Mohammad Arshad v. Attorney General of the United States

IMG-174 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2960
MOHAMMAD ARSHAD,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-333-542)
Immigration Judge: Honorable Rosalind K. Malloy
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2009
Before: AMBRO, FISHER and JORDAN, Circuit Judges
(Opinion filed: October 9, 2009)
OPINION
PER CURIAM
Petitioner Mohammad Arshad is a citizen of Pakistan. He entered the United
States in 2001 with a visitor’s visa, which he overstayed. Arshad was placed in removal
proceedings in 2003. He conceded removability, but sought asylum, withholding of

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removal, protection under the Convention Against Torture (“CAT”), and voluntary
departure. The IJ denied relief and the BIA dismissed Arshad’s subsequent appeal.
Arshad then filed a petition for review.
I
Before the IJ, Arshad testified that he worked as an engineer in Pakistan. His
primary employment was at the Pearl Continental Hotel in Lahore, where he maintained
air conditioning systems. He testified that he also worked part-time, performing similar
tasks at properties owned by then-president Nawaz Sharif and Sharif’s relatives. Arshad
testified that although he met Nawaz Sharif a few times, they never spoke about anything
other than the installation of air systems. Arshad claimed that he was a supporter of
Sharif’s political party, the Pakistani Muslim League, Nawaz Sharif Group (“PML-N”),
but that he was not an official member of the party and was otherwise politically inactive.
Arshad stopped working for Nawaz Sharif after the president lost power in a coup.
In November 1999, following the rise of President General Musharraf, Arshad was
taken from his home by military personnel. Arshad claimed that military officials
questioned him repeatedly during his detention, trying to obtain incriminating and/or false
testimony about Nawaz Sharif. He further alleged that he was deprived of proper food
and sleep, and that the military officials threatened to get him fired from his job, “take his
life,” and take away his children’s education. Within two days of his return home, Arshad
went to the hospital, where he was given medicine and told to eat properly and get rest.

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He then spent nearly a week at home recuperating. Arshad’s son, Waseem Arshad,
testified that his father had rashes on his body.
In July 2000, Arshad was again taken into custody from his house. Local police
detained him for four days, allegedly asking for incriminating and/or false information
about Nawaz Sharif. Arshad testified that he again told the authorities nothing about
Sharif. When he returned home, he again went to the hospital and received similar
treatment.
Arshad testified that, in November 2000, he was forced to resign from his job at
the hotel. Although he was given a letter of recommendation stating that he resigned of
his own accord, he claimed that he believed authorities had contacted hotel management
and forced them to terminate his employment. He claimed that he opted to resign to
avoid the stigma of being fired. Nevertheless, he was unable to find another job in his
field in Lahore.
Arshad came to the United States in 2001. While living in Harrisburg, he drove to
Kennedy Airport in New York upon learning that Shabaz Sharif, Nawaz Sharif’s brother,
was traveling to the United States. Arshad testified that a newspaper advertised Shabaz
Sharif’s trip and suggested that supporters of the PML-N greet Shabaz Sharif at the
airport. While at the airport, Arshad was able to speak with Shabaz Sharif for 10 or 15
minutes. During the conversation, Sharif allegedly advised Arshad to put off returning to
Pakistan, as PML-N supporters were being arrested and detained. When Shabaz Sharif

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departed the country, Arshad went to the airport again to see him off. Sharif again told
Arshad to delay returning to Pakistan.
Arshad also claimed that in 2004, Nabeed Arshad, one of his sons living in
Pakistan, was arrested and falsely charged with making speeches against the Musharraf
government. Nabeed was held only so that officials could get information about his
father’s whereabouts. Waseem Arshad corroborated his father’s testimony about
Nabeed’s arrest. However, Waseem also testified that he did not fear returning to
Pakistan, and that his family had otherwise lived undisturbed since his father’s move to
the United States.
Ultimately, the IJ denied relief, reasoning that Arshad’s asylum application was
untimely and that he failed to demonstrate past persecution or a clear probability of future
persecution for withholding of removal, or past torture or a likelihood of future torture, if
he is removed to Pakistan. The BIA affirmed, reasoning that Arhsad’s asylum application
was untimely and that he failed to qualify for an exception to the filing deadline. The
BIA also upheld the IJ’s determination that Arshad’s two detentions and alleged forced
resignation did not amount to torture or persecution. Finally, the Board held that the
detention and questioning of Arshad’s son about his whereabouts was insufficient to
demonstrate a likelihood that Arshad would be persecuted on his return.
II
We have jurisdiction over Arshad’s petition under 8 U.S.C. § 1252(a). Because

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the BIA issued its own opinion, we review its decision rather than that of the IJ. See Li v.
Att’y Gen., 400 F.3d 157, 162 (3d Cir. 2005). However, we also look to the decision of
the IJ to the extent that the BIA defers to or adopts the IJ’s reasoning. See Chavarria v.
Gonzalez, 446 F.3d 508, 515 (3d Cir. 2006). We review agency factual determinations
for substantial evidence, and will uphold such determinations “unless the evidence not
only supports a contrary conclusion, but compels it.” Zhang v. Gonzales, 405 F.3d 150,
155 (3d Cir. 2005) (internal citations omitted).
Arshad raises three arguments on appeal. First, he contends that the agency erred
in determining that his asylum application was untimely and not subject to a changed
circumstances exception. As the Government argues, we lack jurisdiction to review the
propriety of the agency’s determinations regarding the timeliness of Arshad’s asylum
application, including the applicability of the changed circumstances exception. See 8
U.S.C. § 1158(a)(3); Jarbough v. Att’y Gen., 483 F.3d 184, 189 (3d Cir. 2007).
Second, Arshad argues that the agency erred in determining – in light of his
alleged detentions, forced resignation, and meeting with Shabaz Sharif, as well as his
son’s alleged false arrest – that he was ineligible for withholding of removal or CAT
relief. “The threshold for establishing eligibility for withholding of removal is higher
than that for establishing entitlement to asylum and requires the alien to demonstrate a
‘clear probability’ that, upon removal to the country of origin, his or her ‘life or freedom
would be threatened on account of one of the statutorily enumerated factors.’” Obale v.

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To qualify for relief under the CAT, an applicant must establish that it is more likely1
than not that he will be tortured if removed. See Auguste v. Ridge, 395 F.3d 123, 151 (3d
Cir. 2005). In evaluating a claim for CAT relief, the agency considers, inter alia,
evidence of past torture inflicted upon the applicant. See Sevoian v. Ashcroft, 290 F.3d
166, 175 (3d Cir. 2002). For an act to amount to torture, it must cause severe physical or
mental pain or suffering. See Auguste, 395 F.3d at 151. For the reasons mentioned in the
text, Arshad cannot prevail on his claim for CAT relief.
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Att’y Gen., 453 F.3d 151, 161 (3d Cir. 2006) (quoting Senathirajah v. INS, 157 F.3d 210,
215 (3d Cir. 1998)). The clear probability standard is met if the petitioner shows that it is
more likely than not that he will suffer persecution if removed. See Miah v. Ashcroft,
346 F.3d 434, 439 (3d Cir. 2003). Persecution includes “threats to life, confinement,
torture, and economic restrictions so severe that they constitute a threat to life or
freedom.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). However, it “does not
encompass all treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Id. With regard to Arshad’s alleged detentions and mistreatment1
by Pakistani authorities, the BIA agreed with the IJ that Arshad failed to demonstrate that
he was persecuted or tortured. Although he sought medical attention each time he was
released, the BIA reasoned that Arshad did not show he suffered any harm greater than
the denial of proper food and sleep, as opposed to any food or sleep, consistent with his
claim that doctors told him to merely eat well and rest. Although the experiences Arshad
claims to have suffered are troubling, we are not compelled to disagree with the BIA’s
determination that the conditions of his detentions did not rise to the level of severity
described in Fatin, for purposes of withholding of removal, or to the level of torture.

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Likewise, we agree that Arshad’s letter of resignation does not demonstrate past
persecution entitling him to withholding of removal. See Li, 400 F.3d at 168 (holding
that the “deliberate imposition of severe economic disadvantage . . . may constitute
persecution” if it threatens a petitioner’s life or freedom). As the BIA and IJ noted, the
letter itself states that Arshad was an excellent employee who resigned of his own accord;
Arshad presented no evidence, other than his unsupported assumptions, that Pakistani
officials forced his employer to terminate him.
Arshad also argues that his encounter with Shabaz Sharif at JFK Airport, in which
Sharif advised him not to return to Pakistan, undermines the agency’s determination that
he failed to demonstrate a likelihood of future persecution or torture. However, we lack
jurisdiction to entertain that claim because he failed to exhaust the issue before the BIA.
See Lin v. Att’y Gen., 543 F.3d 114, 120 & n.6 (3d Cir. 2008) (holding that exhaustion of
issues is jurisdictional). A petitioner may exhaust an issue by raising it either in his brief
to the BIA or in his notice of appeal from the IJ’s decision. See id. at 120-21. Arshad’s
only argument before the agency regarding his meeting with Sharif was his claim that
Sharif’s advice constituted changed circumstances sufficient to excuse the untimely filing
of his asylum application.
Next, Arshad contends that his son’s arrest under false pretenses demonstrates a
likelihood of future persecution or torture. As the BIA reasoned, that fact that his son
was detained on one occasion and questioned about Arshad’s whereabouts is insufficient

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to show that he will more than likely be mistreated. More to the point, the IJ noted that
the rest of Arshad’s family has remained in Pakistan undisturbed by authorities since his
son’s arrest in 2004. Indeed, his son Waseem testified that he traveled to Pakistan from
the United States and neither experienced problems then nor expects to be harassed on a
future return.
Finally, we turn to Arshad’s argument that the decisions of the IJ and BIA were
“against the weight of the evidence.” This argument misapprehends our standard of
review. As already discussed, our concern is not whether the agency reached a decision
contrary to one we might reach in the first instance, but whether Arshad has shown that
any reasonable adjudicator would be compelled to disagree with the agency’s decision.
See 8 U.S.C. § 1252(b)(4)(B). For the foregoing reasons, we conclude that Arshad has
not met that burden.
Accordingly, we will deny the petition for review.

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