Zaidi v. Ashcroft

• Decision Date: 26 July 2004
• Docket Number: No. 03-3062.,03-3062.
• Parties: Syed ZAIDI, Petitioner, v. John D. ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

377 F.3d 678

Syed ZAIDI, Petitioner, v. John D. ASHCROFT, Attorney General of the United States of America, Respondent.

No. 03-3062.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2004.

Decided July 26, 2004.

Petition for review from the Board of Immigration Appeals.

Richard H. Trais (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Michele Y.F. Sarko, Isaac R. Campbell, John Wood (argued), Department of Justice, Office of the Attorney General, Washington, DC, for Respondent.

Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Syed Zaidi is a citizen of Pakistan and a practicing Shia Muslim. He entered the United States in April 1997 as a non-immigrant visitor and overstayed his visa. The Immigration and Naturalization Service (the "INS") commenced removal proceedings against him in July 2000, and Mr. Zaidi applied for asylum in February 2002. The Immigration Judge (the "IJ") determined that Mr. Zaidi's application for asylum was untimely but that he was still eligible for withholding of removal. See 8 U.S.C. § 1231(b)(3). The IJ later denied Mr. Zaidi relief; the Board of Immigration Appeals (the "BIA") affirmed the decision of the IJ and dismissed his appeal. Mr. Zaidi now seeks review in this court; he submits that he suffered past persecution and has a well-founded fear of future persecution. For the reasons set forth in the following opinion, we deny the petition for review.

I BACKGROUND

The INS commenced removal proceedings against Mr. Zaidi in July 2000, but he was able to delay adjudication of his status for a year-and-a-half while he attempted to immigrate to Canada. At one hearing in April 2001, Mr. Zaidi unequivocally told the IJ that he did not intend to seek asylum or withholding of removal. In January 2002, Mr. Zaidi informed the IJ that his application for permanent residency status in Canada had been "cancelled." The IJ refused any further delay in the removal proceedings. Only then did Mr. Zaidi announce that he wanted to apply for asylum in the United States. The IJ granted him one last continuance to prepare his asylum application and scheduled a hearing for three weeks later.

At the asylum hearing, Mr. Zaidi conceded removability and testified that, if he returns to Pakistan, he will suffer religious persecution because he is a Shia Muslim. He testified that an anti-Shia group called the Sipah-e-Sahaba ("SSP") beat him in 1989 because of his religion. However, he offered no additional details about the beating, except to say that the incident had prompted him to move to Saudi Arabia. While living in Saudi Arabia, Mr. Zaidi occasionally revisited Pakistan. He did not experience another beating on any of those occasions. He did testify, however, that members of the SSP harassed his family during his absence in 1991 and then again in either 1995 or 1996. Mr. Zaidi learned from his family that SSP members had entered his family's home with guns, ransacked the house, and threatened to shoot Mr. Zaidi if they ever found him. Mr. Zaidi also testified that he has relatives who currently live in Pakistan and remain free from harm, but they travel around the country to remain safe.

The IJ determined that Mr. Zaidi's application for asylum was untimely under § 208 of the Immigration and Nationality Act (the "INA"), see 8 U.S.C. § 1158(a)(2)(B), because it had not been filed within one year of the applicant's arrival in the United States. The IJ further concluded that Mr. Zaidi had not demonstrated "changed circumstances" or "extraordinary circumstances" that might justify an extension of the deadline. See id. § 1158(a)(2)(D). Recognizing that Mr. Zaidi was still eligible for withholding of removal, see 8 C.F.R. § 208.3(b), the IJ concluded that, although he found no inaccuracies or inconsistencies in Mr. Zaidi's testimony, Mr. Zaidi had failed to meet his burden of proof and that his claim for relief was undermined by several factors. First, Mr. Zaidi had filed his application only at the last minute when he was unable to delay his removal hearing any longer. A related concern of the IJ was that, just nine months before he decided to seek asylum, Mr. Zaidi had told the judge that he did not intend to seek asylum. The IJ also noted that Mr. Zaidi offered nothing but his own testimony to support his claim. Finally, the IJ noted that Mr. Zaidi's family members currently live in Pakistan free from harm. The IJ denied Mr. Zaidi all relief and concluded that the asylum application was "frivolous" and that it was filed for the improper purpose of delaying his inevitable removal. The BIA dismissed Mr. Zaidi's appeal without writing its own opinion.

II ANALYSIS

Before this court, Mr. Zaidi reargues the merits of his asylum claim, but he fails to acknowledge that the IJ found his application untimely. We cannot reach the merits of Mr. Zaidi's asylum claim, however, because we lack jurisdiction to reassess the timeliness of his application. According to the statute setting the one-year time limit, "[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2) [of 8 U.S.C § 1158(a)]." 8 U.S.C. § 1158(a)(3). Paragraph 2 contains the one-year time limit and the exceptions in cases of changed or extraordinary circumstances. See id. § 1158(a)(2)(B) & (D). Although there is a "`strong presumption that Congress did not mean to prohibit all judicial review' of administrative action," Am. Soc'y of Cataract & Refractive Surgery v. Thompson, 279 F.3d 447, 452 (7th Cir.2002) (quoting Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 672, 106 S.Ct. 2133, 90 L.Ed.2d 623 (1986)), that presumption can be overcome by "`clear and convincing evidence'" to the contrary, id. (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967)). Specific language in a statute that indicates an intent to preclude judicial review satisfies the clear and convincing evidence requirement. See id. We now join our sister circuits in holding that the "no court shall have jurisdiction to review" language of § 1158(a)(3) is sufficiently specific to show that Congress intended to preclude judicial review of agency action under § 1158(a)(2). See Haoud v. Ashcroft, 350 F.3d 201, 205 (1st Cir.2003); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir.2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir.2003); Fahim v. United States Attorney Gen., 278 F.3d 1216, 1218 (11th Cir.2002) (per curiam); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Reno, 263 F.3d 851, 855 (8th Cir.2001). Thus, insofar as Mr. Zaidi is pressing his asylum claim on appeal, we lack jurisdiction to answer the antecedent question of whether his application was timely.

Even though his asylum application was untimely, Mr. Zaidi was eligible to request withholding of removal. See 8 C.F.R. § 208.3(b); Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.2004). He now challenges the IJ's decision not to grant him that relief. A person may receive withholding of removal under section 241(b)(3) of the INA, see 8 U.S.C. § 1231(b)(3), if he can establish a "clear probability" that he will suffer persecution if returned to his home country. Niam, 354 F.3d at 654 (internal quotation marks and citation omitted). If the applicant can establish that he has been subject to past persecution, there is a presumption, subject to rebuttal by the Government, that the persecution would continue upon the applicant's return. See 8 C.F.R. § 208.16(b)(1)(i).

Mr. Zaidi first submits that he has demonstrated past religious persecution because he endured a beating in 1989 that was prompted by his identity as a Shia Muslim. He never has provided even minimal details about the severity of the beating. Without sufficient elaboration, we cannot discern why this single instance ought to be considered of such severity as to constitute...