Hasan, et al v. Holder, Jr.

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Michael Boudin, Appellate Judge and Kermit V. Lipez, Appellate Judge. Published. [10-1656]

Case: 10-1656

Document: 00116346096

Page: 1

Date Filed: 03/12/2012

Entry ID: 5625352

United States Court of Appeals
For the First Circuit

No. 10-1656
MOHAMMED SUZAUL HASAN, TANJILA HASAN, and TAMEEM HASAN,
Petitioners,
v.
ERIC H. HOLDER, JR.,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin, and Lipez,
Circuit Judges.

Salim Sheikh, on brief for petitioners.
Julia J. Tyler, Trial Attorney, Office of Immigration
Litigation, Civil Division, Tony West, Assistant Attorney General,
Civil Division, and Shelley R. Goad, Assistant Director, on brief
for respondent.

March 12, 2012

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Date Filed: 03/12/2012

TORRUELLA, Circuit Judge.

Entry ID: 5625352

The petitioners in this case,

natives and citizens of Bangladesh, seek review of a final order of
removal issued by the Board of Immigration Appeals ("BIA").
8

U.S.C.

§

1252(a)(1).

The

BIA

affirmed

the

denial

See

by

an

immigration judge ("IJ") of the petitioners' applications for
cancellation of removal, asylum, withholding of removal, and relief
pursuant to the Convention Against Torture ("CAT").
consideration,

we

dismiss

the

petition

for

After careful

review

regarding

cancellation of removal for lack of jurisdiction. The remainder of
the petition is denied, as we find that the BIA's decision was
supported by substantial evidence.
I.
A.

Background

Facts and Procedural History
Mohammed Suzaul Hasan ("Hasan"), the lead petitioner in

this case, entered the United States, on or about August 4, 1992,
with his wife, Tanjila, and son, Tameem.

The three were admitted

to this country as non-immigrant visitors with authorization to
remain in the United States until February 3, 1993.
family overstayed

their

visas.

In

the

Hasan and his

interim,

a

daughter,

Tashfia, was born to the family on July 2, 1993 in Los Angeles,
California.1
application

Ten days later, on July 12, 1993, Hasan filed an
seeking

asylum

and

1

withholding

of

removal

under

Having been born in the United States, Tashfia is a U.S.
citizen. See Mariko v. Holder, 632 F.3d 1, 8 n.4 (1st Cir. 2011)
(citing United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898)).
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sections 208 and 241(b)(3) of the Immigration and Nationality Act
("INA"), 8 U.S.C. §§ 1158 & 1231(b)(3), as well as protection under
the CAT, as implemented by 8 C.F.R. §§ 1208.16–18, listing his wife
and son as derivatives.
Over a decade later, on May 25, 2007, the government
filed Notices to Appear ("NTA") in immigration court, charging
Hasan, Tanjila,

and

Tameem

(collectively,

"Petitioners")

with

removability pursuant to section 237(a)(1)(B) of the INA, 8 U.S.C.
§ 1227(a)(1)(B). The three were placed in removal proceedings and,
in pleadings submitted to the IJ on June 17, 2007, they admitted
the factual allegations in the NTA, conceding their removability as
charged.
On
applications

June

30,

seeking

2008,

Petitioners

cancellation

of

filed

removal

240A(b)(1) of the INA, 8 U.S.C. § 1229b(b)(1).

individual

under

section

Hearings on the

merits of Hasan's pending application for asylum, withholding of
removal, and

CAT

protection, as

well

as

Hasan

and Tanjila's

applications for cancellation of removal,2 were held by an IJ on
October 15 and November 21, 2008. Hasan testified as to the events
giving rise to his request for relief and protection, and the
2

Although Tameem filed his own application for cancellation of
removal, he admittedly had no qualifying relative and thus could
not pursue this avenue of relief. See 8 U.S.C. § 1229b(b)(1)(D)
(qualifying relatives limited to the alien's spouse, parent, or
child). However, Tameem continued to qualify for cancellation of
removal as a derivative under his father's asylum application
because he was under the age of twenty-one when it was filed. See
8 U.S.C. § 1158(b)(3)(B).
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alleged exceptional and extremely unusual hardship that would
befall his daughter, Tashfia, a U.S. citizen, if he and the rest of
his family were removed to Bangladesh.

Tashfia also testified in

support of her parents' application for cancellation of removal.
Hasan declared that he came to the United States because
of political persecution in Bangladesh by opposition parties.
Hasan began his political career in 1985 with the Youth Front of
the

Jatiya

Party,3

and

was

eventually

positions within the local party chapter.

elected

to

prominent

Prior to his departure

from Bangladesh in 1992, Hasan had been attacked and threatened on
numerous occasions by political opponents of the Jatiya Party,
including the Bangladesh National Party ("BNP"), the Awami League,
and a fundamentalist Islamic group called the Jamaat-e-Islami.
Specifically, Hasan described: (1) being beaten by members of the
Awami League on October 7, 1988 while on his way back from a
political meeting, for which he received medical treatment and
several stitches on his face; (2) being attacked on March 2, 1989
by BNP members who attempted to abduct him from a marketplace and
fired upon him as he fled on a motorcycle; (3) being robbed and
beaten severely by BNP members on August 25, 1989 while he was
collecting

donations

for

the

Jatiya

Party

at

a

marketplace;

(4) receiving death threats from a BNP leader on October 26, 1989
3

While Hasan referred to the "Jatio" Party in his 1993 asylum
application, both the IJ and the BIA used the term "Jatiya" in
their decisions, as that party is named in the U.S. State
Department Country Reports. We do the same here.
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for his work with the Jatiya Party; (5) being beaten with a hockey
stick and assaulted with a knife by Islamic fundamentalists of the
Jamaat-e-Islami on August 30, 1990 as he was leaving a rally; (6)
being beaten in front of his home on December 6, 1990 by members of
the BNP and Awami League after the Jatiya Party stepped down from
power, from which attack he was saved by his wife's successful
entreaty to the mob; and (7) being arrested and detained for three
days in February of 1992 without an explanation or formal charges,
after the BNP came into power, during which time he was beaten and
given inedible food.

Hasan declared that he was released from the

last of these events only after his wife pleaded with the police
and offered them a cash bribe.
Hasan was once again attacked and attempts were made
against

his

life

in

April

of

1992.

Consequently,

he

left

Bangladesh with his wife and son on July 30, 1992, and made for
Belgium, from which country the family found its way to the United
States on a valid, non-immigration visa.
Hasan
Bangladesh

had

testified
a

that,

"caretaker

at

the

time

government,"

of

that

his
all

hearing,
political

activities were "suspended" and restricted, and that the Jatiya
Party was "not in power at all."

The government, in contrast,

presented the U.S. State Department's 2007 Country Report on Human
Rights Practices for Bangladesh, which indicated that after the
2001 elections, which were supervised by a nonparty caretaker
government, the BNP had formed a four-party coalition government
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with the Jamaat-e-Islami, the Bangladesh Jatiya Party, and the
Islami Oikko Jote.

The 2007 Country Report also recounted the

implementation of electoral and political reforms.

In addition,

the government pointed to newspaper articles chronicling a historic
democratic

election

held

on

December

29,

2008,

as

well

as

statements in the 2008 Country Report on Human Rights Practices for
Bangladesh that the elections were "considered by international and
domestic observers as free and fair," blemished only by "isolated
irregularities" and "sporadic violence."

Asked specifically what

harm might befall him if he returned to Bangladesh, Hasan stated
that he did not "know what will happen."

He identified the BNP and

Jamaat-e-Islami as "the main threat" for him and averred that
members of these organizations would not like it "if [he] g[o]t
into politics again."
As to Tashfia, Hasan's daughter and a U.S. citizen,
declarations by herself and Petitioners reflected that she had
never traveled to Bangladesh, knew little about the country, and is
not comfortable speaking the native language, nor can she read or
write

in

Bengali.

If

the

Petitioners

were

repatriated

to

Bangladesh, Tashfia would accompany them as there is no one in the
United States that could care for her.

Hasan expressed fears that

political rivals might kidnap Tashfia in order to hurt him, or that
she might be kidnaped simply for being perceived as a foreigner
from a rich country.

Hasan also worried that food shortages,

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substandard health care, and the expense of education for English
speakers in Bangladesh might affect Tashfia negatively.
B.

The IJ's Decision
On June 17, 2009, the IJ issued a written decision

denying Hasan's request for asylum, withholding of removal, and CAT
protection, denying Hasan and Tanjila's request for cancellation of
removal, but granting Petitioners voluntary departure.
The IJ determined that Petitioners were ineligible for
cancellation of removal because they failed to demonstrate that
their removal would result in "exceptional and extremely unusual
hardship," 8 U.S.C. § 1229b(b)(1)(D), to their one qualifying
relative, Tashfia, that would be "substantially different from, or
beyond, that which would normally be expected" from repatriation,
Matter of Monreal, 23 I. & N. Dec. 56, 62 (B.I.A. 2001) (citing
H.R. Conf. Rep. No. 104-828 discussing intended reach of INA
section 240A(b)(1)(D)).

The IJ held that Petitioners could not

establish that removal would cause Tashfia to be submitted to the
necessary level of economic hardship since the record reflected
that Hasan did not allege any adverse medical conditions; possessed
a high degree of education as a CPA and college graduate; and was
the co-owner of his family's house in Bangladesh.

The IJ also

considered Petitioners' strong family ties in Bangladesh, including
Hasan's brothers, sisters, and father who all currently reside
there, and the fact that a number of these relatives held skilled

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There was also meager evidence indicating that Tashfia

would face peril based on any political activities in which her
father may have engaged over seventeen years ago, or that her U.S.
citizenship would make her an appreciable target for kidnapping or
other criminal activity.
Regarding Petitioners' eligibility for asylum under the
INA's section 208, 8 U.S.C. § 1158, the IJ determined that,
assuming Petitioners had sustained their burden of establishing
past persecution, the government had nevertheless established by a
preponderance of the evidence that there had been a fundamental
change in circumstances in Bangladesh such that Petitioners no
longer had a well-founded fear of persecution on account of a
statutorily cognizable ground.

See id. § 1158(b)(1)(A) (in order

to establish eligibility for asylum under INA section 208, an alien
must be a refugee within the meaning of INA section 101(a)(42)(A),
8

U.S.C.

§

1101(a)(42)(A));

id.

§

1101(a)(42)(A)

(defining

"refugee" as any person who is unwilling or unable to return to his
or her country of nationality due to "persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion");
see also Zarouite v. Gonzales, 424 F.3d 60, 63 (1st Cir. 2005)

4

The record reflects that Hasan has three brothers and three
sisters who live and work in Bangladesh. Hasan testified that, of
his sisters, two were schoolteachers and one was a nurse; of his
brothers, one was an attorney. He also testified that his father
was retired but owned land that he employed for sharecropping.
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(well-founded fear can be shown on the basis of "past persecution,
which gives rise to a presumption of future persecution . . .
sufficient for the applicant's case unless rebutted by the Attorney
General (e.g., by showing changed conditions)" (citing 8 C.F.R.
§ 208.13(b)(1)(i)(A))).
Specifically, the IJ noted that while Hasan had described
harassment, abuse, and physical harm at the hands of members of
various opposition political factions, every one of the cited
incidents took place between 1988 and 1992.

The IJ found that,

since that time, the record revealed substantial changes in the
relationship between the different Bangladeshi political factions
and in the national political environment generally, as well as
electoral

reforms

that

had

produced

more

transparent voting processes in Bangladesh.

open,

free,

and

Those changes served

to rebut the presumption that Petitioners possessed a well-founded
fear of persecution in Bangladesh, should they be removed to the
country almost seventeen years after their departure.

The IJ made

note of the fact that the bulk of the Petitioners' documentary
submissions antedated the evidence submitted by the government.
The IJ also found that none of the Petitioners had
marshaled sufficient evidence to establish that, almost seventeen
years later, they held an independent, well-founded fear of future
persecution in Bangladesh, at least not one that the IJ considered
objectively reasonable.

See Sugiarto v. Holder, 586 F.3d 90, 94

(1st Cir. 2009) (explaining that even if an applicant cannot
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establish

past

Page: 10

persecution,

Date Filed: 03/12/2012

"[he

or]

she

can

[]

Entry ID: 5625352

establish

eligibility for asylum based on a 'well-founded fear of future
persecution'

based

on

a

protected

ground"

(citing

8

C.F.R.

§ 1208.13(b)(2))); see also id. (an applicant must establish that
"[the] fear is both (1) subjectively genuine and (2) objectively
reasonable, meaning that a reasonable person in the applicant's
circumstances would fear persecution"). The IJ determined that the
fact that Hasan had not been politically active in Bangladesh,
whether

for

the

Jatiya

Party

or

any

other

entity,

for

over

seventeen years, significantly undercut the reasonableness of his
claimed fear.

See Hasan v. Gonzales, 236 F. App'x 696, 697 (2d

Cir. 2007) (citing with approval IJ's finding that petitioner's
absence for ten years from relevant political activity suggests he
would not face persecution in Bangladesh).

In addition, the IJ

noted that Petitioners have many family members who presently work
and live safely and peacefully in Bangladesh, a fact that worked
against their argument that Bangladesh would be unsafe for them or
their family upon repatriation.

See Ali v. Gonzales, 190 F. App'x

13, 16 (1st Cir. 2006) (denying review of denial of asylum claim,
noting fact that petitioner's parents, brother, and uncle currently
reside safely in Bangladesh negates claim of a well-founded fear).
Finally, the IJ denied Petitioners' claim for withholding
of removal because they had failed to sustain their eligibility for
asylum relief, and thus failed to meet the heightened standard for
withholding

of

removal

pursuant
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to

INA's

section

241(b)(3),

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8 U.S.C. § 1231(b)(3). See Rodríguez-Ramírez v. Ashcroft, 398 F.3d
120, 123 (1st Cir. 2005) ("[A] claim for withholding of removal
places a more stringent burden of proof on an alien than does a
counterpart claim for asylum."). Similarly, their claim for relief
under

the

CAT

failed

because

the

IJ

found

that

Petitioners

presented "little, if any," evidence indicating that it was more
likely than not that they would suffer torture at the hands of the
government, or with the consent or acquiescence of the government,
should they be repatriated to Bangladesh. See Romilus v. Ashcroft,
385 F.3d 1, 8 (1st Cir. 2004) (relating this as the standard for
relief under the CAT).
Petitioners appealed the IJ's decision to the BIA on
July 13, 2009.

The IJ's decision was affirmed and the appeal

dismissed on April 27, 2010.5

This timely petition for judicial

review followed.
II.

Discussion

Petitioners contend that the BIA applied an improper
legal

standard

in

reviewing

the

IJ's

hardship

determination

regarding cancellation of removal and thus violated their due

5

We note that, despite having denied Petitioner's appeal, the BIA
remanded the case to the IJ mandating that a new period of
voluntary departure be provided that communicated the proper
advisals including, but not limited to, the consequences of failing
to timely post a voluntary departure bond. On July 12, 2010, the
government moved to dismiss the petition for review for lack of
jurisdiction because no final order had yet been entered in light
of the BIA's remand. This Court denied the motion on August 13,
2010.
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process rights.

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They also contend that the BIA erred in affirming

the IJ's determination regarding Petitioners' claims for asylum
relief, withholding of removal, and protection under the CAT.

We

address their arguments in turn.
A.

Cancellation of Removal
"Cancellation of removal is a form of discretionary

relief,

the

granting

of

which

allows

a

non-resident

otherwise removable, to remain in the United States."
Holder, 617 F.3d 67, 70 (1st Cir. 2010).

alien,

Ayeni v.

The Attorney General may

cancel removal of an alien if he or she (1) has resided in the
United States for a continuous period of not less than ten years;
(2) has been a person of good moral character during that period;
(3) has not been convicted of certain enumerated crimes; and
(4) has established that removal would result in exceptional and
extremely unusual hardship to a qualifying family member (i.e.,
U.S.-citizen spouse, parent, or child).

8 U.S.C. § 1229b(b)(1).

It is the last of these requirements that is at issue here.
Generally, no court has jurisdiction to review agencylevel hardship determinations made in the cancellation of removal
context.

Id. § 1252(a)(2)(B) (stating that "no court shall have

jurisdiction to review . . . any judgment regarding the granting of
relief" under the cancellation of removal provision); see Parvez v.
Keisler, 506 F.3d 93, 96 (1st Cir. 2007) ("When the BIA denies
cancellation of removal based on the factual determination that an

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the

Date Filed: 03/12/2012

requisite

jurisdiction to review its decision.").

Entry ID: 5625352

hardship,

we

lack

The one exception to this

jurisdiction-stripping provision is that an appropriate court of
appeals may review petitions that raise claims premised on either
constitutional questions or questions of law.

8 U.S.C. § 1252(a)

(2)(D) (establishing that no provision "which limits or eliminates
judicial

review,

shall

be

construed

as

precluding

review

of

constitutional claims or questions of law raised upon petition for
review").

However,

jurisdictional
continue
appeals."

to

grant,

fall

"[u]nder

the

discretionary

outside

the

terms
or

of

factual

jurisdiction

of

this

limited

determinations
the

courts

of

Mehilli v. Gonzales, 433 F.3d 86, 93 (1st Cir. 2005)

(internal quotation marks and citation omitted). Thus, only if the
petition fits within the exception do we have jurisdiction, and
"[t]he presence

vel

non

of

either

a constitutional

or legal

question is a matter of substance, not a function of labeling."
Ayeni, 617 F.3d at 70-71.
Petitioners

attempt

to bring

themselves

within

this

exception by asserting that the BIA's affirmance of the IJ's
decision regarding extreme and unusual hardship violated their
Fifth Amendment Due Process rights.

Specifically, they argue the

BIA did not adequately address as a hardship factor the potential
harm that could befall Tashfia if she had to travel to Bangladesh.
In support of this, Petitioners contend that the IJ's decision
primarily mentioned facts relating to economic hardship, while the
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BIA made only "cursory" mention of Petitioners' fear for Tashfia's
safety.

This, they contend, amounts to the application of an

incorrect legal standard and a violation of their due process
rights.
As the government correctly argues in opposition, this
claim comprises nothing more than a challenge to the correctness of
the BIA's factfinding.

The very heart of Petitioners' claim, that

the BIA's analysis regarding their fears for their daughter's
safety was not "detailed" and failed to "adequately" address the
issue, is fundamentally an objection to a factual determination by
the BIA and the relative evidentiary weight the agency gave to
competing considerations.

In fact, the BIA directly addressed

Petitioners' fears for Tashfia's safety and found that the IJ had
"properly

considered

the

including

consideration

relevant
of

factors

Petitioners'

in

the

"testimony

aggregate,"
that

they

believed their daughter might be kidnapped in Bangladesh, as one of
the potential hardship factors."
We have repeatedly held that "[c]loaking [a factual
claim] in the garb of legal error does not alter its nature."

Id.

at 73 (holding petitioner's claim was factual in nature, where he
alleged the BIA had failed to accord sufficient weight to the
seriousness of his son's asthma); see also Rashad v. Mukasey, 554
F.3d 1, 5 (1st Cir. 2009) (holding allegation that the agency
failed to fully evaluate an aspect of petitioner's claim to be
"another way of saying that the agency got the facts wrong");
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Parvez, 506 F.3d at 97 (allegation that the BIA failed to consider
supporting evidence regarding familial changes in Bangladesh held
to

be

factual

disguised

in

nature).

challenge to

Petitioner's

fact

constitutional grounding.

finding,"

claim

id., with

is
no

simply

"a

legal or

As such, it cannot support this Court's

exercise of jurisdiction to review the BIA's denial of Petitioners'
appeal regarding their failed application for cancellation of
removal.
B.

Denial of Asylum and Withholding of Removal
We give deferential review to the BIA's findings of fact

and credibility under the "substantial evidence" standard. Bonilla
v. Mukasey, 539 F.3d 72, 76 (1st Cir. 2008).

Under this approach,

"Board determinations of statutory eligibility for relief from
deportation, whether via asylum or withholding of removal, are
conclusive if 'supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'"

Guzmán v. I.N.S.,

327 F.3d 11, 15 (1st Cir. 2003) (quoting I.N.S. v. Elías-Zacarías,
502 U.S. 478, 481 (1992)).

This means that "we will not reverse

unless 'the record evidence would compel a reasonable factfinder to
make a contrary determination.'"

Id. (quoting Aguilar-Solís v.

I.N.S., 168 F.3d 565, 569 (1st Cir. 1999)).

Ordinarily, "[w]e

review the decision of the BIA and not that of the IJ, but to the
extent that the BIA deferred to or adopted the IJ's reasoning, we
review those portions of the IJ's decision as part of the final

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decision of the BIA."

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Bonilla, 539 F.3d at 76 (internal quotation

marks and citations omitted).
As noted previously, "[t]o establish eligibility for
asylum, an alien must prove either past persecution, which gives
rise to an inference of future persecution, or establish a well
founded fear of future persecution on account of [his or] her race,
religion, nationality, membership in a social group, or political
opinion."

Sugiarto, 586 F.3d at 94 (internal quotation marks and

citation

omitted)

(citing

8

U.S.C.

1158(b)(1)(B)(i); 8 C.F.R. § 1208.13(b)).

§§

1101(a)(42)(A),

"If an applicant can

prove past persecution, a regulatory presumption that the applicant
has a well-founded fear of future persecution is triggered."
Guzmán, 327 F.3d at 15 (citing 8 C.F.R. § 208.13(b)(1)).
The BIA in this case determined that the IJ had correctly
denied asylum based on a finding that, even assuming Hasan had
suffered past persecution, the government successfully rebutted the
presumption of a well-founded fear of future persecution.

The BIA

pointed to particular facts on the record that supported the IJ's
conclusion.

It also held that the IJ had properly found no well-

founded fear of future persecution where Hasan conceded having been
away from Bangladesh and the Jatiya Party for seventeen years and
that the rest of his family remained in Bangladesh, unharmed.6
6

The BIA also noted that, to the extent Petitioners feared
kidnapping and extortion purely on account of their being viewed as
wealthy persons, "such does not establish the required nexus to a
ground protected under the [INA]."
This conclusion was not
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Petitioners challenge the BIA's determination by merely
arguing that the agency's decision to affirm the IJ "was not
supported

by

substantial

evidence."

Petitioners

provide

no

argumentation to support this assertion, however, and our own
review of the administrative record leads us to conclude otherwise.
The IJ had before him reports and news articles substantiating the
government's claim of changed country conditions, including country
reports prepared by the U.S. State Department.

See Banturino v.

Holder, 576 F.3d 10, 15 (1st Cir. 2009) ("The [BIA] is entitled to
rely on the State Department's country reports as proof of country
conditions and may give them considerable weight, as long as any
evidence adduced to contradict them is considered.").

The IJ also

took into account all of the testimonial and documentary evidence
presented by Petitioners in support of their independent claim of
fear

of

future

persecution,

and

found

it

unpersuasive.

As

previously stated, ours is a deferential review and "we must uphold
the BIA's determination unless the record points unerringly in the
opposite direction."

Sugiarto, 586 F.3d at 94 (internal quotation

marks and citation omitted); see Banturino, 576 F.3d at 15 ("Where

directly challenged on appeal, and we find support for the same in
our case law.
See, e.g., Díaz v. Holder, No. 11-1125, 2012 WL
372664, at *2 (1st Cir. Feb. 7, 2012) (noting cases where "we have
[] rejected attempts to recognize a particular social group
comprised of individuals perceived to be wealthy, who are returning
to Guatemala after living in the United States," where "nothing
indicates that in Guatemala individuals perceived to be wealthy are
persecuted because they belong to a social class or group" (quoting
Sicaju–Díaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011))).
-17-

Case: 10-1656

the

Document: 00116346096

agency's

Page: 18

interpretation

of

Date Filed: 03/12/2012

the

evidence

reasonable, we do not disturb it.").

as

a

Entry ID: 5625352

whole

is

The IJ in this case had

before it ample evidence from which to draw its conclusions, and we
will not disturb the BIA's decision on such bare assertions of
factual error.7
This

conclusion

withholding of removal claim.

also

disposes

of

Petitioners'

As noted earlier, "[w]ithholding of

removal, which provides mandatory relief, imposes a higher standard
than asylum."
asylum

Romilus, 385 F.3d at 8.

requires

withholding

of

a

well-founded

removal

requires

fear

of

future

that

the

alien

probability of future persecution."
14, 23 (1st Cir. 2006).

"While eligibility for
persecution,
show

a

clear

Chreng v. Gonzales, 471 F.3d

Therefore, because Petitioners' claim for

asylum fails, so too does their counterpart claim for withholding
of removal.

7

Petitioners additionally argue that in some cases involving past
persecution, even if there is little likelihood of future
persecution, asylum may be granted as a matter of discretion for
humanitarian reasons if the alien has suffered an atrocious form of
persecution. See Matter of Chen, 20 I. & N. Dec. 16 (B.I.A. 1989).
However, the BIA in this case rejected this precise argument and
determined that the respondents "have not shown compelling reasons
for being unwilling to return to Bangladesh based on the severity
of the past persecution, or that there is a reasonable possibility
of other serious harm if removed there."
A review of the
administrative record does not compel the conclusion that the BIA
erred in its analysis on this ground.
Guzmán, 327 F.3d at 15
(BIA's findings of fact will not be reversed "unless the record
evidence would compel a reasonable factfinder to make a contrary
determination").
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Case: 10-1656

C.

Document: 00116346096

Page: 19

Date Filed: 03/12/2012

Entry ID: 5625352

Relief Pursuant to the Convention Against Torture
Both the IJ and BIA found that Petitioners had failed to

meet their burden for relief under the CAT, since they had not
established that it is more likely than not that they would be
subject to torture by or with the "acquiescence" of a member of the
government of Bangladesh upon their return. See 8 C.F.R. §§ 208.16
(c)(2)

(indicating

"torture").8

burden

of

proof)

&

208.18(a)(1)

(defining

In their challenge to this finding, Petitioners

indicate only that they should be granted relief "since there is a
clear probability that they will suffer torture if returned to
Bangladesh."

However,

it

is

a

petitioner's

burden

to prove

entitlement to relief under the CAT, see Sulaiman v. Gonzales, 429
F.3d 347, 351 (1st Cir. 2005) (petitioner's burden of proof for
relief under the CAT is as high as in withholding of removal
context, "the petitioner has to show that it is more likely than
not that he will be [] tortured in his country of origin"), and the
IJ found that respondents presented "little, if any, evidence" to
substantiate

their

claim.

See

also

Romilus,

385

F.3d

at

8

(indicating there is no subjective component to a claim for relief
under the CAT and that "[t]o establish a prima facie claim under
the CAT, an applicant must offer specific objective evidence
8

This section of the INS implementing regulations defines
"torture" as "any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person . . .
when such pain or suffering is inflicted by or at the instigation
of or with the consent or acquiescence of a public official or
other person acting in an official capacity."
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Case: 10-1656

Document: 00116346096

Page: 20

Date Filed: 03/12/2012

Entry ID: 5625352

showing that he will be subject to [torture]" in proposed country
of removal). Under our deferential standard of review, Petitioners
have offered us no reason to disturb the IJ and BIA's substantially
supported findings on this ground.

See id. at 5.

We must

therefore deny the petition for review of the Petitioners' claim
for relief under the CAT.
III.
The
regarding

petition

cancellation

Conclusion

for

review

of

removal

of
is

the

BIA's

dismissed

determination
for

lack

of

jurisdiction, and the remainder of the petition is denied because
we hold the BIA's decision was supported by substantial evidence.

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