ahasan did not raise
the denial of his own application for withholding of
removal and protection under CAT. Therefore, he
is before this court only in the capacity of a deriv-
ative beneficiary of his wife’s application for asy-
lum.

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(a)(42)(A). A well-founded fear of persecu-
tion exists if the alien has a subjective fear of
persecution that is objectively reasonable. See
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445
(5th Cir. 2001).
Unlike asylum, withholding of removal is
not discretionary. An alien may not be re-
moved to a particular count ry if it is deter-
mined that “the alien’s life or freedom would
be threatened in that country because of the
alien’s race, religion, nationality, membership
in a particular social group, or political opin-
ion.” 8 U.S.C. § 1231(b)(3)(A). To be eligi-
ble for withholding of removal, an alien must
demonstrate an objective “clear probability” of
persecution in the proposed country of re-
moval. IRS v. Stevic, 467 U.S. 407, 413
(1984).
To obtain relief under CAT, an alien must
demonstrate not that he is a member of one of
the five protected categories of individuals ar-
ticulated in the eligibility standards for asylum
and withholding of removal, but rather that it
is more likely than not that he will be tortured
if he is removed to his home country. See Efe
v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
2002).2 To meet this burden, he may produce
evidence of past torture, an inability to relo-
cate to a safer part of the country, human
rights abuses within the country, and any other
relevant information. See 8 C.F.R.
§ 208.16(c)(3).
The IJ determined that Khan is ineligible for
asylum and withholding of removal because
the evidence demonstrated that Chowdhury
had terrorized Khan on account of his jealousy
and anger at the fact that she had chosen to
marry another man. The IJ found no indica-
tion that Chowdhury targeted Khan for abuse
because of her race, religion, nationality,
membership in a social group, or political
opinion.
Khan asserts she was in fact persecuted be-
cause of her membership in a social group,
namely women who live under male domina-
tion. She, however, has brought forward no
compelling evidence on which we could deter-
mine that Chowdhury focused his cruel atten-
tions on her merely because she is a woman, as
opposed to the more specific and personal
motives, however despicable, he had for lash-
ing out at her. Accordingly, we have no basis
for reversing the IJ’s denial of her application
for asylum and withholding of removal.
With regard to the application for relief un-
der CAT, the IJ found there was no evidence
that Chowdhury had abused Khan while acting
in his official capacit y as a member of par-
liament or at the instigation or acquiescence of
another public official acting in an official ca-
pacity. Khan has not pointed us to evidence
2 The applicable regulation defines torture as
any act by which severe pain or suffering,
whether physical or mental, is intentionally in-
flicted on a person for such purposes as obtain-
ing from him or her or a third person informa-
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-
timidating or coercing him or her or a third per-
son, or for any reason based on discrimination
of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the
(continued...)
2(...continued)
consent or acquiescence of a public official or
other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1) (2000).

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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.

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