Klyuchenko v. Holder
| Decision Date | 25 November 2013 |
| Docket Number | No. 13-1389,13-1389 |
| Parties | IGOR KLYUCHENKO, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Igor Klyuchenko, a Ukrainian citizen, applied for asylum and withholding of removal citing several beatings that members of a rival political party inflicted almost five years earlier. An immigration judge denied relief, and the Board of Immigration Appeals upheld that decision. Those courts reasoned that Klyuchenko had failed to demonstrate the Ukrainian government's inability or unwillingness to protect him or that he is likely to be persecuted if removed. Klyuchenko petitions for review, but substantial evidence supports the IJ's and the Board's conclusions, and thus we deny the petition for review.
Klyuchenko entered the United States in November 2006 on an H-2B nonimmigrant visa that authorized him to work at a hotel in Orlando, Florida. He stayed in the country after his visa expired in August 2007. Klyuchenko traveled to Oregon and was arrested while obtaining a driver's license. The Department of Homeland Security served Klyuchenko with a Notice to Appear in February 2009, alleging that he had stayed longer than his visa permitted. See 8 U.S.C. § 1227(a)(1)(B). Klyuchenko moved to change venue from Seattle to Chicago and, in that motion, conceded the charge of removability. In August 2009 he applied for asylum and withholding of removal based on political opinion and membership in a particular social group.
At his removal hearing Klyuchenko testified that in 2002 he joined the Ukrainian National Assembly/Ukrainian National Self-Defense Organization ("UNA-UNSO"). The litigants offer no background about this organization, but UNA-UNSO is a small party (fewer than 10,000 members) that has been characterized as radically right-wing and associated with Ukrainian nationalism and neo-Nazi ideology. See Neo-Nazi Organizations in the Ukraine, Global Research, (Dec. 17, 2004), http://www.globalresearch.ca/neo-nazi-organizations-in-the-ukraine (last visited Nov. 20, 2013). UNA-UNSO supported opposition candidate Viktor Yushchenko against Viktor Yanuvokych in the 2004 presidential election.
According to Klyuchenko, he gave a speech at a campaign event in May 2004 and afterward was beaten by five unknown men, causing him to lose consciousness. Klyuchenko testified that the men told him to stop his political activities. He was treated at a hospital for a concussion and wounds to his head and chest. The next day Klyuchenko filed a complaint with the police, though he has never said what specific information he gave the authorities. The police accepted his complaint but told him a few months later that the case had been closed for lack of information.
Despite the assault, said Klyuchenko, he continued his political activities. In October 2004, he was sent by UNA-UNSO to a polling location to observe election preparations. Afterward he and another party member were attacked by seven people. Klyuchenko recognized two of them from the first beating and believed they were members of a rival political party. Onlookers called for an ambulance, and Klyuchenko was taken to a hospital and treated for a concussion and injuries to his knee, chest, and head. He was released the following day and once again filed a complaint with the police. The intakeofficer was reluctant to listen to him, Klyuchenko testified, but ultimately accepted his complaint. As with the first incident, Klyuchenko has never said what specific information he gave the police. Klyuchenko later was told (he did not say when) that this investigation also had been closed. During his testimony Klyuchenko speculated that the police had been bribed.
When at first Yanukovych was declared the winner of the 2004 presidential election, Yushchenko supporters and international monitors cried fraud, sparking the Orange Revolution. Yushchenko supporters demonstrated in the streets, demanding that the Ukrainian Supreme Court invalidate the election results. Their efforts were successful, and after a new election was held, Yushchenko was inaugurated as president in January 2005. Klyuchenko continued supporting UNA-UNSO, and after a political gathering in March 2005, he was attacked again. He recognized a couple of the men from the earlier incidents and was warned, he said, that the four or five assailants would "finish him off" if he continued his political activities.
In a personal statement submitted with his asylum application, Klyuchenko said he reported this third incident to the police, and a document purportedly from the Ministry of International Affairs of Ukraine (the translation is not certified) states that a report was made on March 18, 2005. But when Klyuchenko testified at the asylum hearing, he never mentioned reporting this incident to the police.
Klyuchenko testified that he consulted an attorney after the March 2005 incident but was told that ceasing his political involvement was the only way to be safe. After receiving this advice, he continued, he decided to seek political asylum. Instead, though, he obtained an H-2B visa to work temporarily in the United States. He did not apply for asylum when he obtained the visa (or when he arrived in the United States). He explained during his testimony that he anticipated being denied a visa if he disclosed to embassy staff his fear of staying in Ukraine.
According to Klyuchenko, since his departure from Ukraine the police have contacted his parents asking about his whereabouts. The police, he added, also told his parents that his assailants have accused him of instigating one of the 2004 incidents, which is being investigated. Klyuchenko speculated that he will be subject to a criminal investigation if he returns to Ukraine. And, he continued, his parents have received phone calls from anonymous people threatening them with harm if he continues his political activities. Klyuchenko insisted that he will resume his support for UNA-UNSO if he returns toUkraine, and thus he fears being targeted again because Yanukovych was elected president in 2010 and still holds that position today.
The IJ credited Klyuchenko's testimony with the exception of his assertion that the police are now investigating him in connection with one of the beatings in 2004. It is implausible, the IJ reasoned, that an investigation would be active after so many years given that Klyuchenko never identified his assailants.
As to the requested relief, the IJ first concluded that Klyuchenko is ineligible for asylum because he did not apply within a year of entering the United States and did not assert that his circumstances satisfy any exception to that deadline. See 8 U.S.C. § 1158(a); 8 C.F.R. § 208.4(a).
The IJ next concluded, in addressing withholding of removal, that Klyuchenko had suffered significant harm but did not link that harm to a protected ground. That link is missing, the IJ reasoned, because Klyuchenko did not connect his assailants to the government of Ukraine. This reasoning conflates different elements of withholding of removal. One way of qualifying for that relief is to establish past persecution: that the applicant suffered harm at the hands of the government or its surrogate on account of a protected ground. 8 C.F.R. § 208.16(b); Bathula v. Holder, 723 F.3d. 889, 898 (7th Cir. 2013); Jonaitiene v. Holder, 660 F.3d 267, 270-71 (7th Cir. 2011). The IJ incorrectly implied that Klyuchenko could not have been assaulted on account of his political opinion or his membership in a social group comprised of "officially listed members of the political party UNA UNSO who are targeted by the police" because no evidence showed that he was targeted by the police.
The IJ further concluded that, without the presumption of future persecution which arises from a finding of past persecution, Klyuchenko's evidence did not demonstrate a clear probability that he will be persecuted in Ukraine. The IJ thought it significant that for almost two years after the last attack Klyuchenko had lived in Ukraine without incident except for a few calls from anonymous people threatening to harm his family. The IJ noted that recent State Department country reports show a decline in politically motivated violence, and reasoned that only Klyuchenko's speculation suggests he might be targeted due to his opposition to the current president. And, the IJ continued, Klyuchenko had not demonstrated that he will be unjustly charged and convicted with a crime if he is removed to Ukraine.
Klyuchenko appealed to the Board, which affirmed the IJ's order. The Board agreed with the IJ that Klyuchenko had applied too late for asylum. The Board also agreed with the IJ that Klyuchenko had not made a case for withholding because he did not establish that his assailants' actions could be attributed to the government of Ukraine or that he was targeted because of his membership in a particular social group. The Board did not discuss the IJ's conclusion that political opinion was not shown to be a motivating factor in the assaults.
Before addressing Klyuchenko's contentions, we note that his story is strikingly similar to the details of another recent case involving a Ukrainian citizen's claim for political asylum. See Yasinskyy v. Holder, 724 F.3d 983 (7th Cir. 2013). Klyuchenko and Andriy Yasinskyy were represented by the same attorney before the immigration court and Board, and the petitioners filed identical briefs with the Board that appear to be from a third, unrelated case. As with Yasinskyy, the arguments Klyuchenko raised in his brief to the Board are unrelated to...
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