Hakeem v. Immigration & Naturalization Serv., No. 00-70525

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Cynthia Holcomb Hall
• Citation: 273 F.3d 812
• Parties: (9th Cir. 2001) ABDUL HAKEEM, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Docket Number: No. 00-70525
• Decision Date: 05 December 2001

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273 F.3d 812 (9th Cir. 2001) ABDUL HAKEEM, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 00-70525 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 7, 2001
December 5, 2001

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Murray D. Hilts and Richard Freitas, San Diego, California, for the petitioner.

Russell J.E. Verby and Allen W. Hausman, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A-28-846-195

Before: Hall and Trott, Circuit Judges and Winmill,¹ District Judge.

Cynthia Holcomb Hall, Circuit Judge

Abdul Hakeem, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals' ("BIA") decision dismissing his appeal from the Immigration Judge's ("IJ") denial of his application for asylum and withholding of removal.

I.

Abdul Hakeem, a native and citizen of Pakistan, first entered the United States

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in 1984. In 1993, he returned to Pakistan and stayed three months before returning to the United States. Sometime in 1996, he returned to Pakistan again because his father had died. In December 1996, he reentered the United States.

On August 10, 1998, Hakeem was convicted of conspiracy to structure transactions to evade reporting requirements. On January 15, 1999, the Immigration and Naturalization Service served Hakeem with a notice to appear. On May 6, 1999, at the removal hearing, Hakeem admitted the relevant factual allegations and conceded deportability for overstaying his visa.

On July 22, 1999, Hakeem applied for asylum and withholding of removal. He claims that he is a member of the Ahmadi Muslim religion, and he will face persecution on account of his religion if returned to Pakistan.

According to the evidence of record, the Ahmadi believe in Qadiana, a prophet and the messiah who came after Mohammed. This distinguishes their faith from the majority Sunni and Shi'ite Muslim sects in Pakistan. The Sunni and Shi'ite believe Qadiana is a false prophet and regard the Ahmadi as heretics. The State Department's Pakistan -Profile of Asylum Claims and Country Conditions (July 1997) ("State Department profile") indicates that, in 1974, the constitution of Pakistan was amended to allow Ahmadis freedom to practice their religion provided they do not represent themselves as Muslim. But in 1984, Ordinance XX became law, providing up to a three-year sentence for Ahmadis who: (1) refer to Qadiana as a prophet; (2) use the Muslim call to prayer; (3) refer to themselves as Muslim, call their mosques"mosques," or use words that "outrages the religious feelings of Muslims;" or (4) use certain traditional Muslim greetings. The State Department profile indicates "[t]here have been a number of arrests and detention of Ahmadis under Ordinance XX," and there have been individual incidents of group violence against Ahmadis occurring between 1989 and 1996.

In addition, the State Department's 1998 report on human rights practices in Pakistan ("State Department report") indicates that, in 1986, the penal code was amended to provide the death penalty for defiling "the holy Prophet Mohammed." The report details instances where authorities have charged Muslims, Christians, and Ahmadis under the amendment, but no one has been executed under the amendment. Ahmadi leaders state that 44 Ahmadis were charged under the amendment in 1998.

As Hakeem testified, everyone in his family is Ahmadi. He has family members who still reside in Pakistan, including a brother, an aunt, and uncles. Hakeem testified to no other physical harm befalling his family based on their Ahmadi faith. Hakeem himself has never been physically harmed in Pakistan. During his two return trips to Pakistan, he practiced his religion and went to the mosque.

Hakeem's father converted from the Sikh religion to Ahmadi. Hakeem claims that according to Pakistan law, his father and his family are subject to the death penalty because he changed religions. However, the record shows that no one in his family, including his father, has been punished for the change.

The IJ denied Hakeem's application for asylum because he did not file for asylum within one year of April 1, 1997. The IJ also denied Hakeem's application for withholding of removal. Specifically, the IJ doubted Hakeem's credibility, and found that Hakeem had not shown that persecution was more likely than not upon return,

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reasoning that Hakeem was never harmed for his beliefs, practiced his religion during his two visits to Pakistan, and has a brother who lives there unharmed.² The BIA dismissed Hakeem's appeal and adopted the Immigration Judge's reasoning. Hakeem timely filed his petition for review from the BIA's final order of removal.

II.

First, we must consider whether this court has jurisdiction over the IJ's determination that Hakeem failed to file his asylum application within one year of his entry into the United States.

8 U.S.C. §§ 1158(a)(2)(B) provides that an alien may not apply for asylum "unless the alien demonstrates by clear and convincing evidence that the application has been filed within 1 year after the date of the alien's arrival in the United States." The one-year filing period commences either on the alien's date of arrival in the United States or on April 1,...