Datoo v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 11, 2008
No. 07-60816
Summary Calendar Charles R. Fulbruge III
Clerk
KARIM FEROZ DATOO
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 986 039
Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Karim Feroz Datoo, a native and citizen of Pakistan, petitions for review
of an order of the Board of Immigration Appeals (BIA) affirming the Immigration
Judge’s (IJ) denial of withholding of removal and request for relief under the
Convention Against Torture (CAT). Datoo argues that the BIA erred in finding
that he did not suffer past persecution or did not have a well-founded fear of
future persecution or torture because of his political opinion.
*
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should not be published and is not precedent except under the limited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.
No. 07-60816
The Secretary of Homeland Security or Attorney General is authorized, in
his discretion, to grant asylum to aliens who qualify as refugees. 8 U.S.C.
§ 1158(b)(1). An alien is a refugee when he is outside of his country and “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). The term
persecution requires “a showing by the alien that harm or suffering will be
inflicted upon [him] in order to punish [him] for possessing a belief or
characteristic a persecutor sought to overcome.” Faddoul v. INS, 37 F.3d 185,
188 (5th Cir. 1994) (internal quotation marks and citation omitted). To be
eligible for withholding of removal, an alien must demonstrate a “clear
probability” of persecution upon return. Faddoul, 37 F.3d at 188. This standard
requires a higher objective likelihood of persecution than is required to establish
eligibility for asylum. Id. The CAT requires the alien to show that it is more
likely than not that he will suffer torture, as opposed to mere persecution, if
removed to his home country. Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. 2002).
Accordingly, if an alien does not warrant asylum on a particular basis, he cannot
meet the standards for withholding of removal and the CAT on that same basis.
In INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992), the Court held that
forced recruitment by guerillas was not persecution based on political opinion
because the alien’s refusal to join the movement was not based on his political
opinion but on his fear of retaliation by the Government if he joined. This court,
in reliance on Elias-Zacarias, has held that persecution because of a refusal to
fight with a particular group is not persecution on account of political opinion.
See Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (“Jukic has failed to
demonstrate that he will be persecuted by either people based on his political
opinion or social group, ‘rather than because of his refusal to fight with them.’”).
Datoo must point to some evidence of the motive of the Muttahida Quami
2
No. 07-60816
Movement (MQM) in targeting him for recruitment. See Elias-Zacarias, 502
U.S. at 483. Nothing in the record suggests that the attempted forced
recruitment by the MQM was persecution on account of Datoo’s political opinion,
rather Datoo’s testimony shows that the MQM was trying to recruit all college
students and that the MQM’s actions arose from his refusal to join. The BIA did
not err in determining that the attempted forced recruitment did not constitute
persecution. See id. at 482-83.
Datoo’s argument that he established a well-founded fear of future
persecution if returned to Pakistan is refuted by the record. An alien may prove
the objectivity of his persecution claim by showing that he would be singled out
for persecution or, alternately, that there is a pattern or practice of persecution
of a group of persons in which he is a member on account of an enumerated
ground. Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005). As found by the IJ,
Datoo’s assertion that he was recruited aggressively by the MQM as a student
in 1996 does not establish that he was persecuted because of his political opinion
or that he has a well-founded fear of persecution or torture for his political
opinion in the future if he is returned to Pakistan. See Elias-Zacarias, 502 U.S.
at 482-83.
Datoo has not shown any error of law in the IJ’s and BIA’s conclusion that
he is not eligible for withholding of removal or relief under the CAT, and has not
shown that the decision is not supported by substantial evidence in the record.
See Moin v. Ashcroft, 335 F.3d 415, 418 (5th Cir. 2003).
Datoo has not argued on appeal that his claim for asylum was not time
barred. This issue is deemed abandoned. See Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993); Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir.
1986).
PETITION DENIED.
3