Mehmood v. Lynch ( 2016 )

14-4672
Mehmood v. Lynch
BIA
Christensen, IJ
A88 426 889
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 TO 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 for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 7th day of September, two thousand sixteen.
5
6 PRESENT:
7 JON O. NEWMAN,
8 DENNIS JACOBS,
9 GERARD E. LYNCH,
10 Circuit Judges.
11 _____________________________________
12
13 ZAFAR MEHMOOD, AKA MEHMOOD ZAFAR,
14 AKA ZAFIR MEHMOOD, AKA RAJA QASIM,
15 AKA ZAGAR MEHMOOD, AKA OSIN RAJA,
16 Petitioner,
17
18 v. 14-4672
19 NAC
20 LORETTA E. LYNCH, UNITED STATES
21 ATTORNEY GENERAL,
22 Respondent.
23 _____________________________________
24
25 FOR PETITIONER: John W. Reeves, New York, N.Y.
26
27 FOR RESPONDENT: Benjamin C. Mizer, Principal Deputy
28 Assistant Attorney General; Anthony
29 P. Nicastro, Acting Assistant
30 Director; Bernard A. Joseph, Trial
1 Attorney, Office of Immigration
2 Litigation, United States
3 Department of Justice, Washington,
4 D.C.
5
6 UPON DUE CONSIDERATION of this petition for review of a
7 Board of Immigration Appeals (“BIA”) decision, it is hereby
8 ORDERED, ADJUDGED, AND DECREED that the petition for review is
9 DENIED.
10 Petitioner Zafar Mehmood, a native and citizen of Pakistan,
11 seeks review of a November 14, 2014, decision of the BIA,
12 affirming a January 14, 2013, decision of an Immigration Judge
13 (“IJ”) denying Mehmood’s application for asylum, withholding
14 of removal, and relief under the Convention Against Torture
15 (“CAT”). In Zafar Mehmood, No. A88 426 889 (B.I.A. Nov. 14,
16 2014), aff’g No. A88 426 889 (Immig. Ct. N.Y. City Jan. 14,
17 2013). We assume the parties’ familiarity with the underlying
18 facts and procedural history in this case.
19 We review the IJ’s decision as modified by the BIA. Xue
20 Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.
21 2005). The applicable standards of review are well
22 established. 8 U.S.C. § 1252(b)(4)(B); see also Yanquin Weng
23 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Mehmood does not
24 challenge the agency’s denial of CAT relief on appeal. See
25 Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues
2
1 not sufficiently argued in the briefs are considered waived and
2 normally will not be addressed on appeal.”).
3 I. Past Persecution
4
5 The BIA has defined persecution as “a threat to the life
6 or freedom of, or the infliction of suffering or harm upon, those
7 who differ in a way regarded as offensive.” Matter of Acosta,
8 19 I. & N. Dec. 211, 222 (B.I.A. 1985), overruled on other
9 grounds by INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); accord
10 Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir.
11 2006). A past persecution finding can be based on harm other
12 than threats to life or freedom, including
13 “non-life-threatening violence and physical abuse,” Beskovic
14 v. Gonzales, 467 F.3d 223, 226 n.3 (2d Cir. 2006), but the harm
15 must be sufficiently severe to rise above “mere harassment,”
16 Ivanishvili, 433 F.3d at 341. The difference between
17 harassment and persecution is “necessarily one of degree that
18 must be decided on a case-by-case basis.” Id.
19 The agency did not err in finding that Mehmood’s past harm
20 did not rise to the level of persecution. See Ivanishvili, 433
21 F.3d at 341. Mehmood testified that he was never physically
22 harmed by political opponents in Pakistan, and the agency
23 reasonably concluded that the unfulfilled threats he received
24 did not amount to persecution. See Ci Pan v. U.S. Att’y
3
1 General, 449 F.3d 408, 412-13 (2d Cir. 2006) (“This Court, and
2 others, previously have rejected similar claims involving
3 ‘unfulfilled’ threats.” (collecting cases)); Guan Shan Liao v.
4 U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir. 2002) (stating
5 that a “threat of detention . . . itself . . . is not past
6 persecution”). Mehmood offers no evidence linking the one
7 episode he refers to that arguably rises above this level, the
8 alleged arson of his family home when he was no more than two
9 years old, to any political motive, and his testimony at his
10 hearing is insufficient to suggest that the fire was
11 intentionally set, or even that it was targeted at his family,
12 rather than being part of a general conflagration in the city.
13 The agency, on this record, reasonably determined that Mehmood
14 did not suffer past persecution. See Ivanishvili, 433 F.3d at
15 341; Mei Fun Wong v. Holder, 633 F.3d 64, 72 (2d Cir. 2011) (“We
16 have emphasized that persecution is an extreme concept that does
17 not include every sort of treatment our society regards as
18 offensive.” (internal quotation marks and citations omitted)).
19 II. Well-Founded Fear of Persecution
20
21 Absent past persecution, an alien may establish
22 eligibility for asylum by demonstrating a well-founded fear of
23 future persecution. 8 C.F.R. § 1208.13(b)(2). To establish
24 a well-founded fear, an applicant must show that he subjectively
4
1 fears persecution and that his fear is objectively reasonable.
2 Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir. 2004).
3 The agency reasonably concluded that Mehmood failed to
4 establish an objectively reasonable fear of persecution based
5 on his past or prospective political activities in Pakistan.
6 See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir. 2005)
7 (“In the absence of solid support in the record . . . , [an
8 applicant’s] fear is speculative at best”); Hongsheng Leng v.
9 Mukasey, 528 F.3d 135, 143 (2d Cir. 2008) (“[T]o establish a
10 well-founded fear of persecution in the absence of any evidence
11 of past persecution, an alien must make some showing that
12 authorities in his country of nationality are either aware of
13 his activities or likely to become aware of his activities.”).
14 Mehmood’s past political activities were limited to election
15 campaigning in 1986 and 1987; he left Pakistan in 1989; he did
16 not engage in any political activities in the United States;
17 he did not describe what any future political activities might
18 entail; and, to the extent he feared harm based on his father’s
19 political activities, his father had died more than thirty years
20 ago. The agency, on this record, did not err in concluding that
21 Mehmood failed to meet his burden of demonstrating a
22 well-founded fear of persecution. See Jian Xing Huang, 421
23 F.3d at 129; Hongsheng Leng, 528 F.3d at 143.
5
1 Because Mehmood failed to demonstrate past persecution or
2 a well-founded fear of persecution, the agency did not err in
3 denying asylum and withholding of removal. See Ramsameachire,
4 357 F.3d at 178 (explaining that an alien who fails to establish
5 his entitlement to asylum “necessarily fails to establish his
6 entitlement to withholding of removal” because withholding of
7 removal entails a higher burden of proof).
8 For the foregoing reasons, the petition for review is
9 DENIED.
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
6