Detho, et al v. Gonzales

Filing 920060105

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 5, 2006 Charles R. Fulbruge III Clerk No. 04-60623 Summary Calendar

MOHAMMAD BACHAL DETHO; TASNIM KAUSAR DETHO; WAJAHAT ALI DETHO, Petitioners, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. ____________________ On Petition for Review from an Order of the Board of Immigration Appeals _____________________ Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges. PER CURIAM:* The lead petitioner Mohammad Bachal Detho petitions for review from the Board of Immigration Appeals's order vacating the decision of the Immigration Judge. petition. I. Detho is a citizen of Background Pakistan. Detho and his family For the reasons below, we deny the

previously lived in Mirpurkhas, part of the Sindh province of Pakistan. From a young age, Detho has been politically active in

Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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the Pakistan People's Party ("PPP"), which Detho has described as "pro-national" and "pro-West." Despite being a large Pakistani

political party, PPP, according to Detho, receives little support in Mirpurkhas. He has been arrested three times in connection with his political activities with the most recent arrest in 1979. Following September 11, 2001, Detho was threatened and

attacked due to his support for the United States.

The first

attack took place in his store in November 2001 and was carried out by "pro-Islamic" group members. In December 2001, Detho was beaten with a stick and suffered a face wound. His attackers warned that

this was "the tip of the iceberg" and threatened to "kill [his] entire family." He reported the incidents to authorities and was

advised to "be quiet . . . or something might happen to him." Additionally, Detho claims that (1) he received threatening

telephone calls including a threat of the potential rape of his wife and daughters; (2) gunshots were fired at or near his house; (3) stones were thrown at his house; and (4) his son, who is also a member of PPP, was attacked by the same pro-Islamic groups. Detho moved with his family to Punjab and has not encountered further attacks or threats. He attributes the lack of attacks to

the fact that he has not voiced his political opinions. On April 24, 2002, Detho was admitted to the United States with his wife and son (collectively the "Petitioners") as a

nonimmigrant with authorization to remain for a temporary period not to exceed October 22, 2002. He remained longer than permitted. 2

At a hearing on January 16, 2003, Detho admitted the factual allegations and conceded removeability before the Immigration Judge ("IJ"). Thereafter, the Petitioners applied for asylum,

withholding of removal, and protection under the Convention Against Torture ("CAT"). At a hearing on the merits on April 8, 2003, the

IJ granted the Petitioners' application for asylum. On June 22, 2004, the Board of Immigration Appeals (the "BIA") issued an order reversing the IJ's decision. the Petitioners' applications for The BIA also denied of removal and

withholding

protection under CAT.

On July 20, 2004, Detho timely filed the

instant petition for review. II. A. STANDARD
OF

Discussion

REVIEW

Because the BIA did not adopt the decision of the IJ, this Court's review is limited to the BIA's decision. 283 F.3d 664, 666 (5th Cir. 2002). See Girma v. INS,

We review legal conclusions de See Lopez"Under

novo and findings of fact for substantial evidence.

Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).

substantial evidence review, we cannot reverse the BIA's factual determinations unless we decide not only that the evidence supports a contrary conclusion, but also that the evidence compels it." Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir. 2005) (internal quotation marks omitted). show that the evidence The alien bears the burden of proof to is so compelling that a reasonable

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factfinder could not reach a contrary conclusion. B. ASYLUM

See id.

Detho claims asylum on the basis of his political opinion. To be eligible, he must show past persecution or a well-founded fear of future persecution on this basis. See Roy v. Ashcroft, 389 F.3d

132, 138 (5th Cir. 2004); 8 U.S.C. § 1158(a) (2004). a. The Past Harm BIA considered the factual record, accepted Detho's

testimony as credible, and ruled that the attacks on Detho, "even taken cumulatively," did not "rise to a level of prosecution as contemplated by the Immigration and Nationality Act."

Additionally, the BIA noted that with regard to the first attack, he failed to specify where on his body he was injured or to what extent. Citing the two attacks against his person and threats made against him and his family, Detho argues he has established past persecution rising to the level necessary for a grant of asylum. Persecution is the "infliction of suffering or harm, under

government sanction." Cir. 1996).

Abdel-Masieh v. INS, 73 F.3d 579, 583 (5th

Detho relies on Singh v. Ilchert, 69 F.3d 375 (9th

Cir. 1995), to support his claim that the BIA erred in reversing the IJ's grant of asylum. the petitioner had In Singh, the Ninth Circuit found that persecution because he had been

suffered

detained twice and "tortured" by police.

Singh, 69 F.3d at 379.

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Specifically,

"the

police

interrogated

and

beat

Singh

for

two-and-a-half hours, until he lost consciousness. The police then revived him with water and resumed the beatings. . . . [T]he On

police arrested Singh again and imprisoned him for six days.

each of the six days, the . . . police tightened a wide leather belt around Singh's torso until he lost consciousness." Id. The

Singh attacks were more egregious than the incidents at issue here. Moreover, Detho's assault by a "pro-Islamic" political faction stemmed from civil unrest, not persecution. The attacks were more

a product of competing political parties in Pakistan. See Mohammad v. Ashcroft, 90 Fed. Appx. 746, 748 (5th Cir. 2004) (unpublished) (finding that "skirmishes" with the PPP in which the alien was hit with a shotgun and a piece of glass were not the result of persecution but civil unrest in Pakistan). A Seventh Circuit case, Meghani v. INS, also has facts similar to those in the instant case. The alien in Meghani was a member of the PPP and was 236 F.3d 843, 844

attacked by members of a rival political party. (7th Cir. 2001). broken. Id.

In the attack, his wrist and shoulder were

The IJ accepted his account as credible but found Id. at

that the incident did not rise to the level of persecution. 847. unrest

The Seventh Circuit agreed that the "incident was civil between competing Id. political factions not amounting to

persecution."

We find that Detho has failed to demonstrate that he has 5

suffered persecution in Pakistan.

Detho's incidents were less

severe than what took place Singh, which Detho relies on to establish persecution. Instead, like Mohammad and Meghani, the

incidents reflect civil unrest in Pakistan due to rivalry among political parties. that the harm Accordingly, the BIA did not err in finding suffered did not rise to the level of

Detho

persecution. b. Well-Founded Fear of Persecution

"To establish a well-founded fear of future persecution, an alien must demonstrate a subjective fear of persecution, and that fear must be objectively reasonable." Zhao, 404 F.3d at 307.

Detho, however, argues that he is not required to prove this wellfounded fear, because he met his burden of proving past persecution in the initial trial before the IJ and therefore is entitled to the regulatory presumption of fear of future persecution. See 8 C.F.R. § 1208.13(b)(1) (2004). His argument is without merit. As stated

above, the BIA vacated the IJ's findings, and, therefore, the IJ's decision is not before this Court for review. at 666. Detho has failed to establish that his fear of future See Girma, 283 F.3d

persecution is objectively reasonable. Detho has not shown that he will be singled out for persecution, see Zhao, 404 F.3d at 307, nor has he met his burden of establishing that it would be unreasonable for him to relocate within Pakistan. See 8 C.F.R. §

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1208.13(b)(3)(I). While Detho and his family lived in Punjab, they did not receive any threats and were not attacked. family safety seems to be an even stronger "[O]ngoing of

indicator

`unreasonable' fear when the feared persecutor has a national influence," like a rival political party. F.3d 182, 193 (5th Cir. 2004). Eduard v. Ashcroft, 379

In fact, although there are social,

cultural, and political differences between the Sindh and Punjab provinces, Detho testified that in Punjab he has relatives and there are many PPP supporters. In sum, the BIA did not err in

finding that Detho failed to demonstrate a well-founded fear of persecution. III. Conclusion

Substantial evidence supports the BIA's judgment that Detho has failed to establish past persecution or a well-founded fear of future persecution. DENIED. Accordingly, Detho's petition for review is

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