United States Court of Appeals

Fifth Circuit

FILED

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* Pursuant to 5TH CIR.R.47.5, the court has determined that this opinion should not be published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.
2

removal and protection under the Convention

Against Torture (“CAT”). We deny the petition.

I.

Khan and Ahasan are natives and citizens of

Bangladesh. Before leaving Bangladesh in

1998, Khan and Ahasan were threatened and

physicallyassaulted on numerous occasions by

Kamal Chowdhury (also known as Shahjahan

Chowdhury), a distant cousin of Khan’sfather

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 Bangladesh to complete her education. Khan and

Ahasan ultimately left Bangladeshwith the understandable 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 subsequently 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 immigration judge (“IJ”), Khan and Ahasan conceded

removability. Khan filed an application for

asylum, with Ahasan as a derivative beneficiary, and they applied for withholding of removal 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 capacity, Chowdhury’sstatus as a member of parliament 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 authorityto 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 Mikhael 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 review their factual findings for substantial

evidence. See Zhang v. Gonzales, 432 F.3d

339, 343-44 (5th Cir. 2005). Under the substantial evidence standard, “reversal[ofthe IJ]

isimproper unless we decide ‘not only that the

evidence supports 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 burden 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 discretion whether to grant asylum. To be eligible

for asylum, an alien must prove that he is “unable or unwilling to return to . . . [his] country

because of persecution or a well-founded fear

of persecution on account ofrace, religion, nationality, 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 derivative beneficiary of his wife’s application for asylum.
3

(a)(42)(A). A well-founded fear of persecution 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 removed to a particular country if it is determined 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 opinion.” 8 U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal, an alien must

demonstrate an objective “clear probability” of

persecution in the proposed country of removal. 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 articulated 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 relocate 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 isineligible for

asylum and withholding of removal because

the evidence demonstrated that Chowdhury

had terrorized Khan on account of hisjealousy

and anger at the fact that she had chosen to

marry another man. The IJ found no indication that Chowdhury targeted Khan for abuse

because of her race, religion, nationality,

membership in a social group, or political

opinion. 

Khan assertsshe wasin fact persecuted because of her membership in a social group,

namely women who live under male domination. She, however, has brought forward no

compelling evidence on which we could determine that Chowdhury focused his cruel attentions on her merely because she is a woman, as

opposed to the more specific and personal

motives, however despicable, he had for lashing 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 under CAT, the IJ found there was no evidence

that Chowdhury had abused Khan while acting

in his official capacity as a member of parliament or at the instigation or acquiescence of

another public official acting in an official capacity. 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 inflicted on a person for such purposes as obtaining from him or her or a third person information 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 intimidating or coercing him or her or a third person, 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

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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).
4

sufficient to controvert that determination.

3

Therefore, the IJ’s denialofKhan’s application

for relief under CAT must likewise be upheld.

The petition for review is DENIED.

3 Khan has offered only one basis for overturning 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 Bangladeshi police to Chowdhury’s constant abuse of the

couple constitutes official acquiescence in Chowdhury’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.