Mirza Baig v. Loretta Lynch , 668 F. App'x 102 ( 2016 )

Case: 15-60027 Document: 00513641952 Page: 1 Date Filed: 08/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-60027
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 17, 2016
MIRZA AZAMALI BAIG; YASMEEN BAIG,
Lyle W. Cayce
Clerk
Petitioners
v.
LORETTA LYNCH, U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A097 645 413
BIA No. A097 645 372
Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
Mirza Azamali Baig and his wife, Yasmeen Baig, natives and citizens of
Pakistan, petition for review of the decision of the Board of Immigration
Appeals (BIA) dismissing their appeal from an immigration judge’s (IJ’s) order
denying withholding of removal and relief under the Convention Against
Torture (CAT). They argue that they are entitled to relief based on a showing
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60027
of past persecution and a fear of future persecution on account of their political
opinions. To the extent that the Baigs argue that they were entitled to asylum,
we do not have jurisdiction to consider the issue because the couple did not
submit an application for asylum before either the IJ or the BIA. See Omari v.
Holder, 562 F.3d 314, 317 (5th Cir. 2009) (recognizing that failure to exhaust
an issue before the BIA strips us of jurisdiction).
We generally have authority to review only the decision of the BIA, but
will consider the IJ’s decision when, as here, it influenced the determination of
the BIA. Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). We review the
BIA’s rulings of law de novo and its findings of fact for substantial evidence.
Id. at 594. Under the substantial evidence standard, reversal is improper
unless we decide “not only that the evidence supports a contrary conclusion,
but also that the evidence compels it.” Chen v. Gonzales, 470 F.3d 1131, 1134
(5th Cir. 2006) (internal quotation marks and citations omitted); 8 U.S.C.
§ 1252(b)(4)(B) (“[A]dministrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary.”).
The Baigs argue that the BIA erred when it determined that they did not
demonstrate that they had suffered past persecution. Specifically, they argue
that testimony established that Mirza suffered past persecution when he was
detained for approximately one month and interrogated regarding his
knowledge of corruption involving Mirza’s employer, the Schon Group, and the
government run by former Prime Minister Benazir Bhutto. Mirza testified
that he was kept confined in an office with no air conditioning and that for at
least three days, he did not receive any fresh clothing, food, or water. He
further testified that his interrogators forced him to sit with his back against
the wall and stretch his legs until his tendons strained. In cases presenting
similar facts, we have held that such interrogation, although “unpleasant and
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No. 15-60027
unduly prolonged,” was not “brutal” and did not rise to the level of persecution.
Tesfamichael v. Gonzales, 469 F.3d 109, 112, 117 (5th Cir. 2006); see also Majd
v. Gonzales, 446 F.3d 590, 596 (5th Cir. 2006) (concluding that petitioner was
not eligible for withholding of removal after agreeing that two prior detentions
were more akin to harassment rather than persecution and that there was no
evidence that petitioner suffered from any long-term deprivation of liberty or
from any permanent physical or emotional injury).
Although Mirza alleged that he suffered from two incidents of sexual
abuse, he did not elaborate on the claim. His conclusory allegation without
“specific, detailed facts” is not sufficient to demonstrate past persecution.
Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012) (internal
quotation marks and citations omitted). Moreover, Yasmeen relied solely on
Mirza’s claims of persecution and did not provide any evidence that she had
personally been harmed or detained in Pakistan; therefore, she cannot
demonstrate past persecution. See Arif v. Mukasey, 509 F.3d 677, 681 n.15
(5th Cir. 2007) (“[T]here are no derivative beneficiaries for an application for
withholding of removal.”) (internal quotation marks and citations omitted); see
also Majd, 446 F.3d at 595 (stating that an applicant cannot base her fear of
persecution solely on general conditions of violence and civil unrest).
The Baigs do not object to the BIA’s conclusion that they waived any
challenge to the IJ’s alternative conclusion that any persecution they might
have suffered in the past was not due to an enumerated ground but was mainly
motivated by the government’s legitimate objective of investigating corruption.
Because the Baigs do not address the BIA’s reasons for concluding that the
issue was waived, the Baigs have abandoned their arguments regarding
whether any persecution that they might have suffered was motivated by their
political opinions. See Silva-Trevino v. Holder, 742 F.3d 197, 199 (2014)
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(concluding that petitioner had waived his argument by failing to adequately
brief the issues). Furthermore, the Baigs’ speculative statements regarding
their fears of torture at the hands of the regime likely to be in power upon their
return to Pakistan were not sufficient to demonstrate an “objective ‘clear
probability’ of persecution.” Majd, 446 F.3d at 595; see Bouchikhi v. Holder,
676 F.3d 173, 181-82 (5th Cir. 2012). Based on the foregoing, the BIA’s
determination that the Baigs failed to establish eligibility for withholding of
removal is supported by substantial evidence. See Chen, 470 F.3d at 1134.
In their appeal to the BIA, the Baigs identified the regulations governing
their CAT claims; however, they made no argument with regard to the IJ’s
denial of the claims and specifically asserted that they were requesting
reversal of the IJ’s denial of their withholding of removal claim. Accordingly,
because the Baigs failed to fairly present the CAT issue to the BIA, the claim
is unexhausted and we do not have jurisdiction to consider the merits. See
Omari, 562 F.3d at 317. The Baigs’ petition for review is DENIED in part and
DISMISSED in part for lack of jurisdiction.
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