Mirsanjar Mirobid Mirhakim v. Ashcroft, 334 F.3d 231, 235 3d Cir. 2003 . 3 arrested for organizing an…

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3460
___________
MIRSANJAR MIROBID MIRHAKIM,
Petitioner
vs.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A200-021-341)
Immigration Judge: Honorable Rosalind K. Malloy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 26, 2009
Before: FUENTES, WEIS and GARTH Circuit Judges.
Opinion filed August 27, 2009
___________
OPINION
___________
PER CURIAM.
Mirsanjar Mirhakim petitions for review of a final order of removal entered
by the Board of Immigration Appeals (“BIA”), which denied his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”). For

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Mirhakim testified in English because he was unwilling to speak with an Uzbek in1
the room for fear that the Uzbek government would learn about the testimony. The
Immigration Judge noted that Mirhakim did not appear to have any difficulty
understanding the questions or articulating his answers. Mirhakim did not raise any
arguments about testifying in English in his appeal to the BIA, nor does he do so here.
Accordingly, any claim about the language of his testimony is waived.
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the reasons that follow, we will deny the petition for review.
Mirhakim is a native of Uzbekistan. He was admitted into the United States
in February 2004 to attend a photography convention. He overstayed his admission
period and worked without authorization. In April 2006, he was served with a notice to
appear, charging him as being removable pursuant to 8 U.S.C. § 1227(a)(1)(B)
(remaining beyond authorized period), and § 1227(a)(1)(C)(I) (failing to comply with
non-immigrant status). He conceded removability and sought asylum, withholding of
removal, and relief under the CAT.
Mirhakim testified that he is a devout Muslim. Although the majority of1
Uzbeks are also Muslim, many are not devout. Those who are devout, he claimed, are
persecuted by the government. In support of his application, Mirhakim testified to the
following events: 1) he graduated from a high school that was later closed by the Uzbek
government, though he testified that the school was not religious; 2) he was required to
work as a translator for the KGB for four days. Some of his duties included the
translation of religious documents in order to determine if they contained any extremist
messages ; 3) he attended religious meetings, where he befriended a man who was later

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Although Mirhakim testified that his friend was arrested for organizing an anti-2
government group, he argued in his appeal to the BIA, and again in his petition for
review, that his friend was arrested “for his religious practices.” The BIA did not address
this discrepancy. In any event, the BIA plausibly concluded that the arrest of this friend,
who was a part of the group that attended the religious meetings, was insufficient to show
that Mirhakim had been or likely will be persecuted if forced to return to Uzbekistan.
Since the IJ did not make a credibility determination, we proceed as if Mirhakim’s3
testimony was credible. See Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir. 2003).
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arrested for organizing an anti-government group; and 4) he was stopped and questioned2
by the police because he wore a beard, a sign in Uzbekistan of a devout Muslim.
Mirhakim also attempted to demonstrate a well-founded fear that he will be
persecuted upon return to Uzbekistan. First, he pointed to an incident that occurred in
May 2005 in the city of Andijon, during which at least 173 government protesters were
killed. Mirhakim also testified that after he left Uzbekistan to attend the photography
convention, the KGB questioned his family about his whereabouts. In addition, he
claimed that he could not freely worship in his home country because the Uzbek
government requires religious organizations to register and surveils the mosques that are
allowed to operate. Finally, he claimed that if he were to marry, his wife and daughters
would be discriminated against because they would wear hijabs, which are required by his
branch of Islam but are viewed with suspicion by the Uzbek government.
The Immigration Judge (“IJ”) did not make a credibility determination, but3
denied all substantive relief. The IJ found that Mirhakim was ineligible for asylum
because he had filed his application more than one year after he had entered the United

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For the first time in the proceedings, Mirhakim makes an extraordinary-4
circumstances claim. He argues that he paid a lawyer to file his asylum application at a
time when the filing would have been timely, but that the lawyer disappeared with the
money. Since Mirhakim did not raise this argument below, he cannot raise it here. See 8
U.S.C. § 1252(d) (requiring applicants to exhaust all administrative remedies available as
of right); Joseph v. Att’y Gen., 465 F.3d 123, 125 (3d Cir. 2006). Mirhakim may wish to
bring his argument for ineffective assistance of counsel to the BIA in a motion to reopen.
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States and had not shown changed or extraordinary circumstances sufficient to excuse the
delay of filing. See 8 U.S.C. § 1158(a)(2)(B) & (D). In addition, the IJ found that4
Mirhakim was ineligible for withholding of removal because he had not demonstrated
past persecution and had failed to show a clear probability that he would be persecuted if
he were to return to Uzbekistan. Finally, the IJ found that Mirhakim was ineligible for
relief under the CAT because he had not shown that he is more likely than not to be
tortured upon return to Uzbekistan.
The BIA adopted and affirmed the IJ’s decision, adding that the Andijon
incident, by itself, did not amount to the changed country conditions that would justify an
extension of the one-year deadline in § 1158(a)(2)(B). The BIA also noted that the
continued surveillance and harassment of Muslims in Uzbekistan did not materially
change the circumstances in the country, and that Mirhakim had not shown that he will
likely be persecuted or tortured upon return to Uzbekistan. Mirhakim then filed a timely
petition for review.
In his petition, Mirhakim argues that the BIA erred in finding that he had
not established changed country circumstances to warrant an exception to the one-year

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asylum application deadline. He also argues that the BIA erred in finding that he was
ineligible for withholding of removal. To the extent that Mirhakim challenges the
timeliness determination, we lack jurisdiction. See 8 U.S.C. § 1158(a)(3). In addition,
we will not consider the denial of CAT relief because Mirhakim failed to raise the issue
in his brief. See In re Surrick, 338 F.3d 224, 237 (3d Cir. 2003) (recognizing that if a
party fails to raise an issue in his opening brief, the issue is waived).
We have jurisdiction to review final orders of removal. 8 U.S.C. §
1252(a)(1). Because the BIA “invoke[d] specific aspects of the IJ’s analysis and
factfinding in support of [its] conclusions,” we review both the decisions of the IJ and the
BIA. See Voci v. Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). “[A]dministrative
findings of fact are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Determinations that an alien
experienced “persecution” or has a “well-founded fear of persecution” are findings of fact
that we review under the substantial evidence standard. Abdille v. Ashcroft, 242 F.3d
477, 483-84 (3d Cir.2001). The decisions must be affirmed “unless the evidence not only
supports a contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471
(3d Cir. 2003) (quoting Abdille, 242 F.3d at 484).
An applicant seeking withholding of removal “must establish a ‘clear
probability’ . . . that he/she would suffer persecution” if returned to the country of
removal. Ghebrehiwot v. Att’y Gen., 467 F.3d 344, 351 (3d Cir. 2006). “Persecution

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In his brief, Mirhakim states that he was under constant surveillance by the Uzbek5
government. (Pet. Br. at 17) However, Mirhakim did not testify that the Uzbek
government constantly surveilled him.
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includes threats to life, confinement, torture, and economic restrictions so severe that they
constitute a threat to life or freedom,” Wong v. Att’y Gen., 539 F.3d 225, 232 (3d Cir.
2008) (internal quotations omitted), but it does not “encompass all treatment that our
society regards as unfair, unjust, or even unlawful or unconstitutional,” Fatin v. I.N.S., 12
F.3d 1233, 1240 (3d Cir. 1993).
An applicant can create a presumption of future persecution by
“establish[ing] that he suffered persecution in the past.” Wang v. Gonzales, 405 F.3d
134, 139 (3d Cir. 2005). Mirhakim has not made this showing. His sole contacts with
government officials came when he worked as a translator for the KGB and when he was
questioned by the police because of his beard. On these occasions, he was not confined,
assaulted, or threatened. The closing of his former high school and the arrest of his friend
did not directly affect him and, in any event, did not constitute persecution of Mirhakim.
See Wong, 539 F.3d at 232. Substantial evidence supports the conclusion that Mirhakim
did not suffer anything amounting to past persecution.5
An applicant who cannot show past persecution may still be eligible for
withholding of removal if he or she can demonstrate a likelihood of future persecution.
See Zubeda, 333 F.3d at 469-70. Here, substantial evidence supports the conclusion that
Mirhakim did not establish a likelihood of future persecution. He testified that, shortly

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after he arrived in the United States, the KGB questioned his family about him. His
speculation that the KGB is waiting to persecute him upon return to Uzbekistan is
insufficient to establish a likelihood of future persecution. See also Toussaint v. Att’y
Gen., 455 F.3d 409, 415 (3d Cir. 2006) (finding that a statement “that a person would be
in danger in a particular place does not mean she is likely to be persecuted”). In addition,
we note that the Uzbek government allowed Mirhakim to freely leave the country. See
Ali v. Gonzales, 401 F.3d 11, 16 (1st Cir. 2005) (finding that the applicant’s ability to
freely leave the country is one factor to consider in evaluating the applicant’s well-
founded-fear claim). His fear that any wife or daughters that he may have in the future
will be discriminated against because they would wear hijabs is also insufficient to show
that he will be singled out for persecution. First, he has neither a wife nor a daughter.
See S-Cheng v. Ashcroft, 380 F.3d 320, 323 (8th Cir. 2004) (rejecting a well-founded-
fear claim “based on hypothetical or speculative facts”); Huang v. I.N.S., 421 F.3d 125,
129 (2d Cir. 2005) (same). Second, even if Mirhakim were married and had daughters,
the discrimination–and it would be discrimination, and not persecution, see Chen v.
Ashcroft, 381 F.3d 221, 233 n.20 (3d Cir. 2004)--on the basis of the hijabs would be
directed at them, and not at him.
The IJ noted that the Uzbek government suppresses what it perceives to be
religious extremism. Mirhakim argued that, as a pious Muslim, he is likely to be affected
by this policy. To support this argument, he testified that the Uzbek government keeps

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Mirhakim also asks that we grant him humanitarian asylum. Humanitarian asylum is6
available only in the case of an alien who has suffered particularly atrocious past
persecution. See 8 C.F.R. § 208.13(b)(1)(iii); Naizgi v. Gonzales, 455 F.3d 484, 488 (4th
Cir. 2006). Here, of course, we have upheld the finding that Mirhakim suffered nothing
amounting to past persecution at all.
In the alternative, Mirhakim asks that we remand the case to the BIA for a
new hearing. Because we find that substantial evidence supports the BIA’s decision, we
have no basis on which to remand.
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the mosques in the country under surveillance. However, surveillance itself is insufficient
to establish a well-founded fear of persecution. See Chavarria v. Gonzales, 446 F.3d 508,
519 (3d Cir. 2006) (finding that surveillance that is “neither highly imminent nor
menacing” does not “rise to the level of persecution”). Thus, the BIA’s conclusion that
Mirhakim did not show that he will not suffer future persecution is supported by
substantial evidence in the record.6
For the foregoing reasons, we will deny the petition for review.

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