Bilal Hussain v. Jeffrey Rosen

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BILAL HUSSAIN, No. 18-70780

Petitioner,

Agency No.

v. A209-171-424

JEFFREY A. ROSEN, Acting Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted August 12, 2020

Pasadena, California

Filed January 11, 2021

Before: Consuelo M. Callahan, Patrick J. Bumatay, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

2 HUSSAIN V. ROSEN

SUMMARY *

Immigration

Denying Pakistani national Bilal Hussain’s petition for

review of a decision of the Board of Immigration Appeals,

the panel held that substantial evidence supported the denial

of asylum, withholding of removal, and protection under the

Convention Against Torture, and that the immigration judge

did not deprive Hussain of due process.

The panel held that the IJ provided Hussain, who was pro

se, due process by providing details about the structure of the

hearing and the availability of counsel, and asking numerous

questions through which Hussain had ample opportunity to

develop his testimony. The panel rejected Hussain’s

assertion that the IJ repeatedly misled him about what he

needed to show to meet his burdens by asking open-ended

questions and failing to adequately probe the record. Rather,

the panel explained that the IJ developed the record in its role

as an independent fact-finder, and it was Hussain’s

responses that determined the scope of the testimony

elicited. The panel also rejected Hussain’s reliance on

Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000), for the

proposition that IJs must go beyond their impartial role and

instead essentially act as advocates for pro se asylum

applicants. The panel explained that it could not read

Jacinto’s imprecise “fully-develop-the-record-for-pro-se-

petitioners” dicta as expansively as Hussain seeks without

doing serious harm to the adversarial process established by

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

HUSSAIN V. ROSEN 3

Congress for petitioners like Hussain. The panel also

concluded that, even if Hussain could demonstrate error, he

did not show prejudice, where he failed to point to any

additional evidence concerning past persecution or the other

grounds upon which the Board denied relief.

The panel held that the evidence did not compel the

finding of past persecution, where Hussain did not testify to

any individualized physical attacks or threats, and he failed

to show sufficient economic or psychological harm.

The panel also held that Hussain failed to establish that

the Pakistani government was unable to control the Taliban,

noting that Hussain failed to report his two attacks to

authorities, and that record evidence demonstrated that the

government’s significant efforts to combat terrorism and

sectarian violence had resulted in a substantial reduction in

terror-related fatalities. Although Hussain argued that he did

not report the attacks because police provide no protection,

the panel noted that even if the government’s response to

Hussain’s two attacks was lacking, the standard is not that

the government can prevent all risk of harm.

The panel held that Hussain failed to establish that he

could not reasonably relocate within Pakistan to avoid future

persecution. The panel rejected Hussain’s arguments that it

would be unreasonable for him to relocate to an unfamiliar

town without family, or because he would need to live in a

rented space or with a host family. The panel also noted that

Hussain failed to show there were restrictions on movement

in areas outside the areas of high unrest that Hussain would

assumedly seek to avoid. The panel also explained Hussain

could not successfully argue that relocation was

unreasonable because the country at large is subject to

4 HUSSAIN V. ROSEN

generalized violence, because he did not show he is at risk

of country-wide targeted persecution.

The panel also held that substantial evidence supported

the denial of CAT protection because Hussain failed to

establish that he faces a particularized risk of torture, and

never alleged, in the record or in his testimony, that he ever

suffered any harm—“severe pain or suffering”—that rose to

the level of torture.

COUNSEL

Salmah Y. Rizvi (argued) and Douglas H. Hallward-

Driemeier, Ropes & Gray LLP, Washington, D.C., for

Petitioner.

Kristen A. Giuffreda (argued), Trial Attorney; Shelley R.

Goad, Assistant Director; Joseph H. Hunt, Assistant

Attorney General; Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C.; for Respondent.

OPINION

VANDYKE, Circuit Judge:

Pakistani national Bilal Hussain (Hussain) attempted to

enter the United States near Otay Mesa, California without

valid documentation, stating he feared persecution from the

Taliban in his native Pakistan. The Department of

Homeland Security initiated removal proceedings, and

Hussain petitioned for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT).

HUSSAIN V. ROSEN 5

At his removal hearing, Hussain testified before the

Immigration Judge (IJ) that the Taliban burned down his

jewelry store in an attack on his hometown in 2007, but

never hurt or personally threatened him or his family during

that attack or at any other time, including up to when Hussain

left Pakistan in September 2015. Hussain also submitted

documents describing a subsequent 2012 Taliban attack on

a convoy of cars that he was traveling with. The attack did

not injure Hussain, but in fleeing he lost the business

inventory in his car. The IJ asked Hussain open-ended

questions about his experiences with the Taliban and never

received any information suggesting Hussain was

specifically targeted, and ultimately determined that Hussain

failed to meet his burden of proof for asylum, withholding

of removal, or CAT.

The Board of Immigration Appeals (BIA) affirmed,

noting that Hussain never testified or submitted evidence

claiming any actual injury caused by the Taliban, or that the

Taliban individually targeted or attacked him for any reason.

The BIA also concluded that the IJ provided Hussain due

process because there was no indication in the transcript or

the appeal that Hussain did not understand the proceedings

or that there were facts he was “unable to present.”

Hussain seeks review of the BIA’s decision, and we have

jurisdiction under 8 U.S.C. § 1252. We dismiss Hussain’s

due process claims and deny review of his petition because

the IJ provided Hussain with a full opportunity to present

testimony, and the record does not compel the conclusion

that the agency erred in determining that Hussain’s

description of generalized violence did not meet his burden

of proof to show targeted persecution or torture.

6 HUSSAIN V. ROSEN

I. BACKGROUND

At the start of Hussain’s first hearing before the

Immigration Court, the IJ explained his statutory rights as a

petitioner, detailed the court’s procedures, told him he had

the right to an attorney, and continued the hearing to allow

Hussain to find an attorney. The IJ also described the role

of the facility’s “legal orientation provider (LOP),” and

placed Hussain on the LOP list. Hussain chose to receive

LOP assistance instead of retaining counsel.

During Hussain’s hearing, the IJ asked “why [he was]

afraid to return to Pakistan.” When asked to describe his first

Taliban encounter, Hussain described an incident in 2007

where “the Talibans [sic] were passing through our town,

and we did not give them the way,” causing the Taliban “to

fire on the people and in the market.” Neither Hussain nor

his family were injured or targeted in the attack. 1 He

testified his jewelry shop was among others that the Taliban

burned, and that the Taliban later killed people and blocked

the roads. Hussain testified that no police or military

responded to this particular attack, but described that the end

of the encounter occurred when people from his village

“attacked back.” Hussain’s hometown is located within the

FATA region, where “[i]n lieu of police, . . . [t]ribal leaders

convene . . . tribal militias . . . not . . . formal law

enforcement entities.” Hussain remained in his hometown

of Parachinar until 2015, and testified he had no further

interaction with the Taliban there.

1

Hussain initially testified he was fired at by the Taliban, but did

not elaborate when later asked if he “had any other adverse incidents

with the Taliban.”

HUSSAIN V. ROSEN 7

Hussain responded “no” when the IJ asked if he was

“ever harmed,” if “anybody threaten[ed]” him, or if at “any

time at all . . . anybody harmed or threatened [him] in

Pakistan.” Hussain also denied any problems with the police

or any threats to his wife, children, mother, brothers, or

sisters. 2

The IJ considered this evidence and concluded Hussain

“was not a victim of past persecution.” The IJ ultimately

found Hussain credible, but not “100 percent accurate as to

country conditions in Pakistan.” The IJ acknowledged that

the 2015 and 2016 country reports for Pakistan described “a

culture of lawlessness” in Hussain’s region, but also showed

“that the government is making great efforts to try to control

the violence that is committed by . . . the Taliban.” The IJ

thus found Hussain “has not established a well-founded fear

of future persecution on account of a protected ground,” nor

does he “have a nexus to a protected ground if he fears

general violence in his home country.” (emphasis added).

The IJ denied Hussain’s applications because he was never

“harmed in the past, let alone tortured,” and “could live in

other locations in Pakistan without fearing or suffering any

harm at the hands [of] the Taliban.” And given that “the

government has taken great strides to crack down on the

Taliban,” Pakistan was not “unable or unwilling to control

the Taliban.”

The BIA affirmed, noting that there was no indication in

the transcript or the appeal that Hussain did not understand

the proceedings or was “unable to present” any facts. The

2

Hussain testified that “[o]nce, in Peshawar, a couple of boys had

followed me,” but Hussain went into a hotel and the boys did not harm

him. He also testified that his father was threatened once in 2015 “by

the Sunnis from [his] village,” but that his father was never harmed.

8 HUSSAIN V. ROSEN

BIA agreed with the IJ that Hussain “was never physically

harmed or personally threatened in Pakistan” and concluded

that the IJ did not err in failing to probe a 2012 convoy attack

described only in Hussain’s written application because

Hussain did not allege the attack targeted or injured him

specifically. 3 The BIA determined that “any future harm

3

Hussain’s application included two letters from the Anjuman-e-

Hussania, a committee in Hussain’s hometown. The first detailed how

after the 2007 incident Hussain did not immediately re-establish his

jewelry store, but because he was a “Tailor Master” he continued his

other tailoring job despite the “huge financial los[s].” The letter

described a second Taliban attack in 2012 on a convoy of vehicles, one

of which Hussain was riding in. Hussain’s vehicle was “in the last row”

and drove away to escape the attack, but in doing so “fell down in the

pitch and all the jewellers [sic] [were] lost.” Hussain was not injured.

The parties dispute whether a second letter from the Anjuman-e-

Hussania describing Hussain’s community activities in Parachinar was

included in the record. We assume without deciding that it was, but it

does not affect the analysis. According to the second letter, as an “active

member of Passdaran,” Hussain “helped the homeless peoples and taken

injuries [sic] to the hospital for treatment during crises in the area. Due

to which Taliban terrorists threatened him and his family members to

kill or kidnap.” (emphasis added). The IJ asked multiple questions that

would have allowed Hussain to elaborate on the Taliban’s “threat[]”

nonspecifically referenced by this one sentence in the second letter.

Hussain provided no additional detail. “Our court generally treats

unfulfilled threats, without more, as within that category of conduct

indicative of a danger of future persecution, rather than as past

persecution itself.” Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000).

Moreover, “vague and conclusory allegations . . . are clearly

insufficient” to support a petitioner’s claim of persecution; “[o]ur case

law has consistently required more.” Mendez-Gutierrez v. Gonzales,

444 F.3d 1168, 1172 (9th Cir. 2006); see also id. at 1170 (“We cannot

conclude that the unspecified threats against Mendez-Gutierrez were

sufficiently menacing to constitute past persecution, as we do not even

know what the threats entailed.” (citation omitted)). In contrast to this

one anomalous, bare assertion in the letter, Hussain’s testimony—which

we take as true (as the IJ did)—provides substantial evidence that neither

HUSSAIN V. ROSEN 9

[Hussain] may suffer in Pakistan would not constitute

‘persecution’ under the Act because” of the Pakistani

government’s “significant efforts to combat terrorist

organizations.” And the fact that “terrorist attacks continue

in Pakistan . . . is insufficient” on its own to conclude the

government was unable to control the Taliban. Although

Hussain testified that the police did not intervene after the

2007 attack on his village, the BIA concluded the single

incident did not in itself demonstrate the government’s

inability or unwillingness “to protect him from the Taliban.”

The BIA therefore found no clear error in the IJ’s conclusion

that Hussain failed to meet his burden of proof for asylum,

withholding of removal, or CAT protection.

II. STANDARD OF REVIEW

We review the BIA’s factual findings underlying its

determination that a petitioner failed to establish eligibility

for asylum, withholding of removal, and protection under

CAT for substantial evidence. Hanna v. Keisler, 506 F.3d

933, 937, 940 (9th Cir. 2007) (asylum and withholding of

removal); Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.

2003) (CAT). We reverse the BIA only where “any

reasonable adjudicator would be compelled to conclude to

the contrary.” Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.

2011) (citation omitted). “The possibility of drawing two

inconsistent conclusions from the evidence does not prevent

an administrative agency’s finding from being supported by

substantial evidence.” Go v. Holder, 640 F.3d 1047, 1054

(9th Cir. 2011) (citation omitted). Accordingly, review of

the Board’s eligibility determinations in this regard is

he nor his family were ever the specific targets of the Taliban’s

generalized violence.

10 HUSSAIN V. ROSEN

“extremely deferential.” Ghaly v. INS, 58 F.3d 1425, 1431

(9th Cir. 1995).

III. DUE PROCESS

As an initial matter, Hussain claims the IJ did not

sufficiently explain the proceedings and did not ask him

adequately probing questions, resulting in a denial of due

process. 4 A petitioner facing removal “is entitled to a full

and fair hearing of his claims and a reasonable opportunity

to present evidence on his behalf.” Colmenar v. INS,

210 F.3d 967, 971 (9th Cir. 2000). We “will reverse the

BIA’s decision on due process grounds if the proceeding was

‘so fundamentally unfair that the alien was prevented from

reasonably presenting his case.’” Id. (citation omitted). To

prevail on such a claim, a petitioner must also demonstrate

“substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246

(9th Cir. 2000).

A. The Fairness of the Proceedings

1. The IJ Explained the Legal Procedures.

“[T]he Fifth Amendment entitles aliens to due process of

law in deportation proceedings.” Reno v. Flores, 507 U.S.

292, 306 (1993). But because “an alien in civil removal

proceedings is not entitled to the same bundle of

constitutional rights afforded defendants in criminal

4

Hussain also argues that the IJ did not provide due process because

the IJ declined to enter certain photographs and a memory card into the

record during his hearing. As this claim was not raised before the BIA,

we cannot address it here. Brezilien v. Holder, 569 F.3d 403, 412 (9th

Cir. 2009) (“Because Brezilien failed to exhaust his administrative

remedies as to this alleged procedural error, we lack jurisdiction to

review it.”).

HUSSAIN V. ROSEN 11

proceedings . . . ‘various protections that apply in the context

of a criminal trial do not apply in a deportation hearing.’”

Valencia v. Mukasey, 548 F.3d 1261, 1263 (9th Cir. 2008)

(quoting Ramirez-Osorio v. INS, 745 F.2d 937, 944 (5th Cir.

1984)). As an adversarial process, immigration proceedings

are impartial proceedings where petitioners may make their

case, but are not entitled to the IJ’s legal assistance in doing

so. Crucially, a pro se “alien has no blanket right to be

advised of the possibility of asylum” in a hearing before an

Immigration Judge. Valencia, 548 F.3d at 1263. As required

by statute, an IJ must ensure “the alien shall have a

reasonable opportunity to examine the evidence against the

alien, to present evidence on the alien’s own behalf, and to

cross-examine witnesses presented by the Government.” 8

U.S.C. § 1229a(b)(4)(B). In considering whether Hussain

received due process, “[t]he critical question is ‘[w]hether

the IJ’s actions prevented the introduction of significant

testimony.’” Oshodi v. Holder, 729 F.3d 883, 890 (9th Cir.

2013) (citation omitted).

Here, the IJ ensured that Hussain understood and had the

opportunity to access all manner of procedural assistance to

“introduc[e] [] significant testimony.” Id. The IJ explained

Hussain’s statutory rights, detailed the court procedures, and

ensured Hussain had the opportunity to procure a lawyer if

he wanted one. Instead, Hussain ultimately chose to receive

LOP assistance in preparing his asylum application.

2. The IJ Developed the Record.

During the hearing, the IJ asked Hussain multiple broad

questions to elicit testimony explaining why Hussain was

“afraid to return to Pakistan.” Hussain faults the IJ’s open-

ended questions, arguing that the IJ needed to explicitly

detail the elements of a claim for asylum and failed to

“adequately probe the record” for nuggets that might lend

12 HUSSAIN V. ROSEN

support to Hussain’s claims. Consequently, Hussain argues

that he was “repeatedly misled” by the IJ as to what he

needed to show to meet his burdens.

The IJ developed the record in its role as an independent

fact-finder, and it was Hussain’s responses that determined

the scope of the testimony elicited. By starting the

questioning at a general level, the IJ let Hussain control the

testimony presented, while being prepared to drill down

based on whatever Hussain provided, rather than curtailing

or improperly influencing the testimony ex ante. This was

not a violation of due process. See Agyeman v. INS, 296 F.3d

871, 884 (9th Cir. 2002) (“The IJ must be responsive to the

particular circumstances of the case . . . .” (emphasis

added)). Notwithstanding the adversarial character of the

proceedings, the IJ repeatedly sought clarification of

Hussain’s answers and gave him multiple opportunities to

expand his testimony. Hussain framed the landscape of his

testimony in this case through his answers to these questions.

Hussain’s argument that he was nonetheless misled

demands too much of the IJ, and if accepted would

fundamentally alter the well-recognized adversarial nature

of immigration proceedings. The IJ was not required to ask

Hussain leading questions and feed him the types of

scenarios sufficient to achieve asylum. That could change

the IJ’s role from that of an impartial adjudicator to

effectively being an advocate for the petitioner—a role that

our court has repeatedly rejected. 5 C.F.R. § 2635.101(b)(8)

(delineating that IJs have a neutral role and “shall act

impartially and not give preferential treatment to any . . .

individual”); C.J.L.G. v. Barr, 923 F.3d 622, 636 (9th Cir.

2019) (Paez, J., concurring) (emphasizing that, despite the

IJ’s duty to enable the petitioner to present testimony, “the

IJ cannot be a[n] . . . advocate”); United States v. Moriel-

HUSSAIN V. ROSEN 13

Luna, 585 F.3d 1191, 1197–98 (9th Cir. 2009) (“We do not

require IJs to speculate about the possibility of anticipated

changes of circumstances and advise aliens of facts not

suggested in the record,” nor does “our precedent . . . require

that an IJ act creatively to advise an immigrant of ways in

which his legal prospects at forestalling deportation might

improve with fundamental changes in his status.”); Bui v.

INS, 76 F.3d 268, 271 (9th Cir. 1996) (“The regulations do

not require the IJ to scour the entire record or to interrogate

an alien regarding all possible avenues of relief . . . .”).

Despite the IJ’s broad queries in this case, Hussain

argues that Ninth Circuit precedent demands that IJs go

beyond their impartial role and instead essentially act as

advocates for pro se asylum applicants. That is wrong.

Hussain emphasizes Jacinto v. INS, 208 F.3d 725, 732–33

(9th Cir. 2000), where he claims this court “remanded where

the IJ did not ask the applicant questions about her

persecutor’s motive.” But Hussain miscomprehends the

holding and import of Jacinto, relying on hypothetical

questions from that case that this court in dicta said the IJ

might have asked. Id. at 732. The actual reason this court in

Jacinto found a violation of due process was because the IJ

there “did not clearly explain either that she had the right to

testify even if she was represented by a lawyer . . . and

perhaps most important, the [IJ] never gave her the

opportunity to present her own additional narrated

statement.” Jacinto, 208 F.3d at 734 (emphases added).

That was the due process violation in Jacinto. Here, in

contrast, the IJ gave Hussain multiple opportunities to

expound upon the documents he provided and explicit

instructions and options regarding counsel.

Hussain’s attempt to leverage the panel’s dicta in Jacinto

into a far more sweeping requirement for IJs doesn’t work,

14 HUSSAIN V. ROSEN

in large part because our court’s remand in Jacinto

represents the high-water mark of what due process can

require in Immigration Court hearings—at least as long as

they remain adversarial hearings. In contrast to the specific

reason it gave for remanding in Jacinto, the majority in that

case—relying on a handbook from the United Nations, a

Ninth Circuit dissent, and the very different, non-adversarial

fora of Social Security hearings—also attempted to

transplant the statement, oft-repeated by Hussain, that a

Social Security ALJ “must ‘scrupulously and

conscientiously probe into, inquire of, and explore for all the

relevant facts.’” Jacinto, 208 F.3d at 733 (citation omitted).

Pointing to language describing the ALJ’s role in that

statutorily distinct, non-adversarial context, the Jacinto

majority—in language as sweeping as it is ambiguous—

stated that, like Social Security ALJs, IJs are similarly

“obligated to fully develop the record in those circumstances

where applicants appear without counsel.” Jacinto, 208 F.3d

at 734 (emphasis added). Overreading this inherently

indeterminate standard, as Hussain asks us to do, would

supplant the adversarial process required by Congress in

these proceedings with a non-adversarial process improperly

borrowed from the very different Social Security context.

However we may properly interpret Jacinto’s imprecise

“fully-develop-the-record-for-pro-se-petitioners” dicta, we

cannot read it as expansively as Hussain seeks without doing

serious harm to the adversarial process established by

Congress for petitioners like Hussain. The core of the due

process right afforded petitioners in immigration

proceedings is the opportunity to testify. IJs need not—

indeed, cannot—essentially act as Sherpas for pro se

petitioners, guiding them in making their case. Extending

Jacinto as Hussain urges would put that case in unnecessary

conflict with our court’s other, later, precedent, which holds

HUSSAIN V. ROSEN 15

that due process has been provided whenever “an alien [is]

given a full and fair opportunity to be represented by

counsel, to prepare an application for [immigration] relief,

and to present testimony and other evidence in support of the

application.” Vargas-Hernandez v. Gonzales, 497 F.3d 919,

926–27 (9th Cir. 2007); see also Lopez-Umanzor v.

Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005) (“We will

grant a petition for review from a BIA decision on due

process grounds if the proceeding was so fundamentally

unfair that the alien was prevented from reasonably

presenting [his or her] case.”) (emphasis added) (citation

omitted)). 5

Here, the IJ provided Hussain due process by providing

details about the structure of the hearing, the availability of

counsel, and asking numerous questions through which

Hussain had ample opportunity to develop his testimony.

See Ramirez v. Sessions, 902 F.3d 764, 772 (8th Cir. 2018)

(finding the IJ provided due process by asking “relevant fact

questions” and then “three open-ended questions allowing

[the petitioner] an opportunity to elaborate”).

B. Prejudice

“To prevail on a due process challenge to deportation

proceedings, [the petitioner] must show [both] error and

5

The other cases Hussain cites where we have found due process

violations have no resemblance to this case. See, e.g., Pangilinan v.

Holder, 568 F.3d 708, 709–10 (9th Cir. 2009) (finding due process

violated where the IJ delegated all questioning of the pro se petitioner to

the government’s attorney); Agyeman, 296 F.3d at 877 (finding due

process violated where the IJ required testimony from an inaccessible

witness for the petitioner to present his application); Colmenar, 210 F.3d

at 971–72 (finding due process violated where the IJ affirmatively

prevented petitioner’s testimony).

16 HUSSAIN V. ROSEN

substantial prejudice.” Grigoryan v. Barr, 959 F.3d 1233,

1240 (9th Cir. 2020) (citation omitted). Even if Hussain

could demonstrate error (he hasn’t), he cannot show

prejudice. 6 Although Hussain claims he would have

provided many more details about his political and religious

background if asked, he doesn’t point to any additional

evidence of persecution or the grounds upon which the BIA

denied him asylum. See, infra, §§ IV.B, IV.C. And some of

the testimony Hussain now claims he would have proffered

is belied by the actual testimony he gave.

To reiterate: the IJ asked broad questions to give Hussain

the opportunity to testify to whatever he wished. Hussain’s

allegations that he would have provided different answers to

more pointed questions are unpersuasive and do not establish

prejudice. Hussain claims he would have told the IJ about

direct threats the Taliban made to him before burning down

his shop in 2007. But when the IJ broadly asked “[what

happened] the first time you had a problem with the

Taliban?,” Hussain only said the “Talibans [sic] were

passing through our town, and we did not give them the

way.” Hussain claims he would have testified about Taliban

threats against himself specifically from 2007 to 2015 for his

anti-Taliban politics, but to the IJ he denied receiving any

threats because “[t]hey don’t threaten you . . . they just kills

[sic] you.” Hussain says he would have described injuries

from the 2012 convoy attack, but when asked “were there

any times—was there any time at all that anybody harmed or

6

Hussain argues prejudice is presumed by relying on two cases, one

where the petitioner was prevented from testifying altogether and

another where the petitioner received an incomprehensible translation

during proceedings. See Colmenar, 210 F.3d at 971–72; Perez-Lastor v.

INS, 208 F.3d 773, 778–80 (9th Cir. 2000). While Hussain may overread

those cases to say we presumed prejudice, neither is like this case.

HUSSAIN V. ROSEN 17

threatened you in Pakistan?” Hussain answered, “No. I was

not beaten up or anything like that, no.” Hussain cannot now

claim he was prejudiced when the IJ’s exact questions could

have elicited the very responses Hussain claims he was

unable to provide.

IV. ASYLUM & WITHHOLDING OF REMOVAL

To meet the burden for asylum because of past

persecution, the petitioner “has the burden of establishing

that (1) his treatment rises to the level of persecution; (2) the

persecution was on account of one or more protected

grounds; and (3) the persecution was committed by the

government, or by forces that the government was unable or

unwilling to control.” Baghdasaryan v. Holder, 592 F.3d

1018, 1023 (9th Cir. 2010). A petitioner who cannot show

past persecution might nevertheless be eligible for relief if

he instead shows a “well-founded fear of future persecution”

along with the other elements. See id.; Wakkary v. Holder,

558 F.3d 1049, 1060 (9th Cir. 2009). Even if the standard is

met, an applicant is still ineligible for asylum if it would be

reasonable under the circumstances to relocate within the

country to avoid future persecution. Kaiser v. Ashcroft,

390 F.3d 653, 659 (9th Cir. 2004). Because the asylum

standard is more lenient than withholding of removal’s

“clear probability” standard, failing to establish eligibility

for asylum forecloses eligibility for withholding of removal.

Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003).

A. Hussain Did Not Demonstrate Past Persecution.

Hussain testified to incidents of generalized violence that

do not rise to the level of persecution. Hussain argues the

physical attacks, death threats, economic harm, and

psychological harm he suffered “both independently and

cumulatively rose to the level of persecution.” The BIA

18 HUSSAIN V. ROSEN

disagreed, and the record in this case does not compel the

conclusion that the BIA erred.

1. The physical attacks were not past

persecution.

To establish past persecution, an applicant must show he

was individually targeted on account of a protected ground

rather than simply the victim of generalized violence. Ndom

v. Ashcroft, 384 F.3d 743, 753 (9th Cir. 2004) (“Where we

have found no persecution despite civil strife or random

violence, the reason has been the applicant’s failure to

establish that his or her persecutor was motivated by one of

the five statutory grounds.”), superseded by statute on other

grounds as recognized in Parussimova v. Mukasey, 555 F.3d

734, 739 (9th Cir. 2009); see also Rostomian v. INS,

210 F.3d 1088, 1089 (9th Cir. 2000) (determining petitioners

did not show past persecution where they “did not establish

that the [knife] attack was anything more than an act of

random violence during a period of significant strife”);

Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (explaining

that in order to demonstrate past persecution “[i]t is not

sufficient to show [petitioner] was merely subject to the

general dangers attending a civil war or domestic unrest”).

Hussain based his past persecution claim on two events:

in 2007 the Taliban burned his jewelry shop along with other

shops in his hometown, and in 2012 the Taliban attacked a

convoy of cars that included Hussain. Because “[a]sylum

generally is not available to victims of civil strife, unless

they are singled out on account of a protected ground,”

Hussain needed to show he was “singled out” in his region

of Pakistan that is often subject to Taliban incursions.

Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001). But

Hussain testified the burning of his shop was the result of a

general attack on the town that resulted in other shops being

HUSSAIN V. ROSEN 19

burned as well. And though others died in the attack,

Hussain did not testify to any individualized physical attacks

or threats. Likewise, Hussain provided no testimony that he

was a specific target of the Taliban’s attack on his convoy

rather than a general victim of a random raid. Cf. Gormley

v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (explaining

that such attacks “do not rise to the level of [past]

persecution; robberies of this sort are an all too common

byproduct of civil unrest and economic turmoil”).

Substantial evidence supports the BIA’s conclusion that this

is not persecution. See Ochave, 254 F.3d at 865.

2. The other harms alleged do not qualify as

persecution.

Hussain also argues he was subjected to death threats,

economic harm, and psychological harm. 7 Hussain during

his testimony denied either he, his wife, or children were

ever threatened by the Taliban. Unfulfilled threats are very

rarely sufficient to rise to the level of persecution, and

Hussain has not made that showing here. Hoxha v. Ashcroft,

319 F.3d 1179, 1182 (9th Cir. 2003) (holding that the

unfulfilled threats in that case constituted “harassment rather

than persecution”). While his father was once threatened by

a group of Sunni Muslims (not the Taliban), no harm ever

came to his father, mother, or siblings. Hussain’s testimony

7

Hussain fainted during his bond hearing, which he argues was a

result of the psychological harm he experienced in Pakistan. While

psychological harm may constitute persecution, see Mashiri v. Ashcroft,

383 F.3d 1112, 1120 (9th Cir. 2004), there is no evidence in the record,

other than Hussain’s attorney’s assertions, that his fainting during his

hearing was due to past psychological harm rather than for some other

reason.

20 HUSSAIN V. ROSEN

and documentation do not support his assertion on appeal

that he received death threats.

“We have defined economic persecution as ‘substantial

economic disadvantage’ that interferes with the applicant’s

livelihood . . . .” He v. Holder, 749 F.3d 792, 796 (9th Cir.

2014) (citation omitted). While the record reflects that

Hussain’s jewelry shop—along with other shops in the

town—was burned in 2007 and he lost jewelry stock in the

2012 convoy attack, Hussain did not detail the actual impact

of these losses and was afterward able to “continue[] his

Tailoring job.” “[M]ere economic disadvantage alone does

not rise to the level of persecution.” Gormley, 364 F.3d at

1178. Though Hussain undoubtedly experienced hardship

from his shop burning, this harm also lacks the individual

targeting necessary to show persecution because other shop

owners in his village experienced the same losses. And

while the burning of the store occurred in 2007 and the

convoy attack in 2012, Hussain did not leave the country

until 2015. As he was “able to continue working during that

period . . . substantial evidence supports the BIA’s

determination that [the petitioner] did not suffer

persecution” based on economic harm. He, 749 F.3d at 796.

3. Considered cumulatively, Hussain did not

demonstrate past persecution.

Even considered cumulatively, Mashiri, 383 F.3d at

1120–21, Hussain’s claims of generalized physical attacks,

contradictory testimony of death threats, unspecified

economic harm, and unsubstantiated psychological harm do

not rise to the level of targeted persecution. Where a country

is embroiled in “indiscriminate violence,” citizens of that

country are only eligible for asylum if they can demonstrate

that “they are singled out on account of a protected ground.”

Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir.

HUSSAIN V. ROSEN 21

2010). Hussain did not carry his burden to show past

persecution and this court is not compelled to reverse the

BIA’s determination that the IJ correctly found “the violence

created by the Taliban . . . basically targets everybody.”

B. The Pakistani Government Is Not Unwilling or

Unable to Prevent Harm.

Hussain also failed to demonstrate the third prong of his

persecution claim—that his persecution was “committed by

the government, or by forces that the government was unable

or unwilling to control.” Baghdasaryan, 592 F.3d at 1023.

Hussain does not dispute the Pakistani government’s

willingness to control the Taliban, but contends he was

persecuted and will be again due to the government’s

inability to eradicate the Taliban.

Hussain argued that “the police do[] not provide any

protection to the Shias, and the Pakistan government is also

not helping or protecting Shias.” But Hussain never claimed

that he reported the 2007 or 2012 attacks to law enforcement

authorities or ever sought police assistance, which we

balance in our analysis of the BIA’s determination. See

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th

Cir. 2017). Hussain maintained he did not report the attacks

because the police provide no protection. But even if the

government’s response to these two particular events was

lacking, the standard is not that the government can prevent

all risk of harm. This is effectively the standard pressed by

Hussain. Such a requirement could not even be met by the

United States or the European Union, where terrorist attacks

unfortunately harm innocents too frequently. Instead, we

have reasonably determined that a country’s government is

not “unable or unwilling” to control violent nonstate actors

when it demonstrates efforts to subdue said groups. See

Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004)

22 HUSSAIN V. ROSEN

(finding the Egyptian government was not unable or

unwilling to control terrorists because “the relevant State

Department Profile reflected the fact that Egyptian

authorities have prosecuted those who have committed ‘acts

of terrorism’ against Christians”); Rahimzadeh, 613 F.3d at

922–23 (finding the Danish government was not unable or

unwilling to control extremists based on “active efforts to

address and control violence by radical religious groups”).

The BIA reviewed the country reports and recognized

that “the Pakistani government has made significant efforts

to combat terrorist organizations and sectarian violence,”

and the record reflected “multiple counterinsurgency and

counterterrorism operations in [Hussain’s home region] to

eradicate militant safe havens.” These operations produced

a substantial reduction in terror-related fatalities in Pakistan

from 11,704 in 2009 to 1,720 in 2016. Although the record

also reflects that the Taliban continues to operate in regions

of Pakistan, “[t]he possibility of drawing two inconsistent

conclusions from the evidence does not prevent an

administrative agency’s finding from being supported by

substantial evidence.” Go, 640 F.3d at 1054 (citation

omitted). Considering the government’s efforts we are not

compelled to conclude that the Pakistani government is

entirely unable to control the Taliban—even assuming the

government did not prevent or effectively punish the two

specific attacks Hussain experienced. See Doe v. Holder,

736 F.3d 871, 878 (9th Cir. 2013) (“[U]nwillingness or

inability to control persecutors is not demonstrated simply

because the police ultimately were unable to solve a crime

or arrest the perpetrators . . . .”).

HUSSAIN V. ROSEN 23

C. It Would Not Be Unreasonable for Hussain to

Relocate Within Pakistan.

Hussain contends that he would be at risk of future

persecution if he were deported. Importantly, Hussain’s

claims of future persecution were focused on the risks that

would arise if he returned to his hometown in Parachinar.

But “[a]n applicant does not have a well-founded fear of

[future] persecution if the applicant could avoid persecution

by relocating to another part of the applicant’s country,”

unless doing so would be unreasonable under the applicant’s

circumstances. 8 C.F.R. § 1208.13(b)(2)(ii); see also Kaiser

v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004).

Relocation is generally not unreasonable solely because

the country at large is subject to generalized violence.

8 C.F.R. § 1208.13(b)(3). The BIA noted that the country

reports suggest Taliban attacks are “more prevalent” in some

parts of Pakistan than others. Thus “the applicant shall bear

the burden of establishing that it would not be reasonable for

[them] to relocate, unless the persecution is by a government

or is government-sponsored.” Id. § 1208.13(b)(3)(i).

Because Hussain never claimed to fear the government or a

government-sponsored group, that burden is properly placed

on him to demonstrate why relocation is unreasonable. Id.

Hussain first argues it would be unreasonable for him to

relocate within Pakistan because “his parents, wife, four

children, and nine of his siblings all live in Parachinar . . . .

It would be a hardship” to require him to relocate to “an

unfamiliar town of Pakistan without his family.” This is a

strange argument. Surely relocating to an unfamiliar town

in Pakistan—while no doubt some inconvenient distance

from his family—would pose less of a hardship for his

family than relocating halfway across the globe to the United

States?

24 HUSSAIN V. ROSEN

Hussain also argues that relocating would be difficult

because he may have to live in a rented space or with a host

family, and there are government restrictions and special

permission needed to travel through certain areas. See

8 C.F.R. § 1208.13(b)(3). But anyone who moves out of

their home and is unable to outright buy a new house would

need to live with others or in a rented space. That relocation

might be inconvenient or undesirable does not make it

unreasonable. And the referenced travel restrictions and

special permission requirements only apply to areas in the

FATA region with high instances of unrest due to security

concerns—but those are the very areas Hussain would

assumedly seek to avoid. Hussain did not show that there is

restricted freedom of movement in other regions.

Hussain also cannot successfully argue that relocation is

unreasonable because the country at large is subject to

generalized violence, because he did not show he is at risk

of country-wide targeted persecution. As the BIA noted,

violent attacks were less prevalent in other areas outside of

Hussain’s hometown. No country is immune from

generalized violence. Every country, even our own, has

been subjected to some instances of “generalized” violence.

For example, we have seen our own violent terrorist attacks,

robberies and muggings targeting unfortunate passersby, and

riots resulting in destroyed properties, looting, and physical

injuries. Acknowledging that a particular country is

currently plagued by generalized crime and violence cannot

be a basis for granting asylum to any citizen of that country

in the United States.

By failing to show either past personal persecution or

that it would be unreasonable to expect him to relocate to

avoid future persecution, Hussain failed to provide evidence

to compel reversal of the BIA’s decisions to deny asylum

HUSSAIN V. ROSEN 25

and withholding of removal. See Gonzalez-Hernandez v.

Ashcroft, 336 F.3d 995, 1001 n.5 (9th Cir. 2003).

V. CAT PROTECTION

To succeed on a claim under CAT, Hussain must show

it is “more likely than not that he . . . would be tortured if

removed to the proposed country of removal.” 8 C.F.R.

§ 1208.16(c)(2). Hussain was required to show that he faces

a “particularized threat” of torture, Dhital v. Mukasey,

532 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted), and

as discussed above, he failed to make that showing. More

crucially, Hussain never alleged, in the record or in his

testimony, that he ever suffered any harm—“severe pain or

suffering”—that rose to the level of torture. 8 C.F.R.

§ 1208.18(a)(1). Substantial evidence supports the BIA’s

determination that Hussain cannot meet his burden to obtain

CAT protection. 8

VI. CONCLUSION

The IJ ensured Hussain received due process by

providing multiple opportunities to testify regarding his

experiences with the Taliban in Pakistan. Hussain never

alleged he was personally targeted by the Taliban and his

testimony was consistent with an environment of

8

Hussain argues the country conditions report should fulfill his

burden under CAT. A report describing general persecution “is

insufficient to compel the conclusion that Petitioner would be tortured if

returned.” Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2013). Nor do

Hussain’s allegations that the government did not respond to the 2007

Taliban attack suffice, as the Pakistan government “does not ‘acquiesce’

to torture where the government actively, albeit not entirely successfully,

combats the illegal activities.” Del Cid Marroquin v. Lynch, 823 F.3d

933, 937 (9th Cir. 2016).

26 HUSSAIN V. ROSEN

generalized violence. The BIA’s conclusion that he failed to

meet the burden for either asylum or withholding of removal

was supported by substantial evidence. So too was its

determination that Hussain did not show that safe relocation

within Pakistan was unreasonable and that he failed to meet

his burden under CAT.

PETITION DENIED.