Nasra Arif v. MICHAEL BMUKASEY, U.S. Attorney General

REVISED DECEMBER 21, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60557
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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 7, 2007
Charles R. Fulbruge III
Clerk

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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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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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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

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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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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

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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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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

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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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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

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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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