We substitute Eric H. Holder, Jr., the current Attorney General 1

of the United States, as the Respondent in this action. See Fed. R.

App. P. 43(c)(2).

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2834

MUGHAL MUHAMMAD ISHITIAQ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,1

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

No. A95-925-134

ARGUED MARCH 30, 2009—DECIDED AUGUST 25, 2009

Before KANNE, WOOD, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Mughal Muhammad Ishitiaq

seeks review of a final order of the Board of Immigration

Appeals, which found Ishitiaq statutorily ineligible for
2 No. 08-2834

asylum, denied his applications for withholding of

removal and relief under the Convention Against

Torture, and ordered him removed from the United

States. We dismiss Ishitiaq’s asylum petition because

we lack jurisdiction to review it, and we deny the

petition for review as to his withholding of removal

and CAT claims because the decision was supported by

substantial evidence.

I. BACKGROUND

Mughal Muhammad Ishitiaq, a Sunni Muslim, was

born in Pakistan in 1968. His father was a member of the

religious group known as Jamat-E-Islami. Ishitiaq was

never a member, although he did help his father with

some of the group’s charitable activities. After Ishitiaq’s

father became a member of Jamat-E-Islami, it turned

from a benevolent organization to a terrorist group.

When Ishitiaq was in high school, he was approached

by two men who told him that he must join the group

and train as a fighter in a Jihad camp. Ishitiaq did not

join, and, as a result, in December 1986, Jamat-E-Islami

members shot at, but did not injure, him. Three months

later, in February 1987, Ishitiaq was kidnapped and

beaten by some of the same men from Jamat-E-Islami.

He was taken to a defense area and held for several days,

but escaped. Ishitiaq then boarded a ship to Istanbul

and traveled abroad as a seaman for the next ten years,

occasionally returning home to Pakistan to visit friends

and family.

Ishitiaq repatriated to Pakistan in January 2000. He

learned that Jamat-E-Islami members and informants
No. 08-2834 3

were living in the area where he stayed. He, his wife

and children hid at the home of a friend. In April 2000, a

group of armed men came to the friend’s home, blindfolded Ishitiaq, and drove him to a house where they

allegedly beat him. Ishitiaq again escaped and made

his way to the American Embassy. He applied for a visitor’s visa and came to the United States on September 20,

2000.

After Ishitiaq overstayed his visa in the United

States, removal proceedings began in March 2003. On

December 2, 2003, Ishitiaq filed an application for

asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). On October 1, 2007,

after the Immigration Judge (“IJ”) presiding over his case

had granted Ishitiaq several continuances, the IJ denied

Ishitiaq’s petition for asylum, withholding of removal,

and protection under the CAT in an oral decision. The

IJ found that Ishitiaq had not filed his application for

asylum by the one-year deadline, and no changed or

exceptional circumstances justified reconsidering his

application. The IJ also determined that Ishitiaq was not

eligible for withholding of removal because he had

failed to show either the existence of past or the likelihood of future persecution on account of his religion

or political opinion. Additionally, the IJ determined that

the 2000 event was more “questionable” and concluded

that because Ishitiaq did not give a detailed description

of that encounter his testimony was not credible. Finally,

because Ishitiaq failed to meet the standard for withholding of removal, the IJ denied him relief under the
4 No. 08-2834

more stringent standard for CAT protection. The IJ did,

however, allow voluntary departure.

Ishitiaq appealed the IJ’s ruling to the Board of Immigration Appeals (“BIA”). On June 27, 2008, the BIA affirmed

the IJ’s ruling in an order, relying on the IJ’s determinations of fact and law. Ishitiaq petitions for review of the

BIA’s decision.

II. ANALYSIS

We review the IJ’s decision as supplemented by the

BIA’s analysis. See Krishnapillai v. Holder, 563 F.3d 606,

615 (7th Cir. 2009). We give deference to the IJ’s factual

determinations, and we uphold the decision if it is supported by substantial evidence. See Ingmantoro v.

Mukasey, 550 F.3d 646, 649 (7th Cir. 2008). We will overturn the BIA’s decision only if “the record compels a

contrary result.” Mabasa v. Gonzales, 455 F.3d 740, 744 (7th

Cir. 2006) (quoting Brucaj v. Ashcroft, 381 F.3d 602, 606

(7th Cir. 2004)).

A. Ishitiaq’s asylum application

The Immigration and Nationality Act (“INA”) defines

a “refugee” as a person who is unable or unwilling to

return to his native country “because of persecution or a

well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social

group, or political opinion.” See 8 U.S.C. § 1101(a)(42)(A).

An asylum applicant must show a nexus between his
No. 08-2834 5

fear of future persecution and one of those five protected grounds. See Torres v. Mukasey, 551 F.3d 616, 629

(7th Cir. 2008).

An alien who is physically present in the United States

and seeks asylum must show by clear and convincing

evidence that the asylum application has been filed

within one year after the date the immigrant arrived in

the United States. 8 U.S.C. § 1158(a)(2)(B); Ogayonne v.

Mukasey, 530 F.3d 514, 519 (7th Cir. 2008). An application

filed after the deadline may be considered if the alien

“demonstrates to the satisfaction of the Attorney General

either the existence of 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); See

Ogayonne, 530 F.3d at 519. Courts do not have jurisdiction to review either the determination that an

alien’s asylum application was untimely or the determination that the belated filing was not justified

by changed or extraordinary circumstances. 8 U.S.C.

§ 1158(a)(3); see also Ghaffar v. Mukasey, 551 F.3d 651, 654

(7th Cir. 2008); Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th

Cir. 2007). We may review “constitutional claims or

questions of law” under 8 U.S.C. § 1252(a)(2)(D), but

“discretionary or factual determinations continue to

fall outside the jurisdiction of the court of appeals entertaining a petition for review.” Ogayonne, 530 F.3d at 519

(quoting Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.

2005)). The BIA’s factual determination that an alien

failed to file his asylum application within one year and

the board’s decision that he does not qualify for a time

extension are unreviewable. Id.
6 No. 08-2834

The IJ found, and Ishitiaq does not dispute, that Ishitiaq

entered the United States on September 20, 2000, with

a visitor’s visa with the permission to remain until

March 19, 2001, but did not file his application for

asylum until December 2, 2003, well beyond the one-year

deadline. The BIA affirmed this finding, and we may

not review this determination.

Ishitiaq argues, however, that the IJ and BIA committed

a reviewable error of law by applying the “changed

circumstances” provisions of § 1158(a)(2)(D) to earlier

events affecting Ishitiaq’s ability to file on time rather

than future events occurring after the one-year filing time

frame. The “changed circumstances” to which Ishitiaq

refers are the declaration of martial law in Pakistan on

November 3, 2007, and the assassination of former

Prime Minister Benazir Bhutto on December 27, 2007.

The IJ did not believe these events demonstrated a

change in country conditions material to Ishitiaq’s

asylum application. The BIA reaffirmed this finding and

stated: “Moreover, these events do not serve to explain

or excuse his delay in waiting to file his application until

December 2003, inasmuch as these two events occurred

some 4 years after he filed his asylum application.” Ishitiaq

argues that the BIA misunderstood the regulation by

requiring the changed circumstances to explain his late

filing, rather than “materially affect[ing] the applicant’s

eligibility for asylum” as § 1158(a)(2)(D) states.

We find no error of law. The BIA properly recognized

that Ishitiaq failed to explain how the declaration

of martial law and Bhutto’s assassination affected his
No. 08-2834 7

eligibility for asylum. Because a question of fact or an

application of law to fact regarding the extraordinary

or changed circumstances exceptions does not raise a

legal claim, we cannot review it. See Viracacha v. Mukasey,

518 F.3d 511, 514 (7th Cir. 2008) (finding that changed

country conditions occurring after the deadline for

timely filing were not material, and the IJ did not make a

legal mistake in arriving at that conclusion). As to the

BIA’s additional reason that these two events did not

affect Ishitiaq’s application because they occurred four

years after he filed for asylum, we believe the BIA was

addressing the “extraordinary circumstances” exception.

See 8 U.S.C. § 1158(a)(2)(D) (an asylum application

filed after the one-year deadline may be considered if

the applicant shows “extraordinary circumstances

relating to the delay in filing an application”). The BIA

was explaining that the declaration of martial law did not

excuse Ishitiaq’s late filing, the only other possible basis

for finding Ishitiaq statutorily eligible for asylum. See 8

C.F.R. § 1208.4(a)(5). The BIA did not misapprehend

the regulations, and Ishitiaq cannot overcome the jurisdictional bar against reviewing discretionary decisions

by cloaking rationale he does not agree with as a legal

error. See Ghaffar, 551 F.3d at 655. Because Ishitiaq did not

raise a constitutional claim or question of law, we

dismiss the petition for review of his asylum application

for lack of jurisdiction.

B. Ishitiaq’s withholding of removal and CAT claims

Although we lack jurisdiction over the asylum application, we may review the denial of Ishitiaq’s with-
8 No. 08-2834

holding of removal and CAT claims. An alien is entitled to

withholding of removal if he can show a “clear probability” that his “life or freedom would be threatened . . .

because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A); Khan v. Filip, 554 F.3d 681, 690

(7th Cir. 2009). This standard is more stringent than the

asylum inquiry. See Selimi v. Ashcroft, 360 F.3d 736, 741

(7th Cir. 2004). An alien can meet this standard by

showing that he was subject to past persecution, which

triggers a rebuttable presumption of future persecution.

8 C.F.R. § 1208.16(b)(1); Khan, 554 F.3d at 690; Irasoc v.

Mukasey, 522 F.3d 727, 729-30 (7th Cir. 2008). Or, in the

absence of evidence of past persecution, an alien can

show that it is more likely than not that he will suffer

persecution if removed. 8 C.F.R. § 1208.16(b)(2); Khan,

554 F.3d at 690; BinRashed v. Gonzales, 502 F.3d 666, 671

(7th Cir. 2007). “Persecution entails punishment or the

infliction of harm for political, religious, or other reasons

that this country does not recognize as legitimate.” Khan,

554 F.3d at 690 (quoting De Souza v. INS, 999 F.2d 1156,

1158 (7th Cir. 1993) (internal quotation marks omitted)).

An applicant “need not show that her life or freedom

were threatened, but the harm she suffered must rise

above the level of mere harassment and must result

from more than unpleasant or even dangerous conditions in her home country.” Nakibuka v. Gonzales, 421

F.3d 473, 476 (7th Cir. 2005).

Here, the IJ determined that Ishitiaq had not been

subjected to past persecution on account of his politics

or religion and did not establish a likelihood of future

persecution. Regarding past persecution, the IJ stated:
No. 08-2834 9

I would say that what little [Ishitiaq] has given in

terms of the details of that encounter in April of

2000, does not establish that he was tortured,

perhaps, beaten as he said but certainly not tortured as that terms [sic] has been defined in the

dictionary or even in case law. I don’ [sic] find

that he has been subjected to past persecution

which would give rise to a realistic likelihood of

mistreatment in Pakistan.

Ishitiaq argues on appeal that the IJ committed legal error

by determining that Ishitiaq had not suffered past “persecution” because he had not been “tortured.” By equating

those two terms, Ishitiaq argues, the IJ placed an

impermissibly high burden on him to prove past persecution. Because Ishitiaq contends the factual evidence

compels the conclusion that he did indeed suffer past

persecution, he also asserts that the burden should shift

to the government to rebut the presumption that he will

be persecuted if returned to Pakistan.

Ishitiaq’s arguments fail for several reasons. As an

initial matter, Ishitiaq’s claim was procedurally defaulted

when he failed to raise the issue before the BIA. 8 U.S.C.

§ 1252(d)(1) (“A court may review a final order of

removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right”);

Ghaffar, 551 F.3d at 655 (“The duty to exhaust includes

the obligation to first present to the BIA any argument

against the removal order as to which the Board is empowered to grant the alien meaningful relief.”). The failure

to exhaust may be overlooked only when the alien raises

constitutional claims because “the final say on constitu-
10 No. 08-2834

The IJ compared Ishitiaq’s case to Ahmed v. Ashcroft, 94 2

F. App’x 361 (7th Cir. 2004) (unpublished opinion) (determining

substantial evidence proved past persecution because of his

and his family’s affiliation with high-ranking members of

the People’s Pakistan Party), and Meghani v. INS, 236 F.3d 843

(7th Cir. 2001) (evidence that applicant had been beaten by

members of opposition party was insufficient to establish that

he suffered political persecution).

tional matters rests with the courts.” Ghaffar, 551 F.3d at

655 (quoting Singh v. Reno, 182 F.3d 504, 510 (7th Cir.

1999)). In his appeal to the BIA, Ishitiaq’s argument

regarding his past persecution focused solely on distinguishing his situation from that of the two cases on which

the IJ relied. Although it is clear that Ishitiaq did not 2

waive his past persecution argument, he certainly did not

challenge the IJ’s alleged misapprehension that past

persecution must equate to torture.

Even so, Ishitiaq’s claim is without substantive merit.

Although the IJ did state that, in his determination, Ishitiaq

had not been “tortured,” we do not read the IJ as requiring

torture to establish past persecution. Rather, the IJ

gave several valid reasons to bolster his conclusion that

Ishitiaq did not suffer persecution. First, Ishitiaq did not

show that the incidents of which he complained were

on account of his politics or religion. Ishitiaq does not

claim to be a political activist. Indeed, he contends that

Jamat-E-Islami members targeted him in order to recruit

him, and he does not argue that he refused to join

because of his political opinion. See INS v. Elias-Zacarias,

502 U.S. 478, 481-82 (1992) (guerrilla group’s attempt to

recruit applicant did not necessarily constitute “persecu-
No. 08-2834 11

For the same reasons Ishitiaq failed to establish past persecu- 3

tion or the likelihood of future persecution to make him

eligible for withholding of removal, we uphold the IJ’s deter-

(continued...)

tion on account of political opinion”). Ishitiaq presented no

evidence that he declined to join Jamat-E-Islami because

of his political views or that the group targeted him

because of his political opinion. On the contrary, he

testified that the group wanted him because of his youth

and size and that he refused to join because he did not

want to train as a fighter in a Jihad camp. Nor is there

any evidence that he faced persecution because he was

a Sunni Muslim. The IJ also noted that Sunni Muslims,

like Ishitiaq, comprise 77% of the Pakistani population.

As to the likelihood of future persecution, which Ishitiaq

failed to fully brief on appeal, the IJ explained that the

kidnapping and beatings in 1987 occurred fourteen years

before his arrival in the United States. We agree that this

timing weakens Ishitiaq’s claim of future persecution

and also note that Ishitiaq returned to Pakistan several

times after those incidents. Moreover, the IJ aptly pointed

out that Ishitiaq’s father, who is a member of Jamat-EIslami, remains in Pakistan unharmed (as do Ishitiaq’s

wife, children, brothers and sisters). See Toptchev v. INS,

295 F.3d 714, 722 (7th Cir. 2002).

Because the record was sufficient to establish that

Ishitiaq had not suffered past persecution or the likelihood of future persecution, we will not set aside the

denial of Ishitiaq’s petition for withholding of removal

and protection under CAT.3
12 No. 08-2834

(...continued)

mination in regard to his CAT claim. See 8 C.F.R. § 1208.16(c)(2)

(an applicant is eligible under CAT if “it is more likely than

not that he or she would be tortured if removed”). Moreover,

Ishitiaq failed to allege the Pakistani government would

torture him or acquiesce to his torture as needed for protection under CAT. See 8 C.F.R. § 1208.18(a)(1) (infliction of pain

or suffering meets definition of torture when “inflicted by or

at the instigation of or with the consent or acquiescence of

a public official”).

8-25-09

III. CONCLUSION

Therefore, we DISMISS Ishitiaq’s petition for review of

his asylum claim and DENY the petition for review of

his withholding of removal and CAT claims.