Mushtaquddin Ahmed v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-3700
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Mushtaquddin Ahmed, Shahana *
Mushtaq, Owais Uddin Ahmed, *
Kiran Aftab Ahmed, and Bilal Uddin *
Ahmed, *
* Petition for Review of an
Petitioners, * Order of the Board of
* Immigration Appeals.
v. *
*
John Ashcroft, Attorney General, *
*
Respondent. *
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Submitted: November 17, 2004
Filed: January 26, 2005
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Before RILEY, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
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JOHN R. GIBSON, Circuit Judge.

Mushtaquddin Ahmed and Shahana Mushtaq, husband and wife, and their three
children, Kiran, Bilal, and Owais, petition for review of a final order of removal of
the Board of Immigration Appeals denying their application for asylum and
withholding of removal. They claim that economic discrimination against their ethnic
group in Pakistan, their native country, amounts to persecution. The Immigration
Judge found that they had not suffered past persecution and had not shown a
reasonable fear of future persecution should they return to Pakistan. The Board of
Immigration Appeals affirmed, in all but two particulars not relevant to this appeal.1
The Ahmeds argue that they showed a reasonable fear of economic sanctions that
would amount to persecution and that the Board abused its discretion in failing to
address all of their arguments. We deny review.

Ahmed is the primary petitioner for his wife Shahana and minor son Owais, but
because son Bilal and daughter Kiran have attained the age of twenty one, they have
each filed their own applications for asylum. The Ahmeds are members of the
Mohajirs, which is the term for immigrants who left India for Pakistan in 1947, when
those two countries were partitioned. Within that group, they are Biharis, an Urdu-
speaking group that came from the Bihar area of India. Ahmed and Shahana both
grew up in East Pakistan, where many Biharis settled after partition. In 1971, when
East Pakistan became Bangladesh, Ahmed immigrated to West Pakistan, which is
now known simply as "Pakistan." Shahana also immigrated to Pakistan
independently. Ahmed and Shahana did not meet until both were in Pakistan. Other
Biharis were not allowed to immigrate, and Ahmed testified that over 250,000 such
people live in refugee camps in Bangladesh. Once in Pakistan, Ahmed was able to
finish college at the University of Karachi, and Shahana obtained a master's degree
there. They married in 1975. Ahmed got a job in Iraq in 1980, and later the family
moved to London and then Saudi Arabia. They returned to Pakistan for a few months
in 1982, but then returned to Saudi Arabia.

1
The Board corrected the Immigration Judge's error of designating India, rather
than Pakistan, as the country of removal. The Board also noted that the Immigration
Judge, who is based in Chicago, applied Seventh Circuit precedent when he should
have applied Eighth Circuit precedent for this case, which was heard in Kansas City;
the Board concluded, however, that the citation of Seventh Circuit precedent was
harmless error.
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 The Ahmed family came to the United States in 1991 on H-visas. After the
visas expired, they applied for asylum in March 1998. Removal proceedings were
commenced March 8, 1999, and the family conceded the charge of removability.

Ahmed admitted in his asylum application that the family left Pakistan without
having experienced persecution "in blatant form." However, he contended that he has
a fear of persecution based on the system of allocating government jobs in Pakistan.
The jobs were allocated according to region, which Ahmed stated disadvantaged the
Mohajirs, who were concentrated in Karachi, in the province of Sindh. He stated that
the Mohajirs in Karachi were entitled to only three or four percent of the government
jobs. He later testified that the job quota system was controlled by the person's
domicile; he said nothing about ethnicity directly determining whether a person was
eligible for jobs.

The Board found that the Ahmeds had not shown anything more than fear of
economic hardship or lack of educational opportunities, which was not sufficient to
constitute persecution. In re Ahmed, No. A76 857 729 (B.I.A. Oct. 8, 2003) (citing
Nyonzele v. INS, 83 F.3d 975 (8th Cir. 1996), and Minwalla v. INS, 706 F.2d 831,
835 (8th Cir. 1983)). On petition for review, the Ahmeds claim that the Board abused
its discretion in failing to consider all their arguments and that it reached the wrong
conclusion in finding that they had not established a well-founded fear of economic
persecution.

We review the Board's factual determinations under the substantial evidence
standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We must uphold such
determinations "unless any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. § 1252(b)(4)(B) (2000). We review the Board's legal
conclusions de novo, but we defer to the agency's interpretation of the law it
administers where appropriate under administrative law principles. Fisher v. INS,
291 F.3d 491, 496 (8th Cir. 2002).

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 The Attorney General is authorized to grant asylum to "refugees," 8 U.S.C. §
1158(b)(1) (2000), which includes people who are outside of their country and who
are unable or unwilling to return because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. 8 U.S.C. § 1101(a)(42)(A) (2000). The Ahmed family
contend that they have a well-founded fear of economic persecution in Pakistan on
account of their membership in the Mohajir and Bihari ethnic groups.

Economic discrimination has been held to rise to the level of persecution if
such sanctions are sufficiently harsh to constitute a threat to life or freedom. See INS
v. Stevic, 467 U.S. 407, 418 (1984) (quoting In re Dunar, 14 I&N Dec. 310, 320
(B.I.A. 1973)). However, in Nyonzele v. INS, 83 F.3d 975, 982-83 (8th Cir. 1996),
we held that the petitioner had not established a well-founded fear of persecution by
showing economic discrimination. The petitioner testified that his father had lost his
job and was later murdered because of his political beliefs, and the petitioner had
been warned by an uncle that if he returned to his native country, he would have the
same future as his father. The petitioner said that if he were deported, "My
opportunities for advanced education and a good job will be non-existent." Id. at 983.
The Board concluded that, even accepting the petitioner's testimony as true, there was
insufficient evidence of persecution. We upheld the Board's decision, stating, "Fears
of economic hardship or a lack of educational opportunities, however, do not
establish a well-founded fear of persecution." Id.

In Minwalla v. INS, 706 F.2d 831, 834-35 (8th Cir. 1983), the petitioner was
a Pakistanian Zoroastrian. He testified that if he returned to Pakistan, he would be
denied the right to hold a government job or political office because of his religion.
We held that denial of public sector employment was not enough to establish
persecution where the petitioner had not shown he would be deprived of the
opportunity for private sector employment. Id. at 835.

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 Here, the evidence presented by Ahmed was far less compelling than that in
Nyonzele and somewhat less than that in Minwalla. Ahmed testified that government
employment was allocated by domicile, in such a way as to limit the numbers of
available jobs in the Karachi area, which was where many Mohajirs lived. He did not
say that Mohajirs were altogether disqualified from such work, as the petitioner in
Minwalla claimed Zoroastrians were. 706 F.2d at 835. Nor did Ahmed say what
proportion of the overall population lived in the area that was limited to three to four
per cent of the government jobs. Consequently, we cannot assess whether the
allocation of jobs was even disproportionate to the population in various domiciles.
We certainly cannot say that the decision to allocate jobs according to geographic
area was innately persecutory of any particular group that lives within the geographic
areas. As in Minwalla, the evidence here leaves open the possibility of private
employment. See id. Ahmed did not testify that he had ever lost a job because of his
ethnicity. Substantial evidence supported the conclusion that the Ahmeds had not
shown a well-founded fear of economic persecution on account of ethnicity.

The Ahmeds argue that the Board made a factual error in stating that Ahmed
and Shahana were able to finish their education after they arrived in Pakistan
following the 1971 civil unrest in Bangladesh. Ahmed stated that he and his wife
both grew up in Bangladesh. In his asylum application, Ahmed stated that he
attended college in Bangladesh, but the civil unrest broke out "[b]efore I could
graduate from college." He testified that he fled to West Pakistan during the civil
unrest, that his wife also moved to West Pakistan, and that both finished degrees in
Karachi, Pakistan. Substantial evidence supports the Board's finding that both
spouses finished their education in Pakistan and that this occurred after they fled
Bangladesh in 1971.

The Ahmeds contended at oral argument that they had shown a reasonable fear
of economic persecution because there are many Biharis still in refugee camps in
Bangladesh. Ahmed testified that he escaped being consigned to a refugee camp by

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fleeing to Pakistan. The designated country of removal is Pakistan, not Bangladesh,
so we do not see the relevance of the plight of the Biharis in Bangladesh to the
Ahmeds' claim.

The Ahmeds also claim that the Board abused its discretion in failing to
address all their arguments in its written opinion. First, they contend that the
Immigration Judge improperly required corroborating evidence, but the Immigration
Judge and the Board simply held that Ahmed's testimony did not describe a well-
founded fear of treatment amounting to economic persecution, without regard to
whether the testimony was corroborated. Next, Kiran contends that she showed she
would be subject to persecution because she would be subject to the Hudood
ordinances, which are Pakistani laws based on Islamic law and which include severe
punishment for morals offenses. The Immigration Judge observed that the Hudood
ordinances are generally applicable Pakistani laws, and Kiran failed to show the laws
would apply to her with any special rigor on account of her ethnicity or social group
or that she would be unable to avoid running afoul of them. In order to establish
eligibility for asylum, Kiran had to prove that she had a well-founded fear of
persecution on account of one of the five reasons listed in § 1101(a)(42); she failed
to link her fear of ill treatment to one of those reasons or to show that she had
anything more to fear from the Hudood laws than other Pakistanis because of those
reasons. Moreover, the Board specifically addressed this argument on appeal. The
Ahmeds do not point to any meritorious argument overlooked by the Board, and so
there is no basis for review.

Because the petitioners were unable to satisfy the burden of proof for eligibility
for asylum, it follows that they cannot satisfy the higher standards required for
withholding of removal. See Fisher, 291 F.3d at 498.

We deny review.
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