Ahmed v. Holder

United States Court of Appeals
For the First Circuit

No. 09-2085

USMAN AHMED AND AFSHEEN IQBAL BUTT,

Petitioners,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD

OF IMMIGRATION APPEALS

Before

Torruella, Selya and Howard, Circuit Judges.

Daniel F. Cashman and Cashman & Lovely, P.C. on brief for
petitioners.
Tony West, Assistant Attorney General, Civil Division, United
States Department of Justice, Shelley R. Goad, Assistant Director,
Office of Immigration Litigation, and Jennifer A. Singer, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.

July 13, 2010
 SELYA, Circuit Judge. The petitioners, Usman Ahmed and

Afsheen Iqbal Butt, are Pakistani nationals. They seek judicial

review of an order of the Board of Immigration Appeals (BIA)

denying their applications for withholding of removal and

protection under the United Nations Convention Against Torture

(CAT). Discerning no error, we deny the petition.

The facts are straightforward. In January of 1997, Ahmed

entered the United States on an F-1 student visa and began

attending school in New Hampshire. He returned to Pakistan for

roughly two weeks in early 1999 and married Butt. The newlyweds

promptly returned to the United States. Due to the combined effect

of their marriage and Ahmed's student status, Butt received a

derivative F-2 visa.

In time, Ahmed stopped going to school and went to work

in the private sector. This shift resulted in a loss of his

student status, and effectively terminated the couple's right to

stay in the United States. See 8 U.S.C. § 1227(a)(1)(B),

(a)(1)(C)(i). The petitioners nevertheless remained in the United

States without legal authorization. Over time, their nuclear

family expanded to include four American-born children.

The Department of Homeland Security instituted removal

proceedings against Ahmed in December of 2005 and against Butt in

January of 2006. The petitioners cross-applied for divers forms of

relief. At a hearing held before an immigration judge (IJ) on

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October 16, 2007, their cases were consolidated. The petitioners

conceded removability but, pertinently, pressed their claims for

withholding of removal and CAT protection.

The petitioners made no developed claim of past

persecution. Rather, the basic theme of their argument was that,

if removed to Pakistan, they would be targeted by Islamic

fundamentalists because of their pro-American views. Butt mounted

an independent line of argument, asserting that she would face the

prospect of persecution on account of her gender.

Both petitioners testified at the hearing. In addition,

they introduced documentary evidence, including Amnesty

International publications, State Department reports on human

rights in Pakistan, background materials concerning the treatment

of women in Pakistan, and the like.

The IJ found the testimony of both petitioners credible.

He nonetheless determined that they had not established a clear

probability of persecution on account of a statutorily protected

ground should they be returned to Pakistan. The IJ made a similar

determination with respect to the lack of any likelihood of

torture. Accordingly, he denied the applications for withholding

of removal and protection under the CAT.

On appeal to the BIA, the petitioners argued, among other

things, that the IJ had failed appropriately to weigh their claims

for withholding of removal based on persecution traceable to their

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membership in a cognizable social group and/or their political

opinions. The BIA rejected these arguments, concluding that the

petitioners had not established that they would be in harm's way on

account of either their membership in the purported social group

("secularized and westernized Pakistanis perceived to be affiliated

with the United States") or their political opinions (pro-American

views). The BIA also concluded that Butt had not shown a clear

probability that she would be persecuted on account of her gender.

Finally, the BIA rebuffed the petitioners' claims for protection

under the CAT. This timely petition for judicial review followed.

When the BIA has embarked upon an independent evaluation

of the record and rested its decision on a self-generated

rationale, judicial review focuses on the BIA's decision, rather

than the IJ's decision. Pulisir v. Mukasey, 524 F.3d 302, 307-08

(1st Cir. 2008). This is such a case.

In appraising a decision of the BIA, we defer to the

agency's factual determinations as long as those determinations are

supported by substantial evidence. Id. at 307. This standard

requires that a determination be "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). In a

nutshell, the BIA's fact-based determinations must be honored

unless the record compels a reasonable factfinder to make a

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contrary determination. Bocova v. Gonzales, 412 F.3d 257, 262 (1st

Cir. 2005); Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004).

Questions of law are treated differently. Such questions

engender de novo review, albeit with a measure of respect afforded

to the BIA's reasonable interpretations of statutes and regulations

falling within its purview. See Pulisir, 524 F.3d at 307; see also

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S.

837, 843-44 (1984).

In this venue, the petitioners' preserved challenges

relate to withholding of removal. In order to succeed in a quest

for that relief, an alien must show that, more likely than not, he

will be persecuted on account of a statutorily protected ground if

returned to his homeland. Pulisir, 524 F.3d at 308. Such

statutorily protected grounds include race, religion, national

origin, membership in a particular social group, and political

opinion. 8 U.S.C. § 1231(b)(3)(A). This paradigm requires an

alien to demonstrate a clear probability of future persecution.

See Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005) (noting that

a claim for withholding of removal imposes a more stringent burden

of proof on an alien than does a counterpart claim for asylum).

This may be accomplished either directly or indirectly (by showing

past persecution sufficient to create a rebuttable presumption that

the alien is likely to suffer future persecution). Pulisir, 524

F.3d at 308.

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 In this instance, the petitioners have tried to link

their putative entitlement to withholding of removal both to

membership in a particular social group and to political opinion.

Those are related, but conceptually distinct, links. We therefore

address them separately.

As to their membership in a particular social group, the

petitioners refer to a social group comprising "secularized and

westernized Pakistanis perceived to be affiliated with the United

States." But a social group does not exist as such merely because

words are sufficiently malleable to allow a litigant to sketch its

margins. Rather, for a proposed social group to achieve

cognizability (that is, to come within the compass of the statute),

its members must share at least one common, immutable

characteristic. Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir.

2005). In addition, the shared characteristic or characteristics

must make the group generally recognizable in the community and

must be sufficiently particular to permit an accurate separation of

members from non-members. Faye v. Holder, 580 F.3d 37, 41 (1st

Cir. 2009); Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009).

Here, the BIA determined that the petitioners had failed

to establish the existence of a cognizable social group. As we

explain below, this determination is supported by substantial

evidence.

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 We start with the most obvious flaw in the fabric of the

petitioners' argument: they have failed to show that their

definition of a proposed social group satisfies the particularity

requirement. Adjectives like "secularized" and "westernized"

reflect matters of degree and, in the last analysis, such

adjectives call for subjective value judgments. Whether a person

is "secularized" or "westernized" is neither readily apparent nor

susceptible to determination through objective means. Given the

vagueness of the proffered definition, an objective observer cannot

reliably gauge who is or is not a member of the group.

We have noted, with a regularity bordering on the

echolalic, that a loose description of a purported social group

does not establish a sufficient level of particularity to render

that group cognizable for purposes of the immigration laws. See,

e.g., Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010);

Faye, 580 F.3d at 42. The gauzy generalities in which the

petitioners couch the contours of the proffered group do not permit

us to conclude that the BIA erred in refusing to recognize that

group.

If more were needed — and we doubt that it is — the

petitioners have failed to provide any evidence indicating that

this supposed social group is recognized as such in contemporary

Pakistan. See Mendez-Barrera, 602 F.3d at 26-27. This omission is

fatal.

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 For these reasons, the BIA's determination that the

petitioners failed to establish membership in a cognizable social

group must stand.

The petitioners' claims anent persecution based on

political opinion bear a family resemblance to their social group

claims. They posit that Islamic fundamentalists will target them

in Pakistan because of their pro-American views. This hypothesis,

though forcefully pronounced, amounts to nothing more than

speculation — and speculation is not a substitute for proof.

The petitioners point to documentary evidence in support

of their position. This evidence suggests that the Pakistani

people have diverse political, social, and cultural views

(including mixed sentiments about the United States). The same

evidence also suggests that violence and human rights violations

are concomitants of everyday life in some parts of Pakistan. But

none of this evidence comes close to establishing a clear

probability that, should the petitioners be returned to their

homeland, Islamic fundamentalists will learn of their pro-American

sentiments and single them out for mistreatment on that account.

Let us be perfectly clear. Political instability,

cultural divisions, and sporadic violence may make life in any

nation uncomfortable, stressful, or even dangerous. Still, the

presence of such conditions, detached from the particulars of an

alien's individualized situation, is not enough to compel relief

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from removal. See, e.g., Chreng v. Gonzales, 471 F.3d 14, 23 n.3

(1st Cir. 2006). As we recently wrote: "Without some specific,

direct, and credible evidence relative to [the alien's] own

situation, there is an insufficient nexus between the [alien] and

the general unrest depicted in . . . country conditions reports."

Seng v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009). So it is here.

The absence of specific and direct evidence bearing on

the petitioners' circumstances ends this aspect of our inquiry.

The petitioners have the burden of showing that a clear probability

of persecution looms. Ang, 430 F.3d at 58. Where, as here, they

have provided nothing more than background information that does

not illuminate their individualized circumstances, there is no

foundation on which we may base a reversal of the BIA's

determination that relief is unwarranted. See Chhay v. Mukasey,

540 F.3d 1, 8 (1st Cir. 2008); Makhoul v. Ashcroft, 387 F.3d 75, 82

(1st Cir. 2004).

To be precise, the BIA concluded that the petitioners had

failed to establish a clear probability of persecution on account

of political opinion. That determination is fully supportable.

The record does not compel a contrary conclusion — and the mere

presence of some evidence pointing the other way is insufficient,

in itself, to derail the BIA's conclusion. See Sugiarto v. Holder,

586 F.3d 90, 94 (1st Cir. 2009); see also Laurent, 359 F.3d at 64

(admonishing that a reviewing court must uphold the BIA's

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determination unless the record "points unerringly in the opposite

direction").

We turn next to Butt's separate assertion that the BIA

incorrectly rejected her claim that, more likely than not, she

would be persecuted in Pakistan on account of her gender. This is

a species of a "social group" claim. After all, gender — a common,

immutable characteristic — can be a component of a viable "social

group" definition. See, e.g., Yadegar-Sargis v. INS, 297 F.3d 596,

603 (7th Cir. 2002); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993); see also Kechichian v. Mukasey, 535 F.3d 15, 20 (1st Cir.

2008).

Against this backdrop, Butt makes a three-pronged attack

on this aspect of the BIA's decision. She voices her fear that, if

repatriated, she will be (i) abused by her husband, (ii) subjected

to an honor killing, or (iii) burdened by cultural expectations.

We discuss these fears one by one.

First, Butt expresses concern that her husband, Ahmed,

will become abusive in Pakistan due to societal influences. That

surmise, however, cannot be taken at face value. Butt testified

that Ahmed is a good man who always has taken care of her. She

presented no evidence that he has ever abused her. The BIA was not

compelled to ignore these facts and instead credit Butt's self-

serving conjecture that a return to Pakistan will transmogrify

Ahmed from a model husband into a wife-beating brute.

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 Butt's trepidation about honor killings can be quickly

dispatched. While the documentary evidence touches upon the

incidence of honor killings in Pakistan, those references are

generic in nature. The evidence indicates that honor killings,

when they are committed, usually take place in retaliation for

specific insults, such as when a woman has divorced her husband,

spurned a potential marriage arranged by her family, or engaged in

an extra-marital relationship.

Here, however, Butt makes no attempt to place herself

within any of the categories that have been known to spark honor

killings. Without some specific evidence placing Butt within the

sphere of danger associated with honor killings, there is too

tenuous a nexus between this barbaric practice and Butt's situation

to support a claim of likely persecution. See, e.g., Seng, 584

F.3d at 19-20; Makhoul, 387 F.3d at 82.

The third prong of Butt's attack suggests that, if

returned to Pakistan, her life and liberty will be jeopardized

because she will be constrained to conform to cultural expectations

about women that are antithetic to her preferences. In support,

she points out that, while living in the United States, she has not

worn a veil, prayed five times daily, or stayed indoors unless

accompanied by a man. The Pakistani culture, she says, would

expect her to do the opposite.

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 We usually think of "persecution" as involving physical

harm or the like. See, e.g., Orelien v. Gonzales, 467 F.3d 67, 71

(1st Cir. 2006); Bocova, 412 F.3d at 263. Gender-specific

strictures that do not involve such levels of harm may constitute

persecution, but the threshold is high; such strictures constitute

persecution only if, and to the extent that, they force a person to

behave in ways that are, at a minimum, "abhorrent to that

individual's deepest beliefs." Fatin, 12 F.3d at 1242.

On this record, we cannot say that the BIA was compelled

to find that having to conform to Pakistan's cultural expectations

amounts to persecution. Other courts that have addressed the issue

require evidence of an individual's profound opposition and refusal

to conform in order to demonstrate that the cultural expectations

are abhorrent to the individual's beliefs. See, e.g., Safaie v.

INS, 25 F.3d 636, 640 (8th Cir. 1994); Fatin, 12 F.3d at 1241-42.

When Butt testified at the hearing before the IJ, she did

not suggest that she would refuse to conform to cultural

expectations. Rather, she stated that societal pressures will

force her to conform.1 Moreover, Butt did not present any evidence

1
In an affidavit that antedated her testimony, Butt stated
that she "will not and [] cannot reform to the cultural pressures
of my country regarding women." At the hearing, however, she
abandoned this stance and testified that Pakistan is a "man-
dominating society" and "whatever they will tell me to do . . . ,
I have to do that." For purposes of review under the substantial
evidence standard, we think it fair to assume that the BIA credited
Butt's live testimony before the IJ.

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that she demonstrated opposition to those cultural expectations

while living in Pakistan for some twenty-five years before

emigrating to the United States. These factors weigh in the

balance against her claim of persecution. See Yadegar-Sargis, 297

F.3d at 604-05. The upshot is that Butt has not established a

clear probability that conforming to the cultural expectations that

she describes is so profoundly abhorrent to her beliefs as to

amount to persecution.

We add a caveat. In some cases, an alien may be able to

show that her anticipated acquiescence to a country's cultural

expectations is due to the severe consequences of noncompliance

(say, imprisonment or corporal punishment). Here, however, Butt

has not presented any evidence demonstrating that the consequences

of non-conformity in her case would amount to persecution.

Butt makes a last-ditch attempt to salvage an entitlement

to withholding of removal. She asserts that, before her marriage,

she was abused by her father. Building on that foundation, she

argues that this parental mistreatment constitutes past persecution

sufficient to trigger a presumption of future persecution. This

argument is presented for the first time in this court; it was not

made before the BIA, and, thus, is dead on arrival.

It is settled beyond hope of contradiction that judicial

review of a final order of the BIA may proceed only if, and to the

extent that, "the alien has exhausted all administrative remedies

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available to the alien as of right." Makhoul, 387 F.3d at 80

(citing 8 U.S.C. § 1252(d)(1)). Faithful to this rule, we

consistently have held that arguments not made before the BIA may

not make their debut in a petition for judicial review of the BIA's

final order. See, e.g., Ishak v. Gonzales, 422 F.3d 22, 31 (1st

Cir. 2005); Olujoke v. Gonzales, 411 F.3d 16, 22-23 (1st Cir.

2005); Makhoul, 387 F.3d at 80. Consequently, we lack jurisdiction

to consider this unexhausted claim.

This leaves the petitioners' CAT claim. "Gaining relief

under the CAT entails a showing that an alien will, upon

repatriation, more likely than not face torture with the consent or

acquiescence of the government then in power." Mendez-Barrera, 602

F.3d at 27-28 (citing 8 C.F.R. §§ 1208.16(c), 1208.18(a)(1)).

There is no reason to dawdle. Although the petitioners

have given lip service to the CAT claim, they have not formulated

any developed argumentation in support of that claim. Their brief

includes only three fleeting references to this claim, none of

which is even arguably substantive. Thus, this is an appropriate

case in which to apply the venerable precept that appellate

arguments advanced in a perfunctory manner, unaccompanied by

citations to relevant authority, are deemed waived. See Jiang v.

Gonzales, 474 F.3d 25, 32 (1st Cir. 2007); see also United States

v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

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 We need go no further. For the reasons elucidated above,

we deny the petition for judicial review.

So Ordered.

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