Hasan Kasim v. Loretta Lynch
670 F. App'x 843
| 5th Cir. | 2016Background
- Petitioner Hasan Kasim, an Indonesian citizen, sought asylum, withholding of removal, and CAT relief; the BIA affirmed the IJ’s denial and Kasim petitioned for review.
- Kasim’s asylum application was filed after the one-year deadline; he argued for an exception based on changed or extraordinary circumstances.
- The court held it lacked jurisdiction to review the timeliness/exception determination because that is a fact-intensive question precluded by statute.
- For withholding and CAT relief, the BIA’s factual findings are reviewed under the substantial-evidence standard—only overturned if evidence compels a contrary conclusion.
- Kasim described two minor adult incidents (nine years apart) and one childhood incident; none caused serious physical injury.
- The court found the record did not show past persecution, a pattern or practice against a protected group, or that future persecution/torture was more likely than not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction to review asylum-timeliness exception | Kasim: exception exists due to changed/extraordinary circumstances | Government: factual determination barred from review by 8 U.S.C. § 1158(a)(3) | Court: Dismissed for lack of jurisdiction over timeliness exception |
| Withholding of removal — past persecution | Kasim: incidents amount to persecution warranting withholding | Government: incidents were minor, isolated, not persecution | Court: Evidence does not compel finding of past persecution; withheld denied |
| Withholding of removal — future persecution | Kasim: country conditions and prior harm show clear probability of future harm | Government: record lacks pattern/practice or specific risks showing >50% likelihood | Court: Insufficient evidence of pattern or clear probability; claim denied |
| CAT relief | Kasim: likely to be tortured on return | Government: record does not show torture more likely than not | Court: Denied—record fails to show torture more likely than not |
Key Cases Cited
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (jurisdictional bar on reviewing fact-intensive timeliness exceptions)
- Nakimbugwe v. Gonzales, 475 F.3d 281 (5th Cir. 2007) (treating extraordinary-circumstances inquiry as factual and unreviewable)
- Gomez-Palacios v. Holder, 560 F.3d 354 (5th Cir. 2009) (substantial-evidence standard for reviewing BIA findings)
- Cardoza-Fonseca v. INS, 480 U.S. 421 (U.S. 1987) (standard for “clear probability" in withholding context)
- Campos-Guardado v. INS, 809 F.2d 285 (5th Cir. 1987) (withholding requires showing life or freedom threatened on account of protected ground)
- Eduard v. Ashcroft, 379 F.3d 182 (5th Cir. 2004) (minor harassment and isolated violence may not constitute past persecution)
- Kane v. Holder, 581 F.3d 231 (5th Cir. 2009) (requiring specific, detailed facts to show clear probability of persecution)