noting that “all of the occurrences that arguably constitute past persecution resulted directly from Pilica’s attendance at a demonstration rather than from the government having sought him out”
How later courts described this case
- noting that “all of the occurrences that arguably constitute past persecution resulted directly from Pilica’s attendance at a demonstration rather than from the government having sought him out”
Written by the judges who cited it.
The opinion
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0439p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner-Appellant, -
AFTAB AHMED MOHAMMED,
-
-
-
No. 06-3591
v.
,
>
PETER D. KEISLER, -
Respondent-Appellee. -
N
On Appeal from the Board
of Immigration Appeals.
No. A90 665 575.
Argued: September 10, 2007
Decided and Filed: November 2, 2007
Before: BOGGS, Chief Judge; MARTIN and SUTTON Circuit Judges.
_________________
COUNSEL
ARGUED: Jamie B. Naini, LAW OFFICES OF JAMIE B. NAINI, Bartlett, Tennessee, for
Petitioner. Mark C. Elmer, UNITED STATES DEPARTMENT OF JUSTICE, Denver, Colorado,
for Respondent. ON BRIEF: Jamie B. Naini, LAW OFFICES OF JAMIE B. NAINI, Bartlett,
Tennessee, for Petitioner. Mark C. Elmer, UNITED STATES DEPARTMENT OF JUSTICE,
Denver, Colorado, for Respondent.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Aftab Mohammed petitions for review of an order
rendered by the Board of Immigration Appeals denying his application for asylum, withholding of
deportation, and Convention Against Torture claim. For the reasons set forth below, we DENY
Mohammed’s petition for review.
I
After an individual hearing on January 3, 2005, an immigration judge rejected Mohammed’s
application for asylum. The immigration judge found that Mohammed had not suffered past
persecution, nor had he shown a well-founded fear of future persecution. Mohammed’s Torture
Convention and withholding claims were likewise rejected. The Board of Immigration Appeals
affirmed the immigration judge’s decision without opinion.
1
No. 06-3591 Mohammed v. Keisler Page 2
Mohammed, a Shia Muslim, entered the United States in July 1984 when he was nineteen
as a non-immigrant visitor with authorization to remain until January 23, 1985. He remains in the
United States today. During a visit to his sister in Pakistan in 1992, he entered a Sunni Mosque,
prayed there, and when recognized as a Shia, he was beaten and chased out of the mosque. He was
picked up by police and held in custody for three days until his sister paid a bribe to get him out.
The police confiscated his passport upon release, and Mohammed returned numerous times in an
effort to retrieve it. On one such occasion, the police slapped and kicked Mohammed.
Two experts submitted affidavits stating that a person like Mohammed would be at risk in
returning to Pakistan as part of the Shia minority. The record also shows that Mohammed has
significant mental health issues which would increase his risk of harm. The Immigration Judge in
his findings noted that, according to a United Kingdom Home Office document, Shias do not face
systematic discrimination, are found in all levels of society, and have their own social, political, and
cultural organizations.
The standard for review by this Court of a final order by the Board of Immigration Appeals
is defined by statute: “the administrative findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
II
As presented, this case turns on whether the incident at the mosque and the actions of the
police constitute persecution on the basis of religion under the Immigration and Naturalization Act.
An applicant may be granted asylum if he qualifies as a refugee, defined in 8 U.S.C.
§ 1101(a)(42)(A) as an alien unwilling or unable to return 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. § 1158(a). Proof of past persecution raises a rebuttable presumption
of a well-founded fear of persecution. 8 C.F.R. § 208.13(b)(1). Persecution is not statutorily
defined, but this Court has shaped some of its contours. Persecution must rise above the level of
harassment or discrimination without physical punishment, infliction of harm, or significant
deprivation of liberty. Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir. 1998). Some courts have
held a single incident to be sufficient to demonstrate persecution, but it must be correspondingly
severe. Dandan v. Ashcroft, 339 F.3d 567, 574 (7th Cir. 2003). Furthermore, the context must
indicate that the asylum applicant is targeted for abuse based on his membership in a protected
category. Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir. 2005). Because the mosque incident was
not targeted action, and because the police mistreatment was not severe enough to constitute
persecution, Mohammed has not shown past persecution.
1. The mosque beating
The record supports the immigration judge’s conclusion that the Pakistani government did
not sanction, either affirmatively or by inaction, the mob that beat Mohammed. Mohammed points
to expert affidavits describing mistreatment of Shias and government inaction, but the United
Kingdom Home Office report in the record concludes that Shias are generally protected by the
government. While it is possible a future immigration judge might find differently, given the
conflicting evidence in the record, we are not “compelled” to a contrary conclusion. Furthermore,
since Mohammed voluntarily walked into a Sunni mosque, it is impossible to say he was targeted
for abuse. See Pilica v. Ashcroft 388 F.3d 941, 955 (6th Cir. 2004) (noting that “all of the
occurrences that arguably constitute past persecution resulted directly from Pilica’s attendance at
a demonstration rather than from the government having sought him out”).
No. 06-3591 Mohammed v. Keisler Page 3
2. The police detention
The record also supports the immigration judge’s conclusion that the police detention did
not rise to the level of persecution under current precedents. Mohammed asserts that Mikhailevitch,
146 F.3d 384, 390 (6th Cir. 1988), defines persecution as any single incident where a person is
subjected to physical punishment, infliction of harm, or significant deprivation of liberty. This is
a misreading of the case. “Mikhailevitch states only that something more than a few isolated
incidents of verbal harassment or intimidation unaccompanied by any physical punishment is
necessary for finding persecution.” Gilaj, 408 F.3d at 284 (internal quotations omitted).
A single incident may be sufficient to constitute persecution, but it must be correspondingly
severe. Lumaj v. Gonzales, 462 F.3d 574, 577 (6th Cir. 2006). Mohammed was held for three days,
apparently without abuse, and then was slapped and kicked once when he returned to attempt to
retrieve his passport. This does not rise to the level of physical abuse required when past
persecution is based solely on one incident. “[P]ersecution does not encompass all treatment that
our society regards as unfair, unjust, or even unlawful or unconstitutional. If persecution were
defined that expansively, a significant percentage of the world’s population would qualify for
asylum in this country.” Lumaj, 462 F.3d at 577 (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d
Cir.1993)).
3. Withholding and torture claims
Mohammed makes further arguments based upon withholding of removal and the
Convention Against Torture. Withholding of removal requires a clear probability of persecution on
one of the five protected grounds. 8 U.S.C. § 1231(b)(3)(A). Since Mohammed fails to make his
showing of persecution for asylum, he likewise fails to meet the more stringent requirements for
withholding of removal. See Mikhailevitch, 146 F.3d at 391. The Convention Against Torture claim
is without merit as there is no evidence of past torture or future risk of torture in the record.
Mohammed finally makes a general humanitarian appeal based on his disabilities. While
his story is compelling, he points to no legal authority for such a general humanitarian grant of
asylum.
III
The Board of Immigration Appeal’s decision is supported by sufficient evidence, and the
record does not “compel” this Court to overturn that decision. Therefore this Court AFFIRMS the
Board of Immigration Appeals and DENIES the petition for review.