United States Court of Appeals
For the First Circuit
No. 08-2214
IQBAL HUSSAIN,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Selya and Boudin, Circuit Judges.
Carlos E. Estrada, on brief for the petitioner.
Anthony W. Norwood, Senior Litigation Counsel, Office of
Immigration Litigation, Tony West, Assistant Attorney General,
Civil Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, on brief for respondent.
August 7, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Iqbal Hussain, a native and citizen
of Pakistan, seeks review of a final order of the Board of
Immigration Appeals ("BIA") denying his application for withholding
of removal and protection under the Convention Against Torture
("CAT") and rejecting his request for voluntary departure. The
record supports the BIA's conclusions. We lack jurisdiction to
review the denial of requests for voluntary departure. We deny
Hussain's petition for review in part, and dismiss it in part.
I.
Hussain entered the United States without inspection on
June 1, 2001. On October 31, 2004, the Department of Homeland
Security issued a Notice to Appear, charging Hussain as a removable
alien because of his presence in the United States without
admission or parole. On May 17, 2005, Hussain conceded
removability and filed an application for asylum, withholding of
removal based on political persecution, and protection under the
CAT. In the alternative, Hussain requested voluntary departure.
Hearings before an Immigration Judge ("IJ") occurred on March 5,
2007, by which point Hussain had abandoned his application for
asylum.
Hussain testified that he previously faced persecution
for his political beliefs while he served as a secretary general of
the Pakistan Muslim League in his village in the Swat region of
Pakistan. He claimed that during a dispute over Hussain's handling
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of a drainage project, which he admitted was a personal matter, the
father of a political rival threw a shoe at him and broke his hand.
The police arrested this man but later released him. Later, in
early 1999, the individual, armed with a gun, was looking for (but
did not find) Hussain, and Hussain left the village for Karachi.
Hussain also claimed that after he left the village, he heard from
his family that the police repeatedly had come looking for him.
Hussain added that he feared returning to Pakistan because the same
political rival remained in the village, he felt the police would
not protect him, and he was concerned about his ability to support
his family financially. In his application, though not at the
hearing, Hussain also claimed that he feared the government would
torture him based on the government's alleged practice of torturing
and killing the political opposition.
In an oral decision on March 5, 2007, the IJ held that
Hussain had failed to establish eligibility for withholding of
removal. The IJ determined that Hussain could not show past
persecution on political grounds because he never established what
political views he held. Nor did Hussain's claims to have had his
hand broken and to have been sought by a man with a gun qualify as
persecution. The IJ further concluded that Hussain had presented
no evidence showing an objective fear of future persecution on
political grounds. His testimony regarding his fears of returning
to Pakistan centered on his future economic welfare. The IJ
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similarly rejected Hussain's claim of future persecution based on
his assertion that the police were looking for him, since Hussain
hypothesized that the police merely may have been investigating
allegations that Hussain made personal use of bank loans.
The IJ also expressed "serious reservations" about
Hussain's credibility. The IJ cited Hussain's misleading testimony
regarding the dates of his children's births, the notarization of
his marriage certificate, his payment for a work permit, and his
application for adjustment of status based on a fraudulent
marriage.
The IJ also found that Hussain's CAT protection claim
failed because "[t]here is no evidence whatsoever in the record
that the Court could find that [Hussain] would be tortured by
officials of the government" upon his return to Pakistan. Finally,
the IJ denied the request for voluntary departure on the grounds
that Hussain had illegally purchased work authorization, had failed
to file tax returns, had applied for adjustment of status based on
a non-existent marriage, and had not shown that he could post the
voluntary departure bond.
The BIA affirmed the IJ's decision in an opinion issued
on August 26, 2008. It agreed that "the experiences described by
respondent do not amount to past persecution" and that the record
did not support a finding that Hussain had an objective fear of
future persecution. The BIA further agreed with the IJ's finding
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that "nothing in the record" suggested Hussain was at risk of being
tortured if he returned to Pakistan and that he thus failed to show
eligibility for CAT relief. The BIA then affirmed the IJ's
discretionary denial of voluntary departure for substantially the
same reasons as the IJ. Finally, the BIA rejected Hussain's motion
to remand on the basis of alleged changes in country conditions in
Pakistan, which Hussain had filed during the pendency of the
appeal.
This petition for review followed.
II.
We review the agency's factual determinations by applying
the deferential "substantial evidence" standard. Touch v. Holder,
568 F.3d 32, 38 (1st Cir. 2009). So long as "reasonable,
substantial, and probative evidence on the record considered as a
whole" supports these determinations, we must accept them. Shahari
v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation marks
omitted). Under this test, "we reverse only if 'any reasonable
adjudicator would be compelled to conclude to the contrary.'"
Budiono v. Mukasey, 548 F.3d 44, 48 (1st Cir. 2008) (quoting 8
U.S.C. § 1252(b)(4)(B)). We review both the IJ's and BIA's
opinions when, as here, the BIA affirmed the IJ's ruling but also
analyzed various bases for the IJ's conclusions. Limani v.
Mukasey, 538 F.3d 25, 30 (1st Cir. 2008).
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A. Withholding of Removal
Applicants for withholding of removal bear the burden of
showing that their "life or freedom would be threatened in the
proposed country of removal on account of race, religion,
nationality, membership in a particular social group, or political
opinion." 8 C.F.R. § 1208.16(b). Applicants can satisfy this
burden by showing that they were subject to past persecution, which
carries the rebuttable presumption that the applicant will be
subject to future persecution. 8 C.F.R. § 1208.16(b)(1).
Alternately, applicants can demonstrate that they will "more likely
than not" face future persecution. 8 C.F.R. § 1208.16(b)(2).
Here, substantial evidence supports the determination
that Hussain neither faced past persecution nor a likelihood of
future persecution. Hussain argues that because his broken hand
constituted tangible physical harm, the BIA and the IJ erred in
concluding that he had not suffered past persecution. But the law
of this circuit is clear that not every instance of physical harm
rises to the level of persecution, for "[t]o qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering." Jorgji v. Mukasey, 514 F.3d
53, 57 (1st Cir. 2008) (quoting Nelson v. INS, 232 F.3d 258, 263
(1st Cir. 2000)). Because we have found an absence of persecution
even in cases where the physical harm was more severe and more
clearly politically motivated, we cannot conclude that the BIA and
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the IJ erred in dismissing Hussain's allegations of past
persecution. See, e.g., Journal v. Keisler, 507 F.3d 9, 12 (1st
Cir. 2007) (no persecution where members of rival political party
looked for applicant at his home and later hit applicant on the
head and shoulders); Bocova v. Gonzales, 412 F.3d 257, 262-64 (1st
Cir. 2005) (no persecution where members of police beat applicant
in two separate incidents and threatened him with death).
Moreover, Hussain's experiences comprise two separate
events that stemmed from a private dispute with a single individual
over a drainage project. On the basis of the record, Hussain was
not "subjected to systematic maltreatment rising to the level of
persecution, as opposed to a series of isolated incidents."
Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005); see also
Palma-Mazariegos v. Gonzales, 428 F.3d 30, 37 (1st Cir. 2005). We
cannot find that the evidence compels a conclusion that Hussain
suffered past persecution.
Substantial evidence also supports the conclusion that
Hussain did not show a well-founded fear of future persecution.
Hussain does not challenge the IJ's and the BIA's conclusion that
he presented insufficient evidence of his fears of future
persecution. In his brief before this court, he instead contends
for the first time that the Taliban's recent targeting of pro-
American Pakistanis in the Swat region independently establishes
Hussain's well-founded fear of future persecution. Because we
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cannot entertain new arguments or new factual predicates for old
arguments on appeal, we will not evaluate this claim. See Cochran
v. Quest Software, Inc., 328 F.3d 1, 11-12 (1st Cir. 2003).
B. CAT Protection
The record amply supports the conclusion that Hussain
presented no evidence regarding the likelihood of his being
tortured upon his return to Pakistan. Applicants are entitled to
CAT protection only if they show that in the country of removal,
they will more likely than not face torture with the consent or
acquiescence of the government. See 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a). He did not.
Perhaps recognizing this, in his brief before this court,
Hussain's lone argument is that recent reports of Taliban
activities in the Swat region show that he is likely to face
torture at the hands of the Taliban due to his "previous United
States residency." This is the same newly advanced argument as he
uses to bolster his claims of future persecution, and we cannot
consider it for the same reasons.
Finally, we agree with the government's contention that
Hussain has waived his challenge to the BIA's denial of the motion
to remand based on changed country conditions. Though Hussain's
brief cites recent news articles and a 2008 country report
regarding Taliban activities in the Swat region, it omits any
mention of the motion to remand or the BIA's reasons for rejecting
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the motion. The mere assertion of facts that potentially support
the motion is not enough to preserve the argument. The materials
in question cannot be considered in any event because they were
neither introduced into the record nor included in support of the
motion to remand. See 8 U.S.C. § 1252(b)(4)(A) (requiring court of
appeals to decide the petition "only on the administrative record
on which the order of removal is based"). We conclude that the
issue was waived. See Dawoud v. Holder, 561 F.3d 31, 37 (1st Cir.
2009).
C. Voluntary Departure
Hussain also argues that the BIA erred in affirming the
IJ's discretionary denial of voluntary departure. The IJ, he
maintains, abused her discretion in finding that he was statutorily
ineligible for voluntary departure because he was not a person of
"good moral character" for the preceding five years. This court
has no jurisdiction to review denials of voluntary departure. See
8 U.S.C. § 1229c(f) ("No court shall have jurisdiction over an
appeal from denial of a request for an order of voluntary
departure" entered by an IJ at the conclusion of proceedings); id.
§ 1252(a)(2)(B)(i); Naeem v. Gonzales, 469 F.3d 33, 37 (1st Cir.
2006) (recognizing that Congress "altered the power of the federal
courts with respect to voluntary departure, withdrawing
jurisdiction to review grants or denials of voluntary departure").
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The petition for review is dismissed in part and denied
in part.
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