United States Court of Appeals

Fifth Circuit



## FILED

May 29, 2003

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

02-60526

Summary Calendar

QAZI SHAHRYAR HAFIZ,

Petitioner,

VERSUS

JOHN ASHCROFT, U S ATTORNEY GENERAL,

Respondent.

02-60527

Summary Calendar

GULNAHAR SHAHRYAR,

Petitioner,

VERSUS

JOHN ASHCROFT, U S ATTORNEY GENERAL,

Respondent.

02-60528

Summary Calendar

QAZI MOHAMED SHAHANSHAH SHAHRYAR,

Petitioner,1 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opinion should not be published and is not precedent except under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 limited circumstances set forth in 5 TH C IR . R. 47.5.4.

2 VERSUS

JOHN ASHCROFT, U S ATTORNEY GENERAL,

Respondent.

02-60529

Summary Calendar

QAZI MOHAMMAD SHAHZADA SHAHRYAR,

Petitioner,

VERSUS

JOHN ASHCROFT, U S ATTORNEY GENERAL,

Respondent.

Appeals from the United States District Court

For the Board of Immigration Appeals

A93-247-601

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM: 1

In these four cases we are asked to review whether 1) the

Board of Immigration Appeals erred in finding the Petitioner Hafiz

ineligible for asylum; and 2) whether all t he Petitioners’2 If the primary applicant is granted asylum, his wife and

children may also be granted asylum. 8 U.S.C. § 1158(b)(3)(2000).

3 constitutional rights were violated in the timing of the filing of

these proceedings. There being substantial evidence to support the

Board’s findings and no reviewable issue concerning the timing of

these proceedings, we affirm.

I.

Petitioners, natives and citizens of Bangladesh, remained in

the United States beyond the expiration date of their nonimmigrant

visas. In removal proceedings before an Immigration Judge,

Petitioners conceded removability and Petitioner Hafiz sought

political asylum, withholding of removal, or, at the very least,

voluntary departure. The consolidated cases are those of Hafiz’s

wife and two sons. 2 The Immigration Judge denied the applications

for asylum and withhold ing of removal but found Petitioners

e ligible for voluntary departure. Petitioners appeal denial of

the request for asylum (not withholding of removal) and the

procedural due process issue (discussed in Part IV).

Petitioner Hafiz’s request for asylum was based on his alleged

f ear for his life if he returned to Bangladesh. Although the

Immigration Judge found Hafiz to be credible, he held that the

facts shown did not e ntitle him to asylum. The Board of

Immigration Appeals affirmed the Immigration Judge’s decision

without opinion, making the Immigration Judge’s determination the4

final age ncy decision to be reviewed by this Court. M ikhael v.

INS , 115 F.3d 299, 302 (5 th Cir. 1977).

II.

We review factual findings of the Board of Immigration Appeals

to determine whether they are supported by substantial evidence.

INS v. Elias-Zacarias

, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117

L.Ed.2d 38 (1992). We review conclusions of law de novo.

Carbajal-Gonzale z v. INS , 78 F.3d 194, 197 (5 t h Cir. 1996). Once

an alien demonstrates eligibility for asylum, the decision to grant

asylum is within the discretion of the Attorney General. 8 U.S.C.

§ 1158(b)(i); Guevara-Flores v. INS

, 786 F.2d 1242, 1250 (5 th Cir.

1986), cert. denied , 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757

(1987); Castillo-Rodriguez v. INS

, 929 F.2d 181, 18 4 (5 th Cir.

1991).

III.

The Attorney General may confer asylum upon any “refugee,” who

is someone “unwilling to return to

. . . [a] country because of

persecution or a well-founded fear of persecuti on on account of

race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The

“well-founded fear” standard has both a subjective and an objective

component, i.e.

, that the applicant actually fears persecution, and

that such fear is objectively reasonable. L opez-Gomez v. Ashcroft

,

263 F.3d 442, 445 (5 th Cir. 2001).

The objective element of well-founded fear is satisfied if “a3 The Immigration Judge properly noted that evidence could be

presented through either testimony or documentation. Contrary to

Hafiz’s contention, the Immigration Judge did not require that

corroborative documents be pr oduced. R. at 94 (“[H]is testimony

may be sufficient if it is believable, consistent, and sufficiently

detailed.”); 96 (Eviden ce “may be presented . . . through

documentation or through the respondent’s testimony.”); 97-98 (“If

he cannot meet [his burden] by documentation he must be able to

give the Court specific examples of individuals and that would have

to be detailed with names, places, and times.”).

The court’s remark that no documentation showed that an

individual such as Hafiz was being targeted, in context,

constituted part of the court’s conclusion that neither testimony

nor documentation met this part of Petitioner’s burden.

5 reasonable person in [Hafiz’s] circumstances would fear persecution

if she were to be returned to her native country.” G uevara-Flores

,

786 F.2d at 1249. Hafiz’s fear is based on his membership in two

groups, the group of “returnees” whom he believes have been or will

be targeted by the Awami League, and the group of former officers

involved in the arrest or prosecution of Awami gang members who

committed crimes. R. 96.

The Immigration Judge found that Petitioner received a threat

in 1980 from me mbers of the Awami League. The Immigration Judge

found that Hafiz did not suffer past persecution, however, noting

that Hafiz had not been arrested, detained, or harmed in any way,

and tha t from 1982 to 1989, Hafiz was not threatened or harmed

while residing in Bangladesh. R. 91, 95.

Turning to the question of future persecution, the Immigration

Judge found no evidence 3 of targeting of former military members

who were involved in the prosecution of Awami League members

accused of crimes. The court noted that Hafiz did testify6

generally that the group of former officers involved were being

targeted. But upon questioning, the Petitioner provided no

specifics (such as names, places, or times), and referred the court

only to a document that did not substantiate the statement. R. 96-

98. The court held that, without evidence of past persecution,

Hafiz would have to show examples of individuals in his group

(former military members involved in the prosecution of Awami

League members accused of crimes) who had been targeted by the

Awami League. R. 96-98. The court therefore concluded that it

lacked evidence that individuals situated similarly to Hafiz have

been or will be targeted in the future. R. 98.

The court correctly exacted specifics as part of the burden of

proof:

At a minimum [to sh ow persecution], there must be some

particularized connection between the feared persecution

and the alien's race, religion, natio nality or other

listed characteristic. Demonstrating such a connection

requires the alien to present “specific, detailed facts

showing a good reason to fear that he or she will be

singled out for persecution."

Faddoul v. INS

, 37 F.3d 185, 188 (5 th Cir. 1994) (quoting Zulbeari

v. INS

, 963 F.2d 999, 1000 (7th Cir.1992); see also Acewicz v. INS

,

984 F.2d 1056, 1061 (9 th Cir. 1993) (requiring pr esentation of

specific facts demonstrating either past persecuti on or a wellfounded fear of future persecution).

Concern ing Hafiz’s fear of return to Bangladesh, the

Immigration Judge noted that Hafiz had remained in Bangladesh for

many years after receiving the 1980 threat. The fact that Hafiz7

waited seven years after coming to the United States before seeking

political asylum lead the court to believe that Hafiz was not

serious about claiming asylum.

Hafiz also complains that the Immigration Judge’s decision is

based on an incorrect burden of proof because the court required

him to show a “clear probability” rather than a “reasonable

probability” of persecution. This contention misapprehends the

opinion. The court correctly distinguished the burden for asylum

(“well founded fear”) from the burden for withholding of

removability (“clear probability” and “more likely than not”). R.

94, 98. S ee Faddoul 37 F.3d at 188 (explaining that the “clear

probability” of persecution necessary for withholding of removal

represents “a higher objective likelihood of persecution than the

‘well-founded fear’ standard”).

Under the substantial evidence standard, we will not reverse

the Immigration Judge’s decision, because we do not find that the

evidence compels a contrary conclusion. E lias-Zacharias

, 502 U.S.

at 481 n.1, 483-84; Carbajal v. Gonzalez , 78 F.3d at 197.

IV.

Petitioners next contend that t heir due process and equal

protect ion rights were violated because they were precluded from

pursuing applications for suspension of deportation. They complain

that the INS’s delay in filing the proceedings against them until

after the effective date of IIRIRA (the Illegal Immigration Reform

and Immigrant Responsibility Act) meant that, because of the change8

in the law, they were placed in removal rather than deportation

proceedings. Since they were not placed in deportation proceedings

(as they would have been under the former law), Petitioners are

ineligible to file for suspension of deportation.

H afiz had presented himself to the INS before the effective

date of IIRIRA, requesting the INS to place him in proceedings to

determine his status. Proceedings commence, however, when the INS

files a charging document with the immigration court. D eLeonHolguin v. Ashcroft

, 25 3 F.3d 811, 815 (5 t h Cir. 2001). That

determinative event in the Petitioners’ cases occurred af ter the

change in the law.

The INS’s decision when to commence proceedings is a matter

committed to its dis cretion, and thus not subject to judicial

review. 8 U.S.C. § 1252(g) ("no court shall have jurisdiction to

hear any cause or claim by or on behalf of any alien arising from

the decision or action by the Attorney General to commence

proceedings, adjudicate cases, or execute removal orders against

any alien"); see Reno v. American-Arab Anti-Discrimination

Committee , 525 U.S. 471, 487, 119 S.Ct. 936, 945, 192 L.Ed.2d 940

(1999)(“Respondents' challenge to the Attorney General's decision

to ‘commence proceedings’ again st them falls squarely within §

1252(g)

. . . .“); Jimenez-Angeles v. Ashcroft

, 2 91 F.3d at 594,

599 (9 th Cir. 2002) (reading § 1252(g) as removing jurisdiction over

claim that the INS was immediately obligated to initiate

deportation proceedings against alien once she presented herself to9

the INS); see also Heckler v. Chaney , 470 U.S. 821, 831, 833, 105

S.Ct. 1649, 1655, 84 L.Ed .2d 714 (1985) (agency decisions to

enforce through civil or criminal process unsuitable for judicial

review).

V.

Substantial evidence supports the Immigration Judge’s denial

of Petitioners’ request for asylum. No other issue presented is

subject to judicial review. Accordingly, the decision of the Board

is

AFFIRMED.