Arif v. Mukasey

REVISED DECEMBER 21, 2007

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

FILED

No. 06-60557 December 7, 2007

Charles R. Fulbruge III

Clerk

NASRA ARIF

Petitioner

v.

MICHAEL B MUKASEY, U.S. Attorney General

Respondent

Petitioner for Review of an Order of the Board of Immigration Appeals

A78-881-822

Before JONES, Chief Judge, and WIENER, and CLEMENT, Circuit Judges.

PER CURIAM:

Nasra Arif (“Petitioner”), a native and citizen of Pakistan, petitions for

review of the denial by the Board of Immigration Appeals (“BIA”) of her request

for asylum and withholding of removal. Petitioner contends that her asylum

application was timely filed and that she is a derivative beneficiary of her

husband’s application for withholding of removal. As we do not have jurisdiction

to review the BIA’s decision that the asylum application was untimely, and as

we agree that withholding of removal does not provide for derivative

beneficiaries, we deny the petition for review.

No. 06-60557

I. FACTS AND PROCEEDINGS

In 2000, Petitioner entered the United States with her children and

husband, Mohammad Arif (“Mr. Arif”), and overstayed her visa. In 2003, the

Department of Homeland Security (“DHS”) served Petitioner with a Notice to

Appear, asserting that she was removable as an alien who had remained in the

United States after the expiration of her visa. Petitioner’s removal proceedings

were consolidated with those of her husband, and although they both conceded

removability, Mr. Arif requested asylum and withholding of removal, listing

Petitioner as a derivative beneficiary. The government opposed the application

for asylum on the basis that it was not received or mailed within one year of

Petitioner’s arrival in the United States.

The Immigration Judge (“IJ”) determined that Mr. Arif’s asylum

application was untimely, and therefore required Petitioner to submit her own

application for withholding of removal. The IJ concluded that neither Petitioner

nor her husband qualified for withholding of removal as both failed to

demonstrate past persecution or a well-founded fear of future persecution. The

IJ did, however, grant Petitioner’s request for voluntary departure.

On appeal, the BIA affirmed the IJ’s holding that Mr. Arif’s asylum

application was untimely, and also concluded that Petitioner and her husband

had failed to demonstrate extraordinary or changed circumstances sufficient to

justify the untimely application. After determining that there can be no

derivative beneficiaries for a withholding of removal claim, the BIA concluded

that Petitioner had failed to establish independent eligibility for withholding of

removal. The BIA reversed the IJ’s holding as to Mr. Arif, and remanded his

claim for withholding of removal.

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II. ANALYSIS

A. Standard of Review

We review factual findings of the BIA under the “substantial evidence”

test, reversing only when the evidence is “so compelling that no reasonable fact

finder could fail to find the petitioner statutorily eligible for relief.”1 Under this

deferential standard, “the possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s finding from

being supported by substantial evidence.”2 We review questions of law de novo;3

however, we generally afford substantial deference to the BIA’s interpretation

of immigration statutes unless there is “compelling evidence that the BIA’s

interpretation is incorrect.”4

B. Asylum

To be eligible for asylum, an alien must file an application within one year

following his arrival in the United States unless the applicant can demonstrate

“changed circumstances which materially affect[ed] the applicant’s eligibility for

asylum or extraordinary circumstances relating to the delay in filing an

application.”5 If the application for asylum is not received by the DHS within

one year following arrival here, but the alien produces clear and convincing

evidence that the application was mailed prior to the end of the one-year period,

“the mailing date shall be considered the filing date.”6 Although we have

jurisdiction to review a determination of timeliness that turns on a

1

Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004) (internal quotations omitted).

2

Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

3

Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007).

4

Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).

5

8 U.S.C. §§ 1158(a)(2)(B), (a)(2)(D).

6

Nakimbugwe v. Gonzales, 475 F.3d 281, 283 (5th Cir. 2007).

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No. 06-60557

constitutional claim or question of law, we do not have jurisdiction to review

determinations of timeliness that are based on findings of fact.7

Petitioner contends that she and her husband timely mailed an asylum

application in March 2000. There is no evidence, however, that it was received

or considered by the DHS. The BIA held that Petitioner failed to demonstrate

by clear and convincing evidence that (1) her application for asylum was mailed

within one year following her arrival in the United States, or (2) extraordinary

circumstances excuse her failure to file timely. As both of these holdings involve

questions of fact, we lack jurisdiction to consider the BIA’s denial of Petitioner’s

claim for asylum.

C. Withholding of Removal

Unlike an application for asylum, there is no deadline for the filing of an

application for withholding of removal.8 To be eligible for withholding of

removal, an applicant must demonstrate (1) a “clear probability” of (2)

persecution upon return to his native country.9 A “clear probability” means that

it is more likely than not that the applicant’s life or freedom would be threatened

by persecution on account of his race, religion, nationality, membership in a

particular social group, or political opinion.10 “[P]ersecution is an extreme

concept that does not include every sort of treatment our society regards as

offensive.”11 It generally requires a showing that “harm or suffering will be

inflicted upon [the applicant] in order to punish her for possessing a belief or

7

Id. at 284.

8

Zhu v. Ashcroft, 382 F.3d 521, 528 (5th Cir. 2004) (citing 8 U.S.C. § 1231(b)(3)(A)).

9

8 U.S.C. §1231 (b)(3); Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).

10

I.N.S. v. Stevic, 467 U.S. 407, 424, 429-30 (1984).

11

Fatin v. I.N.S., 12 F.3d 1233, 1243 (3d Cir. 1993) (internal quotations omitted).

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No. 06-60557

characteristic a persecutor sought to overcome.”12 If past persecution is

established, then it is presumed that the life or freedom of an applicant “would

be threatened in the future in the country of removal on the basis of the original

claim.”13 The government may rebut this presumption by demonstrating that

there has been a fundamental change in the circumstances of the country of

removal, or that the applicant could avoid a future threat to his life or freedom

by reasonably relocating to a different part of the country of removal.14

Petitioner does not state an independent ground for withholding of

removal, relying instead on her husband’s proffered persecution and insisting

that she is a derivative beneficiary of the application filed by her husband.15 The

BIA refused to consider Petitioner a derivative beneficiary of her husband’s

application on grounds that, as a matter of law, “there are no derivative

beneficiaries for an application for withholding of removal.” We agree.

Whether the statute that governs withholding of removal allows for

derivative beneficiaries is an issue of first impression in this circuit. The

Eleventh Circuit has addressed this issue and held that withholding of removal

does not provide derivative benefits for an alien’s spouse.16 Additionally, the

12

Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir. 1994) (internal quotations omitted).

13

8 C.F.R. § 1208.16(b)(1)(i).

14

Id.

15

Petitioner states at the beginning of her brief that she “has not claimed independent

political opinion or persecution” and that her claim “stems and rests upon the persecution and

harm of [her] husband.” It is unclear from her brief whether petitioner also argues that her

husband’s alleged persecution satisfies the requirements for her independent application for

withholding of removal. To the extent that Petitioner does advance this argument, her claim

fails because an alien “cannot rely solely on the persecution of her family members to qualify

for asylum.” See Margos v. Gonzales, 443 F.3d 593, 598 (7th Cir. 2006).

16

Delgado v. U.S. Att’y Gen., 487 F.3d 855, 862 (11th Cir. 2007) (“there are no

derivative benefits associated with a grant of withholding of removal”).

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No. 06-60557

Second, Sixth, Eighth, and Ninth Circuits have indicated that withholding of

removal does not afford derivative relief to members of an alien’s family.17

“The starting point in interpreting a statute is its language, for ‘if the

intent of Congress is clear, that is the end of the matter.’”18 “Where Congress

includes particular language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion.”19

We find no evidence in the language of the statute to indicate that

Congress intended to extend the relief afforded by withholding of removal to an

alien’s spouse or minor children without an independent ground for granting

such relief to them. The statute providing for asylum expressly includes a

provision for derivative beneficiaries, but the statute providing for withholding

of removal makes no mention of derivative relief.20 In the absence of language

regarding derivative beneficiaries similar to that found in the asylum statute,

we cannot infer that Congress intended withholding of removal to apply to the

spouse and minor children of an applicant who do not independently qualify for

17

See Huang v. I.N.S., 436 F.3d 89, 100-01 (2d Cir. 2006) (noting that denial of asylum

in favor of withholding of removal would have the “practical effect” of separating the alien from

his wife and children); Mohamed v. Ashcroft, 396 F.3d 999, 1002 (8th Cir. 2005) (noting that

the mother and siblings of an alien who was granted withholding of removal “cannot receive

relief as derivatives” of the alien); Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (“The

[petitioner’s] sons, however, have applied for withholding of removal and relief under the CAT

in their own right because such relief may not be derivative.”); Castellano-Chacon v. I.N.S., 341

F.3d 533, 545 (6th Cir. 2003) (“Unlike an application for asylum, however, a grant of an alien’s

application for withholding [of removal] is not a basis for adjustment to legal permanent

resident status [and] family members are not granted derivative status . . .”).

18

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993) (quoting Chevron U.S.A.,

Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)).

19

Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotations omitted).

20

Compare 8 U.S.C. § 1158 (b)(3)(A) and 8 C.F.R. § 1208.21 with 8 U.S.C. § 1231.

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relief. Indeed, precisely the opposite inference must be made from the presence

of such language in one statute and the absence thereof in the other statute.

Furthermore, the federal regulations governing withholding of removal

and asylum indicate that a grant of withholding of removal does not provide

relief to the spouse or minor children of an alien. Specifically, 8 C.F.R. §

1208.16(e) states that if an applicant is denied asylum as a matter of discretion,

but is later granted withholding of removal, “thereby effectively precluding

admission of the applicant’s spouse or minor children,” the denial of asylum shall

be reconsidered.

Petitioner contends that even though there is no specific language in the

statute, the I-589 application for withholding of removal evidences Congress’s

intent to extend relief to derivative beneficiaries. This, she insists, is because

the application includes questions regarding whether the alien has family

members in the United States and whether the alien is including them as

beneficiaries. We disagree. The I-589 application references the spouse and

minor children of the alien because it may serve as an application for asylum —

under which dependants may be derivative beneficiaries. Additionally, the

instruction page of the application clearly states that “[w]ithholding of removal

does not apply to any spouse or child included in the application.”

As Petitioner has asserted that she qualifies for withholding of removal

based solely on her husband’s claim, and there are no derivative benefits

associated with a grant of withholding of removal, Petitioner has failed to

demonstrate that the BIA erred in denying her request for withholding of

removal.

III. CONCLUSION

Based on the foregoing analysis, the petition for review is DENIED.

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