12-1696

Boota v. Holder

BIA

Hom, IJ

A088 775 618

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 7th 4 day of March, two thousand fourteen.

5

6 PRESENT:

7 JON O. NEWMAN,

8 RALPH K. WINTER,

9 REENA RAGGI,

10 Circuit Judges. 

11 _______________________________________

12

13 MUHAMMAD BOOTA,

14 Petitioner, 

15

16 v. 12-1696

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES

19 ATTORNEY GENERAL,

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Usman B. Ahmad, Long Island City,

24 NY.

25

26 FOR RESPONDENT: Stuart F. Delery, Acting Assistant

27 Attorney General; Francis W. Fraser,

28 Senior Litigation Counsel; Jacob A.

29 Bashyrov, Trial Attorney, Office of

30 Immigration Litigation, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 Board of Immigration Appeals (“BIA”) decision, it is hereby

3 ORDERED, ADJUDGED, AND DECREED that the petition for review

4 is DENIED.

5 Muhammad Boota, a native and citizen of Pakistan, seeks

6 review of an April 13, 2012, order of the BIA affirming the

7 March 22, 2010, decision of Immigration Judge (“IJ”) Sandy

8 Hom, denying his application for asylum, withholding of

9 removal, and relief under the Convention Against Torture

10 (“CAT”). In re Muhammad Boota, No. A088 775 618 (B.I.A.

11 Apr. 13, 2012), aff’g No. A088 775 618 (Immig. Ct. N.Y. City

12 Mar. 22, 2010). We assume the parties’ familiarity with the

13 underlying facts and procedural history in this case.

14 Under the circumstances of this case, we have reviewed

15 the decision of the IJ as supplemented by the BIA. See Yan

16 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

17 applicable standards of review are well-established. See

18 Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

19 The only issue before us is Boota’s eligibility for asylum.

20 The BIA has defined persecution as a “threat to the

21 life or freedom of, or the infliction of suffering or harm

22 upon, those who differ in a way regarded as offensive.” 

23 Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985),

2
1 overruled, in part, on other grounds, INS v.

2 Cardoza-Fonseca, 480 U.S. 421 (1987); accord Ivanishvili v.

3 U.S. Dep’t of Justice, 433 F.3d 332, 342 (2d Cir. 2006). 

4 The harm must be sufficiently severe, rising above “mere

5 harassment.” Ivanishvili, 433 F.3d at 341. Here, the

6 agency properly addressed the cumulative harm described by

7 Boota, and the context of that harm, in order to reasonably

8 find that it was insufficiently severe to constitute

9 persecution. See id.; Jian Qiu Liu v. Holder, 632 F.3d 820,

10 822 (2d Cir. 2011); Poradisova v. Gonzales, 420 F.3d 70, 79-

11 80 (2d Cir. 2005). 

12 Boota testified to two instances of harm in Pakistan. 

13 In November 2006, he was attacked by unknown assailants, who

14 hit him with their rifles and told him that in their

15 religion, it was “good” to kill Shias, and, in December

16 2006, a group of people destroyed the Shia community center

17 that Boota was helping to build, and then went to his home

18 and told his mother that Boota should not rebuild the

19 center, or they would come back and kill her, and “everyone

20 else.” While the harm Boota suffered in the initial attack

21 was not insignificant, the context of both incidents —

22 unidentified attackers, not military or police forces,

3
1 acting independently, not in the context of an arrest or

2 detention — is such that the agency did not err in finding

3 that the mistreatment, considered cumulatively, does not

4 constitute persecution. See Jian Qiu Liu, 632 F.3d at 822

5 (a minor altercation with government officials, prior to

6 petitioner’s arrest and two day detention, did not

7 constitute persecution); Beskovic v. Gonzales, 467 F.3d 223,

8 226 (2d Cir. 2006) (the difference between harassment and

9 persecution is one of degree, which must be assessed with

10 regard to the context in which the mistreatment occurs);

11 Poradisova, 420 F.3d at 79-80. Accordingly, the agency

12 reasonably concluded that Boota did not suffer past

13 persecution. 

14 Because Boota did not suffer past persecution, he is

15 not entitled to a presumption of future persecution. See

16 8 C.F.R. § 1208.13(b)(1). Independent from his claim of

17 past persecution, Boota asserts a fear of future persecution

18 because he has been an active member of the Shia community

19 in the United States. However, the agency did not err in

20 finding that Boota did not establish a well-founded fear of

21 future persecution because he did not present any evidence

22 that anyone in Pakistan knew of his activities in the United

4
1 States, or sought to harm him because of those activities,

2 and his mother, wife, and children continued to live in

3 Pakistan unharmed. See Hongsheng Leng v. Mukasey, 528 F.3d

4 135, 143 (2d Cir. 2008); Melgar de Torres v. Reno, 191 F.3d

5 307, 313 (2d Cir. 1999). 

6 Boota further asserts that the BIA erred in concluding

7 that there was no pattern or practice of persecution of Shia

8 Muslims in Pakistan. See 8 C.F.R. § 1208.16(b)(2)(i)

9 (providing that an applicant shall not be required to show

10 that he will be singled out individually for persecution if

11 he establishes that there is a pattern or practice of

12 persecution of a group of similarly situated persons). To

13 establish a pattern or practice of persecution against a

14 particular group, a petitioner must demonstrate that the

15 harm to that group is “so systemic or pervasive as to amount

16 to a pattern or practice of persecution.” In re A-M-, 23 I.

17 & N. Dec. 737, 741 (BIA 2005); see Mufied v. Mukasey, 508

18 F.3d 88, 91 (2d Cir. 2007). 

19 The record evidence, including the 2007 and 2008 U.S.

20 Department of State Human Rights Reports on Pakistan, does

21 show that there is religious discrimination and pervasive

22 violence in Pakistan. However, the violence referred to in

23 the State Department reports is primarily sectarian violence

5
1 between Shia and Sunnis, not solely violence against Shia

2 Muslims by Sunnis and government forces. Moreover, the

3 violence is concentrated in the Federally Administered

4 Tribal Area, not throughout Pakistan, and not in Punjab,

5 Boota’s home province. While the reports do indicate that

6 there is systemic discrimination against Shia Muslims, as

7 well as other religious groups, discrimination does not

8 generally constitute persecution. See Santoso v. Holder,

9 580 F.3d 110, 111 (2d Cir. 2009). As a result, substantial

10 evidence supports the BIA’s conclusion that the evidence did

11 not show systemic or pervasive persecution of Shia Muslims

12 in Pakistan. See id. at 112 (holding that where the

13 agency’s determination that an individual did not establish

14 a pattern or practice of persecution is supported by

15 background materials, the agency has provided a “sufficient

16 basis” for its conclusion); Mufied v. Mukasey, 508 F.3d at

17 91. 

18 For the foregoing reasons, the petition for review is

19 DENIED. As we have completed our review, any stay of

20 removal that the Court previously granted in this petition

21 is VACATED, and any pending motion for a stay of removal in

22 this petition is DISMISSED as moot. Any pending request for

23 oral argument in this petition is DENIED in accordance with

6
1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

6

7