         12-1696
         Boota v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A088 775 618
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT
                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 7th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RALPH K. WINTER,
 9                REENA RAGGI,
10                     Circuit Judges.
11       _______________________________________
12
13       MUHAMMAD BOOTA,
14                Petitioner,
15
16                         v.                                   12-1696
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Usman B. Ahmad, Long Island City,
24                                     NY.
25
26       FOR RESPONDENT:               Stuart F. Delery, Acting Assistant
27                                     Attorney General; Francis W. Fraser,
28                                     Senior Litigation Counsel; Jacob A.
29                                     Bashyrov, Trial Attorney, Office of
30                                     Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Muhammad Boota, a native and citizen of Pakistan, seeks

 6   review of an April 13, 2012, order of the BIA affirming the

 7   March 22, 2010, decision of Immigration Judge (“IJ”) Sandy

 8   Hom, denying his application for asylum, withholding of

 9   removal, and relief under the Convention Against Torture

10   (“CAT”).     In re Muhammad Boota, No. A088 775 618 (B.I.A.

11   Apr. 13, 2012), aff’g No. A088 775 618 (Immig. Ct. N.Y. City

12   Mar. 22, 2010).    We assume the parties’ familiarity with the

13   underlying facts and procedural history in this case.

14       Under the circumstances of this case, we have reviewed

15   the decision of the IJ as supplemented by the BIA.     See Yan

16   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

17   applicable standards of review are well-established.     See

18   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

19   The only issue before us is Boota’s eligibility for asylum.

20       The BIA has defined persecution as a “threat to the

21   life or freedom of, or the infliction of suffering or harm

22   upon, those who differ in a way regarded as offensive.”

23   Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

                                     2
 1   overruled, in part, on other grounds, INS v.

 2   Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

 3   U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006).

 4   The harm must be sufficiently severe, rising above “mere

 5   harassment.”   Ivanishvili, 433 F.3d at 341.   Here, the

 6   agency properly addressed the cumulative harm described by

 7   Boota, and the context of that harm, in order to reasonably

 8   find that it was insufficiently severe to constitute

 9   persecution.   See id.; Jian Qiu Liu v. Holder, 632 F.3d 820,

10   822 (2d Cir. 2011); Poradisova v. Gonzales, 420 F.3d 70, 79-

11   80 (2d Cir. 2005).

12       Boota testified to two instances of harm in Pakistan.

13   In November 2006, he was attacked by unknown assailants, who

14   hit him with their rifles and told him that in their

15   religion, it was “good” to kill Shias, and, in December

16   2006, a group of people destroyed the Shia community center

17   that Boota was helping to build, and then went to his home

18   and told his mother that Boota should not rebuild the

19   center, or they would come back and kill her, and “everyone

20   else.”   While the harm Boota suffered in the initial attack

21   was not insignificant, the context of both incidents —

22   unidentified attackers, not military or police forces,


                                   3
 1   acting independently, not in the context of an arrest or

 2   detention — is such that the agency did not err in finding

 3   that the mistreatment, considered cumulatively, does not

 4   constitute persecution.     See Jian Qiu Liu, 632 F.3d at 822

 5   (a minor altercation with government officials, prior to

 6   petitioner’s arrest and two day detention, did not

 7   constitute persecution); Beskovic v. Gonzales, 467 F.3d 223,

 8   226 (2d Cir. 2006) (the difference between harassment and

 9   persecution is one of degree, which must be assessed with

10   regard to the context in which the mistreatment occurs);

11   Poradisova, 420 F.3d at 79-80.      Accordingly, the agency

12   reasonably concluded that Boota did not suffer past

13   persecution.

14       Because Boota did not suffer past persecution, he is

15   not entitled to a presumption of future persecution.      See

16   8 C.F.R. § 1208.13(b)(1).     Independent from his claim of

17   past persecution, Boota asserts a fear of future persecution

18   because he has been an active member of the Shia community

19   in the United States.     However, the agency did not err in

20   finding that Boota did not establish a well-founded fear of

21   future persecution because he did not present any evidence

22   that anyone in Pakistan knew of his activities in the United


                                     4
 1   States, or sought to harm him because of those activities,

 2   and his mother, wife, and children continued to live in

 3   Pakistan unharmed.     See Hongsheng Leng v. Mukasey, 528 F.3d

 4   135, 143 (2d Cir. 2008); Melgar de Torres v. Reno, 191 F.3d

 5   307, 313 (2d Cir. 1999).

 6       Boota further asserts that the BIA erred in concluding

 7   that there was no pattern or practice of persecution of Shia

 8   Muslims in Pakistan.     See 8 C.F.R. § 1208.16(b)(2)(i)

 9   (providing that an applicant shall not be required to show

10   that he will be singled out individually for persecution if

11   he establishes that there is a pattern or practice of

12   persecution of a group of similarly situated persons).     To

13   establish a pattern or practice of persecution against a

14   particular group, a petitioner must demonstrate that the

15   harm to that group is “so systemic or pervasive as to amount

16   to a pattern or practice of persecution.”     In re A-M-, 23 I.

17   & N. Dec. 737, 741 (BIA 2005); see Mufied v. Mukasey, 508

18   F.3d 88, 91 (2d Cir. 2007).

19       The record evidence, including the 2007 and 2008 U.S.

20   Department of State Human Rights Reports on Pakistan, does

21   show that there is religious discrimination and pervasive

22   violence in Pakistan.    However, the violence referred to in

23   the State Department reports is primarily sectarian violence
                                     5
 1   between Shia and Sunnis, not solely violence against Shia

 2   Muslims by Sunnis and government forces.     Moreover, the

 3   violence is concentrated in the Federally Administered

 4   Tribal Area, not throughout Pakistan, and not in Punjab,

 5   Boota’s home province.   While the reports do indicate that

 6   there is systemic discrimination against Shia Muslims, as

 7   well as other religious groups, discrimination does not

 8   generally constitute persecution.     See Santoso v. Holder,

 9   580 F.3d 110, 111 (2d Cir. 2009).     As a result, substantial

10   evidence supports the BIA’s conclusion that the evidence did

11   not show systemic or pervasive persecution of Shia Muslims

12   in Pakistan.   See id. at 112 (holding that where the

13   agency’s determination that an individual did not establish

14   a pattern or practice of persecution is supported by

15   background materials, the agency has provided a “sufficient

16   basis” for its conclusion); Mufied v. Mukasey, 508 F.3d at

17   91.

18         For the foregoing reasons, the petition for review is

19   DENIED.   As we have completed our review, any stay of

20   removal that the Court previously granted in this petition

21   is VACATED, and any pending motion for a stay of removal in

22   this petition is DISMISSED as moot.     Any pending request for

23   oral argument in this petition is DENIED in accordance with
                                   6
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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