Bilal Hussain v. Jeffrey Rosen ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BILAL HUSSAIN, No. 18-70780
Petitioner,
Agency No.
v. A209-171-424
JEFFREY A. ROSEN, Acting Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted August 12, 2020
Pasadena, California
Filed January 11, 2021
Before: Consuelo M. Callahan, Patrick J. Bumatay, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
2 HUSSAIN V. ROSEN
SUMMARY *
Immigration
Denying Pakistani national Bilal Hussain’s petition for
review of a decision of the Board of Immigration Appeals,
the panel held that substantial evidence supported the denial
of asylum, withholding of removal, and protection under the
Convention Against Torture, and that the immigration judge
did not deprive Hussain of due process.
The panel held that the IJ provided Hussain, who was pro
se, due process by providing details about the structure of the
hearing and the availability of counsel, and asking numerous
questions through which Hussain had ample opportunity to
develop his testimony. The panel rejected Hussain’s
assertion that the IJ repeatedly misled him about what he
needed to show to meet his burdens by asking open-ended
questions and failing to adequately probe the record. Rather,
the panel explained that the IJ developed the record in its role
as an independent fact-finder, and it was Hussain’s
responses that determined the scope of the testimony
elicited. The panel also rejected Hussain’s reliance on
Jacinto v. INS, 208 F.3d 725 (9th Cir. 2000), for the
proposition that IJs must go beyond their impartial role and
instead essentially act as advocates for pro se asylum
applicants. The panel explained that it could not read
Jacinto’s imprecise “fully-develop-the-record-for-pro-se-
petitioners” dicta as expansively as Hussain seeks without
doing serious harm to the adversarial process established by
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
HUSSAIN V. ROSEN 3
Congress for petitioners like Hussain. The panel also
concluded that, even if Hussain could demonstrate error, he
did not show prejudice, where he failed to point to any
additional evidence concerning past persecution or the other
grounds upon which the Board denied relief.
The panel held that the evidence did not compel the
finding of past persecution, where Hussain did not testify to
any individualized physical attacks or threats, and he failed
to show sufficient economic or psychological harm.
The panel also held that Hussain failed to establish that
the Pakistani government was unable to control the Taliban,
noting that Hussain failed to report his two attacks to
authorities, and that record evidence demonstrated that the
government’s significant efforts to combat terrorism and
sectarian violence had resulted in a substantial reduction in
terror-related fatalities. Although Hussain argued that he did
not report the attacks because police provide no protection,
the panel noted that even if the government’s response to
Hussain’s two attacks was lacking, the standard is not that
the government can prevent all risk of harm.
The panel held that Hussain failed to establish that he
could not reasonably relocate within Pakistan to avoid future
persecution. The panel rejected Hussain’s arguments that it
would be unreasonable for him to relocate to an unfamiliar
town without family, or because he would need to live in a
rented space or with a host family. The panel also noted that
Hussain failed to show there were restrictions on movement
in areas outside the areas of high unrest that Hussain would
assumedly seek to avoid. The panel also explained Hussain
could not successfully argue that relocation was
unreasonable because the country at large is subject to
4 HUSSAIN V. ROSEN
generalized violence, because he did not show he is at risk
of country-wide targeted persecution.
The panel also held that substantial evidence supported
the denial of CAT protection because Hussain failed to
establish that he faces a particularized risk of torture, and
never alleged, in the record or in his testimony, that he ever
suffered any harm—“severe pain or suffering”—that rose to
the level of torture.
COUNSEL
Salmah Y. Rizvi (argued) and Douglas H. Hallward-
Driemeier, Ropes & Gray LLP, Washington, D.C., for
Petitioner.
Kristen A. Giuffreda (argued), Trial Attorney; Shelley R.
Goad, Assistant Director; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
VANDYKE, Circuit Judge:
Pakistani national Bilal Hussain (Hussain) attempted to
enter the United States near Otay Mesa, California without
valid documentation, stating he feared persecution from the
Taliban in his native Pakistan. The Department of
Homeland Security initiated removal proceedings, and
Hussain petitioned for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
HUSSAIN V. ROSEN 5
At his removal hearing, Hussain testified before the
Immigration Judge (IJ) that the Taliban burned down his
jewelry store in an attack on his hometown in 2007, but
never hurt or personally threatened him or his family during
that attack or at any other time, including up to when Hussain
left Pakistan in September 2015. Hussain also submitted
documents describing a subsequent 2012 Taliban attack on
a convoy of cars that he was traveling with. The attack did
not injure Hussain, but in fleeing he lost the business
inventory in his car. The IJ asked Hussain open-ended
questions about his experiences with the Taliban and never
received any information suggesting Hussain was
specifically targeted, and ultimately determined that Hussain
failed to meet his burden of proof for asylum, withholding
of removal, or CAT.
The Board of Immigration Appeals (BIA) affirmed,
noting that Hussain never testified or submitted evidence
claiming any actual injury caused by the Taliban, or that the
Taliban individually targeted or attacked him for any reason.
The BIA also concluded that the IJ provided Hussain due
process because there was no indication in the transcript or
the appeal that Hussain did not understand the proceedings
or that there were facts he was “unable to present.”
Hussain seeks review of the BIA’s decision, and we have
jurisdiction under 8 U.S.C. § 1252. We dismiss Hussain’s
due process claims and deny review of his petition because
the IJ provided Hussain with a full opportunity to present
testimony, and the record does not compel the conclusion
that the agency erred in determining that Hussain’s
description of generalized violence did not meet his burden
of proof to show targeted persecution or torture.
6 HUSSAIN V. ROSEN
I. BACKGROUND
At the start of Hussain’s first hearing before the
Immigration Court, the IJ explained his statutory rights as a
petitioner, detailed the court’s procedures, told him he had
the right to an attorney, and continued the hearing to allow
Hussain to find an attorney. The IJ also described the role
of the facility’s “legal orientation provider (LOP),” and
placed Hussain on the LOP list. Hussain chose to receive
LOP assistance instead of retaining counsel.
During Hussain’s hearing, the IJ asked “why [he was]
afraid to return to Pakistan.” When asked to describe his first
Taliban encounter, Hussain described an incident in 2007
where “the Talibans [sic] were passing through our town,
and we did not give them the way,” causing the Taliban “to
fire on the people and in the market.” Neither Hussain nor
his family were injured or targeted in the attack. 1 He
testified his jewelry shop was among others that the Taliban
burned, and that the Taliban later killed people and blocked
the roads. Hussain testified that no police or military
responded to this particular attack, but described that the end
of the encounter occurred when people from his village
“attacked back.” Hussain’s hometown is located within the
FATA region, where “[i]n lieu of police, . . . [t]ribal leaders
convene . . . tribal militias . . . not . . . formal law
enforcement entities.” Hussain remained in his hometown
of Parachinar until 2015, and testified he had no further
interaction with the Taliban there.
1
Hussain initially testified he was fired at by the Taliban, but did
not elaborate when later asked if he “had any other adverse incidents
with the Taliban.”
HUSSAIN V. ROSEN 7
Hussain responded “no” when the IJ asked if he was
“ever harmed,” if “anybody threaten[ed]” him, or if at “any
time at all . . . anybody harmed or threatened [him] in
Pakistan.” Hussain also denied any problems with the police
or any threats to his wife, children, mother, brothers, or
sisters. 2
The IJ considered this evidence and concluded Hussain
“was not a victim of past persecution.” The IJ ultimately
found Hussain credible, but not “100 percent accurate as to
country conditions in Pakistan.” The IJ acknowledged that
the 2015 and 2016 country reports for Pakistan described “a
culture of lawlessness” in Hussain’s region, but also showed
“that the government is making great efforts to try to control
the violence that is committed by . . . the Taliban.” The IJ
thus found Hussain “has not established a well-founded fear
of future persecution on account of a protected ground,” nor
does he “have a nexus to a protected ground if he fears
general violence in his home country.” (emphasis added).
The IJ denied Hussain’s applications because he was never
“harmed in the past, let alone tortured,” and “could live in
other locations in Pakistan without fearing or suffering any
harm at the hands [of] the Taliban.” And given that “the
government has taken great strides to crack down on the
Taliban,” Pakistan was not “unable or unwilling to control
the Taliban.”
The BIA affirmed, noting that there was no indication in
the transcript or the appeal that Hussain did not understand
the proceedings or was “unable to present” any facts. The
2
Hussain testified that “[o]nce, in Peshawar, a couple of boys had
followed me,” but Hussain went into a hotel and the boys did not harm
him. He also testified that his father was threatened once in 2015 “by
the Sunnis from [his] village,” but that his father was never harmed.
8 HUSSAIN V. ROSEN
BIA agreed with the IJ that Hussain “was never physically
harmed or personally threatened in Pakistan” and concluded
that the IJ did not err in failing to probe a 2012 convoy attack
described only in Hussain’s written application because
Hussain did not allege the attack targeted or injured him
specifically. 3 The BIA determined that “any future harm
3
Hussain’s application included two letters from the Anjuman-e-
Hussania, a committee in Hussain’s hometown. The first detailed how
after the 2007 incident Hussain did not immediately re-establish his
jewelry store, but because he was a “Tailor Master” he continued his
other tailoring job despite the “huge financial los[s].” The letter
described a second Taliban attack in 2012 on a convoy of vehicles, one
of which Hussain was riding in. Hussain’s vehicle was “in the last row”
and drove away to escape the attack, but in doing so “fell down in the
pitch and all the jewellers [sic] [were] lost.” Hussain was not injured.
The parties dispute whether a second letter from the Anjuman-e-
Hussania describing Hussain’s community activities in Parachinar was
included in the record. We assume without deciding that it was, but it
does not affect the analysis. According to the second letter, as an “active
member of Passdaran,” Hussain “helped the homeless peoples and taken
injuries [sic] to the hospital for treatment during crises in the area. Due
to which Taliban terrorists threatened him and his family members to
kill or kidnap.” (emphasis added). The IJ asked multiple questions that
would have allowed Hussain to elaborate on the Taliban’s “threat[]”
nonspecifically referenced by this one sentence in the second letter.
Hussain provided no additional detail. “Our court generally treats
unfulfilled threats, without more, as within that category of conduct
indicative of a danger of future persecution, rather than as past
persecution itself.” Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000).
Moreover, “vague and conclusory allegations . . . are clearly
insufficient” to support a petitioner’s claim of persecution; “[o]ur case
law has consistently required more.” Mendez-Gutierrez v. Gonzales,
444 F.3d 1168, 1172 (9th Cir. 2006); see also id. at 1170 (“We cannot
conclude that the unspecified threats against Mendez-Gutierrez were
sufficiently menacing to constitute past persecution, as we do not even
know what the threats entailed.” (citation omitted)). In contrast to this
one anomalous, bare assertion in the letter, Hussain’s testimony—which
we take as true (as the IJ did)—provides substantial evidence that neither
HUSSAIN V. ROSEN 9
[Hussain] may suffer in Pakistan would not constitute
‘persecution’ under the Act because” of the Pakistani
government’s “significant efforts to combat terrorist
organizations.” And the fact that “terrorist attacks continue
in Pakistan . . . is insufficient” on its own to conclude the
government was unable to control the Taliban. Although
Hussain testified that the police did not intervene after the
2007 attack on his village, the BIA concluded the single
incident did not in itself demonstrate the government’s
inability or unwillingness “to protect him from the Taliban.”
The BIA therefore found no clear error in the IJ’s conclusion
that Hussain failed to meet his burden of proof for asylum,
withholding of removal, or CAT protection.
II. STANDARD OF REVIEW
We review the BIA’s factual findings underlying its
determination that a petitioner failed to establish eligibility
for asylum, withholding of removal, and protection under
CAT for substantial evidence. Hanna v. Keisler, 506 F.3d
933, 937, 940 (9th Cir. 2007) (asylum and withholding of
removal); Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir.
2003) (CAT). We reverse the BIA only where “any
reasonable adjudicator would be compelled to conclude to
the contrary.” Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.
2011) (citation omitted). “The possibility of drawing two
inconsistent conclusions from the evidence does not prevent
an administrative agency’s finding from being supported by
substantial evidence.” Go v. Holder, 640 F.3d 1047, 1054
(9th Cir. 2011) (citation omitted). Accordingly, review of
the Board’s eligibility determinations in this regard is
he nor his family were ever the specific targets of the Taliban’s
generalized violence.
10 HUSSAIN V. ROSEN
“extremely deferential.” Ghaly v. INS, 58 F.3d 1425, 1431
(9th Cir. 1995).
III. DUE PROCESS
As an initial matter, Hussain claims the IJ did not
sufficiently explain the proceedings and did not ask him
adequately probing questions, resulting in a denial of due
process. 4 A petitioner facing removal “is entitled to a full
and fair hearing of his claims and a reasonable opportunity
to present evidence on his behalf.” Colmenar v. INS,
210 F.3d 967, 971 (9th Cir. 2000). We “will reverse the
BIA’s decision on due process grounds if the proceeding was
‘so fundamentally unfair that the alien was prevented from
reasonably presenting his case.’” Id. (citation omitted). To
prevail on such a claim, a petitioner must also demonstrate
“substantial prejudice.” Lata v. INS, 204 F.3d 1241, 1246
(9th Cir. 2000).
A. The Fairness of the Proceedings
1. The IJ Explained the Legal Procedures.
“[T]he Fifth Amendment entitles aliens to due process of
law in deportation proceedings.” Reno v. Flores, 507 U.S.
292, 306 (1993). But because “an alien in civil removal
proceedings is not entitled to the same bundle of
constitutional rights afforded defendants in criminal
4
Hussain also argues that the IJ did not provide due process because
the IJ declined to enter certain photographs and a memory card into the
record during his hearing. As this claim was not raised before the BIA,
we cannot address it here. Brezilien v. Holder, 569 F.3d 403, 412 (9th
Cir. 2009) (“Because Brezilien failed to exhaust his administrative
remedies as to this alleged procedural error, we lack jurisdiction to
review it.”).
HUSSAIN V. ROSEN 11
proceedings . . . ‘various protections that apply in the context
of a criminal trial do not apply in a deportation hearing.’”
Valencia v. Mukasey, 548 F.3d 1261, 1263 (9th Cir. 2008)
(quoting Ramirez-Osorio v. INS, 745 F.2d 937, 944 (5th Cir.
1984)). As an adversarial process, immigration proceedings
are impartial proceedings where petitioners may make their
case, but are not entitled to the IJ’s legal assistance in doing
so. Crucially, a pro se “alien has no blanket right to be
advised of the possibility of asylum” in a hearing before an
Immigration Judge. Valencia, 548 F.3d at 1263. As required
by statute, an IJ must ensure “the alien shall have a
reasonable opportunity to examine the evidence against the
alien, to present evidence on the alien’s own behalf, and to
cross-examine witnesses presented by the Government.” 8
U.S.C. § 1229a(b)(4)(B). In considering whether Hussain
received due process, “[t]he critical question is ‘[w]hether
the IJ’s actions prevented the introduction of significant
testimony.’” Oshodi v. Holder, 729 F.3d 883, 890 (9th Cir.
2013) (citation omitted).
Here, the IJ ensured that Hussain understood and had the
opportunity to access all manner of procedural assistance to
“introduc[e] [] significant testimony.” Id. The IJ explained
Hussain’s statutory rights, detailed the court procedures, and
ensured Hussain had the opportunity to procure a lawyer if
he wanted one. Instead, Hussain ultimately chose to receive
LOP assistance in preparing his asylum application.
2. The IJ Developed the Record.
During the hearing, the IJ asked Hussain multiple broad
questions to elicit testimony explaining why Hussain was
“afraid to return to Pakistan.” Hussain faults the IJ’s open-
ended questions, arguing that the IJ needed to explicitly
detail the elements of a claim for asylum and failed to
“adequately probe the record” for nuggets that might lend
12 HUSSAIN V. ROSEN
support to Hussain’s claims. Consequently, Hussain argues
that he was “repeatedly misled” by the IJ as to what he
needed to show to meet his burdens.
The IJ developed the record in its role as an independent
fact-finder, and it was Hussain’s responses that determined
the scope of the testimony elicited. By starting the
questioning at a general level, the IJ let Hussain control the
testimony presented, while being prepared to drill down
based on whatever Hussain provided, rather than curtailing
or improperly influencing the testimony ex ante. This was
not a violation of due process. See Agyeman v. INS, 296 F.3d
871, 884 (9th Cir. 2002) (“The IJ must be responsive to the
particular circumstances of the case . . . .” (emphasis
added)). Notwithstanding the adversarial character of the
proceedings, the IJ repeatedly sought clarification of
Hussain’s answers and gave him multiple opportunities to
expand his testimony. Hussain framed the landscape of his
testimony in this case through his answers to these questions.
Hussain’s argument that he was nonetheless misled
demands too much of the IJ, and if accepted would
fundamentally alter the well-recognized adversarial nature
of immigration proceedings. The IJ was not required to ask
Hussain leading questions and feed him the types of
scenarios sufficient to achieve asylum. That could change
the IJ’s role from that of an impartial adjudicator to
effectively being an advocate for the petitioner—a role that
our court has repeatedly rejected. 5 C.F.R. § 2635.101(b)(8)
(delineating that IJs have a neutral role and “shall act
impartially and not give preferential treatment to any . . .
individual”); C.J.L.G. v. Barr, 923 F.3d 622, 636 (9th Cir.
2019) (Paez, J., concurring) (emphasizing that, despite the
IJ’s duty to enable the petitioner to present testimony, “the
IJ cannot be a[n] . . . advocate”); United States v. Moriel-
HUSSAIN V. ROSEN 13
Luna, 585 F.3d 1191, 1197–98 (9th Cir. 2009) (“We do not
require IJs to speculate about the possibility of anticipated
changes of circumstances and advise aliens of facts not
suggested in the record,” nor does “our precedent . . . require
that an IJ act creatively to advise an immigrant of ways in
which his legal prospects at forestalling deportation might
improve with fundamental changes in his status.”); Bui v.
INS, 76 F.3d 268, 271 (9th Cir. 1996) (“The regulations do
not require the IJ to scour the entire record or to interrogate
an alien regarding all possible avenues of relief . . . .”).
Despite the IJ’s broad queries in this case, Hussain
argues that Ninth Circuit precedent demands that IJs go
beyond their impartial role and instead essentially act as
advocates for pro se asylum applicants. That is wrong.
Hussain emphasizes Jacinto v. INS, 208 F.3d 725, 732–33
(9th Cir. 2000), where he claims this court “remanded where
the IJ did not ask the applicant questions about her
persecutor’s motive.” But Hussain miscomprehends the
holding and import of Jacinto, relying on hypothetical
questions from that case that this court in dicta said the IJ
might have asked. Id. at 732. The actual reason this court in
Jacinto found a violation of due process was because the IJ
there “did not clearly explain either that she had the right to
testify even if she was represented by a lawyer . . . and
perhaps most important, the [IJ] never gave her the
opportunity to present her own additional narrated
statement.” Jacinto, 208 F.3d at 734 (emphases added).
That was the due process violation in Jacinto. Here, in
contrast, the IJ gave Hussain multiple opportunities to
expound upon the documents he provided and explicit
instructions and options regarding counsel.
Hussain’s attempt to leverage the panel’s dicta in Jacinto
into a far more sweeping requirement for IJs doesn’t work,
14 HUSSAIN V. ROSEN
in large part because our court’s remand in Jacinto
represents the high-water mark of what due process can
require in Immigration Court hearings—at least as long as
they remain adversarial hearings. In contrast to the specific
reason it gave for remanding in Jacinto, the majority in that
case—relying on a handbook from the United Nations, a
Ninth Circuit dissent, and the very different, non-adversarial
fora of Social Security hearings—also attempted to
transplant the statement, oft-repeated by Hussain, that a
Social Security ALJ “must ‘scrupulously and
conscientiously probe into, inquire of, and explore for all the
relevant facts.’” Jacinto, 208 F.3d at 733 (citation omitted).
Pointing to language describing the ALJ’s role in that
statutorily distinct, non-adversarial context, the Jacinto
majority—in language as sweeping as it is ambiguous—
stated that, like Social Security ALJs, IJs are similarly
“obligated to fully develop the record in those circumstances
where applicants appear without counsel.” Jacinto, 208 F.3d
at 734 (emphasis added). Overreading this inherently
indeterminate standard, as Hussain asks us to do, would
supplant the adversarial process required by Congress in
these proceedings with a non-adversarial process improperly
borrowed from the very different Social Security context.
However we may properly interpret Jacinto’s imprecise
“fully-develop-the-record-for-pro-se-petitioners” dicta, we
cannot read it as expansively as Hussain seeks without doing
serious harm to the adversarial process established by
Congress for petitioners like Hussain. The core of the due
process right afforded petitioners in immigration
proceedings is the opportunity to testify. IJs need not—
indeed, cannot—essentially act as Sherpas for pro se
petitioners, guiding them in making their case. Extending
Jacinto as Hussain urges would put that case in unnecessary
conflict with our court’s other, later, precedent, which holds
HUSSAIN V. ROSEN 15
that due process has been provided whenever “an alien [is]
given a full and fair opportunity to be represented by
counsel, to prepare an application for [immigration] relief,
and to present testimony and other evidence in support of the
application.” Vargas-Hernandez v. Gonzales, 497 F.3d 919,
926–27 (9th Cir. 2007); see also Lopez-Umanzor v.
Gonzales, 405 F.3d 1049, 1056 (9th Cir. 2005) (“We will
grant a petition for review from a BIA decision on due
process grounds if the proceeding was so fundamentally
unfair that the alien was prevented from reasonably
presenting [his or her] case.”) (emphasis added) (citation
omitted)). 5
Here, the IJ provided Hussain due process by providing
details about the structure of the hearing, the availability of
counsel, and asking numerous questions through which
Hussain had ample opportunity to develop his testimony.
See Ramirez v. Sessions, 902 F.3d 764, 772 (8th Cir. 2018)
(finding the IJ provided due process by asking “relevant fact
questions” and then “three open-ended questions allowing
[the petitioner] an opportunity to elaborate”).
B. Prejudice
“To prevail on a due process challenge to deportation
proceedings, [the petitioner] must show [both] error and
5
The other cases Hussain cites where we have found due process
violations have no resemblance to this case. See, e.g., Pangilinan v.
Holder, 568 F.3d 708, 709–10 (9th Cir. 2009) (finding due process
violated where the IJ delegated all questioning of the pro se petitioner to
the government’s attorney); Agyeman, 296 F.3d at 877 (finding due
process violated where the IJ required testimony from an inaccessible
witness for the petitioner to present his application); Colmenar, 210 F.3d
at 971–72 (finding due process violated where the IJ affirmatively
prevented petitioner’s testimony).
16 HUSSAIN V. ROSEN
substantial prejudice.” Grigoryan v. Barr, 959 F.3d 1233,
1240 (9th Cir. 2020) (citation omitted). Even if Hussain
could demonstrate error (he hasn’t), he cannot show
prejudice. 6 Although Hussain claims he would have
provided many more details about his political and religious
background if asked, he doesn’t point to any additional
evidence of persecution or the grounds upon which the BIA
denied him asylum. See, infra, §§ IV.B, IV.C. And some of
the testimony Hussain now claims he would have proffered
is belied by the actual testimony he gave.
To reiterate: the IJ asked broad questions to give Hussain
the opportunity to testify to whatever he wished. Hussain’s
allegations that he would have provided different answers to
more pointed questions are unpersuasive and do not establish
prejudice. Hussain claims he would have told the IJ about
direct threats the Taliban made to him before burning down
his shop in 2007. But when the IJ broadly asked “[what
happened] the first time you had a problem with the
Taliban?,” Hussain only said the “Talibans [sic] were
passing through our town, and we did not give them the
way.” Hussain claims he would have testified about Taliban
threats against himself specifically from 2007 to 2015 for his
anti-Taliban politics, but to the IJ he denied receiving any
threats because “[t]hey don’t threaten you . . . they just kills
[sic] you.” Hussain says he would have described injuries
from the 2012 convoy attack, but when asked “were there
any times—was there any time at all that anybody harmed or
6
Hussain argues prejudice is presumed by relying on two cases, one
where the petitioner was prevented from testifying altogether and
another where the petitioner received an incomprehensible translation
during proceedings. See Colmenar, 210 F.3d at 971–72; Perez-Lastor v.
INS, 208 F.3d 773, 778–80 (9th Cir. 2000). While Hussain may overread
those cases to say we presumed prejudice, neither is like this case.
HUSSAIN V. ROSEN 17
threatened you in Pakistan?” Hussain answered, “No. I was
not beaten up or anything like that, no.” Hussain cannot now
claim he was prejudiced when the IJ’s exact questions could
have elicited the very responses Hussain claims he was
unable to provide.
IV. ASYLUM & WITHHOLDING OF REMOVAL
To meet the burden for asylum because of past
persecution, the petitioner “has the burden of establishing
that (1) his treatment rises to the level of persecution; (2) the
persecution was on account of one or more protected
grounds; and (3) the persecution was committed by the
government, or by forces that the government was unable or
unwilling to control.” Baghdasaryan v. Holder, 592 F.3d
1018, 1023 (9th Cir. 2010). A petitioner who cannot show
past persecution might nevertheless be eligible for relief if
he instead shows a “well-founded fear of future persecution”
along with the other elements. See id.; Wakkary v. Holder,
558 F.3d 1049, 1060 (9th Cir. 2009). Even if the standard is
met, an applicant is still ineligible for asylum if it would be
reasonable under the circumstances to relocate within the
country to avoid future persecution. Kaiser v. Ashcroft,
390 F.3d 653, 659 (9th Cir. 2004). Because the asylum
standard is more lenient than withholding of removal’s
“clear probability” standard, failing to establish eligibility
for asylum forecloses eligibility for withholding of removal.
Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003).
A. Hussain Did Not Demonstrate Past Persecution.
Hussain testified to incidents of generalized violence that
do not rise to the level of persecution. Hussain argues the
physical attacks, death threats, economic harm, and
psychological harm he suffered “both independently and
cumulatively rose to the level of persecution.” The BIA
18 HUSSAIN V. ROSEN
disagreed, and the record in this case does not compel the
conclusion that the BIA erred.
1. The physical attacks were not past
persecution.
To establish past persecution, an applicant must show he
was individually targeted on account of a protected ground
rather than simply the victim of generalized violence. Ndom
v. Ashcroft, 384 F.3d 743, 753 (9th Cir. 2004) (“Where we
have found no persecution despite civil strife or random
violence, the reason has been the applicant’s failure to
establish that his or her persecutor was motivated by one of
the five statutory grounds.”), superseded by statute on other
grounds as recognized in Parussimova v. Mukasey, 555 F.3d
734, 739 (9th Cir. 2009); see also Rostomian v. INS,
210 F.3d 1088, 1089 (9th Cir. 2000) (determining petitioners
did not show past persecution where they “did not establish
that the [knife] attack was anything more than an act of
random violence during a period of significant strife”);
Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (explaining
that in order to demonstrate past persecution “[i]t is not
sufficient to show [petitioner] was merely subject to the
general dangers attending a civil war or domestic unrest”).
Hussain based his past persecution claim on two events:
in 2007 the Taliban burned his jewelry shop along with other
shops in his hometown, and in 2012 the Taliban attacked a
convoy of cars that included Hussain. Because “[a]sylum
generally is not available to victims of civil strife, unless
they are singled out on account of a protected ground,”
Hussain needed to show he was “singled out” in his region
of Pakistan that is often subject to Taliban incursions.
Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001). But
Hussain testified the burning of his shop was the result of a
general attack on the town that resulted in other shops being
HUSSAIN V. ROSEN 19
burned as well. And though others died in the attack,
Hussain did not testify to any individualized physical attacks
or threats. Likewise, Hussain provided no testimony that he
was a specific target of the Taliban’s attack on his convoy
rather than a general victim of a random raid. Cf. Gormley
v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (explaining
that such attacks “do not rise to the level of [past]
persecution; robberies of this sort are an all too common
byproduct of civil unrest and economic turmoil”).
Substantial evidence supports the BIA’s conclusion that this
is not persecution. See Ochave, 254 F.3d at 865.
2. The other harms alleged do not qualify as
persecution.
Hussain also argues he was subjected to death threats,
economic harm, and psychological harm. 7 Hussain during
his testimony denied either he, his wife, or children were
ever threatened by the Taliban. Unfulfilled threats are very
rarely sufficient to rise to the level of persecution, and
Hussain has not made that showing here. Hoxha v. Ashcroft,
319 F.3d 1179, 1182 (9th Cir. 2003) (holding that the
unfulfilled threats in that case constituted “harassment rather
than persecution”). While his father was once threatened by
a group of Sunni Muslims (not the Taliban), no harm ever
came to his father, mother, or siblings. Hussain’s testimony
7
Hussain fainted during his bond hearing, which he argues was a
result of the psychological harm he experienced in Pakistan. While
psychological harm may constitute persecution, see Mashiri v. Ashcroft,
383 F.3d 1112, 1120 (9th Cir. 2004), there is no evidence in the record,
other than Hussain’s attorney’s assertions, that his fainting during his
hearing was due to past psychological harm rather than for some other
reason.
20 HUSSAIN V. ROSEN
and documentation do not support his assertion on appeal
that he received death threats.
“We have defined economic persecution as ‘substantial
economic disadvantage’ that interferes with the applicant’s
livelihood . . . .” He v. Holder, 749 F.3d 792, 796 (9th Cir.
2014) (citation omitted). While the record reflects that
Hussain’s jewelry shop—along with other shops in the
town—was burned in 2007 and he lost jewelry stock in the
2012 convoy attack, Hussain did not detail the actual impact
of these losses and was afterward able to “continue[] his
Tailoring job.” “[M]ere economic disadvantage alone does
not rise to the level of persecution.” Gormley, 364 F.3d at
1178. Though Hussain undoubtedly experienced hardship
from his shop burning, this harm also lacks the individual
targeting necessary to show persecution because other shop
owners in his village experienced the same losses. And
while the burning of the store occurred in 2007 and the
convoy attack in 2012, Hussain did not leave the country
until 2015. As he was “able to continue working during that
period . . . substantial evidence supports the BIA’s
determination that [the petitioner] did not suffer
persecution” based on economic harm. He, 749 F.3d at 796.
3. Considered cumulatively, Hussain did not
demonstrate past persecution.
Even considered cumulatively, Mashiri, 383 F.3d at1120–21, Hussain’s claims of generalized physical attacks,
contradictory testimony of death threats, unspecified
economic harm, and unsubstantiated psychological harm do
not rise to the level of targeted persecution. Where a country
is embroiled in “indiscriminate violence,” citizens of that
country are only eligible for asylum if they can demonstrate
that “they are singled out on account of a protected ground.”
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir.
HUSSAIN V. ROSEN 21
2010). Hussain did not carry his burden to show past
persecution and this court is not compelled to reverse the
BIA’s determination that the IJ correctly found “the violence
created by the Taliban . . . basically targets everybody.”
B. The Pakistani Government Is Not Unwilling or
Unable to Prevent Harm.
Hussain also failed to demonstrate the third prong of his
persecution claim—that his persecution was “committed by
the government, or by forces that the government was unable
or unwilling to control.” Baghdasaryan, 592 F.3d at 1023.
Hussain does not dispute the Pakistani government’s
willingness to control the Taliban, but contends he was
persecuted and will be again due to the government’s
inability to eradicate the Taliban.
Hussain argued that “the police do[] not provide any
protection to the Shias, and the Pakistan government is also
not helping or protecting Shias.” But Hussain never claimed
that he reported the 2007 or 2012 attacks to law enforcement
authorities or ever sought police assistance, which we
balance in our analysis of the BIA’s determination. See
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1069 (9th
Cir. 2017). Hussain maintained he did not report the attacks
because the police provide no protection. But even if the
government’s response to these two particular events was
lacking, the standard is not that the government can prevent
all risk of harm. This is effectively the standard pressed by
Hussain. Such a requirement could not even be met by the
United States or the European Union, where terrorist attacks
unfortunately harm innocents too frequently. Instead, we
have reasonably determined that a country’s government is
not “unable or unwilling” to control violent nonstate actors
when it demonstrates efforts to subdue said groups. See
Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004)
22 HUSSAIN V. ROSEN
(finding the Egyptian government was not unable or
unwilling to control terrorists because “the relevant State
Department Profile reflected the fact that Egyptian
authorities have prosecuted those who have committed ‘acts
of terrorism’ against Christians”); Rahimzadeh, 613 F.3d at
922–23 (finding the Danish government was not unable or
unwilling to control extremists based on “active efforts to
address and control violence by radical religious groups”).
The BIA reviewed the country reports and recognized
that “the Pakistani government has made significant efforts
to combat terrorist organizations and sectarian violence,”
and the record reflected “multiple counterinsurgency and
counterterrorism operations in [Hussain’s home region] to
eradicate militant safe havens.” These operations produced
a substantial reduction in terror-related fatalities in Pakistan
from 11,704 in 2009 to 1,720 in 2016. Although the record
also reflects that the Taliban continues to operate in regions
of Pakistan, “[t]he possibility of drawing two inconsistent
conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by
substantial evidence.” Go, 640 F.3d at 1054 (citation
omitted). Considering the government’s efforts we are not
compelled to conclude that the Pakistani government is
entirely unable to control the Taliban—even assuming the
government did not prevent or effectively punish the two
specific attacks Hussain experienced. See Doe v. Holder,
736 F.3d 871, 878 (9th Cir. 2013) (“[U]nwillingness or
inability to control persecutors is not demonstrated simply
because the police ultimately were unable to solve a crime
or arrest the perpetrators . . . .”).
HUSSAIN V. ROSEN 23
C. It Would Not Be Unreasonable for Hussain to
Relocate Within Pakistan.
Hussain contends that he would be at risk of future
persecution if he were deported. Importantly, Hussain’s
claims of future persecution were focused on the risks that
would arise if he returned to his hometown in Parachinar.
But “[a]n applicant does not have a well-founded fear of
[future] persecution if the applicant could avoid persecution
by relocating to another part of the applicant’s country,”
unless doing so would be unreasonable under the applicant’s
circumstances. 8 C.F.R. § 1208.13(b)(2)(ii); see also Kaiser
v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004).
Relocation is generally not unreasonable solely because
the country at large is subject to generalized violence.
8 C.F.R. § 1208.13(b)(3). The BIA noted that the country
reports suggest Taliban attacks are “more prevalent” in some
parts of Pakistan than others. Thus “the applicant shall bear
the burden of establishing that it would not be reasonable for
[them] to relocate, unless the persecution is by a government
or is government-sponsored.” Id. § 1208.13(b)(3)(i).
Because Hussain never claimed to fear the government or a
government-sponsored group, that burden is properly placed
on him to demonstrate why relocation is unreasonable. Id.
Hussain first argues it would be unreasonable for him to
relocate within Pakistan because “his parents, wife, four
children, and nine of his siblings all live in Parachinar . . . .
It would be a hardship” to require him to relocate to “an
unfamiliar town of Pakistan without his family.” This is a
strange argument. Surely relocating to an unfamiliar town
in Pakistan—while no doubt some inconvenient distance
from his family—would pose less of a hardship for his
family than relocating halfway across the globe to the United
States?
24 HUSSAIN V. ROSEN
Hussain also argues that relocating would be difficult
because he may have to live in a rented space or with a host
family, and there are government restrictions and special
permission needed to travel through certain areas. See
8 C.F.R. § 1208.13(b)(3). But anyone who moves out of
their home and is unable to outright buy a new house would
need to live with others or in a rented space. That relocation
might be inconvenient or undesirable does not make it
unreasonable. And the referenced travel restrictions and
special permission requirements only apply to areas in the
FATA region with high instances of unrest due to security
concerns—but those are the very areas Hussain would
assumedly seek to avoid. Hussain did not show that there is
restricted freedom of movement in other regions.
Hussain also cannot successfully argue that relocation is
unreasonable because the country at large is subject to
generalized violence, because he did not show he is at risk
of country-wide targeted persecution. As the BIA noted,
violent attacks were less prevalent in other areas outside of
Hussain’s hometown. No country is immune from
generalized violence. Every country, even our own, has
been subjected to some instances of “generalized” violence.
For example, we have seen our own violent terrorist attacks,
robberies and muggings targeting unfortunate passersby, and
riots resulting in destroyed properties, looting, and physical
injuries. Acknowledging that a particular country is
currently plagued by generalized crime and violence cannot
be a basis for granting asylum to any citizen of that country
in the United States.
By failing to show either past personal persecution or
that it would be unreasonable to expect him to relocate to
avoid future persecution, Hussain failed to provide evidence
to compel reversal of the BIA’s decisions to deny asylum
HUSSAIN V. ROSEN 25
and withholding of removal. See Gonzalez-Hernandez v.
Ashcroft, 336 F.3d 995, 1001 n.5 (9th Cir. 2003).
V. CAT PROTECTION
To succeed on a claim under CAT, Hussain must show
it is “more likely than not that he . . . would be tortured if
removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). Hussain was required to show that he faces
a “particularized threat” of torture, Dhital v. Mukasey,
532 F.3d 1044, 1051 (9th Cir. 2008) (citation omitted), and
as discussed above, he failed to make that showing. More
crucially, Hussain never alleged, in the record or in his
testimony, that he ever suffered any harm—“severe pain or
suffering”—that rose to the level of torture. 8 C.F.R.
§ 1208.18(a)(1). Substantial evidence supports the BIA’s
determination that Hussain cannot meet his burden to obtain
CAT protection. 8
VI. CONCLUSION
The IJ ensured Hussain received due process by
providing multiple opportunities to testify regarding his
experiences with the Taliban in Pakistan. Hussain never
alleged he was personally targeted by the Taliban and his
testimony was consistent with an environment of
8
Hussain argues the country conditions report should fulfill his
burden under CAT. A report describing general persecution “is
insufficient to compel the conclusion that Petitioner would be tortured if
returned.” Jiang v. Holder, 754 F.3d 733, 740 (9th Cir. 2013). Nor do
Hussain’s allegations that the government did not respond to the 2007
Taliban attack suffice, as the Pakistan government “does not ‘acquiesce’
to torture where the government actively, albeit not entirely successfully,
combats the illegal activities.” Del Cid Marroquin v. Lynch, 823 F.3d
933, 937 (9th Cir. 2016).
26 HUSSAIN V. ROSEN
generalized violence. The BIA’s conclusion that he failed to
meet the burden for either asylum or withholding of removal
was supported by substantial evidence. So too was its
determination that Hussain did not show that safe relocation
within Pakistan was unreasonable and that he failed to meet
his burden under CAT.
PETITION DENIED.