Boota v. Holder ( 2014 )

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 A.K. Marsh. 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
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