Ishitiaq v. Holder (7th Cir. Aug. 25, 2009)
WILLIAMS Kanne Wood
Petitioner was a Pakistani youth whom a terrorist group wished to recruit. He applied for asylum, withholding, and CAT.
1. Petitioner was denied asylum due to the one-year filing deadline. The IJ refused to excuse the one-year filing deadline because of changed country conditions, noting that the changes were not material to the claim and happened long after the one year deadline passed - Ishitiaq argued that this showed that the IJ made a legal mistake by looking only to the one-year period. The CtApp found no legal error. It found that his claims were indeed not related to the changes he identified (e.g., the assassination of Bhutto and the declaration of martial law). It interpreted the discussion of the timing as relating to "extraordinary circumstances" (though no one had mentioned extraordinary circumstances, and it seems hard to see how the timing relates to those circumstances). Thus, while it had jurisdiction to review legal error, it found no legal error.
2. It found that his argument that the IJ erred by equating past persecution with past torture had not been exhausted administratively, and was therefore waived.
Ishitiaq’s claim was procedurally defaulted when he failed to raise the issue before the BIA. 8 U.S.C. § 1252(d)(1) (“A court may review a final order of removal only if . . . the alien has exhausted all administrative remedies available to the alien as of right”); Ghaffar, 551 F.3d at 655 (“The duty to exhaust includes the obligation to first present to the BIA any argument against the removal order as to which the Board is empowered to grant the alien meaningful relief.”). The failure to exhaust may be overlooked only when the alien raises constitutional claims because “the final say on constitutional matters rests with the courts.” Ghaffar, 551 F.3d at 655 (quoting Singh v. Reno, 182 F.3d 504, 510 (7th Cir. 1999)). In his appeal to the BIA, Ishitiaq’s argument regarding his past persecution focused solely on distinguishing his situation from that of the two cases on which the IJ relied.2 Although it is clear that Ishitiaq did not waive his past persecution argument, he certainly did not challenge the IJ’s alleged misapprehension that past persecution must equate to torture.