                                                                          F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 14 2004
                              FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

    OTABEK KUSHAKOV,

                Petitioner,

    v.                                                  No. 02-9589
                                                   (BIA No. A78-584-955)
    JOHN ASHCROFT,                                  (Petition for Review)

                Respondent.


                              ORDER AND JUDGMENT        *




Before EBEL , BALDOCK , and LUCERO , Circuit Judges.



         Petitioner Otabek Kushakov, a citizen of Uzbekistan who is proceeding

pro se, petitions for review of an order of the Bureau of Immigration Appeals

(BIA) summarily affirming the decision of the Immigration Judge (IJ) denying his

applications for: (1) asylum; (2) withholding of removal under 8 U.S.C.

§ 1231(b)(3); and (3) withholding of removal under the Convention Against



*
   The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Torture, see 8 C.F.R. § 208.16(c)(2). We deny the petition for review and affirm

the IJ’s decision denying the applications for asylum and withholding of removal   .1

                                            I

      Kushakov is twenty-five years old, and he left Uzbekistan in March 2000.

He claims he is a devout Muslim, and denies any affiliation with anti-government

or terrorist groups. Kushakov also claims that he has been persecuted by the

government of Uzbekistan in the past and fears future persecution because: (1) he

practiced Islam outside of state regulation; and (2) he was suspected of being a

Muslim extremist and of being engaged in anti-government activities.

      To support his claim that he suffered past persecution, Kushakov alleges

that he was detained by government authorities for two weeks in August 1999 and

interrogated regarding his religious and political beliefs. Prior to his detention in

February 1999, five suspected terrorist bombs exploded in Tashkent (the capital

of Uzbekistan and the city where Kushakov resided), and Kushakov claims that he



1
  Because we have jurisdiction to directly review the IJ’s decision denying
Kushakov’s applications for asylum and for withholding of removal, we need not
address Kushakov’s claim that the BIA failed to comply with the streamlining
regulations in 8 C.F.R. § 3.1 (codified at 8 C.F.R. § 1003.1) when it assigned
Kushakov’s appeal to a single member of the BIA for a summary affirmance
without an opinion. See Batalova v. Ashcroft, 355 F.3d 1246, 1253 n.8 (10th Cir.
2004) (noting, in case in which the IJ denied applications for asylum and for
withholding of removal, that “it [made] little difference whether the BIA member
properly or improperly determined to utilize [the streamlining regulations] . . .
because we directly review the IJ’s decision, which the BIA member adopted”).

                                           -2-
was detained as part of the government’s crackdown on suspected Muslim

extremists following the bombings. Although he was not tortured during his

detention, Kushakov asserts that he was kicked and punched by government

agents at the time he was initially detained. He also claims that in order to obtain

his release he had to sign a statement renouncing certain Islamic groups and

agreeing not to leave Tashkent.

      According to Kushakov, his younger brother has been persecuted by the

government of Uzbekistan due to his religious beliefs and because he is a

suspected Muslim extremist. Specifically, Kushakov states that the government

wrongfully convicted his brother of sedition in July 1999, and that his brother is

currently serving a twenty-year prison sentence for that offense. During his

brother’s trial, Kushakov alleges that the government put forth evidence against

his father, and that his father was subsequently sentenced to prison for three and

one-half years for helping a friend of his brother (who was apparently also a

suspected Muslim extremist) flee the country.

      In an oral decision dated March 6, 2001, the IJ found that Kushakov failed

to establish refugee status based on his alleged past persecution or his alleged fear

of future persecution, and therefore denied his application for asylum. In an order

dated November 18, 2002, a single member of the BIA summarily affirmed the

IJ’s decision without an opinion pursuant to 8 C.F.R. § 3.1(e)(4) (codified at 8


                                         -3-
C.F.R. § 1003.1(e)(4)). As a result of the BIA’s summary affirmance, the IJ’s

decision became “the ‘final agency determination’” for purposes of appellate

review. Sviridov v. Ashcroft, 358 F.3d 722, 726–27 (10th Cir. 2004) (quoting

8 C.F.R. § 3.1(e)(4)(ii)).

                                          II

                                          A

      Because Kushakov’s application was denied on refugee status, our review

is “limited, in breadth, to that threshold determination,” Vatulev v. Ashcroft, 354

F.3d 1207, 1209 (10th Cir. 2003), and we review the IJ’s resolution of

Kushakov’s refugee status under a “substantial evidence standard.” Yuk v.

Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004)   . As a result,

      [t]he [IJ’s] determination that [Kushakov is] not eligible for asylum
      must be upheld if supported by reasonable, substantial, and probative
      evidence on the record considered as a whole. It can be reversed
      only if the evidence presented by [Kushakov] was such that a
      reasonable factfinder would have to conclude that the requisite fear
      of persecution existed. We do not weigh the evidence or . . .
      evaluate the witnesses’ credibility. The [IJ’s] findings of fact are
      conclusive unless the record demonstrates that any reasonable
      adjudicator would be compelled to conclude to the contrary.

Id. (quotations and citations omitted).

      A request for asylum requires that the applicant first establish that he or she

is a “refugee.” See Krastev v. INS, 292 F.3d 1268, 1270 (10th Cir. 2002)

(citation omitted). A “refugee” is any person outside the country of his or her


                                          -4-
national origin “who is unable or unwilling to return to, and is unable or

unwilling to avail himself or herself of the protection of, that country 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). To demonstrate refugee status, an applicant for

asylum may prevail in any one of three ways:

      One way is by showing he or she has a well-founded fear of [future]
      persecution. A second way to establish refugee status is to
      demonstrate that he or she has suffered past persecution, which gives
      rise to a presumption that he or she has a well-founded fear of future
      persecution unless the INS rebuts the presumption by a
      preponderance of the evidence. The third way to establish status as a
      refugee is to establish past persecution so severe that it demonstrates
      compelling reasons for being unwilling to return. This is known as
      “humanitarian” asylum.

Yuk, 355 F.3d at 1232–33 (quotations omitted). Once an applicant establishes his

or her refugee status, it is left to the discretion of the Attorney General to either

grant or deny asylum. Id. at 1233.

      As set forth above, Kushakov claims that he is entitled to refugee status

because he has suffered religious/political persecution in Uzbekistan in the past

and has a well-founded fear of future persecution if he is forced to return to

Uzbekistan. However, with respect to his past persecution claim, Kushakov is not

claiming that he is entitled to “humanitarian” asylum. Instead, he is asserting past

persecution for the sole purpose of raising a presumption that he has a well-


                                           -5-
founded fear of future persecution. If he cannot establish that he suffered past

persecution for purposes of gaining the benefit of the presumption, Kushakov may

nonetheless prove a well-founded fear of persecution. To that end, he may

demonstrate either: (1) that he would be “singled out personally for persecution”

in Uzbekistan; or (2) that he has a “reasonable fear of persecution because of [his]

membership in a group subject to ‘a pattern or practice of persecution.’”

Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th Cir. 2001) (quoting 8 C.F.R.

§ 208.13(b)(2)(iii)(A)-(B)).

      Although the IJ found that Kushakov “was a credible witness in his own

behalf,” (Admin. R. at 42), he nonetheless found that Kushakov did not suffer

past persecution or have a well-founded fear of future persecution because: (1) in

his testimony at the hearing, while he “referred to concern regarding potential

affiliation with ‘Muslim clerics,’” he failed to establish any “particular personal

affiliation” with such clerics, (id. at 37); (2) after he was released from his two-

week detention in August 1999, “he had no other problems with governmental

authorities” during the seven-month period before he departed for the United

States, (id. at 41); (3) he failed to submit any “corroborating evidence . . . with

regard to the particular problems experienced by [him] or any other members of

his immediate family,” (id. at 42); (4) he “testified that admittedly the government

of Uzbekistan at no time specifically interfered with his ability to practice his


                                          -6-
Muslim beliefs,” (id.); (5) “[t]hough the Department of State reports indicate that

the Uzbeki government has investigated Muslims who are perceived to be

involved in what the government describes as fanatical or potentially terroristic

activities, . . . nevertheless, the State Department documents also establish that

this type of interference does not occur with recognized mosques or religious

institutions,” (id. at 43); (6) “there has been no establishment or identification of

[Kushakov] with any Muslim sect, either rightfully or wrongfully, that caused him

problems in the past or would potentially cause him problems in the future,” (id.

at 44); (7) “apparently no affiliation, no suspicions were confirmed tying

[Kushakov] to [the Khizbal-Takhir, an Islamic political movement, or any other

suspected extremist group] as evidenced by his release [from detention] in August

of 1999 without any further government investigation or interference in his

activities,” (id.); and (8) while Kushakov may suffer some form of punishment if

he returns to Uzbekistan because of his failure to comply with his agreement not

to leave Tashkent, any such punishment would not “be a form of ‘persecution

based upon race, religion, nationality, membership in a particular social group,

and/or political opinion,’” ( id. at 45) (internal quotation marks omitted).

      We agree with the IJ that there is insufficient evidence in the administrative

record to establish that the government of Uzbekistan persecuted Kushakov in the




                                          -7-
past. 2 As a result, we also agree with the IJ that Kushakov is not entitled to a

presumption that he has a well-founded fear of future persecution based on past

persecution. This does not end our inquiry, however, because Kushakov may

establish that he has a well-founded fear of future persecution without the benefit

of a presumption based on past persecution, again, either by showing: (1) that he

would be singled out personally for persecution; or (2) that his membership in a

group subject to a pattern or practice of persecution leads to a reasonable fear of

future persecution. See Woldemeskel, 257 F.3d at 1190.

      As to individualized persecution, in Vatulev v. Ashcroft, 354 F.3d 1207,

1210-11 (10th Cir. 2003), this court recently discussed the showing that must be



2
  “Although persecution is not explicitly defined, [this court has] observed that it
requires the infliction of suffering or harm . . . in a way regarded as offensive and
requires more than just restrictions or threats to life and liberty.” Woldemeskel,
257 F.3d at 1188 (quotations omitted). We also agree with the Seventh Circuit
that being detained for a short period of time generally does not rise to the level
of persecution unless the detention is accompanied by significant physical
mistreatment. See Asani v. INS, 154 F.3d 719, 723-25 (7th Cir. 1998). While
Kushakov claims that he was kicked and punched by government agents during
his detention in August 1999, he has acknowledged that this occurred only when
he was “first” arrested, and that he “was not physically beaten while [he] was
being held.” (Admin. R. at 267, 268.) Kushakov has also acknowledged that he
was not tortured or “harassed continuously” like most of the other prisoners. (Id.
at 95, 267.) He attributes the better treatment he received to the fact that he
spoke to the prison guards in Russian, has a Caucasian appearance, and possessed
a passport that showed he had traveled abroad. (Id. at 94-95, 268.) In light of
this evidence, the IJ’s determination that Kushakov’s two-week detention in
August 1999 did not constitute past persecution is supported by substantial
evidence in the record.

                                         -8-
made in order for an asylum applicant to establish the requisite individualized risk

of future persecution, and we cited with approval the Ninth Circuit’s decision in

Hoxha v. Ashcroft, 319 F.3d 1179 (9th Cir. 2003). We noted that “[t]he more

egregious the showing of group persecution—the greater the risk to all members

of the group—the less evidence of individualized persecution must be adduced.”

Vatulev, 354 F.3d at 1210-11 (quoting Hoxha, 319 F.3d at 1182-83). In Hoxha,

the Ninth Circuit concluded that although an ethnic Albanian from the Kosovo

region of Serbia failed to establish that he had been persecuted in the past by the

dominant Serbian majority, 319 F.3d. at 1182, he nonetheless had established a

well-founded fear of future persecution, id. at 1184. The court based its holding

on three factors: (1) that the administrative record documented extensive

persecution of ethnic Albanians in Kosovo, id. at 1183; (2) that petitioner “had

been subjected to harassment, threats and mistreatment since early childhood,” id.

at 1181, which although not sufficient to compel a presumption of future

persecution were nonetheless “indicative of his individualized risk of

experiencing similar mistreatment if he returns to Kosovo,” id. at 1184; and (3)

prior to leaving Kosovo, the petitioner had “received, and ignored, a summons for

an ‘informative conversation’ with Serbian authorities,” id.

       While the backdrop of ethnic cleansing and genocide makes     Hoxha an

extreme case, this case is analogous to   Hoxha in certain respects. Most notably,


                                           -9-
there are extremely condemning State Department reports in the administrative

record documenting the government of Uzbekistan’s widespread

religious/political persecution of certain Muslim groups. In fact, the reports

specifically document the governmental persecution and human rights violations

that occurred following the bombings in Tashkent in February 1999, including the

precise types of unlawful detentions and false convictions that Kushakov claims

he and his brother were victims of in July and August 1999. (     See Admin. R. at

154-55.) Likewise, this case is similar to     Hoxha in that Kushakov is claiming that

he has an increased risk of future persecution if he is forced to return to

Uzbekistan because the government can prosecute him for failing to abide by his

agreement not to leave Tashkent.

       Nonetheless, Kushakov has failed to carry his burden of demonstrating that

the administrative record compels a finding that he has a sufficient individualized

risk of future persecution. Specifically, he has not shown any legal error or

evidentiary deficiency with respect to the IJ’s finding that he has failed to

establish any tangible affiliation with any of the Muslim clerics or suspected

extremist groups that have been targeted for persecution by the government of

Uzbekistan. In addition, while Kushakov claims he has a well-founded fear of

future persecution because the government of Uzbekistan will perceive that he is

a member of one of the Muslim groups that it has targeted as part of its


                                             -10-
crackdown on Muslim extremists, the fact that he is not a member of any of the

targeted groups distinguishes this case from      Hoxha and leads us to conclude that

the IJ’s decision to deny refugee status to Kushakov is supported by substantial

evidence.

      As to whether Kushakov has a “reasonable fear of persecution because of

[his] membership in a group subject to a pattern or practice of persecution,”

Woldemeskel, 257 F.3d at 1190 (quotation omitted), Kushakov alleged that he is a

member of a group that has been subjected to persecution by the government of

Uzbekistan. “A pattern or practice of persecution has been defined as ‘something

on the order of organized or systematic or pervasive persecution.’” Id. at 1191

(quotation omitted). Moreover, “[t]he group must consist ‘of persons similarly

situated to [Kushakov] on account of race, religion, nationality, membership in a

particular social group, or political opinion.’” Id. at 1190–91 (quoting 8 C.F.R.

§ 208.13(b)(2)(iii)(A)).

      As noted above, we agree with the IJ that there is no evidence in the

administrative record specifically tying Kushakov to any of the Muslim clerics or

suspected extremist groups that have been targeted by the government of

Uzbekistan. We also conclude that there is insufficient evidence in the

administrative record to mandate a finding by the IJ that the government of

Uzbekistan has engaged in a pattern or practice of persecution against     all devout


                                           -11-
Muslims who practice their religion outside of the state-sponsored religious

institutions. As a result, there is no basis for granting Kushakov refugee status

based on the alleged group persecution.

                                           B

      Turning to Kushakov’s remaining arguments on appeal, to be entitled to

withholding of removal under 8 U.S.C. § 1231(b)(3), “[t]he applicant must

establish a clear probability of persecution . . ., which is a higher standard than is

applicable to a request for asylum.” Krastev, 292 F.3d at 1271. The IJ found that

Kushakov failed to establish a clear probability of persecution if he is forced to

return to Uzbekistan. (See Admin. R. at 46.) We conclude that the IJ’s finding

with respect to this higher standard of proof is supported by substantial evidence

in the administrative record. We therefore affirm the denial of Kushakov’s

application for withholding of removal under § 1231(b)(3).

      To be entitled to withholding of removal under the Convention Against

Torture, an applicant must establish that “it is more likely than not that he or

she would be tortured if removed to the proposed country of removal.” Batalova

v. Ashcroft, 355 F.3d 1246, 1248 n.2 (10th Cir. 2004) (citing 8 C.F.R.

§ 208.16(c)(2)). The IJ found that Kushakov failed to establish the requisite

likelihood of being tortured so as to merit relief under the Convention Against

Torture. (See Admin. R. at 46.) Because the IJ’s finding is supported by


                                          -12-
substantial evidence in the administrative record, we affirm the denial of

Kushakov’s application for withholding under the Convention Against Torture.

                                          III

      The petition for review is   DENIED . The IJ’s decision denying the

applications for asylum and withholding of removal is      AFFIRMED .



                                                        Entered for the Court


                                                        Carlos F. Lucero
                                                        Circuit Judge




                                          -13-
