Pavlyk v. Gonzales

• Decision Date: 04 December 2006
• Docket Number: No. 05-4444.,05-4444.
• Citation: 469 F.3d 1082
• Parties: Volodymyr PAVLYK, Natalia Pavlyk, and Iryna Pavlyk, Petitioners, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

469 F.3d 1082

Volodymyr PAVLYK, Natalia Pavlyk, and Iryna Pavlyk, Petitioners, v. Alberto R. GONZALES, Respondent.

No. 05-4444.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2006.

Decided December 4, 2006.

Amended December 7, 2006.^*

COPYRIGHT MATERIAL OMITTED

Scott D. Pollock (argued), Pollock & Associates, Chicago, IL, for Petitioners.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, Anthony W. Norwood (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and CUDAHY and MANION, Circuit Judges.

MANION, Circuit Judge.

Volodymyr Pavlyk, a former Ukrainian prosecutor, along with his wife and daughter, seek review of the final decision of the Board of Immigration Appeals that denied them asylum, withholding of removal, and relief under the Convention Against Torture. Because of the untimeliness of their applications, we lack jurisdiction over their asylum claims and dismiss their petition for review. Additionally, we deny the petition for review on the remaining claims because Pavlyk has not demonstrated persecution on account of membership in a social group or political opinion. Nor has he shown a sufficient likelihood of torture.

I.

Volodymyr Pavlyk is a citizen of Ukraine. After serving in the Soviet Army he married Natalia Lashkiv, who gave birth to their one daughter, Iryna. Pavlyk meanwhile studied law in Ukraine, graduating with honors in 1992. Following graduation, he became a criminal investigator and then a prosecutor in Lvivskaya, a region in Ukraine. As a prosecutor, Pavlyk investigated and prosecuted murders, rapes, and other serious criminal matters. Pavlyk seeks asylum and other relief for himself, and for his wife and daughter derivatively, based on alleged persecution he experienced in the course of his work as a prosecutor. We recount the incidents as Pavlyk describes them.

The alleged persecution arose from Pavlyk's investigation into the 1996 murder of a leader in an organized criminal group named Foyder. Pavlyk suspected that a local businessman, Stetsyk Igor Ivanovich, participated in the murder, perhaps having hired it. In the course of the investigation, Pavlyk learned that Stetsyk had engaged in money laundering and had served as an undercover informant for the Soviet KGB. Pavlyk also recovered a rifle during a search of Stetsyk's apartment.¹ Believing that Stetsyk was involved in the murder, Pavlyk detained Stetsyk, but higher officials arranged for Stetsyk's release and cautioned Pavlyk not to proceed further with the case. At about the same time, Pavlyk pursued another controversial investigation into the beating and torture of two detained men by police officers. His superiors, however, removed him from that case.

Following his interaction with Stetsyk, Pavlyk began to receive threats against himself and his family. Stetsyk accused Pavlyk of soliciting a bribe, causing the prosecutor's office to scrutinize Pavlyk's work. Stetsyk also confronted Pavlyk outside the prosecution's office building, threatening his wife and daughter. Pavlyk also noticed strangers watching him, and discovered that strangers had even visited his daughter's school, where they asked the teacher to identify Pavlyk's daughter. The various threats and accusations against Pavlyk culminated with shots being fired at his car as he left the prosecutor's building one evening. Ultimately, Pavlyk resigned from his position as prosecutor.

While these events transpired, Pavlyk's wife was in the United States on a non-immigrant visitor visa attending a conference. Because of the threats, Pavlyk advised his wife to stay in the United States and arranged for his daughter to reside with her grandparents in Ukraine. Pavlyk then went into hiding. Ukraine subsequently charged Pavlyk with accepting a bribe and a warrant for Pavlyk's arrest remains outstanding there. After a year of hiding, Pavlyk obtained a passport and visa under the alias Nikolai Naryjkin, which he used to enter the United States on April 27, 1998. Pavlyk reunited with his wife. Two years later, on February 11, 2000, their daughter Iryna joined them, entering the United States on a non-immigrant visitor visa. The family then resided in Chicago, where they worked, paid taxes, and Iryna attended school.

Ukraine continued to pursue its charges against Pavlyk. By letter, a Ukrainian official requested assistance from the Department of Justice in investigating and apprehending Pavlyk. The record, however, does not indicate that Ukraine ever requested that the United States extradite Pavlyk. The United States subsequently detained Pavlyk for overstaying his visa and on June 11, 2003, notified him that he was subject to removal. He then petitioned for asylum, withholding of removal, and relief under the Convention Against Torture. His wife and daughter similarly sought asylum derivatively from Pavlyk's claims. Pavlyk was released on bond for the duration of the proceedings.

At a hearing on April 29, 2004, the Immigration Judge ("IJ") denied the Pavlyks' applications for asylum, requests for withholding of removal, and relief under the Convention Against Torture. While the IJ noted that the applications were untimely, he also addressed their merits. Curiously, the IJ doubted whether Pavlyk actually served as a prosecutor, but concluded that even if Pavlyk's testimony were credible, he had failed to demonstrate persecution that was because of his political opinion or membership in a social group. The Board of Immigration Appeals adopted and affirmed the IJ's decision, with additional reasoning. Pavlyk, along with his wife and daughter, petition this court to review the denial of asylum, withholding of removal, and relief under the Convention Against Torture.

II.

We first address the timeliness of the asylum applications. An alien may apply for asylum if "the application has been filed within 1 year after the date of the alien's arrival in the United States." 8 U.S.C. § 1158(a)(2)(B). It is undisputed that Pavlyk and his wife and daughter did not file an application within one year of their entry into the United States. The statute, however, provides for two exceptions to this time limit: "if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the" one-year time limit. 8 U.S.C. § 1158(a)(2)(D). If an application is deemed untimely under the one-year limit or the exceptions under 8 U.S.C. § 1158(a)(2), then the statute provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2) [of 8 U.S.C. § 1158(a) ]." 8 U.S.C. § 1158(a)(3). We have previously held that this statutory language "is sufficiently specific to show that Congress intended to preclude judicial review of agency action under § 1158(a)(2)." Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.2004) (citations omitted). Therefore, if an IJ makes a determination of untimeliness, we lack jurisdiction to review the decision.

Although Pavlyk does not dispute the untimeliness of his application, he does contest whether the IJ made a determination of untimeliness that would preclude our jurisdiction. Specifically, Pavlyk claims that he did not seek asylum due to fear for his daughter's safety while she remained in Ukraine, and due to continued fear even after her arrival in the United States. He submits that his fear was an extraordinary circumstance warranting the delay and that the IJ never explicitly addressed this contention. The IJ's oral decision, however, states:

Finally [I] come to the one year bar.... I do not agree that [Pavlyk] has established either a material change in country conditions so compelling as to justify that delay or that there were extraordinary circumstances which excused the timely filing of his application. However, I have independently analyzed this claim assuming [for] the sake of discussion that he had established some justification for [t]he delay.

Pavlyk argues that this statement does not constitute a holding of untimeliness, but rather "assumed an exception" since the IJ proceeded to the merits of the asylum claim. The IJ's statement, however, tracked the language of the two exceptions, disagreed with Pavlyk regarding their fulfillment, and constituted an alternative basis for denying asylum. Furthermore, the Board stated in its affirmance that "[w]e agree with the Immigration Judge, in so far as he found the respondents' application for asylum untimely." If the Board "adopts the IJ's decision while supplementing the decision with its own reasoning, the IJ's decision, as supplemented by the BIA's decision, becomes the basis for review." Gjerazi v. Gonzales, 435 F.3d 800, 807 (7th Cir.2006) (citation omitted). Thus, the agency has made a determination that the petitions were untimely. Consequently, we lack jurisdiction to review the timeliness of the asylum applications or their underlying merits. See also Vasile v. Gonzales, 417 F.3d 766, 768 (7th Cir.2005) ("[T]his jurisdictional bar, even as qualified by the REAL ID Act [which confers jurisdiction to review constitutional claims or questions of law], prevents us from reviewing the BIA's factual determination.").

Despite the untimeliness of the asylum application, Pavlyk remained "eligible to request withholding of removal." Zaidi, 377 F.3d at 681 (citing 8 C.F.R. § 208.3(b); Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.2004)). An alien may not be removed "if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3)(A). We review a...