Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Eric *

H. Holder, Jr. has been substituted for former Attorney General

Michael B. Mukasey as the respondent.

NOT FOR PUBLICATION IN WEST'S FEDERAL REPORTER

United States Court of Appeals

For the First Circuit

No. 08-1231

MALIK ZAFAR MAHMOOD,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, *

Respondent.

ON PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges. 

Robert D. Watt, Jr. for petitioner.

Anthony W. Norwood, Senior Litigation Counsel, Office of

Immigration Litigation, and Gregory G. Katsas, Assistant Attorney

General, for respondent.

September 2, 2009
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PER CURIAM. Malik Zafar Mahmood, a native and citizen of

Pakistan, petitions for review of a decision of the Board of

Immigration Appeals (BIA) affirming an order of removal against

him. Mahmood challenges the BIA's denial of his application for

withholding of removal, contending that (1) he has demonstrated

past persecution, entitling him to a rebuttable presumption of

future persecution, and (2) even if he has not established past

persecution, he has established a clear probability of future

persecution upon his return to Pakistan. We deny the petition. 

I.

Sometime in August 1999, Mahmood entered the United

States in Los Angeles, California, using a British passport that

was not in his name. Over four years later, on January 29, 2004,

federal authorities initiated removal proceedings against him.

Mahmood conceded removability, but filed applications for asylum,

withholding of removal, relief under the Convention Against Torture

(CAT) and, in the alternative, voluntary departure. 

At a May 17, 2006 hearing before an immigration judge

(IJ), Mahmood testified that when living in his native Pakistan, he

experienced persecution as a member of the region's Shia Muslim

minority. In August 1998, while traveling to the mosque with a

group of fellow Shias to observe a religious holiday in his home

village, Mahmood was shot in the leg by members of the Sunni Muslim

majority. After the shooting, he stayed in the hospital for three
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to four months, during which time he and his mother received

threats that if he reported the shooting to the police, Sunnis

would attack his mother. Mahmood did not report the shooting.

After his release from the hospital, Mahmood stayed with his uncle

in another region of Pakistan and with friends. Mahmood did not

receive any threats during his stay with his uncle, although his

mother continued to receive threats that Mahmood would be killed if

he returned to his home village.

Mahmood described several other incidents of harassment.

He testified that in 1992 or 1993, members of the Sunni Muslim

majority confiscated his father's family business, an ice factory.

He further testified that at various times, sometimes several times

in a month, Sunni police came to his house to search for weapons

based on false reports by Sunni residents; however, the police

never arrested or detained Mahmood or charged him with a crime. In

his application for asylum, Mahmood stated that one of his brothers

had been arrested and tortured by Sunni police, and left Pakistan

because of this mistreatment.

Mahmood testified that at the time of the hearing before

the IJ, Mahmood's mother and two of his sisters, also Shia Muslims,

still lived in Pakistan. A brother, also Shia, had lived in

Pakistan until shortly before the hearing. Mahmood did not present

any documentary evidence in support of his applications, but

instead relied solely on his oral testimony.
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At the close of the hearing, the IJ issued an oral

decision denying Mahmood's applications for asylum, withholding of

removal, CAT protection and, in the alternative, voluntary

departure. The IJ determined that the asylum claim was timebarred, concluded that Mahmood had not proven entitlement to

withholding of removal or protection under the CAT, and denied

voluntary departure as a matter of discretion. On January 23,

2008, the BIA affirmed the IJ's decision in a written opinion.

This timely petition for review followed. 

II.

Mahmood challenges only the BIA's denial of his

application for withholding of removal, contending that the

evidence establishes that he suffered past persecution and there is

a clear probability he would suffer future persecution upon his

return to Pakistan. Because Mahmood's petition does not assert

challenges to the BIA's disposition of his claims for asylum, CAT

protection, or voluntary departure, we do not address those claims.

We review the BIA's factual determinations under the

"substantial evidence" standard. Nikijuluw v. Gonzales, 427 F.3d

115, 120 (1st Cir. 2005). Under this deferential standard, we

accept the BIA's findings if they are "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole." Id. (quotation marks and citation omitted). The BIA's

conclusion must stand unless "any reasonable adjudicator would be
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compelled to conclude to the contrary." Boukhtouchen v. Gonzales,

498 F.3d 78, 80 (1st Cir. 2007) (quotation marks and citation

omitted). Where the BIA deferred to or adopted the IJ's reasoning,

we review those portions of the IJ's decision as part of the BIA's

final decision. Hernandez-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st

Cir. 2004).

To qualify for withholding of removal, an alien must

demonstrate that his "life or freedom would be threatened in [the

removal] country because of the alien's race, religion,

nationality, membership in a particular social group, or political

opinion." 8 U.S.C. § 1231(b)(3)(A). An alien is entitled to

withholding of removal if he shows "a clear probability that, upon

repatriation, he will be persecuted on account of a protected

ground," that is, that he will "more likely than not" face

persecution upon return to his homeland. Rotinsulu v. Mukasey, 515

F.3d 68, 71 (1st Cir. 2008). Alternatively, an alien may qualify

for withholding of removal based on a showing that he suffered past

persecution on account of a protected ground, triggering a

rebuttable presumption that the alien has a well-founded fear of

future persecution. Id. at 71-72. In order to amount to

persecution, mistreatment "must rise above unpleasantness,

harassment, and even basic suffering." Nelson v. INS, 232 F.3d

258, 263 (1st Cir. 2000). Furthermore, persecution "always implies

some connection to government action or inaction," Nikijuluw, 427
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F.3d at 120-121 (internal quotation marks and citation omitted);

persecution must be "the direct result of government action,

government-supported action, or government's unwillingness or

inability to control private conduct." Id. at 121. 

Substantial evidence supports the BIA's conclusion that

Mahmood did not satisfy his burden of establishing past

persecution. As to the 1998 shooting, Mahmood failed to

demonstrate the requisite connection to government action or

inaction. Mahmood did not show that the police or other government

authorities supported his attackers, and, because he did not report

the 1998 shooting to the police, he cannot show that the police

were unable or unwilling to control his attackers. See Raza v.

Gonzales, 484 F.3d 125, 129 (1st Cir. 2007). Mahmood's remaining

claims of harassment, including the confiscation of his father's

ice factory in the early 1990s, threats made to himself and his

mother, and police searches of his home based on false reports that

he possessed weapons, do not compel a finding of past persecution.

Because Mahmood failed to establish past persecution, he is not

entitled to a rebuttable presumption of future persecution.

Substantial evidence likewise supports the BIA's

determination that Mahmood did not establish a clear probability of

future persecution. Mahmood's general descriptions of sectarian

disputes between Shia and Sunni Muslims in Pakistan are

insufficient to establish a likelihood of future persecution. See
Mahmood testified that women are not targeted for sectarian 1

violence in Pakistan. Nevertheless, the fact that Mahmood's

brother continued to live peacefully in Pakistan suggests that

Mahmood could do the same.

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id. (holding that evidence of sporadic Sunni-Shiite violence in

Pakistan did not compel finding that petitioner would likely face

persecution upon removal). Moreover, Mahmood's mother, two

sisters, and, until shortly before the hearing, his brother, all of

whom are Shia Muslims, continued to live in Pakistan undisturbed.

These facts undermine Mahmood's claim that he would more likely

than not face persecution upon his return. See Aguilar-Solis v. 1

INS, 168 F.3d 565, 573 (1st Cir. 1999) ("Without some explanation,

the fact that close relatives continue to live peacefully in the

alien's homeland undercuts the alien's claim that persecution

awaits his return.").

The petition for review is denied.