Hafsa Shaikh v. Eric H. Holder, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1111
H AFSA S HAIKH and
A SIM SHAIKH,
Petitioners,
v.
E RIC H. H OLDER JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A099-869-754, A099-869-755
S UBMITTED O CTOBER 3, 2012 Œ —D ECIDED N OVEMBER 26, 2012
Before F LAUM, R IPPLE and W ILLIAMS, Circuit Judges.
F LAUM, Circuit Judge. Hafsa Shaikh and her husband,
Asim Shaikh, Pakistani citizens, endured a series of
Œ
We granted the petitioners’ unopposed motion to waive oral
argument. Thus, the appeal is submitted on the briefs and
record. See Fed. R. App. P. 34(a)(2)(C).
2 No. 12-1111
threats and attacks by members of the Muttahida Quomi
Movement (the “MQM”). They now petition for review
of an order of the Board of Immigration Appeals (the
“Board”) denying their applications for asylum or with-
holding of removal. The Board upheld the immigration
judge’s order of removal, concluding that the Shaikhs
did not establish refugee status because they did not
demonstrate that the MQM targeted them on account of
a protected characteristic. The Shaikhs argue that the
Board applied an incorrect legal standard by requiring
that political opinion be the MQM’s primary motive
for targeting them. We deny the petition for review.
I. Background
Hafsa and Asim entered the United States in 2006 and
applied for asylum several months later. In 1984, Hafsa
left her native India and moved to Karachi, Pakistan,
for an arranged marriage to her cousin (not Asim). She
became a naturalized citizen of Pakistan shortly there-
after and relinquished her Indian passport.
Hafsa’s new hometown of Karachi presented an environ-
ment full of violence, crime, and corruption spurred on
by political and ethnic rivalries. See Jane Perlez, Karachi
Turns Deadly Amidst Pakistan’s Rivalries, N.Y. Times,
Nov. 18, 2010.1 In 2010, the city was the most dangerous
area in Pakistan outside of war zones. Id. It earned this
1
Available at http://www.nytimes.com/2010/11/19/world/asia/
19karachi.html?pagewanted=all&_moc.semityn.www. (last ac-
cessed Nov. 20, 2012).
No. 12-1111 3
ignoble distinction after 1,350 people died in targeted
political attacks, more than in the rest of Pakistan com-
bined. Id.
Such violence largely results from tension between two
ethnic groups in Karachi, the Mohajirs and Pashtuns.
Id. Mohajirs, Urdu-speaking people who left India in
1947 after its partition, have long dominated the city.
Id. Pashtuns, on the other hand, are immigrants from war-
plagued areas of northern Pakistan. Id. The MQM arose
from this conflict. It styles itself as a political party repre-
senting Mohajirs but has long been at the center of
violence in Karachi. Id. The party dominates local
politics, often controlling the mayor’s office, the police
force, and the majority of other local government posi-
tions. Id.
Hafsa was unaware of this history of violence when
she discovered the MQM. Drawn to the party by
promises to improve infrastructure and rid Karachi of
the quotas used to fill government jobs, Hafsa and her
first husband began supporting the party in 1988. She
attended MQM meetings, collected donations for the
party, and encouraged her friends and family to
support the party. She was never a member of the
party, however. By 1991, Hafsa became disillusioned by
the warring factions within the party and its involve-
ment in illegal activities. When she stopped supporting
the party in 1991, her husband and his friends within
the MQM pressured her to reconsider, but she refused.
Hostility towards Hafsa from MQM members began
in 1999 after she began an extramarital romantic rela-
4 No. 12-1111
tionship with Asim. Asim was also married at that time
to his then-wife Afroz, an MQM member. When Afroz
discovered her husband’s affair with Hafsa, she told
Hafsa’s then-husband about it. She also began calling
Hafsa at work and warning her to keep away from
Asim, enlisting friends to do the same. Subsequently,
Hafsa and Asim both filed for divorce and shortly there-
after married.
Beginning in June 2001, the harassment of the Shaikhs
intensified, taking on a more political dimension. Other
MQM members began calling Hafsa as often as three
times a month. Although Afroz limited her calls to per-
sonal attacks and insults, the MQM members accused
Hafsa of betraying the party and demanded that she
leave Asim so he could return to their “Mohajir sister”
Afroz. The callers also demanded she renew her own
support of the MQM. They told Hafsa that, if she did not
leave Asim and return to the MQM, she “would not
have the right to live.” Hafsa never reported these calls
to the authorities or her employer because she feared
losing her job and the MQM controlled the police.
In addition to these threatening calls, the Shaikhs sur-
vived three incidents of violence between 2002 and
2005. First, while driving home, another vehicle rammed
Hafsa’s car and sped away. The accident injured her
hand, requiring stitches. Although Hafsa never saw the
driver, MQM members later described the crash as an
attempt on her life and told her she would not survive
the next attack. About a year later, three armed men
entered Hafsa’s workplace; one pushed his gun against
No. 12-1111 5
Hafsa’s forehead and told her that, because she had not
heeded the MQM’s warnings, they would kill her. The
gunman then ordered his accomplice to slit Hafsa’s
throat, but Hafsa’s former manager intervened and
paid them $3,000 to leave. Finally, the MQM attacked
the Shaikhs on their drive home from work, pulling
Hafsa from the car and beating Asim when he came to
her rescue. Hafsa narrowly escaped, but the MQM kid-
napped Asim. They took him to a barn on Karachi’s
outskirts, tied him to a pole, and beat him repeatedly
over the next two days. While beating Asim, the MQM
members referenced his ethnicity by calling him a dirty
Sindhi (an ethnic group originally native to the Sindh
province of the Indian empire); told him to reunite with
Afroz, their Mohajir sister; and demanded that he
urge Hafsa to return to the MQM.
After the hearing, the immigration judge noted the
Shaikhs’ “consistent credible testimony” but denied their
applications for asylum, withholding of removal, and
protection under the United Nations Convention Against
Torture. He concluded that only the kidnapping incident
rose to the level of persecution but did not occur “on
account of” their political opinion. Because the MQM
did not seriously threaten or attack Hafsa until after
her affair with Asim, the immigration judge could not
“conclude that one of the central reasons for the harm
was [Hafsa’s] prior minimal support for the MQM.”
Additionally, the immigration judge found that the
Shaikhs had not shown that the government of Pakistan
was unwilling or unable to protect them.
6 No. 12-1111
The Board, agreeing with the immigration judge’s
reasoning, dismissed the Shaikhs’ appeal. It emphasized
that, though the MQM may have pressured Hafsa
before her marriage to Asim, “the more serious threats,
kidnapping, and actual and attempted violence experi-
enced by the [Shaikhs] at the hands of MQM supporters
occurred after [Asim’s] ex-wife discovered the [Shaikhs’]
extra-marital relationship.” Thus, it found “the MQM’s
motivation to have [Hafsa] rejoin the MQM was sec-
ondary and not the group’s primary motivation.”
Finally, the Board agreed that the MQM, though it
may have engaged in “forced recruitment,” did not
target the Shaikhs “primarily because . . . [they] harbored
and expressed an opposing political opinion or
because they were viewed as political opponents by
the MQM.”
II. Discussion
Qualifying for asylum requires a showing of refugee
status. 8 U.S.C. § 1158(b)(1)(A). As relevant here, a
refugee is “unable or unwilling to return” to his or
her home country “because of persecution or a well-
founded fear of persecution on account of . . . political
opinion.” § 1101(a)(42). This requires the asylum
applicant to offer direct or circumstantial evidence
showing that his or her political opinion “was or will be
at least one central reason for persecuting the appli-
cant.” § 1158(b)(1)(b)(i); see also Martinez-Buendia v.
Holder, 616 F.3d 711, 715 (7th Cir. 2010).
We review decisions of the Board for substantial evi-
dence. Thus, we affirm the Board’s decision and deny
No. 12-1111 7
the petition for review when “supported by reasonable,
substantial, and probative evidence on the record con-
sidered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We grant
the petition for review, reversing the Board, only
when the applicant presented to the immigration
judge evidence “so compelling that no reasonable
factfinder could fail to find the requisite fear of persecu-
tion.” Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir.
2011) (quoting Elias-Zacarias, 502 U.S. at 483-84). The
Shaikhs did not present such evidence so we deny
the petition.
To begin, the Shaikhs argue that the immigration
judge applied the incorrect legal standard to their ap-
plications, improperly requiring them to carry a higher
burden of proof than the statute requires. While the
statute requires only that political opinion be “at least
one central reason” for the persecution, they argue that
the immigration judge improperly required political
opinion as the “primary” reason behind the persecution.
Such a standard, the Shaikhs point out, breaks with this
court’s precedent allowing mixed motives to satisfy
the asylum standard. See, e.g., Bueso-Avila, 663 F.3d at
937 (noting “it is not necessary that the persecutor be
motivated primarily on account of one of the grounds
in the Act”); Mohideen v. Gonzales, 416 F.3d 567, 570 (7th
Cir. 2005) (noting “an individual may qualify for asylum
if his or her persecutors have more than one motive
as long as one of the motives is” listed in § 1158(b)(1)(A)).
Viewing the immigration judge’s ruling as a whole, we
do not believe he applied an incorrect standard. Indeed,
8 No. 12-1111
the Shaikhs ignore his explicit conclusions that political
opinion was not “one of the central reasons for the harm.”
His passing comment that political opinion was not
the “primary motivation” does not alter this conclu-
sion. Indeed, the word “central” requires applicants to
show, not just that a protected status played some part
in motivating a persecutor but that it played more than
a superficial or minor part. Shaikh v. Holder, 588 F.3d
861, 864 (5th Cir. 2009) (quoting Matter of J-B-N & S-M, 24
I. & N. Dec. 208, 212, 214 (BIA 2007)); see also Dallakoti
v. Holder, 619 F.3d 1264, 1268 (10th Cir. 2010); Quinteros-
Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009); Singh
v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008). That is precisely
the standard the immigration judge applied here, recog-
nizing that the Shaikhs “may” have experienced “some
hostility . . . because they were not active supporters of
the MQM” but that such lack of support was not “one
of the central reasons for the harm.”
Bueso-Avila is not to the contrary. True, that case did
state that “it is not necessary that the persecutor be moti-
vated primarily” by a protected ground. 663 F.3d at 937.
But that does not mean an immigration judge errs in
denying asylum when an unprotected ground forms the
primary motivation for the persecution and secondary
motivations rooted in protected grounds do not rise to
the level of central motivations.
We do not suggest that secondary motives can never
qualify as a central reason for the persecution nor do
we question our previous mixed motive cases. True, the
Real ID Act of 2005 raised the burden of proof an
No. 12-1111 9
asylum applicant must satisfy—requiring that the pro-
tected ground be a “central reason” for the persecution.
§ 1158(b)(1)(B)(i). But that legislation, in referring to
“at least one central reason,” id. (emphasis added), recog-
nizes that multiple central reasons may drive the persecu-
tion. See Ndayshimiye v. Attorney General, 557 F.3d 124, 129-
30 (3d Cir. 2009). Thus, the Real ID Act modifies our
earlier mixed motive cases only to require among that
mix of motives a protected ground qualifying as a
central reason. Indeed, that ground may be a secondary
(or tertiary, etc.) reason and still justify asylum. In
short, when more than one possible motive exists, the
asylum applicant must show that the protected status
played more than a minor role in motivating a persecu-
tor. See Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th
Cir. 2009) (the statute does not require that a protected
ground “account for 51% of the persecutors’ motivation”);
Ndayshimiye, 557 F.3d at 129-31 (rejecting the require-
ment that a protected status not be “subordinate” to an
unprotected status). That is all the immigration judge
required here.
Substantial evidence supports the conclusion that
political opinion did not centrally motivate the MQM’s
persecution of the Shaikhs. The Board concluded that
the MQM directed, at most, only some hostility at the
them because of Hafsa’s earlier “minimal support” of the
party. Therefore, the immigration judge and the Board
concluded that political opinion, at best, was only an
incidental or superficial motivation for the MQM’s perse-
cution of the Shaikhs: over a decade passed after Hafsa
stopped supporting the party in 1991 before serious
10 No. 12-1111
incidents of violence occurred in 2002. This violence, the
immigration judge and Board concluded, sprung
directly out of Afroz’s discovery of the affair between
Hafsa and Asim. Furthermore, the MQM “repeatedly
and explicitly, demanded that [Asim] leave [Hafsa] and
return to his ex-wife, who the MQM referred to as their
‘Mohajir sister.’ ” Although MQM members did refer to
Hafsa as a traitor to the party and urged her to return to
the fold, the repeated references to her marriage to Asim
combined with the absence of serious violence before
Afroz’s discovery of the Shaikhs’ relationship support
the Board’s finding that political animosity had only a
minor role in motivating the MQM. After all, Afroz
never mentioned political opinion in her threatening
phone calls to Hafsa. Therefore, the Board’s conclusion
that political opinion was not central to the Shaikhs’
persecution is supported by substantial evidence.
Finally, the Shaikhs argue for the first time that the
immigration judge and the Board did not properly
evaluate evidence that the MQM persecuted them on
account of nationality. Because the Shaikhs did not raise
this claim during the administrative proceedings, they
have not exhausted all administrative remedies and
have waived the issue. Sarmiento v. Holder, 680 F.3d 799,
803-04 (7th Cir. 2012); Ghani v. Holder, 557 F.3d 836, 839
(7th Cir. 2009); Hamdan v. Gonzales, 425 F.3d 1051, 1059 n.14
(7th Cir. 2005).
No. 12-1111 11
III. Conclusion
For the reasons stated herein, we D ENY the Shaikhs’
petition for review.
11-26-12