NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 30, 2013
Decided March 5, 2013
Before
DANIEL A. MANION, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 12-2547
FARYAL AZIZ AHMED and Petition for Review of Order of the Board
MUHAMMAD ARIF KHAN, of Immigration Appeals.
Petitioners,
Nos. A099-717-962 & A099-717-963
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
ORDER
Pakistani citizens Faryal Ahmed and her husband, Muhammad Khan, seek review
of an order denying them withholding of removal. Khan’s claim for withholding is
derivative of Ahmed’s. An immigration judge concluded that Ahmed had not shown past
persecution or a well-founded fear of future persecution, and the Board of Immigration
Appeals rejected the petitioners’ request for a remand based on allegedly deficient
performance by their lawyer during the hearing before the IJ. We conclude that the Board
did not abuse its discretion and deny the petition for review.
Ahmed and Khan separately came to the United States in 2002 as visitors. After
No. 12-2547 Page 2
overstaying their visas by several years, they were placed in removal proceedings. They
applied for asylum, withholding of removal, and relief under the Convention Against
Torture but pressed only their withholding claim at the hearing before the IJ.1 The IJ found
that the asylum claims were untimely anyway; Ahmed and Khan do not contest that
finding, and even if they did, we would lack jurisdiction to hear the challenge. 8 U.S.C.
§ 1158(a)(3); Ghaffar v. Mukasey, 551 F.3d 651, 654 (7th Cir. 2008). Because Khan’s claim for
withholding is derivative, we will refer only to Ahmed and her claim.
At the removal hearing in 2010, Ahmed testified that from 1997 through 2000 she
was active as a college student in the Pakistan Muslim League-Nawaz (“PML”). In 2001
and continuing through 2002, members of a rival political party, Muttahida Quami
Movement (“MQM”), began pressuring Ahmed through phone calls and letters to switch
parties or face torture and death. On one occasion during 2002, Ahmed said, she was
grabbed on the street by two men who had been following in a van and told she would be
taught a “lesson” if she refused to join their party. Also in 2002, unseen vandals smashed
the windows of her friend’s car, slashed the tires, and painted the hood with the words
“join the liberators or die.” Ahmed assumes that she was the target because she was with
her friend shopping when the parked car was damaged. Ahmed then went into hiding and
later entered the United States. Khan, whom she married that summer, had arrived a
month earlier. Ahmed told the IJ that originally she had planned only to visit her brother
before returning to Pakistan. She decided that it was unsafe to return, however, after
learning during calls home to her family that MQM members had been inquiring about her,
though without threatening her or her family. She insisted that her one attempt to contact
the police was futile because the “MQM is in the government” and is a rival of the PML,
and thus the “police cannot support or protect me.”
In denying Ahmed’s application for withholding, the IJ considered the “general
background information, including the State Department opinion” documenting the
“terrible conditions that exist in Pakistan.” (The IJ entered the country report into the
record, even though Ahmed had not submitted it.) Because Ahmed offered no
corroborating evidence, not even letters or affidavits from family or friends, the IJ was left
with only her testimony. He found Ahmed credible but her testimony too insubstantial to
1
There was disagreement at the removal hearing about whether Khan had applied
for asylum. His completed application is in the administrative record, but apparently it had
been misplaced before the hearing. The government thus asserted, and the IJ found, that
Khan had not applied for any type of relief. Still, the IJ assumed that Khan could benefit
derivatively from Ahmed’s application. In this court the government still insists that Khan
did not apply for relief, but it says nothing about his application in the record.
No. 12-2547 Page 3
establish past persecution: The threats had occurred eight years earlier, came from
unknown persons, and were related only to Ahmed’s political activities during her college
years. Moreover, the IJ continued, Ahmed came to the United States as a visitor, apparently
not fearful enough of the threats to flee Pakistan. Her fear of future persecution, the IJ
concluded, was speculative and remote based on the threats from 2002 and calls to her
family. Nor, the IJ concluded, did Ahmed present any evidence that she was unable to
safely relocate or that the Pakistani government was unwilling or unable to protect her.
The Board agreed that Ahmed had failed to show past persecution or a risk of future
persecution. The Board did not address, however, whether Ahmed had submitted
corroborating evidence or evidence that the Pakistani government would be unable or
unwilling to protect her. The Board rejected Ahmed’s claim that the IJ improperly had
relied on his own knowledge about Pakistan because she failed to show prejudice from the
IJ’s use of that information. She also failed, the Board concluded, to establish prejudice
from her attorney’s allegedly deficient performance.
In this court Ahmed first asserts that the IJ and Board failed to justify their findings
that she had not suffered persecution and did not face it in the future. She argues that her
testimony about the harassment and physical attacks, the only real evidence, amply
support her eligibility for withholding, but she only recounts the evidence without
explaining how it supports her theory.
To establish entitlement to withholding of removal, Ahmed was required to
demonstrate past persecution or a clear probability that she will face persecution if
removed. See Margos v. Gonzales, 443 F.3d 593, 600 (7th Cir. 2009); Zeqiri, 529 F.3d 364, 370
(7th Cir. 2008). Because the Board adopted and supplemented the IJ’s reasoning, we review
both decisions. Abraham v. Holder, 647 F.3d 626, 632 (7th Cir. 2011); Milanouic v. Holder, 591
F.3d 566, 570 (7th Cir. 2010). The underlying factual findings must be upheld if supported
by substantial evidence, and the denial of relief also will be sustained unless the evidence
compels a contrary conclusion. 8 U.S.C. § 1252(b)(4); Abraham, 647 F.3d at 632; Zeqiri, 529
F.3d at 370.
Substantial evidence supports the denial of withholding. First, acts of private
citizens constitute persecution only if the government is complicit in those acts or unable to
help. Ingmantoro v. Mukasey, 550 F.3d 646, 650 (7th Cir. 2008); Meghani v. INS, 236 F.3d 843,
847 (7th Cir. 2001). Ahmed asserts that she was singled out by the MQM, which, she insists,
“is in the government” and dominates “the government and police.” But Ahmed offered no
evidence to support this characterization of the MQM’s reach, nor did she offer evidence
that police or the government officials ordered or allowed the threats against her, or were
unable or unwilling to control the actions of MQM members. Her evidence shows only that
No. 12-2547 Page 4
she received threats from unknown persons purportedly supporting a rival political group.
C.f. Meghani, 236 F.3d at 847 (upholding IJ’s finding that beating of political rival by MQM
members evidenced only “civil unrest between competing political factions not amounting
to persecution”).
Second, the threats to Ahmed did not constitute persecution. Threats qualify as
persecution only in extreme cases, e.g., when they are “immediate or menacing” or “the
perpetrators attempt to follow through on the threat.” Bejko v. Gonzales, 468 F.3d 482, 486
(7th Cir. 2006); see Pathmakanthan v. Holder, 612 F.3d 618, 623 (7th Cir. 2010); Boykov v. INS,
109 F.3d 413, 416 (7th Cir. 1997). The victim must also be able to identify the source or
purpose of the threats. Guardia v. Mukasey, 526 F.3d 968, 972 (7th Cir. 2008); Mitev v. INS, 67
F.3d 1325, 1330–31 (7th Cir. 1995). Ahmed conceded that she was never physically harmed,
the threats generally were anonymous, and no one ever followed through on the threats
even during the months she remained in Pakistan. And since she left Pakistan, the inquiries
from MQM members have not been threatening.
Third, Ahmed presented no corroborating evidence that the threats occurred or that
the MQM was targeting her. Testimony may on its own prove eligibility for withholding
only if it is credible, persuasive, and specific. 8 U.S.C. § 1158(b)(1)(B)(ii); Rapheal v. Mukasey,
533 F.3d 521, 528 (7th Cir. 2008). Counsel for the petitioners declined to have Khan testify,
presenting testimony from only Ahmed. The IJ found her testimony credible but vague and
insufficient to establish persecution. For example, it was unclear whether the threats in
2002 were based on her support for the PML in 1997 to 2000. And although she still has
contact with her family in Pakistan, Ahmed gave no reason why she was unable to produce
any corroborating evidence at the hearing. See 8 U.S.C. § 1158(b)(1)(B)(ii); Rapheal, 533 F.3d
at 527, 529. The IJ made clear that, though he understood and believed Ahmed, her
evidence was too thin to prove persecution rather than harassment.
Ahmed has failed to develop a distinct challenge to the conclusion that she would
not face future persecution, so she has waived that argument. See Liu v. Holder, 692 F.3d
848, 851 (7th Cir. 2012); Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir. 2006). But at all events,
any contention that the record establishes a clear probability of future persecution would
fail. It has been more than 10 years since Ahmed left Pakistan, and it is unclear whether the
inquiries from MQM members since then have anything to do with her political allegiance.
And no one in Ahmed’s family has been harmed or threatened since she left. The
possibility of future persecution, therefore, is speculative. See Mabasa v. Gonzales, 455 F.3d
740, 745 (7th Cir. 2006) (“The INA does not require withholding if an applicant ‘“might” or
“could” be subject to persecution.’” (quoting INS v. Stevic, 467 U.S. 407, 422 (1984)));
Kobugabe v. Gonzales, 440 F.3d 900, 901–02 (7th Cir. 2006) (denying petition for review and
No. 12-2547 Page 5
agreeing with IJ that “modest,” uncorroborated future risk of persecution did not establish
eligibility for withholding).
Ahmed next maintains that the IJ improperly relied on a personal misunderstanding
of Pakistan history and politics, rather than on documents in the record, in denying her
application. She asserts that the IJ’s views “clearly impacted” his finding that her evidence
is insufficient to meet her burden of proof, but also argues that the BIA should have
scrutinized “the nuance of his language.”
The IJ did not improperly consider evidence outside the record. Ahmed was entitled
to review key evidence before the day of the hearing or a continuance to rebut it. See 8
U.S.C. § 1229a(b)(4)(B); Tadesse v. Gonzales, 492 F.3d 905, 909 (7th Cir. 2007). But the IJ’s
discussion refers only to general political strife in Pakistan: “Musharraf took power from
the, the other parties when he came into power. . . . President Musharraf took power, so he
wasn’t sharing power. He was a military official . . . he took power of the government.”
“[T]he Muslim League controls most of the population of Pakistan. The Muslim League is
the more popular party in Pakistan and then they break down to the PPP and the MQM.”
This basic information (even if somewhat inaccurate) is not central to Ahmed’s claim of
persecution and could have been learned from watching the news or reading an article.
E.g., Celia W. Dugger, Coup in Pakistan: The Overview; Pakistan Army Seizes Power Hours After
Prime Minister Dismisses His Military Chief, N.Y. TIMES, Oct. 13, 1999,
http://www.nytimes.com/1999/10/13/world/coup-pakistan-overview-pakistan-army-seizes-
power-hours-after-prime-minister.html; Political Parties at a Glance, WORLD SAVVY,
http://worldsavvy.org/monitor/index.php?option=com_content&view=article&id=321&Ite
mid=462 (Sept. 2008). And anyway, the IJ stated that, although he was “not unmindful” of
the poor conditions generally in Pakistan, he decided the case based only on Ahmed’s
testimony. Ahmed does not argue otherwise.
Ahmed last insists that her former, retained attorney was deficient for, among other
things, not providing the IJ with corroborating evidence, and she challenges the Board’s
finding that she was not prejudiced by counsel’s performance. Ahmed asserts without
elaboration that the Board applied an incorrect legal standard to decide this issue and
accuses the Board of ignoring evidence of her attorney’s shortcomings.
The Board did not abuse its discretion by denying the petitioners’ request to remand
their case based on ineffective assistance of counsel. To start, there is no Sixth Amendment
right to counsel (and thus no right to effective representation) in removal proceedings. Solis-
Chavez v. Holder, 662 F.3d 462, 466 (7th Cir. 2011); Pervaiz v. Gonzales, 405 F.3d 488, 489–90
(7th Cir. 2005). There exists only a due-process right to a fair hearing, although that right
No. 12-2547 Page 6
can be violated by counsel’s poor performance. Solis-Chavez, 662 F.3d at 466; Surganova v.
Holder, 612 F.3d 901, 907 (7th Cir. 2010). To demonstrate that their right to due process was
violated, Ahmed and Khan needed to complete certain procedural hurdles ((1) show via
affidavit that they had an agreement with counsel about the scope of representation,
(2) notify counsel of the claim and allow him to respond, and (3) if counsel acted
unethically, file a complaint with the proper disciplinary authorities), demonstrate
prejudice from their attorney’s performance, and show that this prejudice unfairly
prevented them “from reasonably presenting [their] case.” See Solis-Chavez, 662 F.3d at 466
(citing Matter of Lozada, 19 I. & N. Dec. 637, 638–39 (BIA 1988)); Jiang v. Holder, 639 F.3d 751,
755 (7th Cir. 2011); Surganova, 612 F.3d at 907.
Ahmed and Khan met the procedural requirements from Matter of Lozada, 19 I. & N.
Dec. at 639, but failed to show prejudice or that their hearing was unfair. The petitioners
point to language in the IJ’s decision suggesting that corroborating evidence would have
aided their claim and insist that their attorney had this evidence but failed to provide it to
the IJ. But Ahmed and Khan do not specify on what evidence the lawyer supposedly sat.
Indeed, Ahmed told the IJ that she had not obtained letters or affidavits from anyone in
Pakistan either because she “did not want to bother them” or because it was “hard to get in
touch with them.” (The second statement seems inconsistent with her testimony that she
spoke by telephone with her family as recently as three months before her hearing.)
Counsel (who represents both petitioners) further contends that her predecessor
should have applied independently for withholding of removal on Khan’s behalf rather
than relying on a derivative application, and should have sought CAT protection for both
petitioners. But counsel does not hint on what basis, other than derivatively, Khan would
have for seeking withholding of removal, and the mention of CAT on these facts is
frivolous. See Kushchak v. Ashcroft, 366 F.3d 597, 605–06 (7th Cir. 2004); Ambati v. Reno, 233
F.3d 1054, 1061–62 (7th Cir. 2000); 8 C.F.R. § 208.13(c)(1). And the petitioners’ attempt to
bolster their argument with references to former counsel’s previous disciplinary troubles is
not helpful; the lawyer’s past disciplinary issues do not raise an inference of ineffectiveness
in this case. See Lin v. Holder, 630 F.3d 536, 546 (7th Cir. 2010); United States v. Williams, 934
F.2d 847, 851–52 (7th Cir. 1991) (rejecting per se rule for ineffectiveness claims and
requiring showing of prejudice from “actual errors and omissions”). And, in fact, the
Attorney Registration and Disciplinary Commission reviewed the petitioners’ complaints
about their attorney and concluded that there was “not a sufficient basis for further action”
and insufficient evidence that he had acted unprofessionally. Ahmed insists that she was
not adequately represented, but she appeared at her hearing, testified, and presented her
case in full. There is no showing that she was unable to “reasonably present her case.”
See Solis-Chavez, 662 F.3d at 466; Lin, 630 F.3d at 546.
The petition for review is DENIED.