* Honorable Virginia M. Kendall, United States District Judge for the Northern District

of Illinois, is sitting by designation. 

# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 22, 2009

Decided April 15, 2009

Before

DANIEL A. MANION, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

VIRGINIA M. KENDALL, District Judge *

Nos. 08

‐ 1055 and 08

‐ 2760

AFSHEEN NAEEM, ABEER NAEEM Petitions for Review of Orders

and MUSKAAN NAEEM, of the Board of Immigration

Appeals.

Petitioners,

v. Nos. A97

‐ 607

‐ 331, A97

‐ 607

‐ 332,

and A

‐ 97

‐ 607

‐ 333

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

O R D E R 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1Nos. 08

‐ 1055 and 08

‐ 2760 Page 2

1 Mr. Naeem’s application for asylum is pending in a separate proceeding.

2 The NAB is an agency of the Pakistani government that wields broad powers to carry

out its charged task of rooting out corruption in the government and society. The petitioners, Afsheen Naeem and her children Abeer and Muskaan Naeem, are

citizens of Pakistan who entered the United States in 2002 as non

‐ immigrant visitors with

authorization to remain in the country through June 13, 2003. After staying past that date,

they filed an application for asylum with the Department of Homeland Security (“DHS”).

DHS then issued notices for the Naeems to appear, charging that they were subject to

removal under 8 U.S.C. § 1227(a)(1)(B) for remaining in the United States longer than

permitted. The Naeems conceded removability but renewed their application for asylum;

they also sought withholding of removal and protection under Article 3 of the Convention

Against Torture (“CAT”).

An Immigration Judge (“IJ”) conducted a hearing in which the following evidence

was presented. The Naeems are members of the Memon ethnic group in Pakistan. Mrs.

Naeem is married to Mohammed Naeem, 1 who worked in a brokerage firm in Pakistan with

Asif Haroon. Haroon’s uncle and father

‐ in

‐ law is Abdul Aziz Memon, a member and

leader of the Memon ethnic group. Memon once served as the president of a labor union

and was formerly a member of the Parliament of Pakistan. For many years, Memon was

also the head of the All Pakistan Memon Federation, an organization for which Mr. Naeem

performed social work. Mr. Naeem supported and campaigned for Memon when he ran for

Parliament in 1993 and considers Memon to be “pretty much like [a] family member” due to

their shared ethnic background and socio

‐ political affiliations.

In late 1999, Memon helped create the Alliance for the Restoration of Democracy, a

group that opposed the Musharraf government. In 2000, the National Accountability

Bureau (“NAB”) 2 began investigating Memon for corruption, specifically for appropriating

labor union funds for his personal use and funneling those monies to Haroon and Mr.

Naeem’s brokerage account. The NAB contacted Mr. Naeem and Haroon and demanded

that they reveal the source of the money in their brokerage account. The NAB instructed

them to say that the funds came from Memon, but they refused to do so. After Memon was

arrested, he advised Haroon and Mr. Naeem to sell their business and flee the country.

Shortly thereafter, both men left Pakistan and came to the United States.

In early 2002, Mrs. Naeem received a summons from the NAB instructing Mr.

Naeem to appear for questioning. She also received several harassing phone calls from theNos. 08

‐ 1055 and 08

‐ 2760 Page 3

NAB demanding to know where her husband was. Officers from the Federal Investigation

Agency (“FIA”) visited Mrs. Naeem’s home in late 2002 to inquire about Mr. Naeem’s

whereabouts. Mrs. Naeem told the officers that her husband was in the United States. Not

believing her statements, the FIA officers destroyed some of her furniture and possessions,

threatened her with arrest if Mr. Naeem did not appear, and pushed her against a wall.

Shaken and afraid, Mrs. Naeem took her family to stay for a while at her mother’s house.

When FIA officers visited Mrs. Naeem at that location, they pulled her hair and slapped her.

An officer also slapped the face of her son and pushed him. Mrs. Naeem was then escorted

to NAB headquarters and interrogated for three hours. Before releasing Mrs. Naeem,

several government officials threatened to arrest her and her children if Mr. Naeem did not

appear. Mrs. Naeem and her children departed for the United States a few days later. After

she left Pakistan, neighbors observed NAB officers at the Naeems’ house on several

occasions.

Mr. Naeem said that he thinks Mrs. Naeem will be arrested or killed if she returns

to Pakistan. Mrs. Naeem stated that she believes she will be arrested because of her

husband’s political support of Memon and business partnership with Haroon. She based

that conclusion on the fact that Pakistani officials arrested Memon’s wife, although Mrs.

Memon was later released. Mrs. Naeem acknowledged that Memon had already been

charged, prosecuted, and served a sentence, and that she is not aware of any charges that

currently are pending against him in Pakistan. Nevertheless, she stated that she still thinks

her husband is of interest to the Pakistani government.

At the conclusion of the hearing, the IJ, though having found Mrs. Naeem’s

testimony credible, denied the petitioners’ application for relief and granted them a period

of voluntary departure with an alternative order of removal to Pakistan if they did not

depart within the allotted time. The Naeems appealed the IJ’s decision to the Board of

Immigration Appeals (“BIA”). On December 12, 2007, the BIA issued an opinion that

affirmed the IJ’s decision and dismissed the appeal. Specifically, the BIA agreed with the IJ

that Mrs. Naeem did not present evidence that she had experienced harm rising to the level

of persecution. The BIA also concluded that the evidence did not show that she had a well

‐

founded fear of future persecution in Pakistan because Memon had been tried and

convicted and there were no charges pending against him.

The Naeems filed a petition for review of the BIA’s decision with this court on

January 8, 2008, which was docketed as case number 08

‐ 1055 (“first petition for review”).

Two days later, they filed a motion with the BIA seeking reconsideration of its December 12,

2007 decision. In that motion, the Naeems contended that the BIA had not consideredNos. 08

‐ 1055 and 08

‐ 2760 Page 4

3 

### In its reconsideration decision, the BIA also repeated its analysis of the past and future

persecution claims from the December 12 order.

4 

### Under 8 C.F.R. § 1003.2(i), “[i]f the motion to reconsider is granted, the decision upon such

reconsideration shall affirm, modify, or reverse the original decision made in the case.”

5 

### This situation is not governed by our decision in Kucana v. Mukasey , 533 F.3d 534, 537

(7th Cir. 2008), where we refused to probe th e reasons underlying an unreviewable discretionary

decision. Here, we are not examining the reasons that prompted the BIA to grant the motion to

reconsider, but rather the decision that the BIA made after agreeing to reconsider the December 12

order. whether they had shown that the Pakistani government engaged in a “pattern or practice”

of persecution against the relatives and close associates of Memon and, therefore, whether

Mrs. Naeem had a well

‐ founded fear of future persecution for that reason. By its order of

June 17, 2008, the BIA granted the motion for reconsideration yet affirmed its previous

decision. The BIA agreed that it had not addressed the pattern or practice claim in its

December 12 order but attributed that fact to the petitioners’ failure to raise the claim before

the IJ or on appeal. Nevertheless, the BIA considered the issue and concluded that the

Naeems had not established that the Pakistani government engaged in a pattern or practice

of persecution against Memon’s close associates. 3 The Naeems then filed a petition for

review of the BIA’s June 17 decision with this court on July 15, 2008, which was docketed as

case number 08

‐ 2760 (“second petition for review”). We consolidated the two petitions for

review.

Although neither side presses the issue, we have an independent duty to examine

our jurisdiction over the two petitions. Eke v. Mukasey

, 512 F.3d 372, 376 (7th Cir. 2008).

Under 8 U.S.C. § 1252(a)(2)(B)(ii), we do not have jurisdiction to review the BIA’s

disposition of the motion to reconsider because such a decision is within its discretion per 8

C.F.R. § 1003.2(a). Johnson v. Mukasey

, 546 F.3d 403, 404 (7th Cir. 2008). However, in the

second petition for review, the petitioners are not asking us to review the BIA’s

discretionary grant of their motion to reconsider, but rather to review the BIA’s decision

upon reconsideration that addressed their pattern or practice claim and affirmed 4 the

December 12 order. 5 Even though that decision “affirmed” the December 12 order, it

substantially differed from that order because it added an analysis of the petitioners’ pattern

or practice claim; therefore, that decision effectively supplanted the previous order and

became the final order of removal. See Mu Ju Li v. Mukasey

, 515 F.3d 575, 578–79 (6th Cir.

2008) (holding that when a petition for review of a final order of removal is filed with the

court of appeals and a motion to reconsider that order is filed with the BIA, if the BIA grantsNos. 08

‐ 1055 and 08

‐ 2760 Page 5

6 

### In their briefs to this court (and to the BIA as well), the petitioners essentially challenge

only the denial of their asylum application; they do not develop arguments concerning the denial of

withholding of removal and protecti on under the CAT. Therefore, they have waived judicial review

of those claims. Haxhiu v. Mukasey , 519 F.3d 685, 692 (7th Cir. 2008). the motion to reconsider and renders a new decision addressing the arguments raised in

that motion, the original final order is vacated and the new decision takes its place); see also

Plasencia

‐ Ayala v. Mukasey

, 516 F.3d 738, 745 (9th Cir. 2008), overruled on other grounds by

Marmolejo

‐ Campos v. Holder

, 558 F.3d 903 (9th Cir. 2009); Juggernauth v. U.S. Att’y Gen.

, 432

F.3d 1346, 1351 (11th Cir. 2005). Under § 1252(a)(1), we have jurisdiction over the second

petition for review of that final order. However, that means that the December 12 order is

no longer a final order under § 1252(a)(1), and we therefore lack jurisdiction over the first

petition for review and must dismiss it. Mu Ju Li

, 515 F.3d at 580; cf. Gao v. Gonzales

, 464

F.3d 728, 730 (7th Cir. 2006) (stating that where a once

‐ final order of removal was no longer

final, “[a]ny judicial act

. . . would be advisory”).

Where, as here, the BIA has issued a free

‐ standing opinion rather than

supplementing or expressly adopting the IJ’s decision, we review only the BIA’s opinion. 6

Moab v. Gonzales

, 500 F.3d 656, 659 (7th Cir. 2007). “Eligibility for asylum ‘is a factual

determination which we review under the substantial evidence test.’” Kholyavskiy v.

Mukasey

, 540 F.3d 555, 568 (7th Cir. 2008) (quoting Sivaainkaran v. INS

, 972 F.2d 161, 163 (7th

Cir. 1992)). Under that test, we will uphold the BIA’s denial of relief if it is “supported by

reasonable, substantial, and probative evidence on the record considered as a whole.” INS

v. Elias

‐ Zacarias

, 502 U.S. 478, 481 (1992). “Reversal is appropriate only if the record compels

a contrary result.” Haxhiu

, 519 F.3d at 690 (citing id. at 481 n.1).

Under 8 U.S.C. § 1158(b)(1), both the Secretary of Homeland Security and the

Attorney General are vested with discretion to grant asylum to an alien who is a “refugee,”

i.e., an alien who is unable or unwilling to return to his home country “because of

persecution or a well

‐ founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

An applicant for asylum bears the burden of proving that he is a refugee, i.e., that he

experienced past persecution or has a well

‐ founded fear of future persecution, Kholyavskiy

,

540 F.3d at 568, by a preponderance of the evidence, Gomes v. Gonzales

, 473 F.3d 746, 753

(7th Cir. 2007).

The petitioners argue that the BIA erred in concluding that Mrs. Naeem did not

demonstrate that she previously experienced harm rising to the level of persecution.Nos. 08

‐ 1055 and 08

‐ 2760 Page 6

Although persecution is not defined by the asylum statutes or regulations, we often have

said that it is more than mere harassment or unpleasant and dangerous conditions in the

applicant’s home country. See, e.g., Ahmed v. Gonzales

, 467 F.3d 669, 673 (7th Cir. 2006).

Rather, persecution involves the infliction of substantial harm or suffering, though not

necessarily of the life

‐ or liberty

‐ threatening sort. Id.

That Mrs. Naeem had her home invaded and some furniture destroyed, was

interrogated for three hours and threatened with arrest if her husband did not appear, and

was pushed, slapped, and had her hair pulled is certainly irritating and bothersome.

However, the physical mistreatment cannot be characterized as persecution because it was

not sufficiently severe or prolonged in light of our case law. See Zhu v. Gonzales

, 465 F.3d

316, 319 (7th Cir. 2006) (collecting cases). The same is true of the three

‐ hour interrogation,

which was relatively brief and did not result in any physical harm. See BinRashed v.

Gonzales

, 502 F.3d 666, 671 (7th Cir. 2007) (collecting cases). When viewed alongside the

detention and physical mistreatment, the threats of arrest and the furniture destruction

perhaps present a closer call; however, even when considered as a whole, those events are

more akin to harassment than persecution. Accordingly, we cannot say that the record

compels the conclusion that Mrs. Naeem suffered past persecution.

The petitioners also contend that the BIA erred in determining that Mrs. Naeem had

not shown that she has a well

‐ founded fear of future persecution in Pakistan. In order to

establish a well

‐ founded fear of persecution, an applicant must demonstrate that his fear is

both subjectively genuine and objectively reasonable in light of the credible evidence.

Garcia v. Gonzales

, 500 F.3d 615, 618 (7th Cir. 2007). The subjective component depends

largely on the applicant’s testimony and credibility. Bolante v. Mukasey

, 539 F.3d 790, 794

(7th Cir. 2008). The objective component may be satisfied in one of two ways: the applicant

must “show that he will be singled out for persecution or that a group to which the

applicant belongs is subject to a pattern or practice of persecution.” Musollari v. Mukasey

,

545 F.3d 505, 508 (7th Cir. 2008) (citing 8 C.F.R. § 208.13(b)(2)).

To succeed under the “singled out” method, the applicant must “show that there is a

reasonable possibility that he will suffer persecution if he is returned” to his country of

nationality. Ahmed

, 467 F.3d at 674. In rejecting Mrs. Naeem’s argument that she would be

singled out for persecution upon her return to Pakistan, the BIA relied on her testimony that

Memon had been convicted and served a sentence and that she was not aware of any

pending charges against him. The BIA also pointed out that there was no evidence that the

Pakistani government had any other reason to detain either her or her husband. The BIA

concluded that Mrs. Naeems’s fear of future persecution was not well

‐ founded becauseNos. 08

‐ 1055 and 08

‐ 2760 Page 7

there was no evidence that the Pakistani government still has an interest in her husband that

would place her in danger of persecution.

While they do not contest the BIA’s reasoning process, the petitioners argue that the

BIA misconstrued the “clear sense” of Mrs. Naeem’s testimony. On direct examination,

Mrs. Naeem testified that Memon’s wife (not Memon) had been released after being

arrested. The petitioners claim that the government’s attorney asked Mrs. Naeem a

question on cross

‐ examination that mischaracterized her earlier testimony as being that

Memon had been convicted and served a sentence. According to the petitioners, that

question (or the translator’s interpretation of the question) confused Mrs. Naeem and

caused her to agree with the government’s misunderstanding. On re

‐ direct, her own

attorney supposedly repeated the error and caused her to confirm that Memon had been

arrested and served time. The petitioners assert that Mrs. Naeem’s correct original

statement was supported by her husband’s testimony that Mrs. Memon had been convicted

and sentenced.

The government responds that because the petitioners failed to raise this argument

in their appeal to the BIA

, they have failed to exhaust their administrative remedies as

required by 8 U.S.C. § 1252(d)(1). We agree. “Generally, an alien is required to raise and

exhaust his remedies before the BIA as to each claim or ground for relief to preserve his

right to judicial review of that claim.” Chakir v. Gonzales

, 466 F.3d 563, 567 (7th Cir. 2006).

Not only did the petitioners fail to raise the issue to the BIA, they actually stated in the brief

they filed with the BIA that Memon had been convicted and served time. Therefore, we are

unable to consider the petitioners’ argument because they did not exhaust the

administrative remedies available to them of right. 8 U.S.C. § 1252(d)(1). Accordingly, we

find that substantial evidence supports the BIA’s conclusion that Mrs. Naeem did not have a

well

‐ founded fear of being singled out for future persecution because the Pakistani

government’s desire to have her husband testify dissipated with Memon’s conviction and

imprisonment.

We turn, then, to the pattern or practice claim. In order to prevail under a pattern or

practice theory, the applicant must show extreme persecution—i.e., a “systematic,

pervasive, or organized effort to kill, imprison, or severely injure members of the protected

group” by governmental actors. Ahmed

, 467 F.3d at 675 (quoting Mitreva v. Gonzales

, 417

F.3d 761, 765 (7th Cir. 2005)). This standard is difficult to meet because all members of a

group are eligible for asylum once the group is deemed to be subject to a pattern or practice

of persecution. Id. In addressing the petitioners’ pattern or practice claim, the BIA

concluded that the evidence showed that the Pakistani government had only targetedNos. 08

‐ 1055 and 08

‐ 2760 Page 8

Memon’s immediate family members and that the petitioners were not members of that

group. The BIA also noted that the evidence did not indicate a systematic effort to

persecute members of a more extended group.

The petitioners argue that the Pakistani government’s systematic effort to target

persons closely associated with Memon is demonstrated by the following evidence: 1)

Haroon’s affidavit statement that the Naeems would be arrested due to their support for

Memon; 2) the INS decision granting Haroon asylum; 3) Mrs. Memon’s bail application that

recounts the mistreatment of Memon and his family; and 4) testimony by Mr. Naeem about

his arrest in 1996 for supporting Memon. According to the petitioners, that evidence is

contrary to the BIA’s finding that the record only indicates the Pakistani government

targeted Memon and his immediate family and not his close associates.

We do not think that the record compels the conclusion that the petitioners are

eligible for asylum based on their pattern or practice claim. As the BIA correctly observed,

the record only shows that Memon’s immediate family members (including his wife and

Haroon, his nephew/son

‐ in

‐ law) were targeted by the Pakistani government, and the

petitioners clearly are not members of that group. Moreover, there is no evidence in the

record that any of Memon’s close associates were subjected to systematic, extreme

persecution due to their affiliation with Memon. Therefore, we conclude that the BIA’s

decision is supported by substantial evidence.

For the foregoing reasons, we DISMISS the petition for review in case number

08

‐ 1055 for want of jurisdiction and DENY the petition for review in case number 08

‐ 2760.