United States Court of Appeals

For the First Circuit

No. 08-1135

ABDUL Q. KHAN,

Petitioner,

v.

MICHAEL B. MUKASEY, ATTORNEY GENERAL,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Selya and Howard, Circuit Judges. 

David L. Yavner on brief for petitioner.

Aimee J. Frederickson, Trial Attorney, Office of Immigration

Litigation, Gregory G. Katsas, Acting Assistant Attorney General,

Civil Division, and Mary Jane Candaux, Assistant Director, U.S.

Department of Justice, Office of Immigration Litigation, on brief

for respondent.

September 10, 2008
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LYNCH, Chief Judge. Abdul Q. Khan, a native and citizen

of Pakistan, petitions for review of a decision of the Board of

Immigration Appeals ("BIA") denying his application for asylum,

withholding of removal, and protection under the Convention Against

Torture ("CAT"). We deny his petition.

I.

We briefly summarize Khan's testimony before an

Immigration Judge ("IJ"). Khan was raised as a Sunni Muslim in

Pakistan. While attending school, he befriended Hussein Ali Shah,

a Shi'ite Muslim. Shah introduced Khan to the Shi'ite faith, and

Khan attended Shi'ite services weekly. Khan converted to Shi'a

Islam in 1994 and openly discussed his new faith with Sunnis in his

hometown of Mardana. 

Sunni Muslims threatened Khan with death following his

conversion. On February 16, 2001, these threats culminated in an

attack in which members of a radical Sunni group fired guns at Khan

and his friend. His friend died, but Khan escaped and fled to his

uncle's home. After two or three days, he went to Lahore,

Pakistan, where he stayed with a friend for several weeks before

leaving for the United States.

On April 5, 2001, Khan arrived at Boston's Logan

International Airport after brief stops in Singapore and London.

Khan entered the United States using a passport with a false name.
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He did not apply for asylum upon his arrival in the United States

in 2001.

Following the September 11, 2001 terrorist attacks, Khan

felt that he would be unable to obtain asylum in the United States.

Therefore, Khan went to Canada in February 2002 to seek asylum.

Canadian officials confiscated Khan's true Pakistani passport.

Khan submitted to the IJ a photocopy of his purported Pakistani

passport but failed to provide her with any official record of his

entry into Canada or his Canadian asylum application. 

After the Canadian government denied him asylum, Khan

returned to the United States. Khan entered on June 18, 2004 and

was detained at the border. The Department of Homeland Security

issued Khan a Notice to Appear, charging him with removability. On

November 30, 2004, Khan conceded removability at a hearing before

an IJ. Khan applied for asylum, withholding of removal, and

protection under the CAT on May 24, 2005. 

In an oral decision on February 24, 2006, an IJ denied

Khan any relief. As a threshold matter, the IJ found that Khan had

not adequately established his identity because he offered only a

photocopy of his purported Pakistani passport. The IJ found Khan's

failure to produce reliable evidence of his identity particularly

unreasonable because he had ample opportunity to obtain original

documentation before the hearing.
Khan submitted new evidence to the BIA, including 1

documents from Canada's immigration agency and a photocopy of his

Pakistani national identification card. The BIA, however, refused

to consider evidence submitted for the first time on appeal.

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The IJ also found Khan's testimony not credible. In

particular, she noted that Khan's inability to explain the basic

differences between the Sunni and Shi'ite faiths contradicted his

claim that he had defended the Shi'ite faith to Sunnis in his

hometown. Moreover, the IJ did not accept Khan's testimony because

he failed to corroborate even easily verifiable details of his

story, such as his travels between the United States and Canada. 

The IJ rejected Khan's application for asylum and

withholding of removal. The IJ also rejected Khan's CAT claim,

noting that he had set forth no facts demonstrating that it was

more likely than not he would be tortured if he returned to

Pakistan.

Khan appealed to the BIA. On January 2, 2008, the BIA

denied Khan any relief. The BIA did not adopt the IJ's decision

and specifically declined to review the IJ's credibility

determination. Instead, the BIA denied Khan's asylum application

on the narrower ground that Khan had presented no corroborating

evidence to the IJ as required under 8 U.S.C. § 1158(b)(1)(B)(ii).1

The BIA summarized the deficiencies in the corroborating evidence

that Khan had submitted as follows:

We find it significant that the

respondent did not submit a copy of the asylum
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application that he claims to have filed in

Canada, particularly since he had indicated at

the removal hearing that he could do so.

Moreover, . . . the respondent presented no

original passport or any copy thereof that was

authenticated pursuant to 8 C.F.R.

§ 1287.6. . . . [T]he record contains no

evidence of any contact on the part of the

respondent with the government of Canada to

support a claim that that government currently

has the original passport.

(Footnote and internal citations omitted.)

The BIA also rejected Khan's withholding of removal and

CAT claims because they were based on the same uncorroborated

testimony. Finally, the BIA denied Khan's claim that his removal

hearing before the IJ violated due process because it was conducted

via televideo. Khan filed a timely petition for review with this

court, but he has not pursued his due process claim here.

II.

Where, as here, the BIA issues its own opinion without

adopting the IJ's findings, we review the BIA's decision and not

the IJ's. Lin v. Mukasey, 521 F.3d 22, 26 (1st Cir. 2008);

Georcely v. Ashcroft, 375 F.3d 45, 49 (1st Cir. 2004). In this

case, the BIA reviewed the adequacy of the corroborating evidence

that Khan had provided without reaching the issue of Khan's

credibility. Our review, therefore, is limited to the

corroboration issue, and we do not address Khan's specific

contentions regarding the IJ's credibility determination.
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"Our review is deferential, as the BIA's determinations

'must be upheld if supported by reasonable, substantial, and

probative evidence on the record considered as a whole.'" Kho v.

Keisler, 505 F.3d 50, 53 (1st Cir. 2007) (quoting INS v. EliasZacarias, 502 U.S. 478, 481 (1992)). The BIA's factual findings

"are conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

Here, only issues of fact are involved.

To qualify for asylum, an alien must show that he is a

"refugee." 8 U.S.C. § 1158(b)(1)(A). To do so, the alien must

demonstrate "a well-founded fear of persecution on account

of . . . religion." Id. § 1101(a)(42)(A). The alien bears the

burden of establishing that he is a refugee. Id.

§ 1158(b)(1)(B)(i). Whether the alien has carried his burden is a

question of fact, which we review deferentially under the

substantial evidence standard. Ouk v. Gonzales, 464 F.3d 108, 111

(1st Cir. 2006).

For the alien to meet his burden of proof, the trier of

fact can require him to produce corroborating evidence. 8 U.S.C.

§ 1158(b)(1)(B)(ii). Indeed, "[w]here the trier of fact determines

that the applicant should provide evidence that corroborates

otherwise credible testimony, such evidence must be provided unless

the applicant does not have the evidence and cannot reasonably

obtain the evidence." Id. Where the alien's "testimony is not
Khan's attorney had a copy of his Canadian asylum 2

application but chose not to submit it to the IJ, noting that it

was her job "to put the best case forward." 

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itself compelling the absence of easily obtainable corroborating

documentation can be the final straw." Chhay v. Mukasey, No. 07-

2202, ___ F.3d ___, 2008 WL 3573100, at *3 (1st Cir. Aug. 15,

2008); see also Melhem v. Gonzales, 500 F.3d 78, 81-82 (1st Cir.

2007). The BIA correctly recognized that a lack of corroborating

evidence could be fatal to Khan's case.

The BIA's determination regarding Khan's failure to

produce corroborating evidence is supported by substantial

evidence. As the BIA recognized, Khan did not submit a copy of his

Canadian asylum application -- or any evidence of his contacts with

the Canadian government -- to the IJ. His failure to provide this

basic information was particularly notable because Khan could have

sought it from a friendly government, not the government of the

country from which he said he was fleeing. Moreover, he provided 2

the IJ with no original or properly authenticated documentation of

his identity -- a threshold issue in an asylum case, see, e.g., 8

U.S.C. § 1158(d)(5)(A)(i) ("[A]sylum cannot be granted until the

identity of the applicant has been checked against all appropriate

records or databases . . . ."). This omission has particular

significance here because Khan had originally entered the United

States in 2001 with a passport bearing a false name. The BIA
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properly determined that Khan did not carry his burden of proof on

his asylum claim. 

Because Khan failed to present evidence to satisfy the

standard for asylum, he cannot meet the more rigorous standard for

withholding of removal. See Pan v. Gonzales, 445 F.3d 60, 63 (1st

Cir. 2006).

The BIA rejected Khan's CAT claim because it depended on

the same uncorroborated testimony as his asylum claim. We agree

with the BIA's analysis.

III.

For the foregoing reasons, the petition is denied.