Bitsin v. Holder, 12–2717.
| Decision Date | 31 May 2013 |
| Docket Number | No. 12–2717.,12–2717. |
| Parties | Valentin Asenov BITSIN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
OPINION TEXT STARTS HERE
Nicolette Glazer (argued), Attorney, Law Offices of Larry R. Glazer, Century City, CA, for Petitioner.
Margot L. Carter, OIL, Kelly J. Walls (argued), Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before RIPPLE and ROVNER, Circuit Judges, and BARKER, District Judge. *
Valentin Asenov Bitsin, a native and citizen of Bulgaria, petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying him asylum, withholding of removal and relief under the Convention Against Torture (“CAT”). For the reasons set forth in this opinion, we dismiss the petition in part and deny it in part.
Mr. Bitsin last entered the United States in May 2005 as a visitor, authorized to stay until October 2005.1 Before his visa expired, Mr. Bitsin decided that he would like to remain in the United States to pursue further education at Solex College in Chicago, Illinois. In August 2005, therefore, he submitted an application for a student visa; he was assisted in his application by an attorney, whom the college had suggested. Mr. Bitsin was advised that his application could take between six months and one year to process. According to Mr. Bitsin's testimony at his removal hearing, it was his understanding that he would be “allowed to just stay,” but not to work, while the immigration authorities were processing his application.2 Once his papers were filed, Mr. Bitsin attempted to contact the attorney by telephone to check the status of his application, but “[t]he telephone was out of service.” 3 He later went to the attorney's office in person only to discover that the office had been closed. In 2007, he was arrested by immigration authorities and placed in removal proceedings.
In removal proceedings, Mr. Bitsin applied for asylum, withholding of removal and relief under the CAT. During the hearing, Mr. Bitsin testified that his father was Asen Bitsin, a retired military officer in Bulgaria. After retiring, he began his own private security company. Mr. Bitsin further stated that his father was quite successful and that this success threatened the business interests of an organized crime syndicate run by the “Galev Brothers,” who also were in the business of providing security services.4
In 2000, one of Asen's businesses was attacked by individuals affiliated with the Galev Brothers. Asen was on the property at the time; he fired warning shots, accidentally hitting one of the intruders. Mr. Bitsin testified that, as a result of this incident, local police accused his father of unauthorized use of a weapon; the prosecutor, however, refused to pursue the matter on the ground that there was no evidence of criminal intent. Mr. Bitsin was a student in Blagoevgrad and was not present when the incident occurred.
Mr. Bitsin testified that, unbeknownst to him, his father continued to have difficulties with the Galev Brothers over the next few years and began to cooperate in an ongoing investigation of the Galev Brothers' organization. In 2007, Bulgarian officials instituted a criminal proceeding against the Galev Brothers, which later was postponed because the targets of the investigation were seeking elected office. At some point after the proceedings began, the fact that Asen was planning to testify became known, and the Bulgarian government took him into protective custody. The trial recommenced in 2010, 5 and Asen testified in the proceedings. In November 2010, the Galev Brothers were acquitted. To Mr. Bitsin's knowledge, his father remains under the protection of the Bulgarian government while the authorities “look[ ] for chances to reopen ... the court proceedings.” 6
Mr. Bitsin further testified that he is afraid to return to Bulgaria because of his father's activities. He pointed to another cooperating witness by the name of Chorata, who was murdered while in police custody. Additionally, in 2009, neighbors of Asen, who, according to Mr. Bitsin, also were cooperating with the investigation of the Galev Brothers, were killed when a bomb exploded in their garage. Finally, Mr. Bitsin submitted evidence concerning a reporter, Lidia Pavlova, who lived in fear because she had attempted to expose the Galev Brothers' criminal activities. An individual affiliated with the Galev Brothers attacked Pavlova's son and received only six months' probation for the attack.
In an oral ruling, the Immigration Judge (“IJ”) held that Mr. Bitsin's application for asylum was time-barred because he had not applied for asylum within one year of arriving in the United States and did not “fall[ ] within any one of the exceptions contained in the regulations.” 7 With respect to the application for withholding of removal, the IJ determined that Mr. Bitsin had testified credibly concerning
his manner of entry into the United States, his repeated admissions as a J1, the incident in 2000 in which his father shot an intruder, his father's involvement in a security business, and the threats against his father by what appears to have been a criminal mafia known as the Gruprovki and his fear of the Galev Brothers, and the criminal proceedings against the Galev Brothers which were undertaken in Bulgaria.8
Nevertheless, the IJ concluded that Mr. Bitsin had not established that he was more likely than not to suffer persecution should he be returned to Bulgaria. Specifically, the IJ found that 9 The IJ also found that Mr. Bitsin had not met his burden of establishing that it was more likely than not that he would be tortured by the Bulgarian government or that the Bulgarian government would be complicit in his torture, should he be returned to his native country. Consequently, he was not eligible for relief under the CAT.
The BIA affirmed with its own opinion. It agreed with the IJ that Mr. Bitsin had not established an exception that would excuse the late filing of his asylum application. Specifically, he had not established that his filing for a change in status constituted “extraordinary circumstances.” 10 Nor had he “shown receipt of an affirmative communication from the [Department of Homeland Security], that would support his assertion on appeal that he was given the equivalent of an administrative parole.” 11 Furthermore, he had not established that his father's involvement in the court case against the Galev Brothers “should be construed as an ‘activity’ that the respondent ‘bec [ame] involved in outside of [Bulgaria],’ ” so as to fall within the exception to the one-year requirement set forth in 8 C.F.R. § 1208.4(a)(4)(i)(B). 12 Consequently, his asylum application was untimely.
The BIA also agreed with the IJ that Mr. Bitsin had not established one of the requirements for withholding of removal: a clear probability of persecution on account of a protected category, namely his membership in a social group. It noted that Mr. Bitsin had lived in Bulgaria after Asen began having difficulties with the Galev Brothers, but that Mr. Bitsin “ha[d] not received any threats from any individual or entity for any reason.” 13 Moreover, Mr. Bitsin had “provided little detail about the circumstances surrounding the alleged explosion at another witness's house or the shooting of a former cohort of the Galev Brothers, such that would support the conclusion that the respondent, as a son of a witness, would ... more likely than not be targeted for persecution by the Galev Brothers.” 14 Additionally, Mr. Bitsin had not met his burden of showing that “the Bulgarian government would be unable or unwilling to protect [him], as [he] testified that the government protected his father whom it placed in a witness protection program.” 15
Finally, the BIA concluded that the IJ “properly concluded that the respondent did not satisfy his burden of showing that it is more likely than not that he will be tortured by or at the instigation of or with the consent or acquiescence of the Bulgarian government.” 16 Consequently, Mr. Bitsin did not qualify for relief under the CAT.
Mr. Bitsin timely appealed.
On appeal, Mr. Bitsin seeks review and reversal of the BIA's determinations with respect to his applications for asylum, withholding of removal and relief under the CAT. We turn our attention first to his arguments concerning asylum.
Section 1158(a)(2)(B) of Title 8 requires that aliens apply for asylum within one year after their arrival in the United States. An alien's application for asylum nevertheless “may be considered” if he “demonstrates ... either the existence of changed circumstances which materially affect [his] eligibility for asylum or extraordinary circumstances relating to the delay” in filing the application within the prescribed one-year period. 8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3), however, deprives courts of jurisdiction to review a determination regarding the timeliness of an alien's application for asylum or the existence of changed or extraordinary circumstances to excuse his late filing.17
Despite § 1158(a)(3), this court may review constitutional claims or questions of law related to the timely filing of an asylum application. See8 U.S.C. § 1252(a)(2)(D).18 We have interpreted this exception to apply “to strictly legal controversies,” by which we “mean[ ] that the parties contest a legal issue, and that the alien wins if the law provides what he says it does and loses if it provides what the agency says it does.” Restrepo v. Holder, 610 F.3d 962, 965 (7th Cir.2010).
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