2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2010

Shah Nadir v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4120

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-4120

 

SHAH AFRIDI NADIR,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of a Decision of the

Board of Immigration Appeals

(Agency No. A016-059-346)

Immigration Judge: Honorable Robert D. Weisel

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 12, 2010

Before: BARRY, STAPLETON AND NYGAARD, Circuit Judges

(Opinion filed: January 14, 2010)

_________

 OPINION

_________

PER CURIAM

Shah Afridi Nadir petitions for review of a decision rendered by the Board of

Immigration Appeals (“BIA”) on September 11, 2008. For the reasons that follow, we

will dismiss in part and deny in part the petition for review.
2

I. Background

Because we write solely for the benefit of the parties, we will set forth only those

facts necessary to our analysis. Nadir is a native and citizen of Pakistan. He came to the

United States in October 1998 and overstayed his visa. In June 2005, Nadir applied for

withholding of removal and protection under the Convention Against Torture (“CAT”). 

He claimed that, beginning in 1997, he suffered persecution and torture in Pakistan on

account of his political opinion due to his longtime membership in the Pakistan People’s

Party (“PPP”). Among other things, Nadir claims that he was arrested in March 1997 and

detained for one month, during which time he was beaten, tortured with electric shocks,

and denied food. 

After a hearing in November 2006, the Immigration Judge (“IJ”) denied Nadir’s

application. Nadir appealed. On September 11, 2008, the BIA affirmed the IJ’s decision

and dismissed the appeal. This timely counseled petition for review followed.

II. Analysis

We generally review only final decisions by the BIA. See Li v. Att’y Gen., 400

F.3d 157, 162 (3d Cir. 2005); Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001).

However, because the BIA deferred to several aspects of the IJ’s findings and analysis,

we have jurisdiction to review both decisions. See Xie v. Ashcroft, 359 F.3d 239, 242

(3d Cir. 2004). We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325

F.3d 396, 405 (3d Cir. 2003), and uphold factual determinations if they are supported “by
 Nadir provided no documentary evidence to corroborate his claim that he was 1

imprisoned and tortured for one month in Pakistan. 

3

reasonable, substantial and probative evidence on the record considered as a whole.” Guo

v. Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). Ultimately, this Court “must find that the

evidence not only supports that conclusion [that the application should have been

granted], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

A.

To qualify for withholding of removal, Nadir was required to demonstrate that he

“more likely than not” will face persecution if deported to Pakistan. See INS v. CardozaFonseca, 480 U.S. 421, 430 (1987). Nadir attempted to establish his eligibility through

testimony that he suffered past persecution in Pakistan on account of his PPP

membership. See 8 C.F.R. § 208.16(b) (“The testimony of the applicant, if credible, may 1

be sufficient to sustain the burden of proof without corroboration.”). A successful

showing of past persecution would have entitled Nadir to a rebuttable presumption that he

would also face future persecution if removed. See 8 C.F.R. § 208.16(b)(1)(i). 

The IJ found Nadir’s testimony to be not credible and denied Nadir’s application

for withholding of removal for that reason. The BIA affirmed the IJ’s adverse credibility

determination. Nadir argues that the IJ and BIA erred because he established past

persecution through credible evidence. 

Nadir faces a heavy burden. We have recognized that an IJ is normally in the best
 Prior to May 2005, an adverse credibility determination could only be based upon 2

inconsistencies that went to the “heart” of the individual’s claim. See Chukwu v. Att’y

Gen., 484 F.3d 185, 189 (3d Cir. 2007). The REAL ID Act, which applies to Nadir’s

case, modifies that standard by providing that “credibility determinations may be made

‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of

the applicant’s claim.’” INA § 208(b)(1)(B)(iii) [8 U.S.C. § 1158(b)(1)(B)(iii)]. This

Court has not yet upheld the new provision. Here, however, the change in the standard is

irrelevant to the outcome, because the IJ and BIA both concluded that the credibility

problems were sufficiently consequential to meet the pre-REAL ID Act standard. Neither

party has disputed that aspect of the credibility determination.

4

position to make a credibility determination and is “uniquely qualified to decide whether

an alien’s testimony has about it the ring of truth.” Abdulrahman v. Ashcroft, 330 F.3d

587, 597 (3d Cir. 2003) (quoting Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.

1985)). We review adverse credibility determinations for substantial evidence. Chen v.

Ashcroft, 376 F.3d 215, 221-22 (3d Cir. 2004). We will affirm the adverse credibility

finding if it is supported by “reasonable, substantial, and probative evidence on the record

considered as a whole.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). To reverse,

the evidence of Nadir’s credibility must be so strong “that in a civil trial he would be

entitled to judgment on the credibility issue as a matter of law.” Chen, 376 F.3d at 222. 

We have closely reviewed the record and conclude that the adverse credibility

determination rests upon substantial evidence. Both the BIA and IJ provided numerous

specific and cogent reasons for concluding that Nadir lacked credibility, all of which go

to the “heart” of his claims. See Berishaj v. Ashcroft, 378 F.3d 314, 323 (3d Cir. 2004). 2

Specifically, the IJ and BIA identified the following inconsistencies and implausibilities
 Apart from his own testimony and statement, the Rahman letter is the only evidence 3

that Nadir submitted to corroborate his individualized persecution claim. 

 Perhaps in an effort to show why his proposed explanations lack record support, 4

Nadir argues that he was not permitted to address the credibility findings because “the

DHS attorney continued to badger him and the Judge also joined in by telling Petitioner

that he would pretermit his applications for relief if he did not stop interrupting.” 

Petitioner’s Brief at 15. The record does not support Nadir’s claim that he was prohibited

from presenting testimony. To the contrary, the record reflects that Nadir himself

repeatedly interfered with the proceedings. Nadir interrupted by providing answers to

counsel’s questions before the interpreter could complete his translation. See A.R. 163-

5

within Nadir’s testimony and/or between Nadir’s testimony and documentary evidence:

(1) Nadir claimed to be “Information Secretary” for his village’s branch

of the PPP, but Nadir submitted a letter from Saleem Rahman, the

president of the PPP for Nadir’s district, which indicated that Nadir

was only a “simple member” of the PPP. See A.R. 384. 3

(2) The Rahman letter states that the military regime “was after him to

arrest him,” but does not suggest that Nadir was previously arrested,

although it would be reasonable to presume that Rahman would have

mentioned a prior arrest. A.R. 92 (IJ decision at 6); A.R. 384. 

(3) The Rahman letter indicates that the military regime raided Nadir’s

home several times for the purpose of finding and arresting him. 

A.R. 384. Nadir did not mention any raids in his testimony or

written statement. 

(4) Nadir testified inconsistently about the sequence of events after his

imprisonment. Specifically, he first testified that he returned home

after his release to recover from his injuries. He later testified that

he went to Karachi to hide, then boarded a ship, and only later

returned home.

In response, Nadir provides a series of conclusory and unsupported arguments

proposing that each credibility finding has an alternative explanation that supports

Nadir’s claim rather than undermines it. However, the Supreme Court has instructed that 4
66. The IJ repeatedly asked Nadir to allow the interpreter to finish before answering. 

Because Nadir continued to interrupt, the IJ eventually admonished, “if you do this one

more time, I will consider pretermitting this application and deporting you . . . Because I

will consider this an intentional interference with the Court’s ability to conduct a hearing

on your behalf.” A.R. 166; see also A.R. 172 (“Your repeated interruptions of the

interpreter are preventing the Court from getting a full translation of what you’re

saying.”). The IJ’s reasonable efforts to maintain courtroom control by asking Nadir to

refrain from persistent interruptions does not undermine the evidentiary record or the IJ’s

conclusions based upon it.

 Nadir contends that his supporting evidence “also support[s] a finding that there is a 5

pattern or practice of persecution against PPP members in Pakistan, which further

supports his application for withholding of removal. . . .” Petitioner’s Brief at 18. 

However, Nadir never presented a “pattern or practice” claim to the IJ or BIA. See A.R.

92 (IJ Decision at 6) (“Respondent has not presented any alternative grounds to establish

it is more likely than not he will be subject to persecution in Pakistan.”). Because he has

raised it for the first time in this Court, the claim is unexhausted and we will dismiss it for

lack of jurisdiction. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]; Abdulrahman, 330

F.3d at 594-95. 

6

“[w]here there are two permissible views of the evidence, the factfinder’s choice between

them cannot be clearly erroneous.” Anderson v. City of Bessemer City, North Carolina,

470 U.S. 564, 574 (1985). Nadir has not demonstrated that any of the IJ’s findings of fact

were clearly erroneous. His contention that there could be other plausible interpretations

of the evidence does not undermine the adverse credibility determination.

“An alien’s credibility, by itself, may satisfy his burden, or doom his claim.” Dia

v. Ashcroft, 353 F.3d 228, 247 (3d Cir.2003) (en banc). In this case, the adverse

credibility determination dooms Nadir’s claim. Nadir failed to meet the burden of

supporting his application for withholding of removal through credible testimony. See 5

Mulanga v. Ashcroft, 349 F.3d 123, 133 (3d Cir. 2003).
 As part of this analysis, the IJ properly considered whether Nadir presented evidence 6

of past torture. Such evidence is relevant to the determination of whether an individual

will “more likely than not” be tortured if removed. See 8 C.F.R. § 208.16(c)(3)(i);

Zubeda, 333 F.3d at 478. For essentially the same reasons that he did not present credible

evidence of past persecution, the IJ concluded that Nadir did not present credible

evidence of past torture. This assessment also rests upon substantial evidence.

7

B.

“An applicant for relief on the merits under [the CAT] bears the burden of

establishing ‘that it is more likely than not that he or she would be tortured if removed to

the proposed country of removal.’” Sevoian v. Ashcroft, 290 F.3d 166, 174-175 (3d Cir.

2002). To meet this burden, the applicant must present objective evidence, Zubeda v.

Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003), including evidence of past torture inflicted

upon the applicant and relevant information regarding conditions in the country of

removal. See Auguste v. Ridge, 395 F.3d 123, 134 (3d Cir. 2005). A denial of CAT

relief, like withholding of removal, is subject to review under the deferential substantial

evidence standard. Zubeda, 333 F.3d at 471. 

Relying upon our decision in Zubeda, Nadir argues that the IJ and BIA improperly

denied his CAT claim by exclusively relying upon the adverse credibility determination. 

Petitioner’s Brief at 16; Zubeda, 333 F.3d at 476 (“[C]redibility for purposes of

establishing . . . withholding of deportation claims does not defeat [the] ability to ‘meet

[the] burden of proof’ under the Convention Against Torture.”). We disagree. The IJ

properly considered “all evidence relevant to the possibility of future torture.” 8 C.F.R. 6
8

§ 208.16(c)(3). 

The IJ expressly discussed Nadir’s documentary evidence of country conditions in

Pakistan, including the most recent State Department Report. See A.R. 94 (IJ Decision at

8). Among other things, the IJ found that the report did not indicate that Nadir’s PPP

membership would automatically render him subject to imprisonment in Pakistan, and

that, although high-ranking members of the PPP might face such risks, Nadir failed to

establish that he is more than a “simple member” of the PPP. See id. In addition, the IJ

found that, even if Nadir could establish an increased risk of arrest in Pakistan due to his

PPP membership, that would not be sufficient to compel a conclusion that he would face

torture in Pakistan. Id.

Thus, based upon the record as a whole, the IJ concluded that Nadir’s proffered

evidence “does not establish it is more likely than not he would be tortured if removed to

Pakistan.” Id. The BIA affirmed the IJ’s approach. See A.R. 3 (BIA Decision at 2). We

conclude that the decision to deny CAT relief rests upon substantial evidence. 

C.

Nadir argues that the IJ violated his Due Process rights because Nadir indicated

during the Government’s cross-examination that he was suffering from chest pains. He

contends that “this clearly cut Petitioner’s testimony short” and that the IJ should have

continued the proceedings rather than concluding them and rendering a decision. The

Government responds that Nadir’s claim lacks factual support because, although Nadir
 The IJ informed the parties that he was visiting from another city and would be 7

unable to appear at the continued hearing; accordingly, if continued, none of Nadir’s

testimony from that day would be considered and a de novo hearing would be ordered. 

A.R. 183.

 Generally, constitutional claims are beyond the BIA’s jurisdiction and not subject to 8

the exhaustion requirement. Bonhometre v. Gonzales, 414 F.3d 442, 448 n.7 (3d Cir.

2005). However, there is an exception for claims that could have been corrected by the

BIA. Khan v. Att’y Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006) (IJ’s allegedly erroneous

denial of a continuance is a procedural error that can be addressed by the BIA on appeal). 

Nadir’s claim falls within this exception. 

9

initially accepted the IJ’s offer to continue the hearing, see A.R. 176-80, when the IJ

informed the parties that a continuance would require a de novo hearing, both parties 7

agreed to conclude questioning and proceed on the record as it stood. See A.R. 184-85.

We generally lack jurisdiction to review claims that were not administratively

exhausted. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)]. Nadir never argued to the IJ or

to the BIA that he should have been granted a continuance due to his health problems. 

For instance, in the hearing before the IJ, Nadir’s counsel did not request a continuance. 

Instead, counsel expressly indicated to the IJ that he had no further questions to ask

Nadir. A.R. 185 (“JUDGE TO MR. FELIXON: [D]oes respondent’s counsel want to ask

any questions on redirect? MR. FELIXON TO JUDGE: No. I will not ask any more

questions.”). Thus, not only does the record seriously undermine the factual

underpinnings of Nadir’s Due Process claim, it also demonstrates that Nadir did not

previously raise the issue. Accordingly, we will dismiss this claim for lack of 8

jurisdiction. See Abdulrahman, 330 F.3d at 594-95. 
 Even if he had attempted to do so, Nadir would not be able to state a colorable 9

constitutional claim based upon the IJ’s alleged error. For instance, in Carcamo v. US

Dep’t of Justice, 498 F.3d 94, 98 (2d Cir. 2007), the Court of Appeals for the Second

Circuit considered a claim that a denial of voluntary departure caused a deprivation of

Due Process because it was based upon an allegedly erroneous finding of fact. See id. at

98. The Carcamo court concluded that “absent clear proof that the factual basis for an

IJ’s decision was unambiguously contradicted by the record, a petitioner raises no

‘constitutional claim[ ] or question[ ] of law’ for us to review.” Id. (We note that, in

Nadir’s case, the IJ’s finding that Nadir did not present a valid passport is not

unambiguously contradicted by the record.) Similarly, the Court of Appeals for the First

Circuit has held that a petitioner cannot circumvent the jurisdictional bar by claiming that

Due Process required a hearing about the Government’s allegedly unfair seizure of the

petitioner’s passport, because there is no Due Process right to voluntary departure. See

Kandamar v. Gonzales, 464 F.3d 65, 69 (1st Cir. 2006) (“[T]he IJ succinctly explained

that the lack of a passport or any other travel document precluded voluntary departure. 

No greater hearing or rationale was necessary on the point.”).

10

D.

Finally, the IJ concluded that Nadir was statutorily ineligible for voluntary

departure because Nadir “has failed to present the Court with a valid passport.” Nadir

claims, without record support, that the Government had his passport in its custody but

failed to bring it to the hearing. In response, the Government argues that we lack

jurisdiction to consider this claim. Under INA § 240B(f) [8 U.S.C. § 1229c(f)], “[n]o

court shall have jurisdiction over an appeal from denial of a request for an order of

voluntary departure . . . .” 

Pursuant to INA § 242(a)(2)(D) [8 U.S.C. § 1252(a)(2)(D)], judicial review is not

precluded where a petitioner raises a constitutional claim or question of law. Here, Nadir

has failed to present a constitutional claim or question of law. See, e.g., Karim v. 9
Gonzales, 424 F.3d 109, 111-12 (1st Cir. 2005) (no jurisdiction over claim that IJ

erroneously concluded that petitioner lacked a valid travel document). We therefore lack

jurisdiction over this claim and will dismiss it. INA § 240B(f) [8 U.S.C. § 1229c(f)]. 

III. Conclusion

For the foregoing reasons, we will dismiss the petition for review to the extent that

we lack jurisdiction over certain claims. We will deny the petition for review in all other

respects.