Œ Pursuant to our order of January 5, 2006, this appeal is submitted on the briefs and the record. See Fed. R. App. P. 34(a)(2).

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-2051

SHUKRIA S. MARGOS,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals

No. A 95 592 186

____________

SUBMITTED JANUARY 11, 2006Œ—DECIDED APRIL 5, 2006

____________

Before FLAUM,Chief Judge, andEASTERBROOK andMANION,

Circuit Judges.

MANION, Circuit Judge. Shukria Margos, an Iraqi citizen,

petitions for review of the Board of Immigration Appeals’

decision denying her asylum and withholding of removal.

We deny the petition for review.
2 No. 05-2051

I.

Shukria Margos, sixty-one, is an Assyrian Christian from

Kirkuk, Iraq. She was married and had four children,

three sons and a daughter. From 1974 to 1998, she worked in

the x-ray department of a hospital, which, for many years

during the later portion of her tenure, was owned by the

Iraqi government. On the side, she worked as a cook. She

did so first for some doctors that she knew, and they later

recommended her culinary skills to members of the thengoverning Ba’ath party. Beginning in 1988, high-ranking

Ba’ath party officials—some close to Iraq’s former leader,

Saddam Hussein—intermittently hired her as a cook for

their parties and other events. Her catering enterprise with

the Ba’ath officials stopped either in 1991, 1993, or 1998; the

imprecision is due to Margos’s conflicting accounts. Additionally, in 1998, officials offered her a position cooking for

two of Hussein’s children, but she declined because she was

generally scared of the situation and told them she was too

old to do the job.

Separately, two of Margos’s sons served in the Iraqi

army during the Persian Gulf War. In 1991, they returned to

Kirkuk, and, according to Margos, the Iraqi authorities

accused the two of being deserters. The authorities detained

the two for a period but released them when the authorities

lost control of Kirkuk during a Kurdish uprising in the

northern regions of Iraq. The two sons then fled, and

Margos has not heard from them since. She does not know

where they went or where they are. When the Iraqi authorities regained control of Kirkuk, the authorities came looking

for the two sons. Not finding them, the authorities, according to Margos, arrested her husband on the belief that he

knew the two sons’ whereabouts. Margos maintains that the

authorities held her husband for six months, tortured him,
No. 05-2051 3

caused him to lose his memory, and then returned him,

dumping him on the doorstep of the Margos home. Her

husband died of his injuries some two years later in 1995 or

1996; Margos cannot recall the precise year.

Independent from her commercial dealings with highranking Ba’athists, Margos had her own encounters with the

Iraqi authorities. The timing of the following events is

obscure. In one episode, while riding on a bus, Margos

physically assaulted a woman and attempted to throw her

from the bus. The woman verbally provoked Margos’s rage

by calling Margos a “Bush supporter” in reference to the

first President Bush. The basis for the woman’s “accusation”

is unstated, but Margos’s assault led to a police interrogation at police/security headquarters. Margos suffered one

or more broken ribs after being struck by the butt of a gun.

Further, according to Margos’s testimony, the authorities

asked her why being called a Bush supporter made her so

angry, and, when she offered an uncooperative response,

they threatened to slit her tongue. Importantly, Margos’s

testimony does not indicate that the authorities acted

because they believed she was a Bush supporter. Rather, it

appears to have been a routine, albeit oppressive, law

enforcement inquiry in which the authorities attempted to

determine why she assaulted the other passenger.

Margos was taken into headquarters on one other occasion and was interrogated, without injury, about her two

missing sons. The authorities also visited her house on

multiple occasions to ask about the same two sons, threatening her with jail if she did not turn them in, but

the authorities never acted on their threats. Further, in

one visit, the authorities questioned Margos about her

attendance at her sister’s wedding in Erbil, Iraq (also spelled

Irbil or Arbil), a city north of Kirkuk where Margos was
4 No. 05-2051

born. The city also happened to be in the former no-fly zone

and apparently outside the control of the Iraqi authorities,

thereby providing the basis for the questioning. Other than

the harassing nature of these house visits, Margos did not

report any harm during or as a result of these visits.

Eventually, Margos “got tired” of these visits, and this

prompted her to obtain an Iraqi passport and leave Iraq

in 1998, which is about when she declined the cooking

position with the two Hussein children. She moved to

Jordan, where her third son lived. Nonetheless, Margos

overstayed her visa and was unable to pay the resulting Jordanian fines. Consequently, in 2002, Jordan deported

Margos, and she then came to the United States on a

visitor’s visa. She settled in the Chicago area where some of

her relatives lived. As for Margos’s daughter, she was last

known to be living in Erbil, but Margos has had no contact

with the daughter or Margos’s other relatives in Erbil since

Margos left Iraq for Jordan. Further, the one son in Jordan

recently immigrated to Australia.

Margos entered the United States as a nonimmigrant

visitor for pleasure and was authorized to remain here

for six months. Later, the United States government commenced removal proceedings against Margos because

she remained beyond her end date without authorization. Before an immigration judge, Margos conceded

removability but sought asylum and withholding of removal. After a hearing, at which Margos testified, the

immigration judge denied her application for asylum and

withholding of removal. She appealed to the Board of

Immigration Appeals (“BIA”). The BIA affirmed, and

Margos now petitions this court for review.
No. 05-2051 5

II.

To qualify for asylum, Margos must show that (1) she

suffered past persecution in Iraq on account of her race,

religion, nationality, membership in a particular social

group, or political opinion, or (2) she has a well-founded

fear of future persecution in Iraq on account of one or more

of those same five enumerated grounds. See 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b); Jamal-Daoud v. Gonzales, 403

F.3d 918, 922 (7th Cir. 2005); Oforji v. Ashcroft, 354 F.3d

609, 613 (7th Cir. 2003). “Persecution” in this context

generally refers to punishment or substantial harm—mere

harassment is not enough. See Firmansjah v. Gonzales, 424

F.3d 598, 605 (7th Cir. 2005); Prela v. Ashcroft, 394 F.3d 515,

518 (7th Cir. 2005); Oforji, 354 F.3d at 613. “Persecution does

not encompass all treatment that our society regards as

unfair, unjust, or even unlawful or unconstitutional.”

Firmansjah, 424 F.3d at 605 (quotation omitted).

Our review here is limited to determining whether the

denial is supported by substantial evidence, meaning

we will uphold the denial so long as it is supported by

“reasonable, substantial, and probative evidence on the

record considered as a whole.” Koval v. Gonzales, 418 F.3d

798, 804 (7th Cir. 2005) (quotation omitted). “Only where the

evidence in support of the application is so compelling that

no reasonable factfinder could fail to find the requisite fear

of persecution will we reverse the [BIA’s] decision for lack

of evidence.” Jamal-Daoud, 403 F.3d at 922. In sum, “we are

not at liberty to overturn the [BIA’s] determination simply

because we would have decided the case differently.” Id.

Before turning to the merits, we add a brief word on

Margos’s credibility. After finding that Margos failed to

establish persecution, the immigration judge noted discrepancies in her testimony and the record. The immigration
6 No. 05-2051

judge, however, did not explicitly state that Margos lacked

credibility. For its part, the BIA found it unnecessary

to address the credibility issue, ruling that, even if credible, Margos failed to show that she was eligible for

asylum or withholding of removal. Consequently, we do not

have an adverse credibility determination to review. See

Zheng v. Gonzales, 409 F.3d 804, 809 (7th Cir. 2005); see also

Kayembe v. Ashcroft, 334 F.3d 231, 234-35 (3d Cir. 2003). We

thus accept Margos’s version of events as credible.

Reviewing her past persecution claims, Margos testified

that the authorities broke one or more of her ribs during one

interrogation and threatened her with additional physical

harm in the course of that interrogation. This episode,

however, followed her own physical assault on a female bus

passenger. Margos herself testified that she attempted to

throw this woman from the bus. It is true that the other

woman called Margos a Bush supporter and that the

authorities asked Margos why that allegation enraged her.

However, Margos offers no evidence to show that she was

treated differently from any other Iraqi who had committed

a similar assault without being called a Bush supporter.

Margos’s testimony, taken as credible, does not demonstrate

that the authorities acted because they believed she was a

Bush supporter and political opponent of the regime.

Rather, their pursuit and interrogation of Margos was

triggered by her physical attack. Her injury and their threats

were incident to the police interrogation and her uncooperative conduct during that interrogation, not any perceived

political opposition to the ruling Ba’athists (a regime which

is no longer in power, but more on that point below).

Therefore, even when her testimony is viewed to be credible, it is reasonable to find that these events do not establish

political persecution.
No. 05-2051 7

Margos also testified that the authorities repeatedly

questioned her about the whereabouts of her two missing

sons and once questioned her about her travel to the no-fly

zone. Harassing interrogations, such as these, rarely rise

to the level of persecution. See Prela, 394 F.3d at 518. Furthermore, according to Margos’s testimony, the basis of this

questioning was her sons’ desertion, their corresponding

disappearances, and her travel into a restricted area. As

such, the action by the authorities here were not on account

of race, religion, nationality, membership in a particular

social group, or political opinion. See Djouma v. Gonzales, 429

F.3d 685, 686, 688 (7th Cir. 2005) (asylum unwarranted

when the Chadian government’s only interest in petitioner

was his possible knowledge of his dissident uncle’s whereabouts); Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000)

(“refusal to perform military service in one’s native country

is not ordinarily a valid basis for establishing asylum

eligibility” (quotation omitted)); Abedini v. INS, 971 F.2d 188,

191 (9th Cir. 1992) (”. . . the long-standing rule that it is not

persecution for a country to restrict travel abroad or require

military service of its citizens.”). Moreover, even if her

husband or sons suffered because of one or more of the

enumerated grounds (and not simply due to the desertions

as she testified), Margos “cannot rely solely on the persecution of her family members to qualify for asylum.” Ciorba v.

Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003) (citing TamasMercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000)).

Meanwhile, Margos had steady employment at a hospital

owned by the Iraqi government. This continued government

employment is an indication that she was not suffering

persecution at the hands of this same government. Cf. Capric

v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004) (severe

economic deprivation can constitute persecution). She also

had favorable commercial relations with Ba’ath party
8 No. 05-2051

officials for whom she occasionally cooked (though it is

unclear if this association was operating after her sons

deserted and the questioning began). For these reasons, the

immigration judge’s determination, adopted by the BIA,

that Margos did not establish past persecution on account

of race, religion, nationality, membership in a particular

social group, or political opinion, was supported by

substantial evidence.

Turning to future persecution, Margos argues that, due to

her and her family’s adverse encounters with the Husseincontrolled government, including her sons’ desertion and

her decision not to become a cook for the Hussein children,

she is a perceived political opponent of that regime. Therefore, she reasons that, since the Hussein/Ba’athist regime

“was one of if not the most brutal regimes in the world,” she

has a well-founded fear of future persecution upon her

return to Iraq. This argument, however, has been surpassed

by events. The immigration judge took administrative notice

of the fact that the Hussein regime and its control of Iraq

ceased as of April 2003. With Margos’s claimed potential

tormentors now dead or at least out of power, her fear of the

former regime does not justify asylum. See Vaduva v. INS,

131 F.3d 689, 692 (7th Cir. 1997) (asylum “unnecessary” due

to dramatic change in post-communist Romania); 8 C.F.R.

§ 1208.13(b)(1)(i)(A). Although the terror groups that

continue to threaten parts of Iraq no doubt include displaced Ba’athists, Margos’s exposure would be no greater than that of other Iraqi citizens given the regime change.

Margos also argues that, as an Assyrian Christian, she

would face a pattern and practice of ethnic and religious

persecution in Muslim-dominated Iraq, contending that

conditions have worsened since the fall of the Hussein

regime. See 8 C.F.R. § 1208.13(b)(2)(iii). Ironically, under
No. 05-2051 9

1 Notably, according to the record and the briefs before us,

Margos has not filed a motion to reopen her proceedings based

upon changed country conditions. See 8 C.F.R. § 1003.23(b)(4)(i).

the Hussein’s iron fist, Assyrian Christians and similar

minorities were arguably better off as their dictator did

not tolerate factional strife and civil unrest within “his”

country (unless it furthered his own ends). The government

here, however, maintains that Margos did not present this

argument to the BIA and that this failure to exhaust administrative remedies precludes our review. See 8 U.S.C.

§ 1252(d)(1); Hamdan v. Gonzales, 425 F.3d 1051, 1059 n.14

(7th Cir. 2005). Tellingly, Margos did not file a reply brief to

refute the government’s exhaustion argument and argue

that she had properly preserved this issue. See Medhin v.

Ashcroft, 350 F.3d 685, 689 (7th Cir. 2003). What is more, the

record supports the government. In her appellate statement

and notice of appeal to the BIA, Margos identified herself as

an Assyrian Christian and, in general terms, indicated that

Iraq is an unsafe place for Assyrian Christians. Beyond

those generalities, however, Margos did not articulate a

pattern and practice argument. Specifically, through text or

citation, she did not claim that state actors were perpetrating or tolerating a systematic, pervasive, or organized effort

to kill, imprison, or severely injure Assyrian Christians. See

Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir. 2005). Without a semblance of an argument before it, it is not surprising

that the BIA did not discuss the matter.1

 Of more immediate

importance, Margos’s failure to exhaust administrative

remedies here means that we lack jurisdiction to consider

her pattern and practice argument. See Hamdan, 425 F.3d at

1059 n.14.

Even if we had jurisdiction to consider this argument,

it would fail for several reasons. To start, Margos
10 No. 05-2051

heavily relies on publications outside of the administrative record which we cannot consider. See 8 U.S.C.

§ 1252(b)(4)(A); Yadegar-Sargis v. INS, 297 F.3d 596, 599 n.1

(7th Cir. 2002). Nevertheless, it is no secret that the turmoil in present-day Iraq makes it (or at least its metropolitan areas such as Baghdad and Kirkuk) an unsafe and

undesirable place to live. Nonetheless, “unpleasant and

even dangerous conditions do not necessarily rise to the

level of persecution.” Prela, 394 F.3d at 518 (quotation

omitted). It is unsafe, moreover, for the general population,

not just Assyrian Christians. Recent State Department

country reports, which we could judicially notice, see

Pelinkovic v. Ashcroft, 366 F.3d 532, 540 (7th Cir. 2004),

recount numerous terrorist bombings of churches as well as

numerous terrorist bombings of mosques. Iraqis of all faiths

have experienced heavy doses of violence

and discrimination. This random violence against the

general population, furthermore, is being perpetrated by

domestic and foreign terrorists, not the Iraqi government.

The Iraqi government, according to the 2005 country report issued on March 8, 2006, is committed “to equal

treatment for all religions and ethnicities” and has taken

significant steps to thwart the terrorists for the benefit of

all its citizens, including Assyrian Christians. This is not

a case in which the government at issue is unwilling

and completely unable to afford protection. Cf. Hor v.

Gonzales, 421 F.3d 497, 502 (7th Cir. 2005) (petitioner

established persecution by showing that the Algerian

government was incapable of protecting him, effectively

telling him that he would have to protect himself). Consequently, Margos cannot establish persecution in this regard.

See Mitreva, 417 F.3d at 764-66 (collecting cases); Hor v.

Gonzales, 400 F.3d 482, 485-86 (7th Cir. 2005) (“Persecution

is something a government does, either directly or by
No. 05-2051 11

abetting (and thus becoming responsible for) private

discrimination by throwing in its lot with the deeds or

by providing protection so ineffectual that it becomes a

sensible inference that the government sponsors the

misconduct.”) (collecting cases).

Next, Margos maintains that, due to humanitarian

concerns, she is entitled to “asylum as a matter of discretion.” See 8 C.F.R. § 1208.13(b)(1)(iii); Brucaj v. Ashcroft,

381 F.3d 602, 609 (7th Cir. 2004). To the extent Margos is

asking this court to exercise its discretion and grant her

asylum, her argument is misguided. The discretion to which

Margos refers rests with the executive branch, not the

judiciary. See 8 U.S.C. § 1158(b)(1)(A); Brucaj, 381 F.3d at

609; Rhoa-Zamora v. INS, 971 F.2d 26, 29 (7th Cir. 1992). To

the extent Margos is attempting to claim that the BIA and

immigration judge did not adequately consider this matter,

see, e.g., Brucaj, 381 F.3d at 609, she again failed to exhaust

administrative remedies. The record reveals that Margos did

not raise this § 1208.13(b)(1)(iii) argument to the immigration judge, and, for certain, Margos did not present this

claim to the BIA. Therefore, we lack jurisdiction to consider

this argument as well. See Hamdan, 425 F.3d at 1058 n.14.

For all of these reasons, we affirm the denial of asylum.

Further, because Margos has failed to meet the more lenient

burden of proof for asylum, she cannot establish a “clear

probability” of persecution, the standard for withholding of

removal under 8 U.S.C. § 1231(b)(3). See Hussain v. Gonzales,

424 F.3d 622, 630 (7th Cir. 2005); Prela, 394 F.3d at 519.

Finally, before this court, Margos seeks relief under the

Convention Against Torture (“CAT”). See 8 C.F.R.

§§ 1208.16-18. Although it does not appear that Margos

raised this claim before the immigration judge, the immigration judge’s decision included a single sentence
12 No. 05-2051

stating that Margos was not entitled to CAT relief. Nonetheless, on appeal, Margos did not present any CAT arguments

to the BIA. Therefore, due to this failure to exhaust administrative remedies, we do not have jurisdiction to consider this

CAT claim. See Hamdan, 425 F.3d at 1058 n.14; Olujoke v.

Gonzales, 411 F.3d 16, 22-23 (1st Cir. 2005) (CAT claim at

issue). Separately, we add that “torture,” as defined in 8

C.F.R. § 1208.18(a) for CAT purposes, constitutes an extreme

form of oppression not indicated here; as Margos fell short

of establishing persecution, she cannot, on this record, meet

the more difficult standard of establishing a likelihood of

torture in order to obtain CAT protection. See Hussain, 424

F.3d at 630; Prela, 394 F.3d at 519.

III.

There is no doubt that Iraq is a much less desirable

place to live than the United States. However, the record

before us does not show that Margos is entitled to the relief she now seeks. Accordingly, for all the reasons discussed above, the petition for review is DENIED and,

where noted, is DISMISSED for lack of jurisdiction. 
No. 05-2051 13

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-5-06