United States Court of Appeals
For the First Circuit
No. 08-1112
BAHRI KARAM KHAN,
Petitioner,
v.
MICHAEL B. MUKASEY, United States Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Boudin and Howard,
Circuit Judges.
William P. Joyce and Joyce & Associates P.C. for petitioner.
Gregory G. Katsas, Assistant Attorney General, Anthony W.
Norwood, Senior Litigation Counsel, and Shahrzad Baghai, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
December 5, 2008
HOWARD, Circuit Judge. The petitioner, Bahri Karam Khan,
a Pakistani national, seeks review of a Board of Immigration
Appeals' ("BIA") final order upholding an Immigration Judge's
("IJ") denial of his applications for asylum, withholding of
removal, and protection under the United Nations Convention Against
Torture ("CAT"). Discerning substantial evidence in the record to
support the BIA's determination, we deny the petition for review.
I. Background
Khan entered the United States on July 1, 2001 as a non-
immigrant visitor. In late 2004, the Department of Homeland
Security ("DHS") issued a Notice to Appear against Khan, charging
him with removability for overstaying his visa, in violation of 8
U.S.C. § 1227(c). Khan admitted the factual allegations but
denied removability and declined to designate a country of removal.
He also requested asylum, withholding of removal, and protection
under the CAT. In March 2005, more than four years after his entry
into the United States, Khan filed an I-589 Application for Asylum
and for Withholding of Removal. In support of his application,
Khan claimed that he suffered persecution in Pakistan on account of
his political opinion. We summarize Khan's testimony at his
subsequent hearing before the Immigration Judge.
In January 1998, Khan joined the People's Party of
Pakistan ("PPP"). As a member of this political party, he
"arranged meetings" and attended "processions." On March 17, 1998,
-2-
Khan attended a PPP demonstration near the city of Mingora,
Pakistan. The police arrested seven people at the demonstration,
including Khan, and warned them to "stop working for [the] People's
Party, not to talk against the government, and [to] join the
government party." Khan was charged with speaking against the
government. While in prison, Khan was beaten with wooden sticks
and shocked with electrical wires. He remained in prison for ten
days until his father posted bail. Khan did not seek medical
treatment for any injuries he sustained in prison.
Following his release, Khan immediately left the Mingora
area for other parts of Pakistan. He spent thirteen months living
in Karachi and three months in Lahore. Khan next moved to the town
of Swat, where his family resides. Fearing that the police would
find him if he stayed in his family's home, Khan lived apart and
visited his family only at night.
After three months, he moved to Peshawar, where he joined
the crew of an oil tanker. In April 2000, Khan left Pakistan on a
ship which docked in Malaysia, Indonesia, and the Philippines. At
each of these ports, Khan disembarked the ship. In December 2000,
Khan returned to Pakistan. In July 2001, he obtained a C-1 visa
and traveled, again as a member of the ship's crew, to the United
States. When questioned by his counsel as to why he did not return
to Pakistan with his fellow crew members, Khan responded that the
ship departed without his knowledge, and he could not afford to
-3-
purchase a return ticket. On cross-examination, Khan acknowledged
that he intended to return to Pakistan when he first arrived in the
United States. His parents, wife and three children continue to
reside in Swat, Pakistan.
As previously noted, in March 2005, four years after
arriving in the United States, Khan applied for asylum, withholding
of removal and withholding under CAT.
The IJ denied Khan's applications and granted his request
for voluntary departure. The IJ ruled that the asylum application
was time-barred and Khan did not qualify for an exception.1 The IJ
rejected the CAT claim for failure to establish harm amounting to
torture under the Convention.2 Khan does not pursue these claims
in his petition.
In support of the conclusion that Khan was ineligible
for withholding of removal, the IJ found that Khan failed to
demonstrate either past persecution or a likelihood of future
1
An application for asylum must be filed within one year of the
alien's arrival in the United States, absent changed circumstances
affecting eligibility for asylum or extraordinary circumstances
relating to the delay in filing. 8 U.S.C. §§ 1158(a)(2)(B);
1158(a)(2)(D).
2
To qualify for withholding of removal under the CAT, an applicant
must establish that it is "more likely than not that [he] . . .
would be tortured if removed" to Pakistan. Limani v. Mukasey, 538
F.3d 25, 32 (1st Cir. 2008)(quoting 8 C.F.R. § 208.16(c)(2)).
"'Torture' means 'severe pain or suffering, whether physical or
mental . . . inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
in an official capacity.'" Id. (quoting 8 C.F.R.
208.18(a)(1))(alteration in original).
-4-
persecution. Taking Khan's factual testimony to be true, yet
doubting some specific details, the IJ determined that the
mistreatment Khan received in prison was not so severe as to
constitute persecution. The IJ found that Khan did not require
even "rudimentary medical intervention," and Khan failed to
establish that he was arrested for his political activities.
Specifically, the IJ noted that Khan was only a member of the party
for three months prior to his arrest, and he was not a principal
speaker at the PPP meeting. The IJ further concluded that Khan's
acknowledged intent to return to Pakistan, the infrequency of his
political activities, and Pakistani authorities' seeming lack of
interest in arresting him again, undercut his claim of future
persecution.
The BIA affirmed, expressly agreeing with most of the
IJ's findings. The BIA concluded that the IJ did not err in
finding that Khan failed to prove past persecution, stating that
his alleged arrest and mistreatment by the police did not rise to
the level of persecution. The BIA also agreed with the IJ's
determination that the evidence did not support a finding of future
persecution, considering that Khan remained unharmed in Pakistan
for three years following his arrest, and that his family continued
to live safely in Pakistan. The BIA also stated that Khan's return
to Pakistan, after traveling to several countries of safe haven,
-5-
undermined his claim. The BIA permitted Khan to depart
voluntarily. This petition followed.
II. Discussion
We review the BIA's decision under the deferential
"substantial evidence" standard, reversing only if a "reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B); see also Pan v. Gonzales, 445 F.3d 60, 61
(1st Cir. 2006). Under this standard, the BIA's decision will be
upheld if supported by "reasonable, substantial, and probative
evidence on the record considered as a whole." Carcamo-Recinos v.
Ashcroft, 389 F.3d 253, 256 (1st Cir. 2004) (internal quotation
omitted).
To qualify for withholding of removal, an applicant has
the burden to prove that his "life or freedom would be threatened
in the destination country because of [his] race, religion,
nationality, membership in a particular social group, or political
opinion." 8 C.F.R. § 208.16(b); see also 8 U.S.C. § 1231(b)(3)(A).
To satisfy this burden, the applicant must either prove past
persecution, which gives rise to a rebuttable presumption of future
persecution, or show that it is "more likely than not" that he will
face future persecution based on one of the statutory grounds.
Limani, 538 F.3d at 31 (citing 8 C.F.R. § 208.16(b)(1)(i),(b)(2)).
In other words, the alien must prove a "clear probability" of
persecution in the country to which removal is proposed. INS v.
-6-
Stevic, 467 U.S. 407, 430 (1984); Ang v. Gonzales, 430 F.3d 50, 58
(1st Cir. 2005); see also Limani, 538 F.3d at 31.
Although the alleged mistreatment Khan experienced is
objectionable, our deferential standard of review does not permit
us to second-guess the determinations of the BIA, if they are
supported by substantial evidence in the record. See Bocova v.
Gonzales, 412 F.3d 257, 263 (1st Cir. 2005). The substantial
evidence standard demands that we uphold the agency's determination
unless the evidence "points unerringly in the opposite direction."
Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004) (citing INS v.
Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992)). Here, the
evidence does not compel us to reject the BIA's conclusion. See
Elias-Zacarias, 502 U.S. at 481 n.1.
Substantial evidence in the record supports the finding
that Khan has proved neither past persecution nor a likelihood of
future persecution. An important factor in determining whether
alleged incidents rise to the level of persecution is whether "the
mistreatment can be said to be systematic rather than reflective of
a series of isolated incidents." Bocova, 412 F.3d at 263.
Moreover, "[t]o qualify as persecution, a person's experience must
rise above unpleasantness, harassment, and even basic suffering."
Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000).
The record supports a conclusion that Khan's
mistreatment was an isolated event; the only incident to which Khan
-7-
testified occurred in March 1998. That fact alone is sufficient to
support the finding that Khan was not persecuted. See, e.g.,
Journal v. Keisler, 507 F.3d 9, 12 (1st Cir. 2007) (alien did not
suffer persecution where he "alleged only one incident of violence
in which he was struck on the head and arms"); Attia v. Gonzales,
477 F.3d 21, 23-24 (1st Cir. 2007)("two altercations in a nine-year
period and a general climate of discrimination" do not suffice as
past persecution); Nelson, 232 F.3d at 264 (three brief
incarcerations in solitary confinement, physical abuse during each
incarceration, along with surveillance and harassment did not
constitute persecution).
The BIA's rejection of Khan's past persecution claim
draws further support from the fact that Khan provided little
information regarding the duration or severity of the beatings he
received. It was Khan's "burden to provide us with specifics of the
circumstances of his maltreatment, which only he has knowledge of,
in order to compel us to find for him." Topalli v. Gonzales, 417
F.3d 128, 132 n.5 (1st Cir. 2005). Moreover, as the BIA noted,
Khan's injuries were not so serious that he sought medical
attention.
On these facts, we are not compelled to conclude that
Khan was subjected to systematic abuse rising to the level of
persecution. This result is consistent with other cases presenting
comparable facts. See, e.g., id. at 132 (seven arrests over a two-
-8-
year period, accompanied by brief detentions and beatings which did
not require medical treatment, did not rise to the level of
persecution); Bocova, 412 F.3d at 263 (finding no persecution where
petitioner was arrested, threatened with death twice over an eight-
year period, and was so severely beaten that he lost consciousness
and was hospitalized); Ravindran v. INS, 976 F.2d 754, 756-60 (1st
Cir. 1992) (persecution not found where ethnic minority member had
been interrogated and beaten for three days in prison after
participating in a political protest); cf. Desir v. Ilchert 840
F.2d 723, 729 (9th Cir. 1988) ("successive and specific threats" to
petitioner's life and "beatings, arrests and assaults" in the
context of ongoing extortion by Haitian police was sufficient to
establish past persecution). A dictionary reading layperson might
think a police beating for expressing political views to be
persecution, but in the ordinary case precedent calls for something
like a pattern or prolonged period of events and not a single
specific event, objectionable though it may be.
Having failed to establish past persecution, Khan is not
entitled to a presumption of further persecution. See 8 C.F.R. §
208.16(b)(1)(i). As to future persecution, substantial evidence
supports the conclusion that Khan has failed to prove it was "more
likely than not" he would be persecuted on account of his political
beliefs if he should return to Pakistan. See Limani, 538 F.3d at
31; 8 C.F.R. § 208.16(b)(2).
-9-
As noted by the BIA, the continued safety of Khan's
parents, wife and children, who still live in Pakistan, undercuts
Khan's argument that he would suffer persecution if he returned.
See, e.g., Ferdinandus v. Gonzales, 504 F.3d 61, 63 (1st Cir.
2007); Melhem v. Gonzales, 500 F.3d 78, 82 (1st Cir. 2007); Ouk v.
Gonzales, 464 F.3d 108, 111 (1st Cir. 2006). Khan himself remained
in Pakistan for the better part of three years without incident.
Additionally, Khan left Pakistan in April 2000 and returned in
December 2000, despite having visited several countries in which he
could have found refuge. See Diab v. Ashcroft, 397 F.3d 35, 42
(1st Cir. 2005) (petitioner's trips to countries of safe haven
after the alleged incidents of his persecution "significantly
undercut his claim that he is now afraid to return."). Finally,
although the BIA did not expressly rely on this fact, Khan admitted
that he intended to re-board the ship to Pakistan when he first
arrived in the United States, but did not return to Pakistan only
because the ship left without him.
This evidence substantially supports the BIA's decision.
The petition is therefore denied.
So Ordered.
-10-