     Case: 13-60281      Document: 00512620120         Page: 1    Date Filed: 05/06/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                                                Fifth Circuit

                                                                               FILED
                                      No. 13-60281                           May 6, 2014
                                                                            Lyle W. Cayce
                                                                                 Clerk
MIRZA NOORALI HUSSAIN; AMAN MIRZA HUSSAIN; KHATIDJA MIRZA
HUSSAIN,

                                                 Petitioners,

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                 Respondent.




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A088 197 874
                               BIA No. A088 580 875
                               BIA No. A088 580 876


Before BARKSDALE, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Petitioners Mirza Noorali Hussain, Aman Mirza Hussain, and Khatidja
Mirza Hussain seek review of the order of the Board of Immigration Appeals
(BIA) dismissing their appeal and affirming the order of an Immigration Judge
(IJ) denying their applications for withholding of removal and protection under



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                     No. 13-60281
the Convention Against Torture (CAT). The Hussains, who are citizens of
Pakistan, argue that the BIA erred in affirming the IJ’s denial of their
applications because they presented evidence that they suffered past
persecution on account of their religion and that there is a clear probability of
their persecution or torture if they return to Pakistan. We deny the petition.
                                            I
        The Hussains arrived in the United States from Pakistan in 2000. They
were granted visas to stay for one year but were denied visas the following
year.       In 2009, the Department of Homeland Security (DHS) served the
Hussains with notices to appear before the Immigration Court, charging them
with removability because they had remained in the United States for a longer
time than permitted.        Their cases were consolidated before an IJ.              The
Hussains conceded their removability, but applied for withholding of removal
and CAT protection. They claimed that they feared persecution and torture in
Pakistan based upon their religion and/or their membership in a particular
social group because of their status as Ismaili Muslims.
        At the hearing before the IJ, Noorali Hussain 1 testified on behalf of all
three applicants. He testified that he, his wife Khatidja, and his son Aman
were members of the Ismaili Muslim sect of Shi’a Islam, a religious minority
in Pakistan. Noorali Hussain recounted various negative experiences that he
attributed to being Ismaili. He testified that when he was a child, he was
slapped by Sunni children and called a “kafir” (a non-believer) and was later
denied admission to two colleges. His daughter, who is not a petitioner in this
matter, was assaulted by a Sunni teacher, who pulled her earrings, causing
her earlobes to bleed. Khatidja Hussain was robbed on multiple occasions,



        1The Hussains’ brief refers to Mirza Noorali Hussain as Noorali Hussain, and so we
will refer to him in that way as well.
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                                No. 13-60281
including twice when a gold chain was taken from her neck and the thief,
wearing a turban and large beard in the style of members of the Sunni faith,
called her a prostitute and threatened to kill her. Her car was also hit with a
brick while she was driving, thrown by a man with a turban and a beard riding
in a bus next to her. In 1997 or 1998, when Aman Hussain was eight or nine
years old, four men wearing black turbans attempted to kidnap him while he
was walking to worship with his father and brother. The men drove up in a
car, opened the door, and attempted to pull Aman in, but they were stopped
when other people in the area intervened. Noorali Hussain also testified that
on one occasion in 1996, three men belonging to the Muhaji Quami Movement
(MQM), a Sunni organization, entered a factory he owned carrying handguns
and demanded a donation to their organization.          When Noorali Hussain
refused, one of the men displayed the handgun and threatened to close down
the factory and threatened Noorali Hussain’s wife and children.           Noorali
Hussain then gave the men 15,000 rupees. One week later, four men belonging
to another Sunni organization—Jamat-i-Islami—came to the factory and
demanded that Noorali Hussain pay them what he had given to the MQM. One
of the men displayed a gun, slapped Noorali Hussain, called him a non-
believer, and threatened to kill him if he did not pay them. Noorali Hussain
paid the men and subsequently closed that factory. None of these incidents
was reported to the police, although the Hussains did contact the daughter’s
school in response to the teacher’s abuse. Noorali Hussain also testified that
twice in 1997 and once in 1998 or 1999, the Jamat Khanna where he and his
family worshipped was evacuated because of bomb threats. On at least one of
these occasions, an explosive device was found.
      Noorali Hussain explained that after the terrorist attacks of September
11, the situation in Pakistan has deteriorated and become worse for religious
minorities. As evidence of this, Noorali Hussain stated that he knew of two
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                                        No. 13-60281
children who had been kidnapped and held for ransom and that during a recent
day of celebration for Ismailis, all of the Jamat Khannas in Pakistan were
forcibly closed when individuals carrying weapons stood in front of the prayer
halls. Noorali Hussain also testified that after he came to the United States
the MQM had returned to his place of business, which was being operated by
his brother, and demanded 25,000 rupees. However, on Noorali Hussain’s
advice, one of his employees reported the incident to the electronics association
to which the business belonged, and there were no further incidents.
      After hearing Noorali Hussain’s testimony, the IJ issued an oral decision
denying the Hussains’ applications for withholding of removal and protection
under the CAT because the applicants had failed to establish past persecution
or a clear probability of future persecution on the basis of a protected ground,
and because they had not shown that it was more likely than not that the
Pakistani government would subject them to torture or acquiesce in their
torture by others. The Hussains appealed the decision to the BIA, which
affirmed the IJ’s decision. The Hussains now petition for review of the BIA’s
order affirming the IJ’s denial of their applications.
                                               II
      The Hussains argue that the BIA erred in determining that they were
not eligible for withholding of removal. When, as here, the BIA’s decision is
impacted by the rulings and findings of the IJ, we review the IJ’s findings
directly. 2 Whether an applicant is eligible for withholding of removal is a
factual determination that we review under the highly deferential substantial
evidence standard. 3        Under this standard, “[t]he IJ’s findings of fact are



      2   Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002).
      3 Bouchikhi v. Holder, 676 F.3d 173, 181 (5th Cir. 2012); Tamara-Gomez v. Gonzales,
447 F.3d 343, 347 (5th Cir. 2006).
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conclusive ‘unless any reasonable adjudicator would be compelled to conclude
to the contrary . . . .’” 4 Our independent determination that the evidence could
support a contrary decision is insufficient to warrant reversal. 5
      To be eligible for withholding of removal, an applicant must demonstrate
a clear probability of persecution upon return to his home country. 6 If an
applicant establishes past persecution, he is entitled to a rebuttable
presumption that he would face future persecution upon his return. 7 “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.” 8 An applicant must establish that one of these protected grounds
“‘was or will be at least one central reason for persecuting the applicant.’” 9 As
the BIA has explained, this means that race, religion, nationality, membership
in a particular social group, or political opinion “cannot be incidental,
tangential, superficial, or subordinate to another reason for harm.” 10 The
burden of proof is on the applicant to show that “the evidence is so compelling
that no reasonable factfinder could reach a contrary conclusion.” 11
      The Hussains contend that the IJ summarily and erroneously
determined that the incidents of abuse were not egregious enough to constitute



      4 Bouchikhi, 676 F.3d at 181 (emphasis added) (quoting 8 U.S.C. § 1252(b)(4)(B); Chen
v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006)).
      5   Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
      6   Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004).
      7   See 8 C.F.R. § 208.16(b)(1)(i).
      8   Roy, 389 F.3d at 138.
      9   Shaikh v. Holder, 588 F.3d 861, 864 (5th Cir. 2009) (quoting 8 U.S.C. § 1158(b)(1)(A)).
      10   In re J-B-N- & S-M-, 24 I. & N. Dec. 208, 214 (BIA 2007).
      11   Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
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past persecution. We disagree. First, a review of the IJ’s decision reveals that
its recounting of the various incidents suffered by the Hussains spans three
and one-half pages that are followed by an application of this circuit’s law to
the facts as discussed. Rather than ignoring or summarily dismissing the
harms suffered by the Hussains, the IJ noted that they had suffered various
physical abuses, along with harassments and threats, which were
“understandably traumatic”; however, the IJ determined that these events
simply did not rise to the level of “extreme conduct” that constitutes
persecution. Second, as the IJ correctly stated, “[p]ersecution cannot be based
on mere denigration, harassment, and threats,” 12 and “is an extreme concept
that does not include every sort of treatment our society regards as offensive.” 13
The abuses suffered by the Hussains, while certainly reprehensible, did not
cause any serious injury. Additionally, the incidents that rose above verbal
harassment appear to have been discrete events that occurred over a period of
many years. The Hussains cite to cases from other circuits to support the
proposition that even infrequent incidents may be sufficient to constitute
persecution; however, the applicants in those cases endured more severe abuse
than that faced by the Hussains. 14 The Hussains correctly assert that the
harm they suffered was more substantial than that at issue in the cases cited



        Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006) (internal quotation
       12

marks omitted).
       13   Eduard v. Ashcroft, 379 F.3d 182, 187 n.4 (5th Cir. 2004) (internal quotation marks
omitted).
       14 See Nakibuka v. Gonzales, 421 F.3d 473, 475-78 (7th Cir. 2005) (holding that
incident when applicant was tied up overnight in manner that caused her excruciating pain,
had a gun put to her head, and was threatened with imminent rape was serious enough to
constitute past persecution); Corado v. Ashcroft, 384 F.3d 945, 946-47 (8th Cir. 2004) (per
curiam) (holding that applicant who was accosted in her home on four occasions by
individuals aligned with police who had murdered her uncle and threatened to kill her had
sufficiently established past persecution because of the “specific, credible, and immediate
threat of death”).
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by the IJ, but this only establishes that their experiences might constitute past
persecution, not that they necessarily do. Whether an applicant has suffered
past     persecution    is   a   fact-specific    determination        that    requires    an
individualized review of the particular facts of the case. 15 On the record before
us, we cannot say that the evidence is so compelling that no reasonable
factfinder could determine that the harms suffered by the Hussains did not
rise to the level of persecution. We conclude that there is substantial evidence
to support the IJ’s determination that the Hussains did not suffer past
persecution.
        The Hussains also contest the IJ’s determination that they could not
establish a clear probability of future persecution on a protected ground. In
reaching that conclusion, the IJ noted that the motives for harassing the
Hussains are mixed, but found that the “criminal intent to deprive the
[Hussains] of property and money is the central reason” for targeting them.
The Hussains argue that the IJ incorrectly determined that their status as
Ismailis was not a central reason for persecution. We conclude that there is
substantial evidence to support the IJ’s finding that money, and not the
Hussains’ status as Ismailis, was the central reason for targeting them.
        The State Department International Religious Freedom Report for 2010
cited by the IJ in his decision states that Ismailis reported facing resentment
due to their comparative economic well-being. Noorali Hussain confirmed this
during his testimony, explaining that many Ismailis have met with more
financial success than others in Pakistan and that Sunnis are jealous of
Ismailis for this reason. Many of the events recounted by Noorali Hussain—




        See, e.g., In re J-H-S-, 24 I. & N. Dec. 196, 200-01 (BIA 2007) (noting that “[w]hether
        15

more severe economic sanctions can rise to the level of persecution is a question best
addressed on a case-by-case basis”).
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                                       No. 13-60281
e.g., the threats he received from the MQM and the Jamat-i-Islami, the
robberies committed against Khatidja Hussain, and the attempted kidnapping
of his son Aman—prominently featured the acquisition of money as an
objective. Indeed, Noorali Hussain testified that once he gave money to the
MQM, he was targeted by other groups who became aware that they could
obtain money from him. To the extent that the Hussains were targeted as a
result of being Ismaili, Noorali Hussain’s testimony supports a finding that
their religious affiliation was secondary to the fact of their wealth and was
important largely as a proxy for being financially successful. This comports
with reports in the record that groups like the MQM fund themselves through
criminal activity, including kidnapping and the type of extortion to which
Noorali Hussain was subjected. Finally, Noorali Hussain conceded at the
hearing before the IJ that Sunni businesses might have been approached as
well. He surmised that if that had occurred, the businesses had managed to
turn those involved in the extortion schemes onto the Hussains’ business
instead because he was Ismaili. However, at best, this shows that the primary
focus was to obtain money from local businesses and that Noorali Hussain’s
status as an Ismaili was only secondary. Thus, the evidence in the record is
not so compelling that no reasonable factfinder could conclude that the
Hussains’ status as Ismailis was not a central reason for persecution.
                                              III
      In addition to deeming the Hussains ineligible for withholding of
removal based on persecution, the IJ also denied the Hussains’ application for
protection under the CAT. Like withholding of removal, eligibility for CAT
protection is a factual determination that we review under the substantial
evidence standard. 16 To qualify for withholding of removal under the CAT, an


      16   Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005).
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                                        No. 13-60281
applicant must establish that it is more likely than not that he will be tortured
if he returns to his home country. 17
      Torture is defined as any act by which severe pain or suffering . . .
      is intentionally inflicted on a person . . . for any reason based on
      discrimination of any kind, when such pain or suffering is 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. 18

This court has directed that, along with other evidence, four factors in
particular should be considered: (1) “[e]vidence of past torture inflicted upon
the applicant;” (2) “[e]vidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;” (3) “[e]vidence
of gross, flagrant or mass violations of human rights within the country o[f]
removal, where applicable; and” (4) “[o]ther relevant information regarding
conditions in the country of removal.” 19
      The IJ found that (1) there was no evidence of any past torture of the
Hussains, (2) relocation would be difficult, but was not a controlling factor, (3)
while there were a substantial number of human rights violations and cases of
torture in Pakistan, they occurred primarily in the custody of security forces,
and (4) although security forces and police are unable to control factions in
Pakistan that might cause serious harm, this did not equate to acquiescence to
torture. The IJ also noted there was no evidence to suggest that the Hussains
would be held in custody and tortured with the acquiescence of the Pakistani
government.
      The Hussains point to the State Department’s 2010 Report on Human
Rights Practices in Pakistan, which states that Pakistani police and courts


      17   8 C.F.R. § 1208.16(c)(2); Zhang, 432 F.3d at 344-45.
      18   8 C.F.R. § 208.18(a)(1).
      19   Tamara-Gomez v. Gonzales, 447 F.3d 343, 350 n.11 (5th Cir. 2006).
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often fail to protect religious minorities, and that the police sometimes commit
human rights abuses. Based on this, the Hussains assert that “it is clear that
non-Sunni Muslims in Pakistan are far more likely to be tortured by
government agents or individuals the Pakistani regime refuses to control.” As
the IJ noted, the section of the State Department’s report addressing torture
in particular explains that torture does occur among individuals in the custody
of police and security forces; however, the report indicates that many of these
instances of torture were met with condemnation by the government and
courts, and resulted in arrests and court cases against the officials involved.
Moreover, even if the Hussains were correct that religious minorities are more
likely than others to face torture, this does not establish that it is more likely
than not that they actually will be tortured, much less that the Hussains in
particular are more likely than not to be tortured if they are removed to
Pakistan.
      The Hussains also contend that the evidence shows that the Pakistani
government is not opposed to using torture. The IJ acknowledged this when
he discussed the State Department’s report, which identified a significant
increase in the total number of torture and rape cases. However, as the IJ
noted, the report also indicates that the torture generally occurred when the
victim was in the custody of security forces, and the Hussains have presented
no evidence to suggest that they will be taken into custody and subjected to
torture. Thus, there is substantial evidence to support the IJ’s determination
that the Hussains are ineligible for protection under the CAT.
                                *        *         *
      For the foregoing reasons, the petition is DENIED.




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