Shahzad Akram v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed.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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UNPUBLISHED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Petition dismissed in part and denied in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.

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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

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§ 1252(a)(2)(B),

(C),

Immigration

Nationality

judicial

and

review,

“or

shall

be

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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)
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“Withholding

of

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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

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evidence

is

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not

so

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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

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