2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
7-30-2003 

# Ahmed v . Att y Ge n U S A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-4302

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w . v i l l a no va . e du/thir dc ir c uit_2003/331NOT PRE CEDENT IAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

_________________ No. 02-4302

__________________ SYED AHMED, Petit ioner v. JO HN AS HC RO FT , Attorney General of the United States, Respondent

________________ On Petiti on for Review of an Order of the B oard of Im migra tion A ppea ls (INS N o. A93 256 56 2)

_______________________________________ Submitte d Under Third Circ uit LAR 34.1(a)

July24, 2003 Be for e: A LIT O, F UE NT ES and BE CK ER , Circuit Judges.

(Fil ed July30, 2003 )

_______________________

OPI NION

_______________________ BE CK ER , Circuit

Judge
. This is a peti tion for

review of a fi nal order

of removal i ssued bythe Board of1 On appeal, Ahmed does not cha llenge the IJ ’s concl usion that he i s inel igibl e for

pro tectio n un der the C onv entio n A gain st T ortu re. 2 Immigration Appeals ( “BIA”) dismis sing the peti tioner Syed Ahmed’s appealfrom the Imm igration Judg e’s (“IJ” ) orde r den ying his ap plication for re lief an d ord ering h im
remo ved to Pak istan. A hm ed ha d arg ued th at he q ualified for as ylum ba sed o n a w ellfou nde d fe ar o f pe rsec utio n on acc oun t of h is po litical opi nio n. See 8 U .S.C . § 1101(a )(42)(A) (de fining a “ref ugee” a s a person u nable to return to h is or her coun try “because of per secuti on or a well- founded fear of per secuti on on account of r ace, relig ion , natio nalit y, mem ber ship in a p artic ular soc ial gr oup , or p olitic al op inio n. . . .”)
. 1 Ahmed maintains t

hat becaus e of his membership in the Paki stan Student Federati on (“PSF”) and l ater t he Pakist an People’s Party(“PPP”), he was persecuted by opp os it io n party memb er s o n nu mer ous oc ca si ons be twe en th e y ea rs 198 4 a nd 1 989 . H e alle ges that

on one occasi on in 1989 he was kidnappe d and tort ured, requiri ng hosp italization for a “ coup le of w eeks .” Ah med claim s that he repo rted the kidn appin g to the poli ce, who conducted an investigati on but never arrested anyone . He also as sert s that
as a res ult of hi s poli tica l activities, he was beaten and s hot at ( but never wounded) during rall ies. Ahmed contends that his dri ver was beate n by opposi tion par ty members; after this incide nt, Ahmed clai ms he was threatened by oppos iti on partymembers and went into hi ding. Ahmed tes tifi ed that his fat her rece ived anony mous threatening te lephone call s in which t

he call er st ated that Ahmed would be kill ed if he di d not “st op.” Ahmed3

recounte d another i ncident in which he and hi s family were shot at

by i ndividual s on motorcy cles, forcing Ahmed int o a seri ous car acc ident. He also all eges that Pakist ani government agent s obtai ned a fals e report stating that

Ahmed w as invol ved in a hot el ri ot and that theywent to his parents ’ house l ooking to ar rest him; Ahmed was not home. In 19 90, A hm ed trav eled to M ecca , Saud i Ara bia fo r two mo nths to particip ate in the Haj, an annual Musli m pilgri mage. He then ret urned to Paki stan, even though he claim s tha t the g ove rnm ent w as lo oki ng f or h im a s a re sult o f the fals e arr est w arra nt. Later i n the same y ear, Ahmed entered the Unit ed State s as a non-i mmigrant vi sit or for pleasur e. In 1997, Ahmed pled guilty i n the Unite d States Distri ct Court f or the Dis tri ct of Maine to unlawfull y attempti ng to obtai n citi zenship document s; he had gone to Maine to attem pt to ob tain a f alse birth certifica te so tha t he co uld g et a U .S. pass port to v isit his fath er in Pak istan and then retu rn to the U nited Sta tes. Ahmed submitted the foll owing to support his t esti mony: ( 1) a let

ter fr om the presi dent of the PPP, certify ing his membership i n the PPP and the PSF and st ating t hat Ahmed “has suffered many hardshi ps while worki ng as a Divis ional Sec retary i n [the PSF”; (2) a l ette r from a representat ive of the PPP’s Member Executive Committ ee, confirmi ng Ahmed’s membership in t he PPP and mentioni ng his 1989 ki dnapping; ( 3) an affidavi t from Ahmed’s father st ating t hat Ahmed “is not

safe in Paki stan i n the poli tica l circumst ances as t

hey exi st t oday”; (4) a medic al repor t is sued in Saudi Arabia describing Ahm ed’s back injuries; and (5) a report by t he Karachi police listi ng Ahm ed as a2 Ah med also su bm itted oth er do cum entatio n in the form of n ew s articles to

dem onstra te that P PP m emb ers are com mo nly perse cuted in Pa kistan. H ow ever, w e note that the State D epartmen t’s 1997 P rofile of A sylum Claims a nd C ountry Con dition Rep ort stat ed that

“[w]hile many human ri ghts abuse s are not ed in the Co untry R epor ts , in general it can be said t

hat the citi zens of Pakis tan have the right and abil ity

to change their go vern men t peac efully. D ozen s of p olitical pa rties activ ely participa te in loc al, prov incial an d natio nal ele ctions. P akistan is are fre e to join the po litical party of their choice and participate i n partyacti viti es openly .” [A377] We also note that nearly 20 year s have passe d since manyof the al leged i ncident s of perse cution a gainst Ahmed took place. 4 particip ant in a hotel rio t. 2 The IJ is sued an oraldecisi on in which he det ermined that Ahmed’s tes timonywas not cre dible. T he IJ f oun d A hm ed’s c laim u nbelie vable for a n um ber o f reas ons. F irst, Ahmed mentioned onlythe al leged ki dnapping in hi s origi nal writ ten asy lum appli cati on; he mentioned di fferent

inst ances of pers ecuti on (but not the kidnapping) when he appeared before an asy lum officer , and then additional i nstances of persecut ion when he testifie d before the IJ. The IJ reas oned that if the se inci dents had reall y occur red, Ahmed would have mentioned t hem all at

the outs et; t

he IJ di d not beli eve Ahmed’s explanation that he did not under stand t hat he was suppose d to li st al l ins tances of persecution on the asy lum appli cati on, noti ng that Ahmed was well- educated and s poke English wel l (he went to col lege i n London for a ye ar) and was thus sophis ticated enough t o figure out ho w to fil l o ut th e a pp lic ati on fo r a sylu m pr op er ly. Second, the IJ not ed that the corroborati ng letters fr om the PPP leaders and Ah med ’s fath er con tained only vag ue state men ts and did n ot pro vide e viden ce of spec ific5

instances of p ersecution. Th ird, Ahm ed had not provide d affidav its from his sister, mother or driver cor

roborating speci fic i nstances of persecution (Ahmed stated that he
wa s in tou ch w ith his fa mily and could prov ide no reaso n w hy they did n ot sub mit affidavi ts). Fourth, Ahmed did not providehospit al rec ords memorial izing hi s tre atment follow ing the allege d kid napp ing, yet he d id pro vide h ospital re cord s from his trip to Saudi Arabia, suggesti ng that he had the abi lit y t o obtain hos pitalrecords . Fift h, at one point Ahmed stated that he went int o hiding at

his si ster ’s res idence, but at another poi nt he s tated that h e w ent in to h idin g at th e res iden ce o f a f rien d. Sixth, Ahmed returned t o Pakist an from Saudi Arabi a after the al leged i nstances of persecution took pl ace, al though he had obt ained a vi sa to go t o the Unite d Kingdom (the IJ did not

find bel ievabl e Ahmed’s explanation that he did not ha ve enough money t o go to th e U K) . Sev enth , Ah me d trie d to obt ain a fals e bir th ce rtific ate to retu rn to Pak istan
. The IJ reaso ned th at Ah med could not h ave re ally feared being perse cuted or killed in Pakist an if he vol untari ly returned (or t ried to return) on two occasi ons after he had alle gedlybeen thre atened, beaten, tort ured, and s hot at. Finall y, Ahmed’s criminal behavior de monstrated that he was not credible. The IJ als o noted that Ahmed could not identi fy t he indivi duals who kidnapped hi m or the indi viduals who shot at and t hreate ned him; he si mply as sumed theywere members of the oppos iti on party . The IJ s tate d that he could not e ven be sure t hat Ahmed was persecut ed on account of hi s poli tica l opini on
eve n if h is alle gatio ns w ere tr ue.6

On appeal, t

he BIA filed a deci sion i n which it a greed with t he conclusi ons of the IJ, with two exce ptions : (1) the B IA d id no t rely on A hm ed’s a sylum in terview as a b asis for the adve rse cre dibility findin g (the a sylum o ffice r con clude d that A hm ed ha d faile d to provide any

detai ls sugges ting t

hat the events he de scri bed had actual ly occurred, but Ahmed claimed that

he was sick with a 103 degree fever during t his i ntervi ew and that the asy lum officer

did not gi ve him a chance t o fully answer the ques tions ); and ( 2) the BIA noted that

it di d not beli eve that

Ahmed had misrepresented his prior convi ction record wh ile und er oath (besid es plea ding guilty to un lawf ully attemp ting to o btain citi zenship document s, Ahmed also pl ed guilt y t o using a motor

vehicl e without t

he owner’s permi ssion and was ar rest ed for sol icit

ing prost itution). The BIA explained the decision to af firm as fo llows: “W e find that the [IJ’s] . . . specific, coge nt reasons are suff icient to f ind tha t the resp ond ent w as incr edible . Spec ifically, the res pon dent f ailed to mention two alleged ‘ drive- by’ shooti ngs in hi s written appli cati on for asy lum. Such discr epancies involve t

he heart of respondent ’s asy lum clai m.” We review the deci sion of the BIA using the hi ghly deferential s ubstantial evidence s tandard, under which we must “uphol d the agency ’s fi ndings of fact to the extent that t hey are ‘supported by r easonable , subst antia l, a nd probati ve evidence on t he record cons idered a s a whole.’ ” Ga o v. A shcro ft , 299 F.3d 266, 272 (3d Cir. 2002) (quoti ng Abd ille v. Ash croft , 242 F.3d 477, 483 (3d Cir. 2001)). To distur b the deci sion of the BIA , we m ust co nclud e that “ the ev idenc e not o nly supports . . . but com pels ”7

rev ersa l. INS v. Eli as-Zacari as , 502 U.S . 478 , 481 n.1 ( 199 2) (e mp has is in o rigin al). “Likewise, adverse credibil ity determi nations are revi ewed for subst antia l evide nce.” Bal asu bra manr im v . I

NS , 143 F.3d 157, 161 (3d Cir. 199 8). We are sati sfied t

hat the BIA’s decisi on was supported by the rec ord and does not compel rever sal. In particular, we agree that t he fact t hat Ahmed returned to Pakis tan after he clai ms he was kidnapped, tort ured, t hreate ned, and beaten and knowing that the government was looki ng for him based on a false arrest

warrant s uggests t

hat he di d not fear pers ecuti on. The IJ and t he BIA surelydid not er r by finding unc onvincing t he
ex pl an atio n f

orhi s r etur n t o Paki st an de sp ite h av in g ob ta in ed a v is a t o go to th e U. K. (that he did no t have eno ugh m oney). Mo reover, A hmed made another attem pt to return to Pakis tan byobtaini ng a false U.S. passpor t, de spit e his cl aim that

he fears he wil l be kill ed if he i s returned to Paki stan. Once again, al though Ahmed claimed that he wanted to vis it hi s sick f

ather, it i s reasonable to i nfer that Ahmed did not re ally fear that he
wo uld be k illed if he ma de a n atte mp t to re turn to P akis tan. M oreo ver, w e are n ot pers uade d by A hm ed’s c laim th at he c ould not o btain additi onal corr oborati on for his alle ged persecut ion or byhis ci tati ons to cas e law holdi ng that c orroborative e vidence i s not re quired to establ ish an appl icant ’s cre dibil ity . Given the fact s of thi s case, the BIA did not e rr byconcludi ng that Ahmed should ha ve been ab le t o p ro vi de ad di tio na l co rro bo ra tiv e e vi de nc e – A hm ed pr ov id ed so m e v ag ue lyworded corroboration, suggesting that he had access to documentary evidence. We also3 Ahmed also clai ms that hi s due proces s right s were viol ated becaus e the IJdeprived

him of a “full , fai r and impart ial he aring” by

“conti nuouslyprevent[ ing]” hi m from providing “ thorough ” response s to the question s posed b y counsel and th e IJ. How ever, Ahmed did not rai se thi s iss ue before the BIA and this fa ilure to rai se the i ssue willbar this C our t fro m c ons ider ing it. See 8 U.S.C. § 1252(d) (1) (“ A court may review a final orde r of re mo val on ly if . . . the alien h as ex haus ted all ad minis trative re med ies ava ilable to th e alie n as of r igh t. . . . “). 8 note that alt

hough an appli cant’s testimony maybe suffici ent to s ustai n his burde n of proof, t hat does not

mean that t

he absence of cor

roborative evi dence (where poss ible) cannot be t aken int o account bythe IJand the BIA. In s hort, Ahmed has not met the rigorous Elias- Zacarias standar d. The peti tion for review willbe denied. 39

TO THE CLERK

Please fi le the foregoing opi nion.

/s/ Edw ard R. B ecker Circuit Judge