Mahmood v. Gonzales , 158 F. App'x 620 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-60734
Summary Calendar
ZAFAR MAHMOOD; NAGHAMA BEGUM;
FAHAD ZAFAR; NASMIN ZAFAR,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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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
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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
*
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this opinion should not be published and is not precedent except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.
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
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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.