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

## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

No. 05-2051

S HUKRIA S. M ARGOS , Petitioner

,
v.

A LBERTO R. G ONZALES , Respondent.

____________
Petition for Review of an Order of the Board of Immigration Appeals
No. A 95 592 186

____________ S UBMITTED J ANUARY 11, 2006 Œ —D ECIDED A PRIL 5, 2006

____________

Before F LAUM , Chief Judge , and E ASTERBROOKand M ANION , Circuit Judges.

M ANION , 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. Fr om 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 laterrecommended 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; theimprecision 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 Ma rgos, the Iraqi authorities accused the two of being desert ers. 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 knowwhere they went or where they are. When the Iraqi authorities regained control of Kirkuk, the authorities came lookingfor 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, wh ile riding on a bus, Margos physically assaulted a woman and attempted to throw her
from the bus. The woman verb ally provoked Margos’s rage by calling Margos a “Bush supporter” in reference to the
first President Bush. The basi s 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 bein g 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 offere d 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 onmultiple 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 weddingin Erbil, Iraq (also spelled Irbil or Arbil), a city north of Kirkuk where Margos was4 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, Margosoverstayed 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 Ma rgos’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 immigrat ed to Australia.
Margos entered the United States as a nonimmigrant visitor for pleasure and was authorized to remain herefor six months. Later, the United States government commenced removal proceedings against Margos becauseshe remained beyond her end date without authorization. Before an immigration judge, Margos concededremovability 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, member ship 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). “Perse cution” in this context generally refers to punishme nt 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 th e [BIA’s] determination simply
because we would have deci ded the case differently.” Id.
Before turning to the merits, we add a brief word on Margos’s credibility. After finding that Margos failed toestablish persecution, the immigration judge noted discrepancies in her testimony and the record. The immigration6 No. 05-2051

judge, however, did not explicitly state that Margos lacked credibility. For its part, the BIA found it unnecessaryto 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 physic al 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 be cause they believed she was a Bush supporter and politicalopponent of the regime. Rather, their pursuit and in terrogation of Margos was triggered by her physical attack. Her injury and their threatswere 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 thatthe authorities repeatedly questioned her about the wh ereabouts 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 se rvice in one’s native country is not ordinarily a valid ba sis 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 rest rict 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 desertionsas she testified), Margos “cannot rely solely on the persecution of her family member s 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 rela tions with Ba’ath party8 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 determin ation, 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 toher and her family’s adverse encounters with the Husseincontrolled government, includ ing 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 fu ture 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 thatcontinue 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, underNo. 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 bette r 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 thisargument 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 BI A, 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 thatstate actors were perpetrating or tolerating a systematic, pervasive, or organized effort to kill, imprison, or severelyinjure 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, Margos10 No. 05-2051

heavily relies on publications outside of the administrative record which we cannot consider. See8 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, moreov er, for the general population, not just Assyrian Christia ns. 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, furthermor e, is being perpetrated by domestic and foreign terrorist s, not the Iraqi government. The Iraqi government, accord ing 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, effectivelytelling him that he would have to protect himself). Consequently, Margos cannot establis h 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 byNo. 05-2051 11

abetting (and thus becoming responsible for) private discrimination by throwing in its lot with the deeds or by providing protection so in effectual 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. See8 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 didnot 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, th e 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 Margosraised this claim before the immigration judge, the immigration judge’s decision included a single sentence12 No. 05-2051

stating that Margos was not entitled to CAT relief. Nonetheless, on appeal, Margos did not present any CAT argumentsto 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 indica ted here; as Margos fell short of establishing persecution, sh e 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 recordbefore 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 D ENIEDand, where noted, is D ISMISSEDfor 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