Tariq v. Keisler

• Decision Date: 09 October 2007
• Docket Number: No. 06-2518.,06-2518.
• Citation: 505 F.3d 650
• Parties: Muhammad Bilal TARIQ, Petitioner, v. Peter D. KEISLER, Acting Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

505 F.3d 650

Muhammad Bilal TARIQ, Petitioner, v. Peter D. KEISLER, Acting Attorney General of the United States, Respondent.

No. 06-2518.

United States Court of Appeals, Seventh Circuit.

Argued April 12, 2007.

Decided October 9, 2007.

Godfrey Y. Muwonge (argued), Alliance for the Defense of New Americans' Rights, Milwaukee, WI, for Petitioner.

Walter M. Evans, Jeffery R. Leist (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before RIPPLE, EVANS and SYKES, Circuit Judges.

RIPPLE, Circuit Judge.

Muhammad Bilal Tariq, a native and citizen of Pakistan, came to the United States with his parents in 1996. Mr. Tariq was thirteen years old at the time and entered the Country on a visitor's visa. He and his parents remained beyond their authorized stay. In 2003, he was served with a notice to appear before an Immigration Judge ("IJ"). Mr. Tariq appeared and conceded his removability. He then applied for asylum and withholding of removal. The IJ denied his asylum application on the ground that it had not been filed within one year of Mr. Tariq having reached eighteen years of age, as required by 8 U.S.C. § 1158(a)(2)(B). The IJ then denied Mr. Tariq's request for withholding of removal because he had not demonstrated a clear probability that he would be subject to persecution based on some protected characteristic if he were returned to Pakistan. The IJ also denied Mr. Tariq's motion for a continuance pending the outcome of his application for labor certification, on the ground that, even if Mr. Tariq were able to obtain a labor certification, he would deny Mr. Tariq adjustment of status as an exercise of discretion.

Mr. Tariq appealed the decision of the IJ to the Board of Immigration Appeals ("Board" or "BIA") and filed a motion to supplement the record on appeal with evidence he claimed would refute the factual findings of the IJ with respect to his fear of persecution. In a brief per curiam order, the BIA adopted and affirmed the decision of the IJ in its entirety but did not address Mr. Tariq's new evidence.

Mr. Tariq now petitions for review the decision of the BIA denying his applications for asylum and withholding of removal as well as his motion for a continuance and the failure on the part of the BIA to address his motion to supplement the record on appeal. For the reasons set forth in this opinion, we deny Mr. Tariq's petition for review.

I BACKGROUND

Mr. Tariq was born in Pakistan, but lived most of his childhood in the United Arab Emirates ("UAE"). When his father's business ventures in the UAE failed, the family returned to Pakistan to escape his creditors. One of these creditors, a loan shark identified as "Mustafa," followed the family to Pakistan, where he allegedly threatened Mr. Tariq's father and the rest of the family. The family then fled to the United States, where, on December 14, 1996, they entered with nonimmigrant visitor's visas. Mr. Tariq was thirteen at the time he entered the United States.

In March 2003, in response to new regulations issued by the Attorney General regarding the National Security Entry-Exit Registration System ("NSEERS"), Mr. Tariq registered with the Department of Homeland Security ("DHS"). Because Mr. Tariq had overstayed his visitor's visa, removal proceedings were initiated, and on April 7, 2003, Mr. Tariq received a notice to appear before an IJ. At his initial appearance on April 30, 2003, Mr. Tariq conceded removability but informed the IJ that he was filing for labor certification and that he believed he was entitled to apply for adjustment of status under the grandfather provision of § 245(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1255(i), based on an application for labor certification filed by his mother before April 30, 2001.¹ The IJ then advised Mr. Tariq that he should bring to the next hearing information concerning his eligibility for adjustment of status, as well as any application for asylum or other relief.

On October 1, 2003, Mr. Tariq submitted his application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT") to the IJ. Mr. Tariq's employer filed a labor certification application for Mr. Tariq on July 9, 2004.² A hearing was scheduled for March 9, 2005 to consider Mr. Tariq's requests for asylum, withholding of removal and CAT relief, as well as a motion for a continuance pending the outcome of his application for labor certification.

At the hearing, Mr. Tariq and his mother both testified in support of his application for asylum and withholding of removal. Mr. Tariq first explained that the delay in his asylum application had been the result of his parents' divorce and volatile relationship, which had caused him to assume some responsibility for the care of his younger siblings. In support of the merits of his asylum application, he testified that the family had been forced to leave the UAE when his father's businesses had failed in order to escape Mustafa. Mr. Tariq testified that Mustafa had followed the family to Pakistan and had threatened Mr. Tariq's father as well as the rest of the family. He further testified that the police had come to investigate the threats, but they did nothing to stop them. According to Mr. Tariq, this prompted the family to leave Pakistan out of concern for their safety. However, Mr. Tariq admitted that he was not aware of any attempts by Mustafa to contact his family after they came to the United States. He also stated that he did not know of Mustafa's present whereabouts or whether he was still alive at that time.

Apart from his fear of harm at the hands of Mustafa, Mr. Tariq testified that he feared persecution because he could not speak the language, and he did not regularly practice his Muslim faith. Mr. Tariq asserted that, as a consequence of these factors, he would be persecuted because people would attribute Western political opinions to him.

Next, Mr. Tariq's mother testified. She corroborated Mr. Tariq's testimony that the family had left the UAE because of debts owed to Mustafa. She also stated that Mustafa had followed the family to Pakistan. However, she did not testify that the family actually encountered Mustafa in Pakistan, nor did she state that the police were called in response to any threats.

Mr. Tariq also offered an affidavit from his father in support of his application for asylum, which corroborated much of Mr. Tariq's testimony. However, Mr. Tariq's father did not appear as a witness. In response to the affidavit, the Government proffered a printout of a Nonimmigrant Information System ("NIIS") report³ which suggested that Mr. Tariq's father, or someone with the same name and birth-date, had traveled to the United States on a visa issued in Islamabad in 2000. Additionally, the Government proffered the asylum application of Mr. Tariq's father, which did not mention the debt or fear of Mustafa as a basis for his application.

The IJ denied Mr. Tariq's asylum claim because Mr. Tariq had not filed his asylum application within one year of reaching the age of majority, and he had not established extraordinary circumstances that would excuse his failure to apply in timely fashion. Therefore, the IJ continued, Mr. Tariq was required to satisfy the more stringent standards for withholding of removal. The IJ determined that Mr. Tariq had not established a clear probability of persecution necessary to be entitled to that form of relief. First, the IJ concluded, Mr. Tariq had not established that his fear of harm was based on any of the statutorily protected grounds. The IJ concluded that any threat posed by Mustafa was on account of a personal dispute between Mustafa and Mr. Tariq's father, not on account of his membership in any identifiable social group. The IJ noted that we have held that personal disputes cannot serve as the basis for asylum or withholding of removal. The IJ further concluded that Mr. Tariq had presented no evidence that he faced a clear probability of persecution on account of imputed political opinions owing to his Western upbringing, which claim, the IJ stated, was supported by no more than speculation.

Additionally, the IJ noted that Mr. Tariq's father had not mentioned Mustafa in his own application for asylum. This, the IJ concluded, weakened Mr. Tariq's claimed fear of persecution at the hands of Mustafa. The IJ also added that the Government's NIIS reports indicating that somebody matching the biographical description of Mr. Tariq's father had traveled to Pakistan undercut the credibility of his father's affidavit. In any event, the IJ added, Mr. Tariq had failed to demonstrate a clear probability that the government of Pakistan would be unable to protect Mr. Tariq from Mustafa or that there was any connection between Mustafa and the government of Pakistan.

The IJ also denied Mr. Tariq CAT relief, on the ground that he had not suffered past torture and that it was not more likely than not that he would suffer future torture.

The IJ then denied Mr. Tariq's request for a continuance pending the outcome of his application for labor certification. Recognizing that Mr. Tariq was entitled to the benefits of § 245(i), the IJ nevertheless concluded that, even if Mr. Tariq were able to obtain labor certification and, as a result, a visa, he would deny Mr. Tariq adjustment of status as a matter of discretion. Among the reasons given by the IJ to support this decision, the IJ pointed to "the weak and tenuous basis for [Mr. Tariq's] claim of asylum and withholding of removal eligibility," which claims the IJ had determined were filed "solely for purposes of delay." A.R. at 111-12. The IJ also pointed to Mr. Tariq's continued illegal presence in the United States and failure to come forward to seek asylum or adjustment of status until the Attorney General's changes to NSEERS required his registration.

Mr. Tariq appealed this decision to the...