Shah Seed v. Attorney General of the United States

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3985
___________
SHAH SEED,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
___________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A79-733-614)
Immigration Judge: R.K. Malloy
____________________________________
Submitted Under Third Circuit LAR 34.1(a)
November 2, 2009
Before: SCIRICA, Chief Judge, SMITH and WEIS, Circuit Judges
(Opinion filed: November 6, 2009)
___________
OPINION
___________
PER CURIAM.
Petitioner Shah Seed is a native and citizen of Pakistan. He seeks review of
a final order of removal. We do not have jurisdiction to review the denial of Seed’s

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In his testimony, Seed referenced this group as “Nafaz-E-Shirat.” (A.R. 123) It is1
apparent, though, that he is speaking of the same TNSM we have been referred to in prior
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asylum claim on timeliness grounds. In addition, we conclude that substantial evidence
supports the Immigration Judge’s (“IJ”) determination that Seed is unlikely to be
persecuted or tortured if removed to Pakistan. As a result, it was proper for the Board of
Immigration Appeals (“BIA”) to adopt and affirm the IJ’s decision pursuant to Matter of
Burbano, 20 I. & N. Dec. 872 (BIA 1994), and we will deny Seed’s petition for review.
I.
Seed entered the United States in November 1998. He stayed longer than
was permitted by his work visa. Seed was issued a Notice to Appear in February 2003,
and was charged as an overstay in violation of 8 U.S.C. § 1227(a)(1)(B). He applied for
asylum, withholding of removal, and protection under the Convention Against Torture.
At a hearing before the IJ, Seed testified that he had been a member of the Pakistan
Peoples Party (“PPP”) since 1992. He was the PPP president for his village, and his
duties primarily consisted of recruitment activities. Seed testified to being arrested in
March 1998. He was detained for a few days, and during that time he was allegedly
beaten by the police. Seed also testified that when he told the police he belonged to the
PPP, he was released from prison. He testified that he fears returning to Pakistan because
his support for the PPP will lead to both his arrest by the Pakistani government and
persecution by the militant Islamic group Tehrik-e-Nafaz-e-Shariat-e-Mohammadi
(“TNSM”).1

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cases concerning political asylees from Pakistan’s Swat region. See, e.g., Shah v. Att’y
Gen., 293 F. App’x 178, 179 (3d Cir. Sept. 19, 2008); Khan v. Att’y Gen., 236 F. App’x
846, 849 (3d Cir. June 26, 2007).
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The IJ denied all requested relief. She first determined that Seed was
ineligible for asylum because he had failed to apply for it within one-year of his arrival to
the United States. The IJ next determined that Seed’s testimony and supporting
documents were insufficient to establish eligibility for withholding of removal, and
insufficient to “establish that anyone would be interested in torturing him for any reason
upon return to Pakistan.” (A.R. 87.) The BIA affirmed the decision of the IJ in toto and
it dismissed Seed’s appeal. Seed filed this petition for review.II.
We have jurisdiction to review a final order of removal under 8 U.S.C. §
1252(a)(1). Abdulai v. Ashcroft, 239 F.3d 542, 547 (3d Cir. 2001). However, we lack
jurisdiction to review the BIA’s determination that Seed’s application for asylum is
untimely. See 8 U.S.C. § 1158(a)(3) (stating that “[n]o court shall have jurisdiction to
review any determination of the Attorney General” relating to the timeliness of an asylum
application); Sukwanputra v. Gonzales, 434 F.3d 627, 632-33 (3d Cir. 2006). Therefore,
the scope of our review is limited to Seed’s claims for withholding of removal and CAT
relief. See Tarrawally v. Ashcroft, 338 F.3d 180, 185-86 (3d Cir. 2003).
Where, as here, the BIA expressly adopts and affirms the IJ’s decision
pursuant to Matter of Burbano, 20 I. & N. Dec. at 874 (BIA may adopt or affirm IJ’s
decision, in whole or in part, when it is in agreement with reasoning and result of that

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decision), we review the decision of both the IJ and the BIA to determine whether the
BIA’s decision to defer to the IJ was appropriate. See Shehu v. Att’y Gen., 482 F.3d 652,
657 (3d Cir. 2007). We review the IJ’s factual findings for substantial evidence, see
Briseno-Flores v. Att’y Gen., 492 F.3d 226, 228 (3d Cir. 2007), upholding them “unless
any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see also Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003) (en banc).
III.
The IJ’s determinations that Seed is unlikely to be subject to persecution
and torture upon removal to Pakistan, see Pierre v. Att’y Gen., 528 F.3d 180, 186 (3d Cir.
2008) (en banc) (describing preponderance standard for CAT claims); Mulanga v.
Ashcroft, 349 F.3d 123, 132 (3d Cir. 2003) (describing preponderance standard for
withholding of removal claims), are supported by substantial evidence. The full extent of
Seed’s alleged abuse in Pakistan is found in the following excerpts from direct
examination:
COUNSEL: Did you have any contact with the police in Pakistan?
SEED: Yes. I was arrested by police on March 5, 1998.
* * *
COUNSEL: What happen [sic] to you while you were in police custody if
anything happen [sic] to you?
SEED: They beat me up. I had wounds all over my hands and all over my
body.

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COUNSEL: Did you seek any treatment for these wounds?
SEED: I did not do any special treatment or anything like that. Example
[sic], I did not go [to] the hospital or anything like that. No.
(A.R. 119, 121.) We agree with the IJ that this testimony, standing alone, is clearly
insufficient to establish past persecution. See Ahmed v. Ashcroft, 341 F.3d 214, 217 (3d
Cir. 2003) (“persecution connotes extreme behavior, including ‘threats to life,
confinement, torture, and economic restrictions so severe that they constitute a threat to
life or freedom’”) (quotation omitted).
Furthermore, the IJ rightly rejected Seed’s allegation that if removed he will
be persecuted or tortured because of his support for the PPP. As the IJ noted, Seed
“testified earlier that all of his family members were supporters of the PPP, that they even
have a flag flying from their house, and yet no harm has come to any of his family
members.” (A.R. 60.) That testimony significantly cuts against Seed’s allegation. See
Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (“[W]hen family members remain in
petitioner’s native country without meeting harm, and there is no individualized showing
that petitioner would be singled out for persecution, the reasonableness of a petitioner’s
well-founded fear of future persecution is diminished”). Further bolstering the IJ’s
determination is her finding that “[t]he Department of State Report on Human Rights
Practices, while it describes that certainly the political situation in Pakistan can be
tumultuous, there is no evidence . . . that someone in [Seed]’s position would be targeted
for harm upon return to Pakistan, especially someone whose [sic] been away since 1998

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and not been involved in the United States in politics.” (A.R. 62.) As the IJ’s decision is
supported by substantial evidence, the BIA did not err in adopting and affirming that
decision pursuant to Matter of Burbano.
Accordingly, we will deny the petition for review.
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