Lalani v. Gonzales

Filing 920070130

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 30, 2007 Charles R. Fulbruge III Clerk

No. 05-61072 Summary Calendar

ALTAF HUSSAIN LALANI, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent.

Petition for Review of an Order of the Board of Immigration Appeals (A79 010 531)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Altaf Hussain Lalani petitions for review of the Board of Immigration Appeals' (BIA) dismissing his appeal from the

immigration judge's (IJ) denial of his application for withholding of removal. Lalani contends: his removal proceedings should be continued

to await adjudication of his labor-certification application; and the filing of a timely petition for review tolls the voluntarydeparture period, making him eligible for adjustment of status.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Because these issues were not presented to the BIA, we lack jurisdiction to consider them. See Ali v. Gonzales, 440 F.3d 678,

682 (5th Cir. 2006); Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004). We also lack jurisdiction to consider Lalani's claim he is eligible for a one-year filing deadline exception to enable him to seek asylum based on changed circumstances in Pakistan. See 8

U.S.C. § 1158(a)(2)(B), (a)(3); see also Zhu v. Ashcroft, 382 F.3d 521, 526-27 (5th Cir. 2005). Lalani through the further National his maintains Security admission Entry/Exit and of evidence obtained System rights

Registration due-process

(NSEERS) violated

equal-protection

because the program unfairly targets a class based upon national origin, race, religion, and gender and is not narrowly tailored to meet the Government's interest in securing its borders. "[T]he

exclusionary rule [, however,] does not ordinarily apply to removal proceedings". Ali, 440 F.3d at 681. Even assuming arguendo a

basis for an equal-protection and due-process violation, Lalani does not show prejudice; he admitted to the facts he now seeks to suppress. See id. at 681­82. Our court has previously rejected See Ahmed v.

other NSEERS-based equal protection challenges.

Gonzales, 447 F.3d 433, 439­40 (5th Cir. 2006); see also Ali, 440 F.3d at 681 n.4.

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Finally,

Lalani

contends

the

BIA

erred

in

denying

his

application for withholding of removal.

"To be eligible for

withholding of removal, an applicant must demonstrate a `clear probability' of persecution upon return." (quotation omitted). Roy, 389 F.3d at 138

"A clear probability means that it is more

likely than not that the applicant's life or freedom would be threatened by persecution on account of either his race, religion, nationality, membership in a particular social group, or political opinion." Id. The alien must present specific facts demonstrating a reason to fear that he will be singled out for persecution. Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). "When ... the BIA affirms the immigration judge and relies on the reasons set forth in the immigration judge's decision, this court reviews the decision of the immigration judge as well as the decision of the BIA." Ahmed, 447 F.3d at 437. In determining

Lalani failed to prove a clear probability of religious persecution if he returns to Pakistan, the IJ impliedly found Lalani's

testimony incredible, noting:

Lalani had returned to Pakistan

voluntarily after traveling to the United States following alleged incidents of harassment in 1993 and 1999; and, although Lalani stated he came to the United States because he feared for his wife and daughter (a United States citizen), his wife and daughter remained in Pakistan for several months after Lalani left for the United States. The IJ also found: 3 the alleged incidents of

harassment were not serious enough to constitute persecution; and Lalani did not have a position of importance within the Shia community such that he would be a likely target of persecution. A

reasonable factfinder would not be compelled to conclude Lalani was eligible for withholding of removal. See Zhang v. Gonzales, 432

F.3d 339, 343­45 (5th Cir. 2005); see also Efe v. Ashcroft, 293 F.3d 899, 905-06 (5th Cir. 2002). DISMISSED IN PART; DENIED IN PART

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