Mushebaig Mirza v. Eric Holder, Jr. , 454 F. App'x 638 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 25 2011
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    MUSHEBAIG JEHANGIRBAIG                 )      No. 09-71074
    MIRZA, AKA Musheb Mir,                 )
    AKA Musheb Mizra, AKA Sheb             )      Agency No. A039-731-415
    Moniker, AKA X. Sheb,                  )
    )      MEMORANDUM *
    Petitioner,                      )
    )
    v.                               )
    )
    ERIC H. HOLDER Jr., Attorney           )
    General,                               )
    )
    Respondent.                      )
    )
    On Petition for Review of an Order of the
    Board of Immigration Appeals
    Submitted October 11, 2011 **
    Pasadena, California
    Before:      FERNANDEZ and CALLAHAN, Circuit Judges, and TIMLIN,***
    District Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously finds this case suitable for decision without oral
    argument. Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Robert J. Timlin, Senior United States District Judge for
    the Central District of California, sitting by designation.
    Mushebaig Jehangirbaig Mirza, a native and citizen of India, petitions for
    review of the Board of Immigration Appeals’ denial of his application for asylum,1
    withholding of removal,2 and Convention Against Torture (CAT) relief.3 We deny
    the petition.
    The BIA’s determination that an alien is not eligible for asylum must be
    upheld if “‘supported by reasonable, substantial, and probative evidence on the
    record considered as a whole.’” INS v. Elias-Zacarias, 
    502 U.S. 478
    , 481, 
    112 S. Ct. 812
    , 815, 
    117 L. Ed. 2d 38
     (1992). “It can be reversed only if the evidence
    presented . . . was such that a reasonable factfinder would have to conclude that the
    requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 
    348 F.3d 1153
    , 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s adverse
    determination, “he must show that the evidence he presented was so compelling
    that no reasonable factfinder could fail to find the requisite fear of persecution.”
    Elias-Zacarias, 
    502 U.S. at
    483–84, 
    112 S. Ct. at 817
    .
    Mirza has not met that burden. That is, he has not shown that he has a well-
    1
    
    8 U.S.C. § 1158
    .
    2
    
    8 U.S.C. § 1231
    (b)(3).
    3
    United Nations Convention Against Torture and Other Cruel, Inhuman or
    Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
    100–20 (1988), 1465 U.N.T.S. 85 (implemented at 
    8 C.F.R. § 208.18
    ).
    2
    founded fear of future persecution 4 that is “‘both subjectively genuine and
    objectively reasonable.’” Halim v. Holder, 
    590 F.3d 971
    , 976 (9th Cir. 2009).
    Among other things, the evidence does not compel a determination that he would
    be singled out individually because he is Muslim,5 despite the fact that there are
    problems between the Hindu and Muslim communities in India. Moreover, the
    evidence does not compel a finding that there is a pattern or practice of persecution
    of Muslims in India. See Lolong, 484 F.3d at 1178. Rather, the evidence supports
    the determination that there is no systematic persecution of Muslims in India,6 and
    that the government does not countenance attacks upon Muslims.7 Indeed, in both
    instances that Mirza had an opportunity to observe, the advent of the police
    dispersed the miscreants. See Halim, 
    590 F.3d at 977
    . We also note that many of
    Mirza’s family members continue to reside in India without significantly untoward
    results. See Mansour v. Ashcroft, 
    390 F.3d 667
    , 673 (9th Cir. 2004).
    4
    He did not assert before the BIA that he had suffered past persecution and
    does not assert that here either.
    5
    See Lolong v. Gonzales, 
    484 F.3d 1173
    , 1178 (9th Cir. 2007) (en banc); see
    also Wakkary v. Holder, 
    558 F.3d 1049
    , 1062 (9th Cir. 2009). By the way, he did
    not argue to the BIA that he was in a disfavored group and was likely to be
    targeted as such. Halim, 
    590 F.3d at 977
    . We will not, therefore, consider that
    argument. See Segura v. Holder, 
    605 F.3d 1063
    , 1066 (9th Cir. 2010).
    6
    See Castro-Martinez v. Holder, 
    641 F.3d 1103
    , 1109 (9th Cir. 2011).
    7
    See Gomes v. Gonzales, 
    429 F.3d 1264
    , 1267 (9th Cir. 2005).
    3
    Because Mirza did not meet his burden regarding asylum, he necessarily
    failed to establish eligibility for withholding of removal. See Liu v. Holder, 
    640 F.3d 918
    , 926 n.5 (9th Cir. 2011); Ghaly v. INS, 
    58 F.3d 1425
    , 1429 (9th Cir.
    1995).
    Finally, the evidence in the record does not compel a determination that it is
    more likely than not that Mirza would be tortured in India. Thus, he is not entitled
    to CAT relief. See Wakkary, 
    558 F.3d at
    1067–68; Almaghzar v. Gonzales, 
    457 F.3d 915
    , 922–23 (9th Cir. 2006); Singh v. Gonzales, 
    439 F.3d 1100
    , 1113 (9th
    Cir. 2006).
    Petition DENIED.
    4