Case: 09-60315 Document: 00511024568 Page: 1 Date Filed: 02/10/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2010
No. 09-60315
Summary Calendar Charles R. Fulbruge III
Clerk
BABOO BHAI MOMIN MUHAMMAD,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A096 330 600
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Baboo Bhai Momin Muhammad, a native and citizen of Pakistan, petitions
this court for review of the Board of Immigration Appeals’s (BIA) decision
dismissing his appeal. The BIA’s decision affirmed an immigration judge’s (IJ)
order finding Muhammad removable and denying his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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(CAT). For the reasons stated below, we DISMISS the petition in part and
DENY it in part.
FACTS AND PROCEEDINGS
Muhammad, a member of the Shi’a Ismaili minority Muslim religious sect,
entered the United States in August 1993 without being admitted or paroled.
The Department of Homeland Security commenced removal proceedings against
him in May 2006. It charged Muhammad with removability pursuant to 8
U.S.C. § 1182(a)(6)(A)(i). Muhammad appeared before an IJ and, through
counsel, admitted the allegations against him and conceded removability.
Claiming that he was persecuted by Sunni Muslims because of his religion,
Muhammad submitted an application for asylum, withholding of removal, and
CAT protection. He testified that he fears future persecution on religious
grounds if he is returned to Pakistan.
Muhammad’s claimed fear of religious persecution should he be returned
is based on four incidents that occurred between 1991 and 1993. He testified
before the IJ that, while employed as a milk deliveryman, he was robbed twice
by individuals he believed to be Sunni Muslims; during one of the attacks, he
was hit on the head and required stitches. He also testified, however, that his
attackers would have had no way of identifying him as a member of a minority
religious group, and that all of his fellow milkmen received similar violent
demands for money. In another incident that appears to have been related to his
job, unknown individuals who Muhammad believes were Sunni Muslims broke
his car windows and slashed his tires. Muhammad testified that on one occasion
a group of Sunni Muslims threw stones at his window, one of which injured his
wife, and told Muhammad to leave his religion and start following theirs. He
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stated that the police were indifferent to his problems. Muhammad also testified
that one of his three sons remained in Pakistan and was threatened by Sunni
Muslims, who purportedly made death threats against Muhammad (in absentia)
and his son for not giving them money.
The IJ denied Muhammad’s applications for asylum, withholding of
removal, and protection under the CAT. The IJ determined that Muhammad
had not filed his asylum application within the applicable time limit, see 8 C.F.R.
1208.4(a)(2), and that he did not have a qualifying excuse for his failure to do so.
Considering Muhammad’s application for withholding of removal, the IJ found
that Muhammad had not established that the four incidents were motivated by
his religious identity and that he did not have a well-founded fear of future
persecution. Finally, the IJ found that there was no evidence that the Islamic
Republic of Pakistan, or anyone acting with its acquiescence, had targeted
Muhammad for torture.
Muhammad appealed to the BIA and challenged the IJ’s denial of his
application for withholding of removal. He did not contend that the IJ erred in
denying his asylum or CAT claims, which the BIA agreed had been correctly
denied. The BIA determined that the robberies and tire-slashing incident were
the result of criminal activity and did not constitute religious persecution. It
held that the rock-throwing incident, while it may have been motivated by
Muhammad’s religious identity, was not egregious enough to rise to the level of
persecution. The BIA dismissed Muhammad’s petition on March 30, 2009.
Muhammad timely filed a petition for review.
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DISCUSSION
In his appeal to this court, Muhammad contests only the BIA’s finding on
religious persecution as it relates to his application for withholding of removal.1
The BIA found that Muhammad’s run-ins with Sunni Muslims did not
constitute persecution on account of his religion. This court gives substantial
deference to such findings of fact.2 They are reviewed for substantial evidence,
“which requires that the BIA’s decisions be supported by record evidence and be
substantially reasonable.” Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009)
(citation and quotation omitted). The BIA’s findings are “conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C.
§ 1252(b)(4)(B); see Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). We
apply this deferential standard in reviewing the BIA’s factual conclusion that an
applicant is not eligible for withholding of removal. See Chen, 470 F.3d at 1134.
“[R]eversal is improper unless we decide not only that the evidence supports a
contrary conclusion, but also that the evidence compels it.” Id. (quotation
omitted). “The applicant has the burden of showing that the evidence is so
compelling that no reasonable factfinder could reach a contrary conclusion.” Id.
1
The government contends that Muhammad is statutorily barred from challenging the
BIA’s asylum determination. Assuming arguendo that he were able to appeal to this court the
BIA’s conclusion that he did not qualify for asylum or protection under the CAT, Muhammad
has waived those arguments. “We do not examine issues not raised on appeal ‘absent the
possibility of injustice so grave as to warrant disregard of usual procedural rules.’” Calderon-
Ontiveros v. I.N.S., 809 F.2d 1050, 1052 (5th Cir. 1986) (quoting McGee v. Estelle, 722 F.2d
1206, 1213 (5th Cir. 1984) (en banc) (footnote omitted)). There is no such possibility of grave
injustice here.
2
We review the BIA’s decision, rather than the IJ’s decision, because the BIA conducted
a de novo review of the record evidence. Roy v. Ashcroft, 389 F.3d 132, 137 (5th Cir. 2004).
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To be eligible for withholding of removal, an applicant must demonstrate
a clear probability of persecution should he be forced to return to his home
country. Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). “A clear probability
means that it is more likely than not that the applicant’s life or freedom would
be threatened by persecution on account of either his race, religion, nationality,
membership in a particular social group, or political opinion.” Id. “Persecution”
requires a showing that “harm or suffering will be inflicted” on the applicant to
punish him “for possessing a belief or characteristic a persecutor sought to
overcome.” Faddoul v. I.N.S., 37 F.3d 185, 188 (5th Cir. 1994). To be eligible for
withholding of removal, Muhammad must demonstrate a particularized
connection between the persecution and his religion—a demonstration that
requires “specific, detailed facts showing a good reason to fear that he . . . will
be singled out for persecution.” Id. (emphasis omitted). A showing of past
persecution creates a rebuttable regulatory presumption that the applicant will
face future persecution. Zhu v. Gonzales, 493 F.3d 588, 599 (5th Cir. 2007)
(citing 8 C.F.R. § 208.16(b)(1)).
The BIA’s factual determination that the incidents cited by Muhammad
do not rise to the level of past persecution and that the evidence does not
demonstrate a clear probability of future persecution was reasonable. The BIA
noted that Muhammad could not identify anyone he believed was responsible for
the damage to his car. It found that the two robberies had to do with the Sunni
Muslim attackers’ desire for money from Muhammad, not his religion, especially
considering Muhammad’s testimony that the attackers had no way of knowing
he was not a Sunni. Finally, the BIA agreed that the rock-throwers “did appear
to be motivated by a desire for [Muhammad] to convert to their Sunni religion,”
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but held that all of the incidents were “relatively minor” and that, taken
together, they did not rise to the level of past persecution.
Muhammad’s evidence is not so overwhelming that a reasonable factfinder
would be compelled to find past persecution or a fear of future persecution.
First, none of the three job-related incidents compels a finding of persecution.
Private violence or other criminal activity unconnected to a protected
ground—here, religion—does not suffice to show persecution on account of a
protected ground. See Thuri v. Ashcroft, 380 F.3d 788, 792-93 (5th Cir. 2004).
Second, while the rock-throwing incident may have been motivated by
Muhammad’s religion, the BIA was not out of bounds in finding it insufficiently
serious to rise to the level of past persecution. This court has adopted the BIA’s
definition of persecution as:
[T]he infliction of suffering or harm, under government
sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion, etc.), in a
manner condemned by civilized governments. The harm or
suffering need not be physical, but may take other forms, such
as the deliberate imposition of severe economic disadvantage
or the deprivation of liberty, food, housing, employment or
other essentials of life.
Abdel-Masieh v. I.N.S., 73 F.3d 579, 583 (5th Cir. 1996) (quotation omitted). In
Eduard v. Ashcroft, this court upheld the IJ’s finding of no past persecution for
an applicant who was hit and beaten for refusing to say Muslim prayers and
another applicant who was struck with a rock, presumably thrown by a Muslim,
on his way to church. 379 F.3d 182, 187-88 (5th Cir. 2004). The Eduard court
held that substantial evidence supported the IJ’s findings where neither
applicant was “interrogated, detained, arrested, or convicted in Indonesia,” and
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only one of them suffered physical injury. Id. at 188. The rock-throwing
incident here is similar to the one we found insufficient to compel a finding of
persecution in Eduard. Both were isolated acts that do not suffice, on their own,
to compel a finding of persecution.
To the extent that Muhammad argues that the BIA applied an incorrect
legal standard in finding that the incidents of rock-throwing at his house did not
rise to the level of persecution, but rather were harassment, we find this
argument without merit. We have previously held that “[n]either discrimination
or harassment ordinarily amounts to persecution . . . even if the conduct
amounts to ‘morally reprehensible’ discrimination on the basis of race or
religion.” Eduard, 379 F.3d at 188. As discussed supra, substantial evidence
supports the BIA’s conclusion that the cited incidents do not rise to the level of
persecution.
Finally, the evidence does not compel a finding that Muhammad
demonstrated a clear probability of future persecution. The BIA found that
Muhammad’s fear of returning to Pakistan “is based on his interactions with
individuals who committed criminal acts against him, and not based on one of
the protected grounds.” Muhammad’s evidence does not compel a different
conclusion.
CONCLUSION
Muhammad’s petition for review of the BIA’s denial of his asylum and
CAT applications is DISMISSED; his petition for review of the BIA’s denial of
his application for withholding of removal is DENIED.
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