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

_______________



### E MRANA 

### K

HAN AND 

### M OHAMMED 

### F AKHRUL 

### A HASAN



### ,

Petitioners,

VERSUS



### A LBERTO 

### R. G ONZALES



### ,

U NITED S TATES A TTORNEY G ENERAL

,



### Respondent.

____________________________________

Petition for Review of an Order of

the Board of Immigration Appeals



### m A78 316 201



### m A78 316 200

______________________________

Before S MITH

, G ARZA , and P RADO

, Circuit Judges.

P ER C URIAM : * Emrana Khan, together with her husband

Mohammed Fakhrun Ahasan as a derivative

benefici ary, petitions for review of the denial

by the Board of Immigration Appeals (“BIA”)

of her application for a sylum, withholding of

* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the l imited

(continued...) * (...continued)

circumstances set forth in 5 TH C IR

. 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 A hasan 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 di d not cease even after Khan

moved from her home to another city in Bangladesh to complete her education. Khan and

Ahasan ultimately left Bangladesh with the understandable goal of fleeing Chowdhury.

After a failed attempt to seek asylum in

Canada, Khan and Ahasan entered the United

Stat es in March 2002. Ahasan was subsequently picked up by immigration o fficials in

Texas, and he and Khan were charged in April

2 002 with removability under 8 U.S.C.

§ 1182(a)(6) (A)(1) as aliens in the United

States without being admitted or paroled.

At the ir initial hearing before an immigration judge (“IJ”), Khan and Ahasan conceded

removability. Khan filed an application for

asylum, wit h Ahasan as a derivative beneficiary, and they applied f

o r withholding of removal and for protection under CAT.

After an evidentiary hearing, th e 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 capacit y, Chowdhury’s status as a member of parliament in Banglades h no twithstanding. The IJ

ordered petitioners removed to th e 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 th e BIA. Where, as here,

however, t he BIA adopts the IJ’s decision in

full, we also review the IJ’s decision. S ee Mikhael v. INS , 115 F.3d 299, 302 (5th Cir.

1997).

Although we review the l egal conclusions

of the BIA and the IJ de novo

, see id. , we review their factual findings for substantial

evidence. S ee Zhang v. Gonzales

, 432 F.3d

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

is improper unless we decide ‘not only that the

evidence supp ort s a contrary conclusion, but

[also] that the evidence compels it.’” Id

. at

344 (quoting Z hao v. Gonzales

, 404 F.3d 295,

306 (5th Cir. 2005)). The alien bears the burden of proving the requisite compelling nature

of the evidence. S ee 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 of race, religion, natio nality, 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 persecut io n exists if the alien has a subjective fear of

persecution that is objectively reasonable. S ee

Lopez-Gomez v. Ashcroft

, 263 F.3d 442, 445

(5th Cir. 2001).

Unlike asylum, withhol d ing of removal is

not discr et io nary. An alien may not be removed to a particula r count ry if it is determined that “the alien’s life or fr eedom woul d

be threatened in that country because of the

alien’s race, religion, nationality, membership

in a particular social group, or politic al opinion.” 8 U.S.C. § 1231(b)(3)(A). To be eligible for withho lding of removal, an alien must

demonstrate an objective “clear probability” of

persecution in the proposed country of removal. I RS v. Stevic

, 467 U.S. 407, 413

(1984).

To o bt ain 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 eligibilit

y 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. S ee Efe

v. Ashcroft

, 293 F.3d 899, 907 (5th Cir.

2002). 2 To meet this burden, he may produce evidence of past torture, an inab ilit y to relocate to a safer part of the country , human

rights abuses within the country, and any other

relevant inform ati on. S ee 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 th at she had chosen to

marry ano t her man. The IJ found no indication that Chowdhury targeted Khan for abuse

because of her race, religion, nation a lit y,

membership in a social gro up, or political

opinion.

Khan asserts she was in fact persecuted because of h er 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 c apacit y as a member of parliament or at the instigation or acquiescence of

another public official acting in an official capacity. Khan has no

t po inted 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 sufferi ng is

infl icted by or at the instigation of or with the

(continued...) 2 (...continued)

consent or acquiescence of a public offi cial 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 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 overturning the IJ’s decision. Citing O ntunez-Turs ios v.

Ashcroft , 303 F.3d 341, 354 (5th Cir. 2002), she

asserts that the “willful blindness” of the B angladeshi 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.