# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued June 10, 2008

Decided June 17, 2008

Before

RICHARD A. POSNER, Circuit Judge

JOHN L. COFFEY, Circuit Judge

JOEL M. FLAUM, Circuit Judge

No. 07

‐ 2687

LAFRAN M. HUSSAIN,

Petitioner

,

v.

MICHAEL B. MUKASEY,

Respondent

. Petition for Review of an Order of the

Board of Immigration Appeals.

No. A98

‐ 528

‐ 045

O R D E R

Lafran Hussain applied for asylum in December 2004, and a month later the

Department of Homeland Security initiated removal proceedings against him. Hussain

conceded removability but sought withholding of removal and protection under the

Convention Against Torture (CAT). The Immigration Judge (IJ) denied his applications,

and the Board of Immigration Appeals (BIA) affirmed. Hussain now petitions for review.

Because the IJ’s decision was supported by substantial evidence, we DENY his petition.

Hussain, a 28

‐ year

‐ old native and citizen of Sri Lanka, allegedly entered the United

States on December 20, 2003. On December 16, 2004, he applied for asylum, claiming NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 07

‐ 2687 Page 2

persecution on account of political opinion. After the application was rejected as untimely,

Hussain was charged with removability because he lacked legal status. Hussain admitted

removability but challenged the asylum denial and applied for withholding of removal and

protection under CAT. In his asylum application Hussain recounted the following events,

which differ in several respects from his testimony at the removal hearing.

In a written statement attached to his asylum application, Hussain stated that he had

been a member of the organizing committee for the United National Party (UNP) and an

“ardent supporter” of Imtiaz Bakeer Markar, the mass communications minister. Following

the President’s removal of Markar from his post in 2003, Hussain claimed that the

opposition party began to seek revenge on those who supported Markar. He received

threatening calls and, on one occasion, was taken into police custody “for no reason.” In the

prison cell, Hussain said, he was beaten and held for two days. After his release, Hussain

was hospitalized for two weeks and then went into hiding at his cousin’s house, over 100

miles from his home town.

At the removal hearing, Hussain testified that he arrived in the United States on

December 20, 2003. He claimed that, using a friend’s passport, he had flown through Sri

Lanka, Bangkok, and Japan on his way to Los Angeles. The ticket stub he provided as

proof, however, did not include a stop in Japan. And Hussain did not provide the passport

or any other documents to support his contention that he entered the country on December

20, 2003.

Hussain also submitted several documents showing that he had been summoned to

court shortly before the threatening calls and police harassment began. He explained that

he was summoned in August 2003 to testify as a witness concerning the murder of a UNP

supporter. But he was unable to comply with the summons because the trial date coincided

with his two days in police custody. A warrant was then issued for his arrest because of his

failure to appear. Hussain claimed that he had not attached the documents to his asylum

application because he did not realize that they were needed. However, he failed to even

mention anything about the summons or arrest warrant in his asylum application. And, at

the removal hearing, he stated that the murder and summons is “how all these problems

started for me.” Further, he testified that he “strongly suspect[ed]” that the harassment he

endured, including the two

‐ day beating while in police custody, stemmed from a desire to

prevent him from testifying at the murder trial.

Hussain then testified about his involvement in Sri Lankan politics. He said that he

had supported the UNP since 1999, was involved in the party’s youth wing, spoke at

political rallies on behalf of the party, and openly supported Markar as a candidate in the

2001 and 2002 parliamentary elections. He testified that on November 4, 2003, the PresidentNo. 07

‐ 2687 Page 3

of Sri Lanka—a member of the opposing party—fired Markar from his post as

communications minister. Hussain explained that although the Sri Lankan Prime Minister

was a member of the UNP, the President controlled the local police through the ministry of

defense and internal affairs. Contrary to Hussain’s assertion, though, the U.S. Department

of State’s report on Sri Lanka states that neither the minister of defense nor the minister of

internal affairs controls the police. And despite his termination as communications

minister, Markar remained a representative in the Sri Lankan parliament.

After receiving numerous threats, Hussain claimed that the police arrested him on

November 17 “without any reason.” At the police station the officers warned him not to

support Markar or the UNP and punched him in the face. Two days later, Hussain was

admitted to a local hospital for “about a week,” where he was treated for a dislocated arm

and swollen jaw. He then hid at a friend of his brother

‐ in

‐ law’s and, about 25 days later,

fled the country. This testimony, however, contradicts Hussain’s asylum application, which

states that he was hospitalized for “two weeks” rather than one and hid at his cousin’s

house.

After the hearing, the IJ denied Hussain’s asylum application because he failed to

show by clear and convincing evidence that it was filed within one year of his arrival in the

United States. In so finding, the IJ raised doubts about the accuracy of Hussain’s alleged

arrival date. And, even assuming the application had been timely filed, the IJ held that

Hussain failed to meet his burden of proof with respect to withholding of removal. The IJ

reasoned that the differences between Hussain’s asylum application and his “inherently

irrational” testimony raised significant doubts about his credibility. He also determined

that Hussain had failed to establish a well

‐ founded fear of future persecution. Finally, as to

the CAT claim, the IJ concluded that Hussain had not shown that he was more likely than

not to be tortured upon removal to Sri Lanka. The BIA affirmed the IJ’s decision and

dismissed Hussain’s appeal. It first determined that Hussain did not apply for asylum

within one year of his arrival in the United States. Next, the BIA held that the record

supported the IJ’s finding that Hussain lacked credibility. In particular, the BIA found that

Hussain’s varying stories failed to establish a connection between the beating and any

protected ground. Finally, the BIA held that because Hussain could not give a credible

explanation for why he would fear future persecution in Sri Lanka, he could not qualify for

either withholding of removal or protection under CAT.

In his petition for review, Hussain first argues that the IJ erred in denying his claim

for asylum. The Immigration and Nationality Act (INA) gives the Attorney General the

discretion to grant asylum to an alien who qualifies as a refugee, 8 U.S.C. § 1101(a)(42)(A),

and requires that an asylum application be filed within one year of the alien’s arrival in the

United States, 8 U.S.C. § 1158(a)(2)(B). The alien must prove by clear and convincingNo. 07

‐ 2687 Page 4

1 The credibility analysis in this case is unaffected by the passage of the REAL ID Act

of 2005, Pub. L. 109

‐ 13, 119 Stat. 231, because Hussain filed his asylum petition before

Congress passed the statute. See Shmyhelskyy v. Gonzales

, 477 F.3d 474, 479 n.1 (7th Cir.

2007). evidence that he timely filed his application. Id. However, the INA also provides that no

court “shall have jurisdiction to review any determination of the Attorney General under [8

U.S.C. § 1158(a)(2)].” Id. § 1158(a)(3); see Tariq v. Keisler

, 505 F.3d 650, 655

‐ 56 (7th Cir. 2007).

We may only review the determination where it concerns a question of law. 8 U.S.C.

§ 1252(a)(2)(D); Tariq

, 505 F.3d at 656. Here, Hussain does not argue that the IJ made a legal

error in the application of 8 U.S.C. § 1158(a)(2). We are therefore without jurisdiction to

review the BIA’s conclusion that Hussain’s asylum application had not been filed within

one year of his arrival. See 8 U.S.C. § 1158(a)(3); see also Tariq

, 505 F.3d at 656; Mabasa v.

Gonzales

, 455 F.3d 740, 744 (7th Cir. 2006).

Hussain next argues that the IJ erred in denying his claim for withholding of

removal. Where, as here, the BIA issues its own opinion rather than adopting the IJ’s

decision, our “task is to review only the opinion of the BIA.” Moab v. Gonzales

, 500 F.3d 656,

659 (7th Cir. 2007). To reverse the BIA’s decision, Hussain must demonstrate that the

evidence compels a contrary result. Irasoc v. Mukasey

, 522 F.3d 727, 729 (7th Cir. 2008).

To establish eligibility for withholding of removal, an applicant must show a “clear

probability” of persecution on account of his race, religion, nationality, membership in a

social group, or political opinion. 8 U.S.C. § 1231(b)(3)(A); see Irasoc

, 522 F.3d at 729

‐ 30;

Mabasa

, 455 F.3d at 745. We afford an IJ’s credibility determination substantial deference

and will only overturn it under extraordinary circumstances. See Shmyhelskyy v. Gonzales

,

477 F.3d 474, 479 (7th Cir. 2007); Giday v. Gonzales

, 434 F.3d 543, 550 (7th Cir. 2006). 1 But we

require that an IJ’s credibility findings be made “with reference to specific, cogent reasons

that bear a legitimate nexus to the finding, and that go to the heart of an applicant’s claim,

rather than to a minor, irrelevant aspect of the story.” Adekpe v. Gonzales

, 480 F.3d 525, 530

(7th Cir. 2007).

The IJ’s decision to discredit Hussain was based on substantial evidence that went to

the heart of his claim. Hussain’s testimony at the removal hearing contradicted his asylum

application in several ways. Hussain testified at the hearing that he had been in the hospital

for about a week and soon thereafter hid at his cousin’s house, yet his asylum application

stated that he had been in the hospital for two weeks and then stayed with a friend of his

brother

‐ in

‐ law, not his cousin. Hussain’s testimony at the hearing concerning the timing of

his asylum application also directly contradicted the plane ticket he provided to the IJ.No. 07

‐ 2687 Page 5

More importantly, Hussain’s application did not mention the outstanding arrest warrant or

anything else having to do with the murder trial. This omission is especially significant

because the warrant was “the central basis,” for Hussain’s fear of returning to Sri Lanka, see,

e.g.

, Shmyhelskyy

, 477 F.3d at 480

‐ 81 (finding that petitioner’s omission supports IJ’s adverse

credibility determination); Tarraf v. Gonzales

, 495 F.3d 525, 532

‐ 34 (7th Cir. 2007) (upholding

adverse credibility determination because of substantive inconsistencies between

petitioner’s earlier statements and testimony at hearing); Korniejew v. Ashcroft

, 371 F.3d 377,

386 (7th Cir. 2004) (holding that petitioner’s inability to explain discrepancy between her

testimony and asylum application supports adverse credibility determination). Finally,

Hussain’s testimony at the hearing concerning the political situation in Sri Lanka was

inconsistent with the U.S. Department of State’s report on the country. Hussain failed to

explain these inconsistencies and presented no corroborating evidence for his claims.

Therefore sufficient evidence supports the IJ’s conclusion that Hussain was not credible.

Even assuming Hussain was credible, there is no connection between the persecution

(or well

‐ founded fear of future persecution) and any of the protected grounds. In his

asylum application Hussain claimed that he was harassed by the police for his political

association with UNP and taken into police custody “for no reason.” But at the hearing he

conceded that the murder and subsequent summons were “how all these problems started

for me.” And he repeatedly testified that he feared returning to Sri Lanka because of the

outstanding arrest warrant in his name. Because Hussain’s role as an eyewitness in the

murder trial has no connection to any of the protected grounds listed in 8 U.S.C. §

1231(b)(3)(A), he cannot establish either past persecution or a well

‐ founded fear of future

persecution on account of a protected ground. See, e.g.

, Djouma v. Gonzales

, 429 F.3d 685, 688

(7th Cir. 2005).

Finally, Hussain argues that the IJ erred in denying his claim for CAT relief. This

argument, however, was not presented to the BIA and therefore was not preserved in the

administrative process. See Korsunskiy v. Gonzales

, 461 F.3d 847, 849 (7th Cir. 2006); Tarraf

,

495 F.3d at 535

‐ 36.

Accordingly, we DENY Hussain’s petition for review.