* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

December 15, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-60734

Summary Calendar

 

ZAFAR MAHMOOD; NAGHAMA BEGUM; 

FAHAD ZAFAR; NASMIN ZAFAR,

Petitioners,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A78 567 231

BIA No. A78 567 232

BIA No. A78 567 233

BIA No. A78 567 234

--------------------

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges

PER CURIAM:*

Zafar Mahmood (“Mahmood”), his wife, Naghama Begum (“Begum”),

and their two sons, Fahad and Nasim Zafar, all of whom are

nationals and citizens of Pakistan, petition for review of an order

from the Board of Immigration Appeals (“BIA”) affirming the

immigration judge’s (“IJ”) decision to deny their application for

withholding of removal under the Immigration and Nationality Act
No. 04-60734

-2-

(“INA”) and withholding of removal under the Convention Against

Torture (“CAT”) and to grant their application for voluntary 

departure.

The respondents contend that they are entitled to withholding

of removal under the INA because Mahmood’s treatment by police at

two Pakistan People’s Party (“PPP”) rallies in 1974 constituted

persecution on account of his political views. Mahmood testified

that police hit him with a wooden stick and kicked him in the back

during the first rally and shot in his direction at both rallies.

However, because Mahmood did not indicate that his beating was

severe or that he required medical attention after the beating and

because there is no indication that police singled Mahmood out

based on his identity, his treatment by police did not amount to

persecution. See Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th Cir.

1996). Furthermore, Mahmood did not encounter any further problems

with police either before his departure from Pakistan in 1976,

during his visits to Pakistan while he lived in Saudi Arabia, or

during his subsequent four-year stay in Pakistan until his

departure for the United States in 1992, and he did not testify

that he feared persecution upon his return to Pakistan.

Accordingly, the respondents have not shown that a reasonable

factfinder would be compelled to find that Mahmood’s experiences

were sufficient to establish a clear probability of future

persecution. See INS v. Elias-Zacarias, 502 U.S. 478, 483-84

(1992); Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).
No. 04-60734

-3-

The respondents also argue that they are entitled to

withholding of removal under the CAT because Mahmood’s treatment

during the rallies and Mahmood’s brother’s treatment by police

amounted to torture and it is more likely than not that Mahmood

will be tortured upon his return to Pakistan. Because Mahmood’s

treatment does not amount to persecution, it also does not meet the

higher bar of torture. See Efe v. Ashcroft, 293 F.3d 899, 907 (5th

Cir. 2002). Furthermore, Mahmood has offered no evidence

indicating that he will be tortured upon his return to Pakistan.

Accordingly, the respondents have not shown that a reasonable

factfinder would be compelled to find that it is more likely than

not that Mahmood will be tortured upon his return to Pakistan. See

8 C.F.R. § 208.16(c)(2); Elias-Zacarias, 502 U.S. at 483-84. 

The respondents challenge the IJ’s determination that they

were not eligible for asylum or cancellation of removal. However,

they clearly stated at the evidentiary hearings that they were not

applying for these forms of relief. Therefore, they have waived

their right to raise these issues on appeal. See United States v.

Olano, 507 U.S. 725, 733 (1993).

The respondents’ petition for review is DENIED, and their

motion for appointment of counsel on appeal is DENIED.