In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 03-3062

SYED ZAIDI,

Petitioner,

v.

JOHN D. ASHCROFT, Attorney General of the

United States of America,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals

No. A76-772-713

____________

ARGUED MAY 19, 2004—DECIDED JULY 26, 2004

____________

Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Syed Zaidi is a citizen of Pakistan

and a practicing Shia Muslim. He entered the United States

in April 1997 as a non-immigrant visitor and overstayed his

visa. The Immigration and Naturalization Service (the

“INS”) commenced removal proceedings against him in July

2000, and Mr. Zaidi applied for asylum in February 2002.

The Immigration Judge (the “IJ”) determined that Mr.

Zaidi’s application for asylum was untimely but that he was

still eligible for withholding of removal. See 8 U.S.C.

§ 1231(b)(3). The IJ later denied Mr. Zaidi relief; the Board
2 No. 03-3062

of Immigration Appeals (the “BIA”) affirmed the decision

of the IJ and dismissed his appeal. Mr. Zaidi now seeks

review in this court; he submits that he suffered past persecution and has a well-founded fear of future persecution.

For the reasons set forth in the following opinion, we deny

the petition for review.

I

BACKGROUND

The INS commenced removal proceedings against Mr.

Zaidi in July 2000, but he was able to delay adjudication of

his status for a year-and-a-half while he attempted to immigrate to Canada. At one hearing in April 2001, Mr. Zaidi

unequivocally told the IJ that he did not intend to seek

asylum or withholding of removal. In January 2002, Mr.

Zaidi informed the IJ that his application for permanent

residency status in Canada had been “cancelled.” The IJ refused any further delay in the removal proceedings. Only

then did Mr. Zaidi announce that he wanted to apply for

asylum in the United States. The IJ granted him one last

continuance to prepare his asylum application and scheduled a hearing for three weeks later.

At the asylum hearing, Mr. Zaidi conceded removability

and testified that, if he returns to Pakistan, he will suffer

religious persecution because he is a Shia Muslim. He

testified that an anti-Shia group called the Sipah-e-Sahaba

(“SSP”) beat him in 1989 because of his religion. However,

he offered no additional details about the beating, except to

say that the incident had prompted him to move to Saudi

Arabia. While living in Saudi Arabia, Mr. Zaidi occasionally

revisited Pakistan. He did not experience another beating on

any of those occasions. He did testify, however, that members of the SSP harassed his family during his absence in
No. 03-3062 3

1991 and then again in either 1995 or 1996. Mr. Zaidi

learned from his family that SSP members had entered his

family’s home with guns, ransacked the house, and threatened to shoot Mr. Zaidi if they ever found him. Mr. Zaidi also

testified that he has relatives who currently live in Pakistan

and remain free from harm, but they travel around the

country to remain safe.

The IJ determined that Mr. Zaidi’s application for asylum

was untimely under § 208 of the Immigration and Nationality

Act (the “INA”), see 8 U.S.C. § 1158(a)(2)(B), because it had

not been filed within one year of the applicant’s arrival in

the United States. The IJ further concluded that Mr. Zaidi

had not demonstrated “changed circumstances” or “extraordinary circumstances” that might justify an extension of

the deadline. See id. § 1158(a)(2)(D). Recognizing that Mr.

Zaidi was still eligible for withholding of removal, see 8

C.F.R. § 208.3(b), the IJ concluded that, although he found

no inaccuracies or inconsistencies in Mr. Zaidi’s testimony,

Mr. Zaidi had failed to meet his burden of proof and that his

claim for relief was undermined by several factors. First, Mr.

Zaidi had filed his application only at the last minute when he

was unable to delay his removal hearing any longer. A related

concern of the IJ was that, just nine months before he decided

to seek asylum, Mr. Zaidi had told the judge that he did not

intend to seek asylum. The IJ also noted that Mr. Zaidi

offered nothing but his own testimony to support his claim.

Finally, the IJ noted that Mr. Zaidi’s family members

currently live in Pakistan free from harm. The IJ denied Mr.

Zaidi all relief and concluded that the asylum application

was “frivolous” and that it was filed for the improper

purpose of delaying his inevitable removal. The BIA

dismissed Mr. Zaidi’s appeal without writing its own

opinion.
4 No. 03-3062

II

ANALYSIS

Before this court, Mr. Zaidi reargues the merits of his

asylum claim, but he fails to acknowledge that the IJ found

his application untimely. We cannot reach the merits of Mr.

Zaidi’s asylum claim, however, because we lack jurisdiction

to reassess the timeliness of his application. According to

the statute setting the one-year time limit, “[n]o court shall

have jurisdiction to review any determination of the

Attorney General under paragraph (2) [of 8 U.S.C.

§ 1158(a)].” 8 U.S.C. § 1158(a)(3). Paragraph 2 contains the

one-year time limit and the exceptions in cases of changed

or extraordinary circumstances. See id. § 1158(a)(2)(B) & (D).

Although there is a “ ‘strong presumption that Congress did

not mean to prohibit all judicial review’ of administrative

action,” Am. Soc’y of Cataract & Refractive Surgery v. Thompson, 279 F.3d 447, 452 (7th Cir. 2002) (quoting Bowen v.

Michigan Acad. of Family Physicians, 476 U.S. 667, 672 (1986)),

that presumption can be overcome by “ ‘clear and convincing evidence’ ” to the contrary, id. (quoting Abbott Labs. v.

Gardner, 387 U.S. 136, 141 (1967)). Specific language in a

statute that indicates an intent to preclude judicial review

satisfies the clear and convincing evidence requirement. See

id. We now join our sister circuits in holding that the “no

court shall have jurisdiction to review” language of

§ 1158(a)(3) is sufficiently specific to show that Congress

intended to preclude judicial review of agency action under

§ 1158(a)(2). See Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.

2003); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.

2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir. 2003);

Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003);

Fahim v. United States Attorney Gen., 278 F.3d 1216, 1218

(11th Cir. 2002) (per curiam); Hakeem v. INS, 273 F.3d 812,

815 (9th Cir. 2001); Ismailov v. Reno, 263 F.3d 851, 855 (8th
No. 03-3062 5

Cir. 2001). Thus, insofar as Mr. Zaidi is pressing his asylum

claim on appeal, we lack jurisdiction to answer the antecedent question of whether his application was timely.

Even though his asylum application was untimely, Mr.

Zaidi was eligible to request withholding of removal. See 8

C.F.R. § 208.3(b); Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.

2004). He now challenges the IJ’s decision not to grant him

that relief. A person may receive withholding of removal

under section 241(b)(3) of the INA, see 8 U.S.C. § 1231(b)(3),

if he can establish a “clear probability” that he will suffer

persecution if returned to his home country. Niam, 354 F.3d

at 654 (internal quotation marks and citation omitted). If the

applicant can establish that he has been subject to past

persecution, there is a presumption, subject to rebuttal by

the Government, that the persecution would continue upon

the applicant’s return. See 8 C.F.R. § 208.16(b)(1)(i).

Mr. Zaidi first submits that he has demonstrated past

religious persecution because he endured a beating in 1989

that was prompted by his identity as a Shia Muslim. He

never has provided even minimal details about the severity

of the beating. Without sufficient elaboration, we cannot

discern why this single instance ought to be considered of

such severity as to constitute persecution. We have said that,

although one incident can rise to the level of persecution if it

is sufficiently severe, an applicant must offer details about

the incident to establish its severity. See Dandan v. Ashcroft,

339 F.3d 567, 574 (7th Cir. 2003). Mr. Zaidi simply has not

provided sufficient detail to establish that the single alleged

beating rises to the level of persecution.

Mr. Zaidi next argues that he has demonstrated a wellfounded fear of future persecution. Without elaboration, he

contends that the “Immigration Judge failed to consider

other important evidence which showed that Zaidi has a

well-founded fear of future persecution, especially due to
6 No. 03-3062

current countrywide and worldwide developments.”

Appellant’s Br. at 17. He continues: “The important aspects

of Pakistan’s political instability should be given great

weight and deference in determining Zaidi’s eligibility for

a granting of asylum.” Id. Mr. Zaidi does not, however, offer

more specific detail as to what evidence he thinks the IJ

failed to consider. Under the circumstances here, we think that

the IJ was on solid ground in determining that Mr. Zaidi’s

own testimony was insufficient to establish that he would

face persecution in Pakistan. Indeed, his testimony was

undermined by the fact that his family remains in Pakistan

unharmed. Although credible testimony from an applicant

“may be sufficient to sustain the burden of proof without

corroboration,” 8 C.F.R. § 208.16(b), when the IJ “does not

believe the applicant or does not know what to believe, the

applicant’s failure to corroborate his testimony can be fatal

to his asylum application.” Chebchoub v. INS, 257 F.3d 1038,

1042 (9th Cir. 2001) (internal quotation marks and citation

omitted); see also Capric v. Ashcroft, 355 F.3d 1075, 1085 n.4

(7th Cir. 2004); Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th

Cir. 2003). In this case, the IJ questioned Mr. Zaidi’s credibility because he had delayed so long in filing his application

and because he previously had asserted that he was not

going to seek asylum. In sum, Mr. Zaidi has not identified

any error in the IJ’s conclusion that he failed to meet his

burden of showing a “clear probability” of future persecution.

Finally, Mr. Zaidi asserts that he was denied a fair asylum

hearing because the IJ gave him only three weeks to prepare. To prevail on a due process claim, Mr. Zaidi must

show prejudice, see Roman v. INS, 233 F.3d 1027, 1033 (7th

Cir. 2000), but he has not offered any details about what testimony or corroborative evidence he could have obtained

with more time. Nor has he shown how such evidence

would have changed the outcome of his case. Therefore, Mr.
No. 03-3062 7

Zaidi has not shown that he was denied due process by the

IJ’s scheduling decision.

Conclusion

For the foregoing reasons, we deny Mr. Zaidi’s petition for

review.

PETITION FOR REVIEW DENIED

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—7-26-04