Of the District of Puerto Rico, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1588

MUHAMMAD RASHAD,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Stahl, Circuit Judges,

and García-Gregory, District Judge. *

Peter A. Allen and Peter Allen, P.C. on brief for petitioner.

Theodore C. Hirt, Attorney, Office of Immigration Litigation,

U.S. Department of Justice, Gregory G. Katsas, Assistant Attorney

General, and Linda S. Wernery, Assistant Director, on brief for

respondent.

January 16, 2009
An alien must seek asylum within one year of entering the 1

United States. 8 U.S.C. § 1158 (a)(2)(B). However, an alien’s

failure to timely file an asylum application may be excused if the

alien shows “changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary circumstances

relating to the delay in filing an application.” 8 U.S.C. § 1158

(a)(2)(D).

 As a general rule, the withholding of the deportation of an 2

alien is mandatory if he establishes that it is more likely than

not that he would be subject to persecution on account of race,

religion, nationality, membership in a particular social group, or

political opinion, should he return to his homeland. INS v.

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GARCÍA-GREGORY, District Judge. Petitioner Muhammad

Rashad (“Rashad”) submitted a petition for asylum, withholding of

removal, and protection under the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (“Convention Against Torture”). Rashad filed his

petition after he was ordered to appear before an immigration court

because he had exceeded the time period to remain in the United

States as authorized by his non-immigrant visa. In his petition,

Rashad claimed that he would be arrested, jailed, tortured, and

possibly killed if he were to return to his native Pakistan. The

Immigration Judge (“IJ”) rejected Rashad’s petition since it was

filed past the one (1) year statutory period mandated by the

Immigration and Nationality Act § 208(a)(2)(B), 8 U.S.C. §

1158(a)(2)(B) and because there were no changed or extraordinary

circumstances that would ban the application of the one (1) year

statute of limitations. Furthermore, the IJ held that Rashad did 1

not qualify for withholding of removal or protection under the 2
Aguirre-Aguirre, 526 U.S. 415, 419 (1999).

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Convention Against Torture. A timely appeal with the Board of

Immigration Appeals (the “BIA”) followed. The appeal was dismissed.

Rashad challenges the IJ and BIA’s ruling declaring him ineligible

for asylum, the denial of his application for withholding of

removal, and protection under the Convention Against Torture. We

lack jurisdiction over the asylum application and find that the

remainder of Rashad’s allegations are unpersuasive. As such, we

will deny Rashad’s petition for review.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are drawn mainly from the IJ and the BIA’s

decisions and the exhibits referenced therein. Rashad is a sixtyone (61) year old male, who is a native born citizen of Pakistan.

Rashad is also a married father of six (6) children, whose wife and

children live in Pakistan. On or about August of 2000, Rashad

obtained a non-immigrant visa from the United States Embassy in

Islamabad, Pakistan. On or about November 11, 2000, Rashad secured

admission to the United States. Rashad’s non-immigrant visa

authorized him to remain in the United States for a temporary

period not to extend beyond February 11, 2001. Prior to leaving

Pakistan, Rashad was a card carrying member of the Nawaz faction of

the Pakistan Muslim League (“PML-N”), an organization he joined in

2000. The PML-N was named after former Pakistani Prime Minister
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Nawaz Sharif, who was deposed in a bloodless coup by Pakistani army

chief, General Pervez Musharraf on October 15, 1999. 

On March 19, 2003, the Department of Homeland Security

sent Rashad a Notice to Appear (“NTA”) in immigration court,

charging him as subject to removal because he had remained in the

United States for a longer time period than permitted. Rashad

responded to the NTA and on April 7, 2004, more than three years

after his admission to the United States, Rashad filed a petition

for asylum alleging that he would be arrested, jailed, tortured,

and possibly killed if he returned to Pakistan because he was an

active member of the PML-N. On July 11, 2006, after a hearing on

the merits, the IJ issued an oral decision denying Rashad’s asylum

request. Specifically, the IJ denied Rashad’s asylum request as

untimely because he had failed to file his request within the one

(1) year statutory deadline. Furthermore, the IJ determined that

Rashad had failed to submit clear and convincing evidence

establishing a legal entitlement to an exception from the one (1)

year statutory deadline on account of extraordinary personal

circumstances in his life or changed human rights conditions in

Pakistan. Specifically, the IJ found that Rashad’s ignorance of the

law was not an excuse. Furthermore, the IJ noted that Rashad had

not been under stress or trauma, nor had he suffered from any

physical or mental problems, from any mistreatment or harm suffered

before he came to the United States. As to the “changed
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conditions,” the IJ indicated that the PML-N continued to exist as

a significant political party in Pakistan. 

The IJ also denied Rashad’s request for withholding of

removal and protection under the Convention Against Torture. The IJ

found that Rashad failed to establish that he would be persecuted

and/or tortured if he were to return to Pakistan. Namely, the IJ

stated that Rashad failed to demonstrate that he was a leader of

the PML-N or that he was of any significant interest to Pakistani

authorities. Furthermore, the IJ found that Rashad did not show

that he had to go into hiding in Pakistan or that he had any other

significant problems because prior to traveling to the United

States, Rashad had been able to move freely throughout Pakistan

staying at various locations including his family home. The IJ

further noted that his wife and children continued to reside in his

family home. Accordingly, the IJ denied Rashad’s request for

asylum, withholding of removal, and protection under the Convention

Against Torture. 

Rashad filed a timely appeal with the BIA. Like the IJ,

the BIA agreed that Rashad was not eligible for asylum on account

of his failure to submit his application within one (1) year of his

arrival to the United States. Further, the BIA acknowledged the

IJ’s decision that Rashad failed to establish a valid exception to

this requirement or prove that his asylum application was filed

within a reasonable period under the circumstances. Moreover, the
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BIA held that even if Rashad’s asylum application were timely filed

and his testimony before the IJ deemed credible, his appeal would

be denied because he failed to sustain the burden of proof

applicable to asylum petitions as well as the more stringent burden

applicable to claims for withholding of removal or protection under

the Convention Against Torture. Specifically, the BIA held that the

record did not show that he would be mistreated by the government

of Pakistan on account of a protected ground. Additionally, the BIA

concluded that Rashad failed to proffer an adequate torture claim.

The BIA dismissed Rashad’s appeal, and the instant petition for

review followed.

STANDARD OF REVIEW

When this Court has jurisdiction to review, we uphold

determinations by the BIA or the IJ if “supported by reasonable,

substantial, and probative evidence on the record considered as a

whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal

quotation marks omitted). This deferential standard is applied to

findings of fact including credibility determinations. Chhay v.

Mukasey, 540 F.3d 1, 5 (1st Cir. 2008). Likewise, the “substantial

evidence” standard applies to claims for asylum, withholding of

removal, and relief under the Convention Against Torture. Settenda

v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004). Under this standard,

“[w]e will reverse only if the petitioner’s evidence would compel

a reasonable factfinder to conclude that relief was warranted.”
 Thus, a credibility determination will be sustained when the 3

IJ has given reasoned consideration to the evidence and has

provided a cogent explanation for his finding. Chhay, 540 F.3d at

5.

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Id.; see also 8 U.S.C. § 1252(b)(4)(B)(“administrative findings of

fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary”).3

Usually, this Court confines its review to the BIA’s

order that is being challenged by the petitioner. Sharari v.

Gonzales, 407 F.3d 467, 473 (1st Cir. 2005). If the BIA has simply

adopted or deferred to the IJ’s reasoning, the Court must look to

that decision instead, “treating the findings and conclusion of the

IJ as the Board’s own opinion.” Herbert v. Ashcroft, 325 F.3d 68,

71 (1st Cir. 2003). However, when as here, the BIA adopts the

decision of the IJ, and provides some analysis of its own, the

Court reviews both decisions. Romilus v. Ashcroft, 385 F.3d 1, 5

(1st Cir. 2004). 

DISCUSSION

Rashad asks us to review his application for asylum,

request for withholding of removal, and petition for protection

under the Convention Against Torture. Furthermore, Rashad contests

the IJ’s credibility assessment. We begin with Rashad’s asylum

application. 
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1. Rashad’s Asylum Application

An application for asylum must be filed within one year

of the alien’s arrival in the United States, absent changed

circumstances affecting eligibility for asylum or extraordinary

circumstances relating to the delay in filing. 8 U.S.C. §§

1158(a)(2)(B); 1158(a)(2)(D). Here, it is undisputed that Rashad

resided in the United States for more than three years before

filing his asylum application. Accordingly, both the IJ and the BIA

determined that Rashad’s petition was untimely. Furthermore, the IJ

and the BIA concluded that there were no changed or extraordinary

circumstances that might have justified his untimely application.

Unless the alien identifies a legal or constitutional

defect in the decision, this Court lacks jurisdiction to review the

BIA’s determination that a petition for asylum was untimely or that

there were no changed or extraordinary circumstances that might

have justified considering the application. Hana v. Gonzales, 503

F.3d 39, 42 (1st Cir. 2007) (citing 8 U.S.C. § 1252(a)(2)(D)).

Both the IJ and the BIA have determined that there are no

extraordinary circumstances justifying Rashad’s untimely

application for asylum. Therefore, we lack jurisdiction to review

the rejection of Rashad’s asylum application on this ground. 

Nonetheless, Rashad claims that Congress violated his

right to due process by precluding our review of determinations

made by the Attorney General in connection with the one (1) year
 “The underlying constitutional or legal question must be 4

colorable; that is, the argument advanced must, at the very least,

have some potential validity.” Pan v. Gonzales, 489 F.3d 80, 84

(1st Cir. 2007).

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filing rules or request for exceptions. This Court, nonetheless,

has previously held that this jurisdictional bar does not represent

a due process violation. Hana, 503 F.3d at 44 (holding that the

judicial review bar of 8 U.S.C. § 1158(a)(3) does not represent a

due process violation). Rashad further argues that the agency

violated his due process rights because it failed to provide him

with a fair and efficient procedure for determining the validity of

his persecution claim and failed to fully evaluate his exceptions

to the one (1) year statute of limitation for filing asylum

petitions. However, Rashad’s argument is meritless as it is not a

colorable constitutional claim. See Lutaaya v. Mukasey, 535 F.3d 4

63, 69 (1st Cir. 2008) (holding that petitioner’s argument that the

IJ violated her due process rights because the IJ did not consider

her testimony and failed to allow her to “fully explain” her

reasons to meet the one year deadline was not a colorable

constitutional claim that would allow this court to exercise

judicial review over the untimely asylum application); Jamal v.

Mukasey, 531 F.3d 60, 65 (1st Cir. 2008) (rejecting as frivolous

petitioner’s argument that the failure of the IJ to make an

individualized analysis to determine whether there was sufficient

evidence to qualify him for an exception from the one (1) year
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asylum ban was a violation of due process). Rashad’s allegation

that the IJ and the BIA failed to “fully evaluate” his

qualification for the exception to the one (1) year filing deadline

is another way of saying that the agency got the facts wrong, which

is simply a factual claim masqueraded as a legal challenge that

certainly cannot defeat the operation of the jurisdiction-stripping

provision. See Pan, 489 F.3d at 85. Hence, this Court lacks

jurisdiction to review Rashad’s asylum petition. 

2. Withholding of Removal and Protection under the

Convention Against Torture

Although we lack jurisdiction to consider Rashad’s asylum

petition, we can consider his request for withholding of removal

and protection under the Convention Against Torture. See Saad v.

Keisler, No. 06-2347, 2007 U.S. App. LEXIS 24493, at *8 (1st Cir.

Oct. 19, 2007). In order to qualify for withholding of removal, a

petitioner must either demonstrate past persecution, which gives

rise to a rebuttable presumption of future persecution, or must

show that more likely than not he would face persecution on account

of race, religion, nationality, membership in a particular social

group, or political opinion should he return to his homeland.

Aguirre-Aguirre, 526 U.S. at 419; Limani v. Mukasey, 538 F.3d 25,

31 (1st Cir. 2008) (citing 8 C.F.R. § 208.16(b)(1)(i), (b)(2)).

Basically, “[w]ithholding of removal requires that the alien

establish a clear probability of persecution, rather than merely a
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well-founded fear of persecution.” Ang v. Gonzales, 430 F.3d 50, 58

(1st Cir. 2005). “To qualify as persecution, a person’s experience

must rise above unpleasantness, harassment, and even basic

suffering.” Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). 

Unlike withholdings of removal, relief under the

Convention Against Torture does not require the petitioner to prove

the reason for torture. Romilus, 385 F.3d at 8. Instead, the

petitioner must prove that more likely than not he will be tortured

if he is returned to his homeland. Id. “To establish a prima facie

claim under the [Convention Against Torture], an applicant must

offer specific objective evidence showing that he will be subject

to: ‘(1) an act causing severe physical or mental pain or

suffering; (2) intentionally inflicted; (3) for a proscribed

purpose; (4) by or at the instigation of or with the consent or

acquiescence of a public official who has custody or physical

control of the victim; and (5) not arising from lawful sanctions.’”

Id. (internal citations omitted).

Rashad avers that he qualifies for withholding of removal

and/or protection under the Convention Against Torture because if

he were to return to Pakistan he would be tortured and/or

persecuted because of his political affiliations. Rashad brings to

this Court’s attention that even though he was not an official of

the PML-N, he helped organize political rallies. According to

Rashad, on October 2000, he spoke at a political rally. Thereafter,
 In reaching her conclusion that Rashad did not travel to the 5

United States for safety reasons, the IJ noted that Rashad had made

plans to come to the United States prior to the October 2000 rally,

before he allegedly had any knowledge that Pakistani authorities

“were looking for him and wanted to arrest him or anything else.”

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the police, which were loyal to General Pervez Musharraf, searched

for him and forced him into hiding. Rashad fears that if he 5

returns to Pakistan he could be tortured and/or persecuted by

security forces. However, the IJ and the BIA held that Rashad did

not qualify for withholding of removal and protection under the

Convention Against Torture.

Our deferential standard of review does not permit us to

second-guess the determinations of the IJ or the BIA, if they are

supported by substantial evidence in the record. Khan v. Mukasey,

549 F.3d 573, 576 (1st Cir. 2008). “The substantial evidence

standard demands that we uphold the agency’s determination unless

the evidence points unerringly in the opposite direction.” Id.

(internal quotation marks and citations omitted). Here, the

evidence does not compel us to reject the agency’s conclusion. See

id.

The evidence in the record does not show that Rashad

experienced past torture, persecution, or that it was “more likely

than not” that he would be persecuted on one of the above specified

grounds if he returned to Pakistan. This conclusion is supported by

the fact that before coming to the United States, Rashad traveled
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freely around Pakistan, stayed at his family’s home, and was able

to leave Pakistan in November of 2000 using his passport without

any interference by Pakistani officials. Furthermore, Rashad’s

family continues to live peacefully in Pakistan. See Aguilar-Solis

v. INS, 168 F.3d 565, 573 (1st Cir. 1999) (finding that “the fact

that close relatives continue to live peacefully in the alien’s

homeland undercuts the alien’s claim that persecution awaits his

return”). As such, this Court finds that the evidence and testimony

offered by Rashad is insufficient to compel a reasonable factfinder

to conclude that more likely than not he would be tortured or

persecuted if he were to return to Pakistan. 

CONCLUSION

For the foregoing reasons, the petition for review is

DENIED.