### In the



# United States Court of Appeals

For the Seventh Circuit

No. 17

‐ 1459

M IRATBEK Z HAKYPBAEV

,

Petitioner

,

v.

J EFFERSON B. S ESSIONS III, Attorney

General of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

No. A205

‐ 802

‐ 225

A RGUED S EPTEMBER 19, 2017

— D ECIDED J ANUARY 26, 2018

Before W OOD

, Chief Judge

, and E ASTERBROOK and R OVNER

,

Circuit Judges

.

R OVNER

, 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 and2 No. 17

‐ 1459

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 toNo. 17

‐ 1459 3

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 (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 in4 No. 17

‐ 1459

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 ownedNo. 17

‐ 1459 5

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 and6 No. 17

‐ 1459

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 interimNo. 17

‐ 1459 7

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 did not appear as requested because Eldar’s father,

Turatbek Madylbekov, was the head of the office of Internal

Affairs at the time, and he believed that he would be

threatened and told to remain silent regarding the case against

Eldar and Musa, and forced to testify against people related to

Bakiev and the Ata

‐ Zhurt party if he appeared.

In September 2012, the general director of the petitioner’s

company was replaced and the new director told him to resign.

He did so and left for the United States. The police continued

to send him summonses to his former residence and his

mother’s house throughout 2013. In 2014, his brother

‐ in

‐ law

was contacted by the prosecutor’s office and informed that

there was now a criminal case against the petitioner and that

he was suspected of concealing information.8 No. 17

‐ 1459

The petitioner fears that he will be harmed by Eldar and

Musa if he returns to Kyrgyzstan because he witnessed their

fathers’ unlawful actions in forcing the transfer of the title to

the property. Although the petitioner testified that Eldar was

convicted at trial and sentenced to nine years’ imprisonment,

he also contradicted that by stating that Eldar and Musa were

cleared of charges and released from prison, and again by

stating that the cases remained open on the same charges and

that his testimony as a witness was still being sought.

The IJ found that the petitioner was generally credible in his

testimony. The IJ noted, however, that in some instances the

petitioner’s testimony was inconsistent with his prior

statements in his asylum application, and those inconsistencies

related to his connections with the Bakiev and Temirbaev

families that formed the bases of his alleged social group.

According to the IJ, in his application, the petitioner

“emphasized his long

‐ time relationships with members of the

Bakiev and Temirbaev families and also stated that he was

promoted rapidly within Megacom ‘due to [his] old

connections and the friendship with the nephews of President

Bakiev, Kushtar and Sanzhar, as well as with Arstan

Temirbaev.’ However, in his testimony, he admitted that he

did not remain in contact with Kushtar and Sanzhar after

childhood; they merely grew up nearby each other. He also

asserted that he obtained his position with Megacom through

his experience and education, and he denied that he was ever

promoted because of his connections.” IJ Op. at 7. The IJ

concluded that the petitioner had exaggerated the extent of his

connections with the Bakiev and Temirbaev families, but that

apart from that aspect, the petitioner’s testimony was credibleNo. 17

‐ 1459 9

overall. We review that credibility determination deferentially,

upholding it as long as it is supported by substantial evidence.

Cojocari

, 863 F.3d at 621.

As was stated, the petitioner in the proceedings below

sought to demonstrate that he was unable or unwilling to

return to his country because of persecution or a well

‐ founded

fear of persecution on account of his membership in a

particular social group or political opinion. On appeal, he

argues that the court erred in denying his claim related to his

political opinion and to his membership in the social group.

With respect to those claims, the IJ held that the beating that

the petitioner suffered might be sufficient by itself to rise to the

level of persecution, but that the petitioner had failed to

demonstrate that the persecution was on account of his

political opinion or his membership in the social group.

The IJ noted that a social group, in order to be cognizable,

must share an immutable characteristic, and have sufficient

homogeneity and cohesiveness. The claimed social group here

was defined as “persons associated with the Bakiev family.”

The IJ was concerned that the group could lack homogeneity

in that it was not clear how tenuous one’s connections to

Bakiev could be while still falling within the group, but the IJ

determined that the group was cognizable if limited to those

persons whose connections with Bakiev are strong enough to

have pro

‐ Bakiev political views imputed to them. The IJ held,

however, that the evidence indicated that he was sought out

because of his potential usefulness as a witness, and that there

was no evidence that he was interrogated or beaten because of

his membership in that social group, or that he had a well

‐

founded fear of such persecution on that basis. The Board in10 No. 17

‐ 1459

reviewing the IJ’s decision noted that a persecutor’s motivation

is a matter of fact to be determined by the IJ, and is reviewed

only for clear error. The Board concluded that the IJ did not

clearly err in finding that the petitioner was interrogated and

beaten because the prosecutor thought that he had information

that would be useful in prosecuting individuals for financial

crimes rather than because of his connection to the Bakiev

family.

The critical issue in this appeal is whether the IJ and the

Board erred in concluding that the petitioner had failed to

demonstrate that the interrogation and beating were on

account of his association with the Bakiev family. We defer to

the factual conclusions, reversing only if the evidence compels

a different result. N.L.A. v. Holder

, 744 F.3d 425, 430 (7th Cir.

2014).

In order to demonstrate eligibility for asylum on the basis

asserted here, it is not enough to establish that he is part of the

claimed social group. Even if we assume that the petitioner is

part of a cognizable social group consisting of persons

associated with Bakiev, and that the petitioner was persecuted,

the petitioner must also establish a particular link between his

mistreatment and his membership in the social group. Cece

, 733

F.3d at 674. For instance, as we explained in Cece

, “an ethnic

Rom (gypsy) who has been mistreated by the town mayor

because of a long

‐ standing business dispute would not be

eligible for asylum even if the mayor has undoubtedly and

unfairly mistreated him, and even if he belongs to an ethnic

group that was frequently the target of persecution in his

country. The persecution must still be ‘on account of’ the

protected category.” Id. The petitioner must demonstrate aNo. 17

‐ 1459 11

nexus between the persecution and the membership in the

social group. Orellana

‐ Arias v. Sessions

, 865 F.3d 476, 484 (7th

Cir. 2017).

Petitioner’s own testimony as to the prosecutor’s

motivation supports the IJ’s determination that the persecution

was not related to his social group. 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 petitioner further testified that 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. That testimony

supports the findings of the IJ and the Board that he was

targeted because he witnessed the illegal taking and his

testimony could harm Madylbekov and Tologonov or could

provide a justification for the taking.

The petitioner’s arguments on appeal also support the IJ

and Board findings. On appeal, the petitioner repeats the

assertions above as to the motivation for the persecution. In

addition, he argues that he fears he will be harmed if returned

to Kyrgyzstan because he witnessed Madylbekov’s and

Tologonov’s misdeeds; he does not argue that he will be

harmed because of his association with the Bakiev family.

Finally, on appeal the petitioner argues that he is caught in the

middle of two factions—those supporting the Bakiev

government and those supporting the new government. He12 No. 17

‐ 1459

asserts that because he knew what was occurring from the

inside, his testimony would be important to each side in the

fight.

That supports the findings by the IJ and the Board that he

was targeted because of the value of his testimony as a witness,

not because he was perceived as being associated with the

Bakiev family. As he recognizes, he was a person whose

testimony could help or hinder the case against either of the

two factions. That is different from being targeted based on his

affiliation with one faction.

Our opinion in Orellana

‐ Arias

, 865 F.3d 476, is illustrative of

that distinction. In that case, Orellana

‐ Arias argued that he was

targeted for extortion because he was a member of a social

group consisting of persons who are perceived by gangs and

corrupt officials to have money because they are returning

from the United States. Id

. at 485. We recognized that the gang

mentioned his return from the United States when it first

approached him asking for money, and perceived him to be

wealthy based on that association. Id

. Nevertheless, we held

that the nexus was not established because he presented no

evidence that he was more of a target because he was deported

from the United States, as opposed to any other country

perceived to be wealthy, or if he had been identified as wealthy

due to other factors such as through his job or lottery winnings.

Id

. We held that it was his perceived wealth alone that made

him a target for the gang. Id

.

Similarly, the evidence in this case indicates that petitioner

was targeted for his perceived usefulness as a witness. He

appears to have been identified as a potential witness becauseNo. 17

‐ 1459 13

of his presence at the scene of the forcible taking of property on

April 8, 2010, and because of his employment at Megacom and

the perception that he had connections with Bakiev associates.

But it was his usefulness in the criminal investigation, and his

potential damage to the individuals involved in the forced

taking, that made him a target here. Even if his usefulness as

a witness—and the potential threat he posed—was more

apparent based on his perceived association with the Bakiev

family, just as Orellana

‐ Arias’ perceived wealth stemmed from

his association with the United States, the IJ and Board did not

err in concluding that the petitioner was not targeted based on

that association. See also Bathula

, 723 F.3d at 901 (rejecting

claim based on a social group of “those willing to participate

in the legal process, despite great personal risk,” where there

was “no suggestion in the record that the land mafia sought to

destroy the legal process generally, or to attack those who

supported it,” and the filings clearly demonstrated that the

petitioner was a victim of intimidation for his specific

testimony in a specific case against the land mafia); Jun Ying

Wang v. Gonzales

, 445 F.3d 993, 999 (7th Cir. 2006) (rejecting

claim where the persecutors seeking to harm Wang did not do

so based on her membership in a particular group or for any

political opinion, but rather for her decision to cooperate with

the government to reduce her own sentence). Based on the

evidence here, the IJ and the Board properly could conclude

that a person not associated with Bakiev but who possessed the

petitioner’s employment position and witnessed that forced

transfer would also have been interrogated and beaten to seek

his testimony, or at least that the association was not a central

reason for the persecution.14 No. 17

‐ 1459

The IJ and Board determination that the nexus was not

established must be upheld unless the evidence compels a

contrary conclusion. Bueso

‐ Avila v. Holder

, 663 F.3d 934, 938

(7th Cir. 2011). For instance, in Bueso

‐ Avila

, the petitioner

presented evidence that he was persecuted by the gangs on

account of his evangelical Christianity and that the

government was unable to stop it. Id. at 935–36. Bueso

‐ Avila

testified that he was only threatened and injured by the gang

after he joined his church youth group, and that he

proselytized on behalf of that church and encouraged others

not to join the gangs. Id. at 935. On two occasions, he was

attacked by gang members following church youth group

meetings, but suffered the most serious attack when returning

home from work. Id. at 935–36. The gang members did not

mention his religious affiliation or give any other indication

that it was a factor, but Bueso

‐ Avila testified that they were

motivated to stop the encroachment on their territory by the

church youth group. Id. at 935. We affirmed the Board’s

determination that the persecution was based on the gang’s

desire to recruit him and that his religious affiliation was not

a central reason for the persecution. We recognized that the

evidence supported a legitimate inference that the gang

members persecuted Bueso

‐ Avila on account of his religious

and church membership, but held that the evidence was not so

compelling that no reasonable fact

‐ finder could fail to find that

the gang was motivated to persecute him based on his

religious affiliation. Id. at 938.

Because the evidence does not compel the conclusion that

the petitioner’s persecution was connected to his membership

in that social group, we must uphold the decision of the IJ andNo. 17

‐ 1459 15

the Board. At best, the petitioner produced permissible

evidence that could support an inference of the unlawful

motive, but we cannot reverse unless the evidence is so strong

as to require the factfinder to accept it. Bathula

, 723 F.3d at 902;

Bueso

‐ Avila

, 663 F.3d at 937, quoting Elias

‐ Zacarias

, 502 U.S. at

483–84 (“for reversal, the evidence must be ‘so compelling that

no reasonable factfinder could fail to find the requisite fear of

persecution’” on account of race, religion, nationality,

membership in a particular social group, or political opinion).

We turn, then, to his argument that he was persecuted on

account of his political opinion. The relevant focus for this

claim is the petitioner’s political opinion, not that of the

persecutor. Elias

‐ Zacarias, 502 U.S. at 482 (“The ordinary

meaning of the phrase ‘persecution on account of

... political

opinion’ in § 101(a)(42) is persecution on account of the victim ʹ s

political opinion, not the persecutor’s.”) The petitioner

contends that he participated in political activities, including

collecting signatures and spreading leaflets for the Ata

‐ Zhurt

party, and attended political rallies for that party, although he

did not actually join the party because his employer at that

time prohibited it. That involvement, however, occurred in

August 2010, months after he was interrogated and beaten in

the prosecutor’s office. Therefore, that support for the political

party could not have been the basis for the past persecution. As

the IJ noted, the petitioner’s account of the initial interrogation

and the demands of the prosecutor contained no reference to

the petitioner’s political views, but of course that would not be

dispositive. It is a rare case in which a persecutor will openly

declare the motivation for the abuse. It is certainly possible, of

course, that the persecutors attributed a political opinion to the16 No. 17

‐ 1459

petitioner based on his affiliation with Megacom and his

relationships with the Bakiev family. But that is just a re

‐

characterization of the social group argument just rejected, in

that both are premised on the notion that his affiliation with

Bakiev and his party was a central reason for the persecution,

and it fails for the same reason. The evidence in this case does

not compel a determination that the petitioner’s political

opinion was a central reason for the persecution. Elias

‐ Zacarias

,

502 U.S. at 481 n.1 (to reverse the IJ and Board finding, the

evidence must compel the conclusion that the persecution was

on account of his membership in a protected group.)

The petitioner has also failed to demonstrate that he had a

well

‐ founded fear of future persecution. A fear of persecution

is “well

‐ founded” if it is “subjectively genuine and objectively

reasonable.” Musollari v. Mukasey

, 545 F.3d 505, 508 (7th Cir.

2008). The evidence indicates that he returned to the

prosecutor’s office for questioning on a number of occasions

after the date of the beating, and was not subjected to further

abuse. In addition, he was questioned on more than five

occasions by the financial police but again not subject to other

mistreatment. There is insufficient evidence in the record to

compel the conclusion that the questioning was for a motive

other than the desire to pursue valid criminal cases. In fact,

although he maintains that the interrogators wanted him to file

a false statement, he concedes that he does not actually know

the content that they sought from him because it never got to

that point. Finally, the evidence indicated that the political

party which the petitioner claims to support, Ata

‐ Zhurt, won

the majority of the votes in the October 2010 election. Given all

of those facts, the IJ and the Board did not err in determiningNo. 17

‐ 1459 17

that the petitioner failed to demonstrate a well

‐ founded fear of

future persecution.

Finally, the IJ and Board did not err in determining that the

petitioner was not entitled to withholding of removal or to

protection under the CAT. Where, as here, a petitioner cannot

demonstrate entitlement to asylum, he “necessarily cannot

satisfy the more stringent requirement for withholding of

removal under 8 U.S.C. § 1231(b)(3).” Bueso

‐ Avila

, 663 F.3d at

937, quoting Ahmed v. Ashcroft

, 348 F.3d 611, 615 (7th Cir. 2003).

Regarding the CAT claim, the petitioner presents on appeal

only the bare assertion that the Board erred in finding there

was no substantial grounds for believing that he would be in

danger of torture, but has failed to provide any argument as to

why that determination was erroneous. The record on its face

supports the determination of the IJ and Board. The petition for

review is therefore

DENIED.