Butt v. Keisler

• Decision Date: 01 November 2007
• Docket Number: No. 06-2135.,06-2135.
• Parties: Muhammad BUTT, Ama Zubair, Mehreen Zubair, Nimra Zubair, and Shazia Butt, Petitioners, v. Peter D. KEISLER,<SMALL><SUP>*</SUP></SMALL> Acting Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

506 F.3d 86

Muhammad BUTT, Ama Zubair, Mehreen Zubair, Nimra Zubair, and Shazia Butt, Petitioners, v. Peter D. KEISLER,^* Acting Attorney General, Respondent.

No. 06-2135.

United States Court of Appeals, First Circuit.

Submitted May 8, 2007.

Decided November 1, 2007.

Robert D. Watt, Jr., on brief for petitioners.

Peter D. Keisler, Acting Attorney General, David V. Bernal, Assistant Director, and Lindsay E. Williams, Attorney, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

CYR, Senior Circuit Judge.

Muhammad Butt ("Butt"), his wife and three daughters, all citizens and nationals of the Islamic Republic of Pakistan (Pakistan), petition for review of a Board of Immigration Appeals (BIA) order affirming an immigration judge's denial of their applications for asylum. 8 U.S.C. § 1158(a). We now deny their petition.

I BACKGROUND

In March 2002, the petitioners attempted to enter the United States at Boston without valid entry documents, see id. § 1182(a)(7)(A)(i)(I), and the respondent commenced these removal proceedings against them. The petitioners denied removability and submitted applications for asylum alleging that they had been subjected to persecution in Pakistan on account of their religion. See id. § 1101(a)(42)(A).

At a hearing before an immigration judge (IJ), Butt, a Sunni Muslim, testified that for more than thirty years he had owned and resided in a house in Lahore directly opposite an "imambargah," a religious shrine operated by Shi'i Muslims. Pakistan has a continuing history of violence between the majority Sunni and minority Shi'i sects. During the first month of each Muslim calendar year, the Shi'is held large-scale religious rites at the imambargah, and Butt gave the Lahore police permission to use the top two floors of his multi-story residence to monitor these activities for security purposes.

In November 2000, Butt decided to sell the top floor of his residence, and Azhar Hussein, a Shi'i Muslim affiliated with the imambargah, approached Butt with his concerns that the imambargah's security might be threatened if Butt were to sell to "somebody from outside," and offered to purchase the entire residence from Butt. Butt informed Hussein that he did not want to sell the entire building, but only its top floor. Hussein told Butt that he would need to contact other members of his group to determine how they wished to proceed. Butt testified that Hussein was not aggressive during their initial encounter, and that Butt did not sense any "bad threat."

In January 2001, Hussein again approached Butt, and advised him that, even though Butt did not want to sell the entire residence, Hussein's associates still wanted Butt to do so. Butt reiterated his position that he wished to sell only the top floor, and added that he did not want to sell to Shi'is. Hussein advised Butt that it would be preferable if Butt were to sell the entire residence, that he did not "feel good about [Butt's] decision," and that Butt needed to "think about that" and to have a "good, good answer" when Hussein returned. Prior to parting, Hussein urged Butt to remember that a religious group recently had kidnaped and murdered one of Butt's Shi'i acquaintances elsewhere in Pakistan. Butt testified that Hussein's insistence on purchasing the entire residence seemed a "little bit aggressive," and although he did perceive Hussein's veiled allusions as a "general warning" and a "sign of danger," he sensed no "bad kind of threat at that time." Butt nonetheless visited the Lahore police, where he was advised that the police would accept his formal complaint against Hussein if he insisted, but warned that complaints filed by a Sunni against a Shi'i often resulted in the complainant being kidnaped or murdered, but that Hussein "won't do anything serious" if Butt refrained from filing a complaint. Butt decided against filing a complaint.

In March 2001, Butt traveled to the United States on business. While Butt was away, Hussein phoned Butt's wife and expressed surprise that Butt had left the country prior to responding to Hussein's outstanding offer to purchase the house. The Hussein phone call induced no fear in Mrs. Butt.

In August 2001, Mrs. Butt agreed to sell the entire residence to a Sunni. When Hussein phoned Mrs. Butt, she informed him of the pending sale, and asked that he not phone her again. Hussein became angry, and told Mrs. Butt that she had not done a "good thing." Mrs. Butt was afraid. As requested, Hussein made no further attempts to contact petitioners. At around the same time, two unknown persons pointed at and followed Mrs. Butt and her daughter as they left a hospital, and two unknown persons unsuccessfully attempted to pick up the Butt children from their school. When informed of these events, Mr. Butt told his wife to move the family to her mother's house several miles away.

Mr. Butt returned to Pakistan from the United States in November 2001. At that time, Butt did not consider emigrating with his family to the United States to seek asylum, even though the petitioners all had the appropriate visas. In March 2002, the petitioners left Pakistan for the United States. Butt gave his mother (who continues to live in a house near the imambargah without incident) power of attorney to complete the sale of his residence to the Sunni buyer.

The IJ denied the petitioners' applications for asylum, after finding that they failed to establish either past persecution or a well-founded fear of future persecution, inasmuch as neither Hussein's "veiled threats" during the negotiations for the sale of the Butts' residence nor the two stalking incidents in August 2001 rose to the requisite level of "persecution" on account of their religious affiliation, as required for a grant of asylum. See 8 U.S.C. § 1101(a)(42)(A). Additionally, the IJ cited Butt's failure to request asylum during his business trips to the United States in March and August 2001, his voluntary return to Pakistan on each occasion despite the previous Hussein "threats," and his mother's continuing and uneventful residence near the imambargah. Since petitioners failed to satisfy the less rigorous burden of proof for asylum applications, the IJ denied their requests for withholding of removal. On appeal, the BIA affirmed.

II DISCUSSION

The petitioners contend that the IJ made three reversible errors in arriving at the decision that petitioners failed to establish either past persecution or a well-founded fear of future persecution, and thus were not entitled to asylum. First, petitioners argue that the IJ erroneously construed the Butt testimony by finding that Butt had made two separate trips to the United States in March and August 2001, whereas Butt testified that he made only one trip, arriving in the United States in March 2001 and remaining until November 2001. Petitioners assert that this factual error was prejudicial because the more occasions that Butt came to the United States and returned to Pakistan without seeking asylum, the more doubtful the proposition that Butt's alleged fear of Hussein was genuine. Second, petitioners assert that the IJ wholly ignored their documentary evidence of continuing and widespread sectarian violence in Pakistan, and the government's inability or unwillingness to protect its citizens from that violence. Finally, the petitioners maintain that the IJ improperly speculated, without any supporting record evidence, that Butt's mother had not received any threats after the petitioners left for the United States, and improperly relied on that speculative inference because Hussein had never expressed any intention to include Butt's mother in his threats.

Because the BIA discussed and affirmed the legal and factual bases of the IJ's decision, we review both the IJ's and the BIA's decisions. See Zheng v. Gonzales, 475 F.3d 30, 33 (1st Cir.2007). We deferentially review their findings of fact and their credibility determinations under the "substantial evidence" rubric, and must affirm unless "any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); Alibeaj v. Gonzales, 469 F.3d 188, 191 (1st Cir.2006).

In order to secure a grant of asylum, petitioners bore the burden to prove they are "refugees," viz., that they are "unable or unwilling to return to, and [are] unable or unwilling to avail [themselves] of the protection of, [their] 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); see 8 C.F.R. § 1208.13(a),(b). Thus, petitioners must prove either that (i) they have suffered from past persecution on account of one or more of the five grounds enumerated in § 1101(a)(42)(A), Fesseha v. Ashcroft, 333 F.3d 13, 18 (1st Cir.2003) (noting that alien "must provide `conclusive evidence' that they were targeted based on one of the five asylum grounds") (citation omitted), which proof would generate a rebuttable presumption that their fear of future persecution is well-founded, Nikijuluw v. Gonzales, 427 F.3d 115, 120 (1st Cir.2005); see 8 C.F.R. § 208.13(b)(1); or (ii) their fear of future persecution is well founded, viz., that the record evidence demonstrates that they genuinely harbor such a fear, and that it is objectively reasonable, Negeya v. Gonzales, 417 F.3d 78, 82-83 (1st Cir.2005) (focusing on whether a "reasonable person" would harbor a fear in comparable circumstances).¹

A. Past Persecution

Before the BIA, petitioners did not challenge the IJ's conclusion that they failed to prove past persecution, but only the decision that petitioners did not establish a well-founded fear of future persecution. We need not review any argument that a petitioner does not squarely present before the BIA. Silva v....