Abdul Khan v. Eric H. Holder

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 06-3966 & 07-2252

A BDUL H. K HAN, Y ASMEEN H ASEEB,

S ARAH H ASEEB, and SANA H ASEEB,

Petitioners,

v.

M ARK F ILIP, Acting Attorney General

of the United States,

Respondent.

Petitions for Review of Orders of

the Board of Immigration Appeals.

Nos. A96-494-318, A96-494-319, A96-494-320 & A96-494-321

A RGUED JANUARY 18, 2008—D ECIDED JANUARY 29, 2009

Before B AUER and SYKES, Circuit Judges.Œ

S YKES, Circuit Judge. Abdul Khan is a native and citizen

of Pakistan who entered the United States with his

Œ

Circuit Judge Ann Claire Williams recused herself after oral

argument and has not participated in deciding this appeal. This

decision is being issued by a quorum of the panel. See 28

U.S.C. § 46(d).

2 Nos. 06-3966 & 07-2252

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 Con-

vention 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 character-

ized 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 ques-

tions 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 jurisdic-

tion. See Vasile v. Gonzales, 417 F.3d 766 (7th Cir. 2005). We

Nos. 06-3966 & 07-2252 3

also conclude that substantial evidence supports

the agency’s denial of withholding of removal and pro-

tection 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.

4 Nos. 06-3966 & 07-2252

Khan first came to the United States in June 1995 after

the Pakistani government falsely arrested him and de-

tained 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 him-

self in February 1998 to prepare for his family’s reloca-

tion. 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 investiga-

tion into his stolen car. He believes MQM members saw

him go to the police, and in May Khan was abducted by

1

The Pakistani government had begun cracking down on

MQM violence and mistakenly arrested Khan, thinking he

was his brother (though there is no evidence his brother was

implicated in MQM violence). Khan was beaten and kicked

during his two-day detention, and was released only after his

family paid a bribe. Khan’s present claims, however, are not

premised on this incident; he does not argue that the Pakistani

government will subject him to persecution if he is removed

to his native country. His claims for relief from removal are

instead based on the abuse he fears from the MQM.

Nos. 06-3966 & 07-2252 5

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 symp-

toms of depression, avoid social contact, and have dif-

ficulty 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

6 Nos. 06-3966 & 07-2252

after arriving in the United States) he submitted an ap-

plication for asylum, withholding of removal, and pro-

tection 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 evi-

dence—affidavits with additional mental health re-

ports—supporting his allegation that his mental anguish

Nos. 06-3966 & 07-2252 7

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 under-

mine 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 dis-

cretion 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

8 Nos. 06-3966 & 07-2252

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 deci-

sion the agency makes under § 1158(a)(2), including

decisions relating to whether the applicant has demon-

strated “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 of law.” See 8 U.S.C. § 1252(a)(2)(D).

But as we explained in Vasile v. Gonzales, 417 F.3d 766,

factual determinations (such as whether the asylum

application was filed within the one-year deadline) and

discretionary decisions (such as whether the alien has

demonstrated “extraordinary circumstances” justifying

the delay) do not fall within the exception to the juris-

dictional bar for constitutional claims or questions of

law under § 1252(a)(2)(D). See id. at 768-79.

Khan urges us to reconsider our holding in Vasile. He

argues that Vasile, which discussed the question-of-law

exception created by the REAL ID Act, gave insufficient

attention to the legislative history of the Act. A closer

look at that legislative history, Khan claims, demonstrates

that Congress intended the term “questions of law” to

encompass not only questions of statutory interpretation

but also questions concerning the application of law to a

set of facts—or mixed questions of law and fact.

We decline Khan’s invitation to revisit Vasile. Section

1158(a)(2)(D) provides: “An application for asylum of an

Nos. 06-3966 & 07-2252 9

alien may be considered . . . if the alien demonstrates to

the satisfaction of the Attorney General either the existence

of changed circumstances which materially affect the

applicant’s eligibility for asylum or extraordinary cir-

cumstances relating to the delay in filing an application

within [the one-year period].” (Emphasis added.) The

terms “may” and “to the satisfaction of” strongly indicate

that decisions under § 1158(a)(2)(D) are, as we said in

Vasile, “inherently discretionary” and not reviewable. 417

F.3d at 768. Every circuit to consider this issue save one

has agreed with our interpretation.2

2

See, e.g., Zhu v. Gonzales, 493 F.3d 588, 596 n.31 (5th Cir. 2007)

(noting that federal appellate courts lack jurisdiction “to

review timeliness determinations that are based on an assess-

ment of the facts and circumstances of a particular case”); Xiao

Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006)

(“This petitioner’s challenge is merely an objection to the IJ’s

factual findings and the balancing of factors in which discre-

tion was exercised.”); Ferry v. Gonzales, 457 F.3d 1117, 1130

(10th Cir. 2006) (holding that a petitioner’s argument that a

pending adjustment-of-status application excused his

untimely asylum application “is a challenge to an exercise of

discretion that remains outside our scope of review”);

Almuhtaseb v. Gonzales, 453 F.3d 743, 748 (6th Cir. 2006) (amend-

ing Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003), a case

cited in Vasile, to clarify that courts lack jurisdiction to review

“asylum applications denied for untimeliness only when the

appeal seeks review of discretionary or factual questions” and

declining to exercise jurisdiction over a claim that the IJ incor-

rectly applied the “changed circumstances” provision);

(continued...)

10 Nos. 06-3966 & 07-2252

Far from supporting Khan’s interpretation, the

legislative history accompanying the REAL ID Act con-

firms our reading of the statute. See H. R EP. 109-72, at 174-

76 (2005). The House Conference Report discussing the

REAL ID Act describes what the term “questions of law”

meant in the statutory provision that would become

§ 1252(a)(2)(D). The report indicates that although Con-

gress had considered adding the word “pure” before

“questions of law,” the modifier was left out because it

was understood that “a ‘question of law’ is a question

regarding the construction of a statute” and therefore

“[t]he word ‘pure’ adds no meaning.” H. R EP. 109-72, at

(...continued)

Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d Cir. 2006) (finding

that a claim that the petitioners showed changed circumstances

or extraordinary circumstances was discretionary); Ignatova

v. Gonzales, 430 F.3d 1209, 1214 (8th Cir. 2005) (finding that the

presence of changed circumstances “is a discretionary judg-

ment of the Attorney General”); Chacon-Botero v. U.S. Att’y

Gen., 427 F.3d 954, 957 (11th Cir. 2005) (“The timeliness of an

asylum application is not a constitutional claim or question of

law covered by the Real ID Act’s changes.”).

As far as we can tell, only the Ninth Circuit has concluded

that the inquiry contemplated by § 1158(a)(2)(D) is not a

discretionary one. See Ramadan v. Gonzales, 479 F.3d 646, 656 (9th

Cir. 2007). However, we are not persuaded by its reasoning.

As we just noted, seven other circuits agree with our inter-

pretation, and the Ninth Circuit’s refusal to rehear Ramadan

en banc prompted a strongly worded dissent from nine judges,

see Ramadan v. Keisler, 504 F.3d 973 (9th Cir. 2007) (O’Scannlain,

J., dissenting from denial of rehearing en banc).

Nos. 06-3966 & 07-2252 11

175. The report also explains that this provision was

designed “to permit judicial review over those issues

that were historically reviewable on habeas—constitutional

and statutory-construction questions, not discretionary

or factual questions.” Id.

Khan suggests nonetheless that Congress was trying to

incorporate more than constitutional and statutory-inter-

pretation questions into the phrase “questions of law.”

Accepting that Congress wanted to maintain judicial

review of claims “historically reviewable on habeas,” Khan

seizes upon language from INS v. St. Cyr, 533 U.S. 289

(2001), stating that habeas relief was traditionally

available for “detentions based on errors of law, including

the erroneous application or interpretation of statutes.” Id.

at 302 (emphasis added). The legislative history does

suggest that Congress drew on St. Cyr when adopting

the provision that would become § 1252(a)(2)(D), but not

for the point Khan makes. The conference report

indicates Congress sought to address the Supreme Court’s

concern in St. Cyr that the elimination of judicial review

over legal issues would raise serious constitutional prob-

lems; there is nothing to suggest, however, that the

phrase “questions of law” as that term is used in

§ 1252(a)(2)(D) includes mixed questions of law and fact.

To the contrary, the conference report mentions so-called

mixed questions of law and fact as follows: “When a

court is presented with a mixed question of law and fact,

the court should analyze it to the extent there are legal

elements, but should not review any factual elements.”

H. R EP. 109-72, at 175.

12 Nos. 06-3966 & 07-2252

We acknowledge that the line between legal ques-

tions—which we can review—and discretionary or

factual determinations—which we cannot—is occasionally

difficult to draw. In many cases, such as this one, we

can determine our lack of jurisdiction fairly readily

because it is clear we are being asked to review either

factual determinations or the manner in which the

agency weighed the various factors that inform the

exercise of its discretion. See, e.g., Ogayonne v. Mukasey,

530 F.3d 514, 519 (7th Cir. 2008); accord Xiao Ji Chen v. U.S.

Dep’t of Justice, 471 F.3d 315, 332 (2d Cir. 2006). Some

discretionary determinations do present underlying,

reviewable questions of law, such as those in which the

agency is alleged to have applied the wrong legal standard.

See Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007) (recog-

nizing that we retain jurisdiction to determine whether

the IJ erred in requiring “exceptional circumstances”

instead of “extraordinary circumstances”). But the jurisdic-

tional bar cannot be overcome by trying to “shoehorn” a

factual or discretionary determination “into the ‘question

of law’ category” or claiming that a question of law exists

simply because the agency failed to “apply the law,” as

Khan does here.3 Vasile, 417 F.3d at 768; see also Chen, 471

3

Khan identifies what he thinks are purely legal errors stem-

ming from erroneous interpretations of 8 C.F.R. § 1208.4(a)(5).

This regulation addresses situations in which an IJ may

excuse the failure to file a timely asylum application based on

“extraordinary circumstances.” Khan argues that the IJ re-

quired him to provide more evidence excusing his delay than is

(continued...)

Nos. 06-3966 & 07-2252 13

F.3d at 329-30 (“[W]hen analysis of the arguments raised

by the petition for judicial review reveals that they do not

in fact raise any reviewable issues, the petitioner cannot

overcome this deficiency and secure review by using the

rhetoric of a ‘constitutional claim’ or ‘question of law’ to

disguise what is essentially a quarrel about fact-finding

or the exercise of discretion.”).

Because Khan presents a challenge that “is merely an

objection to the IJ’s factual findings and the balancing

of factors in which discretion was exercised,” we lack

jurisdiction to review it.4 Chen, 471 F.3d at 332 (dismissing

3

(...continued)

called for by the regulations. This is an argument about

the sufficiency of the evidence, not the interpretation of the

regulation.

4

Anticipating this result, Khan argues that our holding creates

serious constitutional problems. The REAL ID Act replaced

the system of challenging deportation orders via habeas

approved in INS v. St. Cyr, 533 U.S. 289, with a system that

permits federal appellate courts to review constitutional

claims and questions of law on petitions for review from the

immigration agency. See H. R EP . 109-72, at 175. Drawing again

on language from St. Cyr, Khan argues that the traditional scope

of habeas allowed challenges to “detentions based on errors

of law, including the erroneous application or interpretation of

statutes.” St. Cyr., 533 U.S. at 302 (emphasis added). This

statement was part of a broader commentary by the Court that

the only method through which an alien could challenge a

deportation order until the 1950s was a habeas petition. Khan

(continued...)

14 Nos. 06-3966 & 07-2252

for lack of jurisdiction a similar challenge to an untimeli-

ness determination). Khan’s claim that his mental

anguish constituted an “extraordinary circumstance”

preventing him from filing a timely asylum application

raises no legal issue; it is, instead, a quintessentially

factual and discretionary issue.5 See, e.g., Ogayonne, 530

4

(...continued)

argues that if we lack jurisdiction to review mixed questions

of law and fact, § 1252(a)(2)(D) is not an adequate substitute

for habeas.

We think Khan mischaracterizes this aspect of St. Cyr. The

Court expressed concern that any action by Congress that

would “entirely preclude review of a pure question of law by

any court would give rise to substantial constitutional ques-

tions,” id. at 300; the Court did not suggest that the inability to

review mixed questions of law and fact would raise constitu-

tional concerns. The concern about judicial review of purely

legal questions has been alleviated by § 1252(a)(2)(D), which

authorizes review of constitutional claims and questions of law.

5

Khan thinks this case falls into an exception recognized by

some of our sister circuits to permit review of the agency’s

application of law to facts if the facts are undisputed. See Liu

v. INS, 508 F.3d 716, 722 (2d Cir. 2007) (recognizing the possibil-

ity of exercising jurisdiction over discretionary decisions based

on “unambiguous mischaracterizations” of the record, such as

when an IJ states that his decision is based on a lack of testi-

mony on a topic yet the record unambiguously reveals the

existence of such testimony); cf. Ramadan v. Gonzales, 479 F.3d

646, 657 (9th Cir. 2007) (noting that the factual basis of the

petition was undisputed and proceeding to determine whether

(continued...)

Nos. 06-3966 & 07-2252 15

F.3d at 519; Zeqiri v. Mukasey, 529 F.3d 364, 369 (7th Cir.

2008); Pavlyk v. Gonzales, 469 F.3d 1082, 1086-87 (7th Cir.

2006); Sokolov v. Gonzales, 442 F.3d 566, 568-69 (7th Cir.

2006); Vasile, 417 F.3d at 768-69.

B. Withholding-of-removal and CAT claims

There is no jurisdictional bar preventing us from re-

viewing the IJ’s decision to reject Khan’s withholding-of-

removal and CAT claims. Where the BIA affirms and

adopts the decision of the IJ, as it did in this case, we

review the IJ’s decision as supplemented by the BIA.

BinRashed v. Gonzales, 502 F.3d 666, 670 (7th Cir. 2007). Our

examination of the agency’s decision is limited to deter-

mining whether its conclusion is supported by substan-

tial evidence. Sankoh v. Mukasey, 539 F.3d 456, 468 (7th

Cir. 2008). Under this extremely deferential standard, we

will uphold the agency’s decision if it is “supported by

reasonable, substantial, and probative evidence on the

record considered as a whole.” BinRashed, 502 F.3d at 670

5

(...continued)

the facts constitute “changed circumstances”). We take no

position on this exception; this is not a case of undisputed

facts. Khan offered multiple factual bases for excusing his

late application ranging from his purported ignorance of the

statutory deadline to the difficulties posed by his mental

problems. The IJ had to evaluate the evidence and testimony

and make factual findings (such as determining whether Khan

was in fact ignorant of the deadline and determining the

severity of Khan’s mental problems).

16 Nos. 06-3966 & 07-2252

(internal quotation marks omitted). Reversal is warranted

only if “the evidence compels a different result,” and we

will not overturn the agency’s findings just because we

might have reached a different conclusion. Balogun v.

Ashcroft, 374 F.3d 492, 498 (7th Cir. 2004).

An alien is entitled to withholding of removal under the

INA if he can show a “clear probability” that his “life or

freedom would be threatened . . . because of the alien’s

race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A);

Aung v. Gonzales, 495 F.3d 742, 746 (7th Cir. 2007). Simi-

larly, an alien is entitled to protection against removal

under the CAT if he can show it is “more likely than not”

that he will be tortured if removed. Aung, 495 F.3d at 747.

Although these standards are the same, both impose a

more stringent test than the “well-founded fear” standard

employed in asylum cases. See Firmansjah v. Gonzales,

424 F.3d 598, 605 (7th Cir. 2005).

There are two ways that an alien can show he is

entitled to withholding of removal. First, he can show

that he was subject to past persecution, which triggers

a rebuttable presumption of future persecution. See 8

C.F.R. § 1208.16(b)(1); Irasoc v. Mukasey, 522 F.3d 727, 729-

30 (7th Cir. 2008). Second, in the absence of any evidence

of past persecution, an alien can show that it is more

likely than not that he will suffer future persecution if

removed. See 8 C.F.R. § 1208.16(b)(2); BinRashed, 502 F.3d

at 671. We have said that persecution entails “punish-

ment or the infliction of harm for political, religious, or

other reasons that this country does not recognize as

Nos. 06-3966 & 07-2252 17

legitimate.” De Souza v. INS, 999 F.2d 1156, 1158 (7th Cir.

1993). And while persecution can be established from a

single particularly vicious incident, see Dandan v. Ashcroft,

339 F.3d 567, 573 (7th Cir. 2003), not every example of

mistreatment rises to the level of persecution, see Nakibuka

v. Gonzales, 421 F.3d 473, 476 (7th Cir. 2005) (“An asylum

applicant need not show that her life or freedom were

threatened, but the harm she suffered must rise above

the level of ‘mere harassment’ and must result from

more than unpleasant or even dangerous conditions in

her home country.”).

The IJ rejected Khan’s past-persecution arguments,

concluding that the attacks Khan suffered at the hands

of the MQM did not amount to persecution and that

Khan failed to establish that his attackers were

motivated by his political beliefs. Whether substantial

evidence supports the first conclusion is a close question,

but we need not address it; the record does not compel a

contrary result as to the second conclusion, and the

agency’s rejection of Khan’s claim of past persecution can

be sustained on this basis alone. To be considered persecu-

tion, an alien’s mistreatment must be “because of the

alien’s . . . political opinion.” 8 U.S.C. § 1231(b)(3)(A). Khan

testified that he quit the MQM and stopped contributing

money to the organization because he disagreed with

its violent tactics. He argues that the chain of events

culminating in his kidnapping compels the conclusion

that he was targeted because of his political beliefs.

Substantial evidence supports the IJ’s opposite conclu-

sion, however. Khan testified that the MQM extorted

18 Nos. 06-3966 & 07-2252

money and property from Pakistanis indiscriminately,

which undermines his argument that he was targeted

for his opposition to MQM’s violent actions. The record

suggests that the MQM was motivated more by

financial gain rather than political philosophy. The

MQM demanded payment from every person in Khan’s

neighborhood, including those who had never joined the

organization, and MQM members began assaulting Khan

only after he stopped his payments and approached the

police—not when he left the organization.6 Furthermore,

the apparent goal of Khan’s kidnapping was to deter

him from contacting the police regarding the carjacking.

The evidence indicates that the MQM wanted to avoid

criminal prosecution of its members for their carjacking

and kidnapping activities—a conclusion confirmed by

Khan’s testimony that police had launched an effort to

crack down on the organization’s violent actions—rather

than to punish Khan for his political opinion. See, e.g., Doe

v. Gonzales, 484 F.3d 445, 447-48 (7th Cir. 2007) (homicides

motivated solely by a desire to eliminate witnesses to

a crime were not on account of protected ground).

Despite his failure to establish past persecution, Khan

can still demonstrate he is entitled to withholding of

removal if he shows that it is more likely than not that he

6

In an unpublished order, we previously refused to find

political persecution when the MQM extorted money from all

neighboring businesses. See Rehman v. Keisler, 252 F. App’x 752,

754 (7th Cir. 2007) (“[A]n alien’s refusal to cooperate with a

political party does not, without more, compel a conclusion

of political persecution.”).

Nos. 06-3966 & 07-2252 19

would suffer persecution upon his return to Pakistan.

However, the IJ rejected Khan’s arguments, and the

record does not compel a contrary conclusion. Khan claims

he fears returning to Pakistan because the MQM has a

policy of attacking those who inform police about its

activities. Yet Khan has not lived in Pakistan since 1998,

and it is hard to see how the MQM could think he has

any information of value to provide the police at this

point. We doubt that police are still investigating a

carjacking that is more than a decade old—or more impor-

tantly, that the MQM still remembers Khan’s decision to

report it. We also note that despite the numerous threats

Khan claims the MQM has made against him, MQM

members have never harmed any of Khan’s extended

family still remaining in Pakistan. In any event, because

Khan fears MQM retaliation based on his decision to

report a carjacking and not because of his political opinion,

his fear of persecution is not based on a protected ground

entitling Khan to withholding from removal.

Finally, Khan challenges the IJ’s conclusion that he is

not entitled to protection against removal under the

CAT. “Torture,” as the term is used by the CAT, includes

“any act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person . . .

by or at the instigation of or with the consent or acquies-

cence of a public official or other person acting in an

official capacity.” 8 C.F.R. § 208.18(a)(1). Although

Khan’s arguments focus on showing that he will likely

suffer “persecution” and ignore whether he is likely to

suffer “torture,” a petitioner’s failure to show a clear

probability of future persecution also means he cannot

20 Nos. 06-3966 & 07-2252

show a likelihood that he will be tortured. See, e.g., Mitev

v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995) (citing torture as

an example of persecution).

C. Motion to reopen

Khan’s final argument is that the BIA erroneously

denied his motion to reopen his removal proceeding. The

BIA has discretion to reopen a removal proceeding

when an alien presents new evidence that “is material

and was not available and could not have been dis-

covered or presented at the former hearing.” 8 C.F.R.

§ 1003.2(a), (c)(1). In his motion to reopen, Khan provided

affidavits from two individuals who treated him at a

clinic devoted to helping people in Khan’s position—

although Khan did not seek this treatment until 2006, well

after his removal hearing concluded. These affidavits

describe the physical evidence of and symptoms

associated with Khan’s kidnapping and diagnose his

mental illnesses. This, in Khan’s view, constituted new

evidence on the issue of whether his mental illness pre-

vented him from filing a timely asylum application and

whether the MQM persecuted him. The BIA disagreed.

We pause to note that we have limited jurisdiction to

review this claim. See Pilch v. Ashcroft, 353 F.3d 585, 586-87

(7th Cir. 2003) (holding that no jurisdiction exists to

consider a denial of a motion to reopen based on dis-

cretionary determinations); accord Durant v. INS, 393

F.3d 113, 115 (2d Cir. 2004) (orders of removal and denials

of motions to reopen “are sufficiently connected” that

permitting review of the latter when the INA bars review

Nos. 06-3966 & 07-2252 21

of the former “would provide an improper backdoor

method of challenging a removal order”); Rodriguez v.

Ashcroft, 253 F.3d 797, 800 (5th Cir. 2001) (“It is axiomatic

that if we are divested of jurisdiction to review an

original determination by the Board . . . , we must also be

divested of jurisdiction to review the Board’s denial of a

motion to reopen on the [same grounds].”). In this con-

text, our review is limited to determining whether the BIA

offered a sufficient reason for declining to reopen

Khan’s case. Kebe v. Gonzales, 473 F.3d 855, 857 (7th Cir.

2007).

The BIA may decline to reopen a removal proceeding

if it concludes the petitioner failed to provide

previously unavailable, material evidence, and we

review the BIA’s refusal to reopen on these grounds for

an abuse of discretion. INS v. Doherty, 502 U.S. 314, 323

(1992); Kebe, 473 F.3d at 857. We will uphold the BIA’s

decision “ ‘unless it was made without rational explana-

tion, inexplicably departed from established policies, or

rested on an impermissible basis such as invidious dis-

crimination.’ ” Pavlyk, 469 F.3d at 1091 (quoting Boykov v.

Ashcroft, 383 F.3d 526, 530 (7th Cir. 2004)). The Supreme

Court has said that motions to reopen are disfavored, and

thus Khan faces a heavy uphill battle to convince us

that the BIA erred. Doherty, 502 U.S. at 323.

We are convinced the BIA did not abuse its discretion.

First, Khan did not go to the treatment center until after

his original removal hearing, strongly suggesting that he

did not pursue his claims with the requisite diligence. See

8 C.F.R. § 1003.2(c)(1) (stating that new information

22 Nos. 06-3966 & 07-2252

should be incapable of having been “discovered or pre-

sented at the former hearing”). Second, the “new evidence”

was not material. Although the IJ concluded the attacks

Khan suffered were not sufficiently severe to constitute

persecution, he also concluded that Khan had not estab-

lished that the attacks were politically motivated or that

Khan was likely to suffer politically motivated persecution

if returned to Pakistan. The affidavits submitted with

the motion to reopen do not address these latter con-

clusions and therefore do not undermine the IJ’s

ultimate decision to deny relief. Similarly, the IJ’s con-

clusion that Khan’s asylum application was untimely

was based on his determination that Khan had not estab-

lished that his emotional and psychological problems

justified the four-year delay in filing the application. The

affidavits discussing Khan’s mental state do not address

whether it would have been unreasonable to expect him

to file a timely asylum application in light of that

mental state. Finally, the “new evidence” was not new.

The affidavits reported that Khan suffered from

symptoms associated with depression, anxiety, and

frustration, but also noted that he was able to obtain and

maintain employment, care for his children, and focus

on his future; the IJ considered similar information

at Khan’s removal hearing.

For the foregoing reasons, the petitions for review are

D ISMISSED in part for lack of jurisdiction and D ENIED

in part.

1-29-08