Khan v. Filip

• Decision Date: 29 January 2009
• Docket Number: No. 06-3966.,No. 07-2252.,06-3966.,07-2252.
• Citation: 554 F.3d 681
• Parties: Abdul H. KHAN, Yasmeen Haseeb, Sarah Haseeb, and Sana Haseeb, Petitioners, v. Mark FILIP, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

554 F.3d 681

Abdul H. KHAN, Yasmeen Haseeb, Sarah Haseeb, and Sana Haseeb, Petitioners, v. Mark FILIP, Acting Attorney General of the United States, Respondent.

No. 06-3966.

No. 07-2252.

United States Court of Appeals, Seventh Circuit.

Argued January 18, 2008.

Decided January 29, 2009.

Daniel M. Tweeten, Sarah M. Konsky (argued), Sidley Austin, Katherine E. Graf (argued), Mayer Brown, Houston, TX, Charles Roth, National Immigrant Justice Center, Chicago, IL, for Petitioners.

Manuel A. Palau (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER and SYKES, Circuit Judges.^*

SYKES, Circuit Judge.

Abdul Khan is a native and citizen of Pakistan who entered the United States with his family in 1998. They remained here after their visitors' visas expired, and in 2003 Khan applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). His family members are derivative applicants. An Immigration Judge ("IJ") heard the claims and denied relief, concluding that Khan's asylum application was untimely and the delay was not excused by extraordinary circumstances; that Khan failed to show he had suffered politically motivated persecution in Pakistan; and that Khan had failed to show a clear probability that he would be persecuted or tortured if he returned to Pakistan.

The Board of Immigration Appeals ("BIA") affirmed. Khan then moved to reopen, presenting what he characterized as new evidence about his physical and mental condition that he claimed undermined the IJ's decisions. The BIA declined to reopen the case. Khan asks us to review each of these decisions.

We dismiss in part and deny in part the petitions for review. Under 8 U.S.C. § 1158(a)(3), we lack jurisdiction to review the BIA's determinations that Khan's asylum claim was untimely and the delay was not excused by extraordinary circumstances. The REAL ID Act of 2005, Pub.L. No. 109-13, § 106(a)(1)(ii), 119 Stat. 231, 310-11, permits judicial review of constitutional claims or questions of law; Khan's challenges to the immigration agency's timeliness and "extraordinary circumstances" determinations address only factual and discretionary issues and therefore lie outside our review jurisdiction. See Vasile v. Gonzales, 417 F.3d 766 (7th Cir.2005). We also conclude that substantial evidence supports the agency's denial of withholding of removal and protection against removal under the CAT. Finally, to the extent we have jurisdiction to review the denial of Khan's motion to reopen, we conclude that the BIA did not abuse its discretion in determining that Khan's "new evidence" was neither new nor material.

I. Background

Khan is a Mohajir, a term used to describe Pakistanis of Indian descent. Because Mohajirs faced difficulties competing with other Pakistanis for jobs and political influence, some Mohajirs joined the Mohajir Quami Movement ("MQM"), an organization ostensibly devoted to expanding the influence of its members. Khan joined the MQM in 1985 and assumed an active role in the organization; he assisted the party by distributing flyers, making speeches, transporting voters to polls, raising funds, and displaying political signs.

Beginning in the early 1990s, some elements of the MQM began turning to violence as a means of achieving the organization's goals. Khan's brother, a former MQM member, was beaten by the organization when he refused to follow MQM orders to kidnap a political opponent; he later fled to England. The MQM's violent turn and the mistreatment of his brother prompted Khan to resign from the organization; he told MQM members he needed to care for his ill father. Nevertheless, Khan continued to provide monthly financial support to the MQM.

Khan first came to the United States in June 1995 after the Pakistani government falsely arrested him and detained him for nearly two days.¹ Khan returned to Pakistan 17 days later when he learned his father had suffered a heart attack. Upon his return, MQM members began harassing him. For example, when Khan explained that he needed to care for his ailing father, an MQM member threatened to kill Khan's father. Later, in December 1997, Khan and his family were carjacked by men Khan said he recognized as MQM members. Khan was warned not to report the crime to the police, but he did so anyway.

The cumulative impact of these events prompted Khan to make arrangements to leave Pakistan. He quit his job in December 1997 and came to the United States by himself in February 1998 to prepare for his family's relocation. However, Khan returned to Pakistan in March 1998 because his youngest daughter was ill. Back in Pakistan, Khan asked police about the progress of the investigation into his stolen car. He believes MQM members saw him go to the police, and in May Khan was abducted by the MQM and held for nearly three days. During his detention, his captors accused him of reporting their activities to the police, severely beat him and threatened to kill him, and warned him never to speak to the police again. For emphasis, they showed him a box containing severed fingers. Khan's family notified authorities about his abduction, but Khan never filed a complaint about the kidnapping with the police or reported it to the medical personnel who treated his injuries after his release.

This incident finally convinced Khan to move his family to the United States. Khan entered this country in June 1998 with his wife and two daughters, and they overstayed their visitors' visas. Khan had little trouble obtaining numerous jobs, renting an apartment, and supporting his family. But Khan's friends noticed that his experiences in Pakistan caused him to develop symptoms of depression, avoid social contact, and have difficulty making decisions.

One of Khan's friends urged him to apply for asylum based on his mistreatment by the MQM, but Khan waited several years to pursue that option. In June 2002 the Attorney General announced the National Security Entry-Exit Registration System, which required aliens from certain countries (including Pakistan) to register with immigration officials. See Registration and Monitoring of Certain Non-Immigrants, 67 Fed.Reg. 52,584-601 (Aug. 12, 2002). This development prompted Khan to apply for asylum, and in March 2003 (several months before he was required to register and nearly five years after arriving in the United States) he submitted an application for asylum, withholding of removal, and protection against removal under the CAT.

In May 2005 an IJ denied all of Khan's applications. The asylum claim had been filed well beyond the one-year time limit established by 8 U.S.C. § 1158(a)(2)(B), and the IJ rejected it as untimely. Khan asserted that he did not know about the one-year deadline and that his poor mental health—his depression and fear of being returned to Pakistan—compromised his ability to timely file for asylum. He argued that these were the sort of "extraordinary circumstances" that should excuse the late filing under 8 U.S.C. § 1158(a)(2)(D), but the IJ disagreed. Turning to Khan's withholding-of-removal claim, the IJ questioned the credibility of certain aspects of Khan's testimony but nonetheless accepted it; the IJ held that the attacks were not sufficiently severe to be considered persecution and were not motivated by Khan's political beliefs. The IJ also rejected Khan's claim of an objectively reasonable fear of future persecution. Finally, the IJ concluded that Khan had not shown it was more likely than not that he would be tortured if he were removed to Pakistan. Accordingly, the IJ entered an order of removal. The BIA adopted and affirmed the IJ's decision, and Khan filed a petition for review.

While Khan's petition for review was still in the briefing stage, he asked the BIA to reopen his removal proceeding based on what he claimed was new evidence — affidavits with additional mental health reports — supporting his allegation that his mental anguish should excuse his untimely asylum application. Khan also argued that the reports addressed the IJ's skepticism about the credibility of certain aspects of his testimony. The BIA denied the motion to reopen, holding that the "new evidence" was merely repetitious and did not provide a basis for upsetting the IJ's determinations. The BIA noted that the IJ had accepted Khan's testimony about the assaults and the medical reports did not undermine the IJ's alternative conclusion that the attacks were not motivated by political opinion. Khan filed a petition for review of this decision as well, and we ordered the petitions consolidated.

II. Discussion

A. Asylum claim

Khan first challenges the immigration agency's failure to reach the merits of his asylum claim. The IJ dismissed Khan's asylum application because it was not filed within a year after Khan arrived in the United States as required by 8 U.S.C. § 1158(a)(2)(B). The IJ had the discretion to ignore this deadline if Khan established that his delay was due to "extraordinary circumstances," id. § 1158(a)(2)(D), but the IJ did not think Khan presented sufficiently compelling circumstances to excuse his nearly five-year delay. The BIA affirmed. Khan challenges the agency's determination that he lacked "extraordinary circumstances" for the untimely filing, arguing that the IJ did not give appropriate weight to the evidence showing Khan suffered from a serious mental disability because of his mistreatment while in Pakistan.

The problem for Khan is that we lack jurisdiction to review the IJ's timeliness determination. Under 8 U.S.C. § 1158(a)(3), we have no jurisdiction to review any decision the agency makes under § 1158(a)(2), including decisions relating to whether the applicant has demonstrated "extraordinary circumstances" excusing a delay in filing an asylum application. The REAL ID Act of 2005 preserved our jurisdiction to review "constitutional claims" or "questions...