Zhakypbaev v. Sessions

• Citation: 880 F.3d 881
• Decision Date: 26 January 2018
• Docket Number: No. 17-1459,17-1459
• Parties: Miratbek ZHAKYPBAEV, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

880 F.3d 881

Miratbek ZHAKYPBAEV, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.

No. 17-1459

United States Court of Appeals, Seventh Circuit.

Argued September 19, 2017

Decided January 26, 2018

Jason Sager, Attorney, Law Office of Jason Sager, Chicago, IL, for Petitioner.

OIL, Rosanne M. Perry, Attorneys, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before Wood, Chief Judge, and Easterbrook and Rovner, Circuit Judges.

Rovner, Circuit Judge.

The petitioner Miratbek Zhakypbaev was a native and citizen of Kyrgyzstan, who was admitted to the United States in September 2012 as a nonimmigrant student to attend the Computer Systems Institute. His wife and three daughters were admitted in December 2012 based on his status. The petitioner did not attend the Computer Systems Institute after February 4, 2013, and in April 2013, filed applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The petitioner’s claims were premised on the events surrounding the ouster of Kyrgyz president Kurmanbek Bakiev in Kyrgyzstan in April 2010. The petitioner claimed that based on his connections with the Bakiev family and with the political party associated with Bakiev, he was persecuted during that time. He argued that he was eligible for asylum and withholding of removal because he was a victim of past persecution and had a well-founded fear of future persecution in Kyrgyzstan on account of his political opinion and his membership in a particular social group—that of persons associated with the Bakiev family. In addition, he claimed that he was entitled to protection under CAT.

The Immigration Judge (the IJ) denied relief, holding that the petitioner had failed to demonstrate that his persecution was connected to his political opinion or social group, and that he had failed to establish a threat of torture. The Board of Immigration Appeals (the Board) adopted and affirmed that denial, while also writing separately. The petitioner now appeals those determinations to this court.

Because the Board adopted and affirmed the IJ’s conclusion with respect to the asylum and withholding of removal claims, as well as providing its own analysis, we review both decisions. Bathula v. Holder , 723 F.3d 889, 897 (7th Cir. 2013). We review the decisions denying asylum and withholding of removal for substantial evidence, applying de novo review to legal questions but reversing factual findings only if the record lacks substantial evidence to support them. Id . at 897–98. Under the substantial evidence standard, we uphold the agency determination if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Id. at 898. "Reversal is appropriate only where, reviewing the record as a whole, ‘a reasonable factfinder would have to’ reach a contrary conclusion." Id., quoting INS v. Elias–Zacarias , 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The Secretary of Homeland Security or the Attorney General may grant asylum to aliens who qualify as refugees under 8 U.S.C. § 1101(a)(42)(A). Cojocari v. Sessions , 863 F.3d 616, 620 (7th Cir. 2017) ; 8 U.S.C. § 1158(b)(1)(A). A person seeking asylum must meet the "stringent statutory requirements for all asylum seekers which require that the applicant prove (1) that she has suffered or has a well-founded fear of suffering harm that rises to the level of persecution, (2) on account of race, religion, nationality, membership in a particular social group, or political opinion, and (3) is unable or unwilling to return to her country because of the persecution or a well-founded fear of persecution." Cece v. Holder , 733 F.3d 662, 675 (7th Cir. 2013) (en banc); 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). Pursuant to the REAL ID Act of 2005, the applicant must show that one of those five protected grounds was at least one central reason for her persecution. Cece , 733 F.3d at 672 n.6 ; 8 U.S.C. § 1158(b)(1)(B)(i). Once an applicant proves past persecution, she is presumed to have a well-founded fear of future persecution, which the Attorney General may rebut by demonstrating that there is a change in country conditions in the applicant’s home country. Cece , 733 F.3d at 668 ; 8 C.F.R. § 1208.13(b)(1).

We turn first to the petitioner’s claim that the Board and IJ erred in determining that he was not entitled to asylum or withholding of removal. In the proceedings below, the petitioner argued that his political opinion, and his membership in a particular social group, was a central reason for the harm and threats he suffered. The petitioner at oral argument emphasized that his appeal centered on the social group portion of the asylum and withholding of removal decision, but we will address the political opinion component as well because it is argued in the briefs. The petitioner does not challenge the discussion of facts as set forth in the IJ’s decision and adopted by the Board, and therefore we rely on that recitation here.

During the petitioner’s childhood, he grew up in the Jalal–Abad district, which is the area from which Bakiev originated. He was a neighbor of Bakiev’s nephews, Kushtar and Sanzhar Bakiev, but did not remain in close contact with them beyond his childhood. In addition, while employed at a hotel restaurant in 1997, he met members of the Temirbaev family, which was a politically-powerful family under the Bakiev regime. Bakiev was president from 2005 until he was ousted in a coup on April 7, 2010. The petitioner believes that Bakiev was ousted with the help of Russia because he would not agree to close the American military base at Manas International Airport.

At the time of the coup, the petitioner was employed at Megacom, a telecommunications company which was owned by one of Bakiev’s sons, Maksim. On April 8, 2010, the petitioner was contacted by Kushtar Bakiev who told the petitioner that one of his properties had been confiscated by the interim government, and asked the petitioner to look after another property, a night club, that he owned. The petitioner went to the night club and witnessed what he described as an attack on the club by individuals connected to the interim government, culminating in the club owner being forced to transfer title of the property. Some of the people involved in the forced transfer of title later became parliamentary deputies for the ruling party, including Turatbek Madylbekov and Raikan Tologonov.

Madylbekov also became the head of the Internal Affairs Department for the city of Bishkek. On May 25, 2010, the petitioner was told to report to the prosecutor’s office in Bishkek for an investigation. He was informed that his testimony was sought regarding criminal charges against Bakiev, members of Bakiev’s staff, and the managers of Megacom. He was questioned by a man named Aibek, who informed him that they knew of his employment at Megacom and his movements on April 7 and 8. Aibek also alleged that the petitioner had helped Bakiev flee the country. According to the petitioner, Aibek wanted him to provide false testimony against Bakiev and the people connected to Bakiev’s regime and Megacom, and proposed dictating a statement for the petitioner.

After the petitioner refused to testify or write such a statement, three men were summoned to the room and attacked him by forcing a plastic bag over his head for approximately one minute, grabbing him by the neck and slamming his head into the desk, and kicking him when he fell to the ground, eventually causing him to lose consciousness. When the petitioner regained consciousness, a nurse was in the prosecutor’s office with him, and he was taken to the hospital where he received stitches and remained for three days.

The petitioner testified to the IJ that he was beaten at the prosecutor’s office because he witnessed the illegal seizure of the private property belonging to the Bakiev family by Madylbekov and Tologonov during the coup. Madylbekov’s son Eldar was working as an investigator at the same prosecutor’s office where the petitioner was beaten. The prosecutors wanted him to remain silent about those unlawful takings, and wanted him to testify against the Bakiev family and the Megacom management in order to provide a justification for the company’s seizure and nationalization.

On June 6, the petitioner again was notified to report to the prosecutor’s office. He went to the office and was again pressured to cooperate with the prosecution, but he was not subjected to further physical abuse. He returned to the prosecutor’s office some days later and attempted to file a complaint regarding the mistreatment he had experienced but was unsuccessful in that effort.

A financial police unit filed a complaint in 2011 against Andrei Silich, the director of Megacom, alleging financial wrongdoing. Silich subsequently fled the country. In addition to being summoned to the prosecutor’s office twice, the petitioner was interrogated by the financial police five times at his place of employment and two other times at the offices of the financial police. Following the 2010 coup, the interim government obtained 49% of the shares of Megacom, and in 2014 the government obtained the remaining shares of the company.

Although Bakiev was ousted, his political party, Ata–Zhurt, won the most seats in parliament following the 2010 coup, which forced the ruling interim government to cooperate with the party despite the party’s support for Bakiev. In July 2012, Eldar Madylbekov and Musa Tologonov were arrested in connection with their fathers' crimes during the 2010 coup. According to the petitioner, the sons were arrested because their fathers, as deputies in the parliament, were immune from prosecution. In August 2012, the petitioner received a summons to appear at the Office of Internal Affairs in Bishkek, which he believed was in relation to the arrests of Eldar and Musa. He...