Shahzad Akram v. Loretta Lynch


UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: A200-233-361, A200-233-362. Copies to all parties and the agency. [999987284]. [16-1482]

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Appeal: 16-1482 Doc: 25 Filed: 12/15/2016 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-1482 SHAHZAD AKRAM; KINZA SHAHZAD, Petitioners, v. LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: November 17, 2016 Decided: December 15, 2016 Before KING, KEENAN, and HARRIS, Circuit Judges. Petition dismissed in part and denied in part by unpublished per curiam opinion. Joshua A. Berman, BLAINE L. GILBERT & ASSOCIATES, PA, Baltimore, Maryland, for Petitioners. Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Erica B. Miles, Senior Litigation Counsel, Enitan O. Otunla, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. Appeal: 16-1482 Doc: 25 Filed: 12/15/2016 Pg: 2 of 5 PER CURIAM: Shahzad Akram (“Akram”) and Kinza Shahzad (“Shahzad”), husband and wife, are natives and citizens of Pakistan. They petition for review of an order of the Board of Immigration Appeals (Board) judge’s (IJ) withholding dismissing decision of their denying removal, Against Torture (CAT). and appeal their from the immigration applications protection under for the asylum, Convention For the reasons set forth below, we dismiss in part and deny in part the petition for review. On administrative appeal, the Board agreed with the IJ that Akram’s asylum application was untimely and that the Petitioners did not establish extraordinary circumstances that would excuse the late asylum application. The Board also agreed with the IJ that, even if the asylum application was timely, Akram failed to establish past persecution on account of a protected ground or that he has a well-founded fear of persecution. Under 8 U.S.C. § 1158(a)(3) (2012), the Attorney General’s decision regarding whether an alien has complied with the oneyear time limit for filing an application for asylum or has established changed or extraordinary circumstances justifying waiver of that time limit is not reviewable by any court. Mulyani v. Holder, 771 F.3d 190, 196-97 (4th Cir. Gomis v. Holder, 571 F.3d 353, 358-59 (4th Cir. 2009). 8 U.S.C. § 1252(a)(2)(D) (2012) 2 provides that See 2014); Although nothing in Appeal: 16-1482 Doc: 25 Filed: 12/15/2016 § 1252(a)(2)(B), (C), Immigration Nationality judicial and review, “or shall be Pg: 3 of 5 in any Act] other which construed as provision limits or of [the eliminates precluding review of constitutional claims or questions of law,” we have held that the question of whether an asylum application is untimely or whether the changed applies “is a circumstances.” or extraordinary discretionary determination § 1158(a)(3) determination based exception on factual Gomis, 571 F.3d at 358 (emphasis omitted); see Mulyani, 771 F.3d at 197. IJ’s circumstances only . if . the Accordingly, our “power to review an . survive[s] appeal the present[s] limitation a in constitutional claim or question of law,” Mulyani, 771 F.3d at 197, which the Petitioners here. failed to do jurisdiction to review that finding. Therefore, we are without Insofar as the Petitioners seek review of the denial of asylum, we dismiss the petition for review. While we do not have jurisdiction to consider the denial of the untimely asylum application, we retain jurisdiction to consider the denial of withholding of removal, as this claim is not subject to the one-year time limitation. * See 8 C.F.R. § 1208.4(a) (2016). * The Petitioners did not appeal to the Board the denial of protection under the CAT and do not raise this issue in their brief. Thus, the issue is abandoned. See United States v. Al(Continued) 3 Appeal: 16-1482 Doc: 25 Filed: 12/15/2016 “Withholding of Pg: 4 of 5 removal is available under 8 U.S.C. § 1231(b)(3) if the alien shows that it is more likely than not that h[is] life or freedom would be threatened in the country of removal because of h[is] race, religion, nationality, membership in a particular social group, or political opinion.” Gomis, 571 F.3d at 359 (internal quotation marks omitted); see 8 U.S.C. § 1231(b)(3) (2012). An alien “must show a ‘clear probability of persecution’ on account of a protected ground.” Holder, 662 F.3d 265, 272 (4th Cir. Stevic, 467 U.S. 407, 430 (1984)). 2011) Djadjou v. (quoting INS v. “This is a more stringent standard than that for asylum. . . . [and], while asylum is discretionary, if an alien establishes eligibility withholding of removal, the grant is mandatory.” Mickhou v. Gonzales, 445 F.3d 351, 353-54 (4th for GandziamiCir. 2006) (citations omitted). We afford “a high degree of deference” to a determination that an alien is not eligible for withholding of removal, and review administrative evidence standard. substantial evidence findings Gomis, test, of fact under F.3d at 359. affirmance is mandated 571 the substantial Under the “if the Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (observing that contentions not raised in argument section of opening brief are abandoned). 4 Appeal: 16-1482 Doc: 25 evidence is Filed: 12/15/2016 not so Pg: 5 of 5 compelling that no reasonable could agree with the [Board]’s factual conclusions.” factfinder Gandziami- Mickhou, 445 F.3d at 354 (internal quotation marks omitted). We conclude that substantial evidence supports the finding that the Petitioners failed to establish a nexus between the incidents of persecution or their fear of persecution and a protected ground and that the record does not compel a different result. Thus, we deny in part the petition for review. Accordingly, we petition for review. facts and materials legal before dismiss in part and deny in part the We dispense with oral argument because the contentions are adequately this and argument court presented would not in the aid the decisional process. PETITION DISMISSED IN PART AND DENIED IN PART 5

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