Yasinskyy v. Holder, 12–3561.

• Decision Date: 01 August 2013
• Docket Number: No. 12–3561.,12–3561.
• Citation: 724 F.3d 983
• Parties: Andriy YASINSKYY, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

724 F.3d 983

Andriy YASINSKYY, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–3561.

United States Court of Appeals,Seventh Circuit.

Argued July 9, 2013.

Decided Aug. 1, 2013.

Ahmed M. Abdallah, Attorney, Law Office of Ahmed M. Abdallah, Hollywood, CA, for Petitioner.

Andrew B. Insenga, Attorney, Irm Name: Department of Justice, OIL, Attorney, Department of Justice, Washington, DC, for Respondent.

Before EASTERBROOK, Chief Judge, and POSNER and WILLIAMS, Circuit Judges.

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 Yasinskyy 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. See8 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.

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. See8 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 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 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 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. See8 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 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...