* Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR.

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

October 19, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 05-60197

Summary Calendar

 

ADA JOHAR HAMDANI

Petitioner

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the Board of Immigration

Appeals

No. A78 957 347

Before KING, Chief Judge, and SMITH and GARZA, Circuit Judges.

PER CURIAM:*

Petitioner Ada Johar Hamdani challenges the decision of the

Board of Immigration Appeals (“BIA”) adopting and affirming the

Immigration Judge’s (“IJ”) decision to deny his application for

withholding of removal. For the reasons stated below, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ada Johar Hamdani is a twenty-one-year-old native and

citizen of Pakistan who entered the United States without
1

 As of March 1, 2003, the INS’s administrative, service,

and enforcement functions were transferred from the Department of

Justice to the new Department of Homeland Security. The Bureau

of Immigration and Customs Enforcement in the Department of

Homeland Security assumed the INS’s detention, removal,

enforcement, and investigative functions.

2 Throughout the course of these proceedings, despite

receiving a number of continuances, Hamdani was unable to produce

a valid labor certification.

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inspection on December 3, 2000. Upon his arrival in the United

States, Hamdani moved to Houston, Texas, to live with a family

member. On July 5, 2002, the Immigration and Naturalization

Service (“INS”),1 believing that Hamdani had overstayed his

visitor’s visa, charged Hamdani with removability as an alien

present in violation of the law under 8 U.S.C. § 1227(a)(1)(B)

(2000). At his first appearance before an IJ on January 14,

2003, Hamdani received a sixty-day continuance to allow his

pending labor certification application to be processed.2 At the

next hearing, held in March, Hamdani denied that he had entered

the United States on a visitor’s visa and overstayed that visa;

instead he asserted that he had entered the United States without

inspection. The IJ granted the government’s request for a merits

hearing.

At the merits hearing on June 17, 2003, the government filed

an amended charge of removability, this time under 8 U.S.C. 

§ 1182(a)(6)(A)(i), alleging that Hamdani was an alien who had

arrived in the United States without being admitted or paroled. 
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Hamdani admitted these allegations and conceded his removability. 

The IJ then granted a continuance to allow Hamdani to file an

asylum application. At the next hearing, August 19, 2003,

Hamdani conceded that he was not eligible for asylum because he

had failed to file an application within one year of his arrival

in the United States. 

The IJ granted another continuance and held a hearing on

Hamdani’s request for withholding of removal under 8 U.S.C. 

§ 1231(b)(3)(A) on December 2, 2003. At the hearing, Hamdani

testified that he was a Shi’a Muslim and had fled to the United

States because he felt that his life had been in danger in

Pakistan. According to Hamdani, the minority Shi’a Muslims often

suffer harassment at the hands of the Sunni Muslims, who make up

eighty-four percent of Pakistan’s population. Hamdani claimed

that Sunni Muslims had beaten him at a bus stop on his way to

college on two separate occasions and that the police did not

adequately respond to his complaints. He claimed that his

brother had suffered similar treatment and that his father had

heard gunshots outside of a mosque one day. Hamdani also offered

into evidence a police report concerning the death of his uncle,

who Hamdani speculates was killed by Sunni Muslims in July 1999. 

He further testified that since September 11, 2001, the tension

between Sunni and Shi’a Muslims in the region has escalated, and

he is afraid to return to Pakistan because the government does

not adequately protect the Shi’a minority from violence and
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harassment. In support of his testimony, Hamdani submitted news

articles and a State Department report discussing the discontent

between the two Muslim sects in Pakistan.

The IJ found that Hamdani was removable pursuant to 8 U.S.C.

§ 1182(a)(6)(A)(i) and that he was ineligible for asylum because

he had failed to file an application for asylum within one year

of his arrival in the United States. The IJ, drawing a

distinction between persecution and mere harassment, also denied

Hamdani’s application for withholding of removal because Hamdani

failed to show a clear probability that he would be persecuted if

he returned to Pakistan. A.R. 43-44. The IJ then granted

Hamdani’s request for voluntary departure. The BIA subsequently

adopted and affirmed the IJ’s decision. Hamdani filed a petition

for review of the BIA’s decision with this court.

II. DISCUSSION

A. Standard of Review

We review the BIA’s factual findings to determine if they

are supported by substantial evidence. INS v. Elias-Zacharias,

502 U.S. 478, 481 (1992); Mikhael v. INS, 115 F.3d 299, 302 (5th

Cir. 1997). “Under substantial evidence review, we may not

reverse the BIA’s factual determinations unless we find not only

that the evidence supports a contrary conclusion, but that the

evidence compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir.

1994) (emphasis in original). Thus, the petitioner must prove
3 Hamdani does not challenge the BIA’s finding that he is

ineligible for asylum.

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that the evidence he presented was so compelling that no

reasonable factfinder could reach a different conclusion. 

8 U.S.C. § 1252(b)(4)(B) (2000) (“[T]he administrative findings

of fact are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary . . . .”); Elias-Zacharias,

502 U.S. at 483-84; Chun, 40 F.3d at 78.

“We have authority to review only an order of the BIA, not

the IJ, unless the IJ’s decision has some impact on the BIA’s

decision.” Mikhael, 115 F.3d at 302; see also Chun, 40 F.3d at

78. Here, because the BIA adopted and affirmed the IJ’s

decision, we must review the IJ’s decision for substantial

evidence. Id.

B. Analysis

Hamdani argues that the IJ erred by (1) applying an improper

standard of proof in determining that he was not eligible for

withholding of removal under 8 U.S.C. § 1231(b)(3)(A); (2)

finding that he would not suffer persecution if he returned to

Pakistan when substantial evidence did not support this finding;

and (3) denying a continuance of his withholding of removal case

pending a decision on his labor certification application in

violation of his due process rights.3

To establish eligibility for withholding of removal under 

8 U.S.C. § 1231(b)(3)(A), an alien must demonstrate that he would
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face a “clear probability” of persecution on account of his

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

group, or political opinion” if removed. 8 U.S.C. 

§ 1231(b)(3)(A); see also Zhu v. Ashcroft, 382 F.3d 521, 528 n.6

(5th Cir. 2004) (citing Mikhael, 115 F.3d at 306). Meeting the

clear probability standard of proof “is equivalent to a showing

that it is more likely than not that the alien would be subject

to persecution on one of the specified grounds.” Bahramnia v.

INS, 782 F.2d 1243, 1247 (5th Cir. 1986) (quoting INS v. Stevic,

467 U.S. 407, 429-30 (1984)).

In this case, the IJ found that, while the evidence

submitted did reflect that tension exists between Sunni and Shi’a

Muslims in Pakistan, Hamdani did not present “enough evidence to

show that [Hamdani] would suffer persecution if he returned to

Pakistan.” A.R. 43. Hamdani contends that the IJ’s use of the

word “would” in this context indicates that the IJ held Hamdani

to a higher standard of proof than the clear probability

standard. However, a further reading of the transcript of the

IJ’s oral decision demonstrates that the IJ did apply the

appropriate clear probability standard in assessing the evidence

that Hamdani presented:

There is not evidence to show that it is more likely

than not that he would suffer persecution based on the

evidence presented by [Hamdani]. . . . There is

insufficient evidence to show that [Hamdani] has

suffered persecution or that he has a well-founded fear

of persecution or that his life or freedom would be

endangered. . . . The record contains merely
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[Hamdani’s] own unsubstantiated and conclusionary

statements in support of his persecution claim. . . .

[Hamdani] has failed to satisfy the clear probability

standard of withholding of removal.

A.R. 43-44. Thus, Hamdani’s argument that the IJ applied an

improper standard of proof is without merit.

Moreover, the IJ’s finding that Hamdani is not likely to

suffer persecution upon his return to Pakistan is supported by

substantial evidence. See Mikhael, 115 F.3d at 306. The only

evidence that Hamdani presented consisted of his testimony that

he had been beaten twice by Sunni Muslims while trying to attend

college, a police report indicating that Hamdani’s uncle had been

killed in Pakistan by unknown persons (who Hamdani speculates

were Sunni Muslims), and news articles documenting tension that

exists between Sunni and Shi’a Muslims living in Pakistan. While

this evidence is sufficient to show that Hamdani has suffered

intimidation and harassment in Pakistan in the past, it is not

sufficient enough to compel a factfinder to conclude that Hamdani

will more likely than not be subjected to treatment that rises to

the level of persecution if he returns to Pakistan. See Eduard

v. Ashcroft, 379 F.3d 182, 187-88 (5th Cir. 2004) (holding that

Christians who had been beaten, struck in the head with rocks

while on their way to church, and otherwise taunted based on

their religion had neither experienced persecution nor proven

that future persecution was likely if they returned to

Indonesia); see also Nagoulko v. INS, 333 F.3d 1012, 1016 (9th
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Cir. 2003) (noting that persecution is “an extreme concept that

does not include every sort of treatment our society regards as

offensive”).

Finally, Hamdani has failed to exhaust his remedies with

regard to his contention that the IJ violated his due process

rights by denying a continuance of the withholding of removal

proceeding pending a decision on Hamdani’s labor certification

application. Hamdani did not raise this argument before the BIA;

he raises it for the first time before this court. Because

Hamdani did not raise this issue in his appeal to the BIA, this

court has no jurisdiction to consider the issue in reviewing the

order of removal. 8 U.S.C. § 1252(d)(1) (2000); Wang v.

Ashcroft, 260 F.3d 448, 453-54 (5th Cir. 2001) (“An alien fails

to exhaust his administrative remedies with respect to an issue

when the issue is not raised in the first instance before the 

BIA . . . .”).

III. CONCLUSION

For the foregoing reasons, the decision of the BIA is

AFFIRMED.