Andriy Yasinskyy v. Eric Holder, Jr. , 724 F.3d 983 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3561
ANDRIY YASINSKYY,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United
States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A088-182-430.
ARGUED JULY 9, 2013 — DECIDED AUGUST 1, 2013
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
2 No. 12-3561
WILLIAMS, Circuit Judge. Andriy Yasinskyy, a Ukrainian
citizen, applied for asylum, withholding of removal, and relief
under the Convention Against Torture, and an immigration
judge rejected his requests for relief. The Board of Immigration
Appeals upheld the denial of relief, and Yasinskky petitions for
review. Although we are troubled by the IJ’s conclusion that
the harms Yasinskyy endured did not rise to the level of
severity necessary to show past persecution, we see no reason
to upset the IJ’s refusal to grant withholding of removal
because Yasinskyy has not shown the requisite level of
government involvement in his mistreatment. We are not
persuaded by Yasinskyy’s other arguments in which he does
not confront the adverse decisions of the immigration courts
and misrepresents the content of the administrative record. We
deny the petition for review.
I. BACKGROUND
Yasinskyy came to the United States in November 2007
after he obtained an H-2B nonimmigrant visa from the
American embassy in Ukraine. His visa was sponsored by
Grand Market International Corporation and permitted him to
work as a temporary employee at a grocery store in New York
City. See 8 U.S.C. § 1101(a)(15)(H); 8 C.F.R. § 214.2(h). After
working for six weeks, he traveled to Oregon to find
better-paying employment, and he quit his job with Grand
Market in January 2008. He began the process for obtaining a
commercial driver’s license, but when he showed up for his
last exam, he was detained for being unlawfully present in the
United States.
No. 12-3561 3
In February 2008 the Department of Homeland Security
served Yasinskyy with a Notice to Appear charging that he
had violated the conditions of his visa by terminating his
employment with Grand Market. See 8 U.S.C. § 1227(a)(1)(C)(i).
Yasinskyy moved to change venue from Seattle to Chicago,
and in that motion he conceded the charge in the Notice to
Appear and announced that he intended to seek asylum and
withholding of removal. Yasinskyy first appeared before an
immigration judge in Chicago in June 2009, and the following
month he applied for asylum claiming past persecution based
on political opinion.
At his removal hearing Yasinskyy testified about his
political activities in Ukraine. In 2003 he had joined Fatherland,
which was then an opposition party. Fatherland supported
presidential candidate Viktor Yushchenko against Viktor
Yanukovych, the incumbent Prime Minister and a member of
the Party of Regions. During the summer of 2004, Yasinskyy
took off work for a week to participate in campaign activities
for the upcoming election. He participated in a demonstration
and collected signatures in a small town on August 10. That
night, he and another demonstrator were beaten by three
strangers who, according to Yasinskyy, told them to leave
town or face “even bigger problems.” His friend called the
police and minutes later officers arrived and summoned an
ambulance. Yasinskyy was hospitalized for a week with a
concussion and bruised kidney. The day after the assault,
police investigating the incident visited him at the hospital.
Yasinskyy explained that, because it had been dark, he did not
see his attackers and could do little to assist the investigation.
By the time he was released from the hospital, Yasinskyy
4 No. 12-3561
explained, the case had been closed because the police lacked
evidence to pursue it.
It took Yasinskyy nearly a month to fully recuperate from
the attack, and when he returned to work he was told that he
had been fired because of his absence. Yasinskyy speculated
that, because he had contacted his employer from the hospital
and explained his absence, he must have been fired because of
his political affiliation. Many of his coworkers belonged to the
Party of Regions, said Yasinskyy, and company officials
previously had warned that he could be fired if he did not
abandon his support for Fatherland. Yasinskyy testified that
after losing his job he experienced difficulty finding
employment but sometimes obtained construction work
through his father.
Yanukovych was declared the winner of the November
2004 presidential election, which sparked the “Orange
Revolution.” Yushchenko supporters, who alleged that
Yanukovych’s victory was the product of fraud, demonstrated
in the streets and demanded that the Ukrainian Supreme Court
invalidate the election results. The revolution was successful,
and after a revote Yushchenko was inaugurated as president
in January 2005. During the first month of the revolution,
Yasinskyy demonstrated in Kiev with other Yushchenko
supporters. Then one evening in January 2005, Yasinskyy
continued, he was beaten again, this time by two men who
insisted that they had warned him to stop campaigning for
Fatherland. Yasinskyy added that he had been receiving
telephone threats from anonymous callers who demanded an
end to his political activity. As before, Yasinskyy said, he was
treated for a concussion and an injured kidney. He continued
No. 12-3561 5
having headaches and kidney problems and in June 2005
received 10 days of medical treatment.
Yasinskyy explained that after this second attack he feared
for his life but continued his political activities. Although he
never again was physically assaulted, he continued receiving
threatening phone calls and so, on the advice of his parents,
moved to the United Kingdom in March 2006. He did not
apply for asylum in the U.K., Yasinskyy explained, because he
had hoped that the situation in Ukraine would improve and
allow him to return. Yasinskyy did return to Ukraine a year
later, in March 2007, but the threatening phone calls persisted.
After six months he decided to apply for a work visa in the
United States. He did not tell anyone at the American embassy
about his fear of persecution, Yasinskyy testified, because no
one asked him. He consulted a lawyer two weeks after arriving
in the United States but didn’t immediately apply for asylum
because he was waiting for documents from Ukraine.
Finally, Yasinskyy testified, just months before his removal
hearing the Ukrainian police had visited his Ukrainian address
asking about his whereabouts and twice summoned him to
appear at a local police station to discuss allegations of
“hooligan activities” during the Orange Revolution. Yasinskyy
asserted that members of Fatherland increasingly have been
charged with crimes since Yanukovych became the president
in 2010, and so he fears that he will be thrown in jail or killed
by members of the Party of Regions if he returns to Ukraine.
The IJ found Yasinskyy credible but concluded that his
testimony and supporting documents did not demonstrate
eligibility for relief. Yasinskyy was barred from seeking
6 No. 12-3561
asylum, the IJ concluded, because he did not file within the
1-year deadline and did not demonstrate changed
circumstances materially affecting his eligibility or
extraordinary circumstances relating to the delay in filing his
application. See 8 U.S.C. § 1158(a); 8 C.F.R. § 1208.4(a). Though
Yasinskyy had not specifically addressed whether he met one
of those exceptions, the IJ added, his purported explanation for
waiting to file—delays in obtaining supporting
documents—could not satisfy either exception.
Next, the IJ concluded that Yasinskyy was ineligible for
withholding of removal because he had not demonstrated a
clear probability that he would be persecuted on account of
political opinion if he returns to Ukraine. Yasinskyy had failed
to demonstrate past persecution, the IJ reasoned, because the
evidence did not show that the Ukrainian government
sponsored the beatings or telephone threats. And in any event,
the IJ asserted, the harm (physical and economic) and threats
Yasinskyy experienced never rose to the level of persecution.
In reaching this last conclusion, the IJ first catalogued several
of our prior decisions, dividing them between cases where we
concluded that substantial evidence did or did not support a
finding of no past persecution, see Irasoc v. Mukasey, 522 F.3d
727, 730 (7th Cir. 2008) (finding past persecution); Zhu v.
Gonzales, 465 F.3d 316, 319–20 (7th Cir. 2006) (finding
substantial evidence supported no past persecution); Prela v.
Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (finding no past
persecution); Dandan v. Ashcroft, 339 F.3d 567, 573–74 (7th Cir.
2003) (finding no past persecution); Asani v. INS, 154 F.3d 719,
722–23 (7th Cir. 1998) (remanding for application of correct
past persecution standard and expressing disbelief “that the
No. 12-3561 7
BIA does not believe that knocking a person’s teeth out is harm
enough to constitute past persecution”). The IJ then assigned
Yasinskyy to one of those two camps:
Here, the respondent has alleged that he was beaten
twice, resulting in injuries to his head and kidneys, that
he was repeatedly harassed by unknown assailants
opposed to his political activities, and that he and his
family received several threatening telephone calls. The
amount of harm the respondent suffered, though, was
significantly less than that in Dandan, Irasoc, or Asani
and closer to that in Zhu or Prela. Though he was
attacked twice and repeatedly threatened, his first
attack resulted only in “light body harm” according to
the documentation he submitted, and his second attack
did not require immediate medical attention … This
level of physical harm, without more, does not rise to
the level of persecution. Moreover, he has not alleged
that he received threats more significant or credible
than a series of intimidating, anonymous phone calls.
The IJ also concluded that Yasinskyy had not shown that he
is more likely than not to suffer future persecution if removed
to Ukraine. The IJ deemed significant that Yasinskyy had lived
in Ukraine for nearly two years after the second beating and,
during that time, had no contact with his alleged persecutors
except for anonymous phone calls. The IJ also reasoned that
the country reports submitted by Yasinskyy show a reduction
in politically motivated violence, and that nothing aside from
Yasinskyy’s own speculation suggests that the Yanukovych
administration has made Ukraine more dangerous for
nonsupporters. And the summonses Yasinskyy received did
8 No. 12-3561
not show he was likely to be persecuted because, the IJ
concluded, Yasinskyy did not explain what “hooliganism”
means under Ukrainian law, and thus he could not show that
he was being unjustly charged or prosecuted for political
activity that would be protected in the United States.
Finally, the IJ denied relief under the Convention Against
Torture. The IJ noted that the analysis under CAT is
“substantially similar” to withholding of removal and, because
Yasinskyy did not show that the Ukrainian government was
unwilling or unable to protect him from harm, “he could not
meet the more narrowly and explicitly defined standard for
government ‘acquiescence’ in the harmful activity.” Moreover,
although the State Department Country Report on Human
Rights and Practices explains that torture by law enforcement
officers is a serious problem in Ukraine, it also says that many
state agents who engaged in torture were prosecuted for their
misconduct, and thus Yasinskyy could not show that prisoners
and detainees are more likely than not to be tortured.
Yasinskyy appealed to the BIA, which affirmed the IJ’s
order. First, the BIA concluded that the IJ correctly determined
that Yasinskyy did not establish that his application for asylum
was filed within one year of his arrival in the United States or
that he fit into any of the exceptions. Next, the BIA agreed that
Yasinskyy could not show past persecution or a clear
probability of future persecution because (1) he did not show
that the Ukrainian government condoned or was helpless to
protect him from the beatings or threats made by unknown
persons, and (2) his return to Ukraine after moving to England
is inconsistent with the actions of a person fleeing persecution.
Lastly, the BIA concluded that Yasinskyy did not provide
No. 12-3561 9
sufficient evidence suggesting that the Ukrainian government
would torture him if he had to return.
II. ANALYSIS
Yasinskyy does not address the timeliness of his asylum
application, so we evaluate only his claims for withholding of
removal and protection under CAT. The BIA adopted and
supplemented the IJ’s decision, so we review the IJ’s decision
as supplemented by the BIA. See Munoz-Avila v. Holder, 716
F.3d 976, 978 (7th Cir. 2013); Mustafa v. Holder, 707 F.3d 743, 750
(7th Cir. 2013).
A. Denial of Withholding of Removal Supported by
Substantial Evidence
Yasinskyy’s brief on appeal suffers from a profound
disconnect from reality. Most of his arguments fail to track the
decisions of the IJ or the BIA, and he attributes quotes to the IJ
that appear nowhere in the record. As the government notes,
the arguments appear to have been lifted from some unrelated
brief to the BIA.
Concerning withholding of removal, Yasinskyy insists that
the IJ required him to prove that he was “seriously harmed” in
order to show past persecution and thus relied on an incorrect
legal standard. He adds that he “experienced considerable
harm by local police, thugs, and other[s] controlled by the
government militants” and “was kicked, beaten, collapsed and
lost consciousness.”
Yasinskyy’s assertions mischaracterize the administrative
record and, as the government contends, violate Rule
28(a)(9)(A) of the Federal Rules of Appellate Procedure. First,
10 No. 12-3561
the IJ did not require Yasinskyy to show that he was “seriously
harmed.” Instead, the IJ noted the fact-specific nature of the
past persecution determination, compared Yasinskyy’s alleged
harms—which the IJ credited—to other asylum cases, and
concluded that the evidence did not demonstrate harm rising
to the level of persecution. Although we would have reached
a different conclusion were we in the IJ’s shoes (more on that
later), the record does not support Yasinskyy’s assertion that
the IJ required a showing of serious harm. Second, Yasinskyy
never testified that he was injured by “local police, thugs, and
other[s] controlled by the government militants.” Nor did he
insist that those responsible for his injuries were acting on
behalf of or with the approval of the government. Instead, he
consistently testified that he did not know who had attacked
him or made the threatening phone calls.
In the haystack of Yasinskyy’s brief, however, there is a
needle of truth. Yasinskyy says he collapsed after being kicked
and beaten during the first attack. But Yasinskyy has not
developed a legal argument about how that one
incident—carried out by unknown assailants with no
demonstrable connection to the government—equates to past
persecution on account of political opinion. We will not
entertain baseless and unsupported factual contentions or
undeveloped legal arguments, see Fed. R. App. P. 28(a)(9)(A)
(requiring that appellant’s brief include his “contentions and
the reasons for them, with citations to the authorities and parts
of the record on which the appellant relies”); Stevens v. Housing
Auth. of South Bend, Ind., 663 F.3d 300, 310–11 (7th Cir. 2011);
Smeigh v. Johns Manville, Inc., 643 F.3d 554, 564 n.3 (7th Cir.
2011), and once the inaccurate facts are removed, there is no
No. 12-3561 11
basis for Yasinskyy’s contention that he suffered past
persecution. His brief does not address the IJ’s or the BIA’s
conclusion about future persecution, and so any related
argument is waived. See Firishchak v. Holder, 636 F.3d 305, 309
n.2 (7th Cir. 2011).
That said, we are bewildered by the IJ’s assertion that a
beating resulting in a concussion and kidney injury—requiring
a week’s stay in the hospital—followed by a second beating
and countless telephone threats could not constitute
persecution. The IJ assessed the harms to Yasinskyy by
comparing his experiences to those of petitioners in previous
cases before this court. That approach, however, “turn[s] the
system upside down” by confusing our deferential
review—asking whether the administrative record compels a
finding of past persecution—with the role of immigration
judges to draw on their expertise to decide whether the
applicant actually has shown past persecution. See Sirbu v.
Holder, 718 F.3d 655, 659-60 (7th Cir. 2013). Immigration judges
must ask whether there was “the use of significant physical
force against a person’s body, or the infliction of comparable
physical harm without direct application of force … or
nonphysical harm of equal gravity” which crossed the line
between harassment and persecution, i.e., “the line between
the nasty and the barbaric[.]” Stanojkova v. Holder, 645 F.3d 943,
948 (7th Cir. 2011). We conclude that it did. But that does not
help Yasinskyy because he did not demonstrate that the
beatings and threats were carried out by the Ukrainian
government or by a group that the government was unable or
unwilling to control—a necessary element for showing past
persecution, see Almutairi v. Holder, No. 12-2734, 2013 WL
12 No. 12-3561
3481356, at *7 (7th Cir. July 12, 2013); Vahora v. Holder, 707 F.3d
904, 908 (7th Cir. 2013). So his request for withholding of
removal is doomed.
B. Denial of CAT Protection Supported by Substantial
Evidence
What remains is Yasinskyy’s challenge to the denial of CAT
relief, which is similarly deficient. He argues that the IJ did not
recognize that withholding of removal and relief under CAT
are analytically distinct. That contention is not true: The IJ
recited the standard that the petitioner had to meet—that it is
more likely than not that he would be tortured if returned to
Ukraine, see Bitsin v. Holder, No. 12-2717, 2013 WL 2402855, at
*8 (7th Cir. May 31, 2013)—but concluded that Yasinskyy had
failed to meet his burden. Yasinskyy presses that the “country
report on human rights practices” shows that he will be
tortured if he returns because, he contends, “the police is
always influenced by the ruling party to arrest and torture the
opposing party members.” Yasinskyy does not say, however,
which of the two country reports he submitted supports that
contention or provide any record citations, again violating Rule
28(a)(9)(A). But any citation would have been futile because the
country reports contradict his argument. In fact, the 2008 and
2009 State Department reports, while acknowledging torture
of prisoners and pretrial detainees, clarify that there were no
reports of political prisoners or detainees.
III. CONCLUSION
For the foregoing reasons, we DENY the petition for
review.