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# United States Court of Appeals For the Seventh Circuit

No. 12-3561

A ND RIY Y A S I N S K

Y Y , Petitioner,

v.

E RI C H. H OL D E R

, J R ., Att or ney General of t he Uni ted St ates, Responden t.

Peti tio n fo r Review o f an Order ofthe Bo ard o f Immi gratio n Appe als. No. A0 88 -1 82 -4 30

.

A RGU E D J ULY 9, 2013

— D E C I D E DA UGUS T 1, 2013

Befo r e E A S T E R

B R O O K , Chief Judge, and P O S N E R and W I L L I AM S

, Circ uit Judges.2 No. 12-3561

W I L L I AM S

, Circ uit Judge. Andriy Yasinskyy, a Ukr a inia n ci tizen, appli ed for asylum, wi thholdi ng of remov al, and relief under the C o nv ention Agains t Tort ure, and an i mmi gr ation judge rej ected hi s requests for relief. The Board of Immi gr ation Appeals upheld the deni al of relief, and Yasinskky pe ti ti on s for

rev i ew. Although we are t r o ub l ed by the IJ’s conclu si on that the harms Yasinskyy endured di d not ris e t o the level of severity necess ary to show past persecuti on, we see no reason to upset the IJ’s re fu sa l to gr ant wi thholdi ng of remov al becau se Yasinskyy has not sh o wn the requis i te level of g ov ernment i nvolv ement in hi s mi streat ment. We are no t persuaded by Yasinskyy’s other arg uments in whi ch he does

no t confront the adver se deci si ons of the i mmi gr ation courts and mi srepresents the content of the admini strat i ve reco rd

. W e deny the pet i tion for rev i ew.

I. BACKGRO UND Yasinskyy came to the Uni ted St ates in Nove mber 2007 after he obtained an H-2B noni mmi gr ant v isa fr om the Americ an embas sy i n Ukr aine. Hi s visa was sponsored by Grand Mar ket Inter nati onal Cor porat i on and permi tted hi m to work as a tempor ary employee at a gr ocery stor e in New Yor k Ci ty. See 8 U.S.C. § 1101(a )( 1 5)(H) ; 8 C.F.R. § 214.2(h). After work i ng for si x weeks, he tr aveled t o O r ego n to find better -payi ng employment, and he qui t hi s jo b wi th Grand Mar keti n January 2008. He began the pro cess for o btai ning a commerci al drive r ’ s l icense, but when he showed up for hi s last exam, he was detain ed for being unlaw fully present in the Uni ted S tate s.No. 12-3561 3

In Februar y 2008 the Department of Homeland S e cu r i ty served Yasinskyy wi th a Notice to Appear chargin g t ha t he had violated the co nd i tions of hi s vis a by ter minati ng hi s employment wi th G ran d Ma rk e t. Se e 8 U.S.C. § 1227(a)( 1)(C)( i ). Y a sins kyy moved to change venue from Seat tle to Chi cag o , and i n that motion he conceded the charge in the Notice to Appear and announc ed that he intended to seek asylum and wi thholdi ng of remov al. Yasinskyy fi rst appeared before an i mmi gr ation judge i n Chi cago in June 2009, and the following month he appli ed for asylum clai ming past persecuti on based on politi cal opini on. At hi s remo v a l hearin g Yasinskyy testifi ed about hi s poli tic al acti viti es i n Ukr aine. In 2003 he had jo ined Father land, whi ch was then an opp o siti on party

. Father land supp or ted presi denti al candid ate Vi kto r Yushchenko again st Vi kto r Yanukov ych, the incu mbent Pri me Min i ster and a member of the Party of Regions. During the summer of 2004, Yasinskyy too k off wor k for a week to partici pate in campai gn acti viti es for the upcoming electi on. He partici pated in a demonstration and collected si gnature s in a small town on August 10. That ni ght, he and another demonstrato r were beaten by t hr ee stranger s who, accordi ng to Yasinskyy, told t he m to leave town or face “even bi gge r problems.” Hi s fri end called the poli ce and minutes later offic e r s arr i ved and sum moned an ambu lance. Yasinskyy was hospi taliz e d for a week wi th a
concu ssi on a nd brui sed kidn ey. The day after the assau lt, poli ce i nvestigati ng the inci dent vis i ted hi m at t he hospi tal. Yasinskyy explain ed that, becau se i t had been dark, he di d not

see hi s attacke rs and could do li ttle to ass i st the investigati on. By the tim e he was released from the ho sp i tal, Yasinskyy4 No. 12-3561 explain ed, the case had b een closed becau se the poli ce lacked evidenc e to pursue i t.
It t ook Yasinskyy near ly a m onth to fully recuperate fro m the att ack, and wh en he retur ned to work he was told that he had been fi red becau se of hi s absenc e. Yasinskyy speculated that, becau se he had contacted hi s employer from the hospi tal and explain ed hi s absenc e, he mus t have been fi red becau se of hi s poli tic al affi li ation. Many of hi s cowork ers belonged to the Party of Regions, sai d Yasinskyy, a nd company offi ci als prev i ously had warned t hat he could be fi red i f he di d not abandon hi s supp or t fo r F a therland. Yasinskyy testifi ed that after losing hi s j o b he exper i enced di ffi culty finding employment but someti mes obtained constructi on work thro ugh hi s father.
Yanukov ych was declared the win ner of the Nove mber 2004 presi denti al electi on, whi ch sparked th e “Or ange Revo lut io n.” Yushchenko supp or ter s, who alleged that Yanukov ych’s vic tor y was the product of fraud, demonstrate d i n the s treets and demanded that the Ukr ai ni an Supreme Court i nval i date the electi on results. The rev olution was succes sfu l, and after a rev ote Yushchenko was inau g ur ated as presi dent in January 2005. During the fi rst month of the rev olutio n, Yasinskyy demonstrate d in Kiev wi th other Yushchenko supp or ter s. Then one evening in January 2005, Yasinskyy conti nued, he was beaten again , thi s tim e by two men who i ns i sted that they had warned hi m to stop campai gning for Father land. Yasinskyy adde d t hat he had been receiving telephone threat s from anonymous callers who demanded an end to his poli tic al acti vity. As before, Yasinskyy sai d, he was tr eated for a concu ssi on an d an injured ki dney. H e continuedNo. 12-3561 5

ha v i ng headaches and kidn ey problems and in June 2005 received 10 days of medi cal treat ment.
Yasinskyy explain ed that after thi s second attack he feared for hi s li fe but conti nued hi s poli tic al acti viti es. Although he

never again was physi cally assaulted, he conti nued r ecei ving threat ening phon e calls and so, on the advic e of hi s parents, moved t o t he Uni ted Kin gdom in Mar ch 2006. He di d not apply for asylum i n the U.K., Yasinskyy explain ed, becau se he had hoped t hat the si tuation in Ukr aine would i mprov e and allow hi m to r e t urn. Yasinskyy di d ret urn to Ukr ai ne a year later , i n Mar ch 2007, but the threat ening phone calls persi sted. After si x months he deci ded to apply for a wo r k vis a in the Uni ted St ates. He di d not tell anyone at the Americ an embas sy about hi s fear of persecuti on, Yasinskyy testifi ed, becau se no
one asked hi m. He consu lted a lawyer two weeks after arr i ving i n the Uni ted S tate s but di dn’t i mmedi ately apply for asylum becau se he was wai tin g for documents fro m Ukraine.
Fin ally, Yasinskyy testifi ed, just months before hi s remov al hearin g the Ukr ai ni an poli ce had vis i ted hi s Ukr aini an address aski ng about hi s whereabouts and twi ce sum moned hi m to appear at a local poli ce station to d iscuss allegations of “hooligan activiti e s ” d u rin g the Or ange Revo luti on. Yasinskyy asserted that me mb e r s of Father land increasingly have been charged wi th cri mes since Yanuko vy ch became t he presi dent i n 2010, and so he fears that he wi ll be thro wn in jail or kill ed by members of the Party o f Regions i f he returns to Ukr aine. The IJ fo un d Yasinskyy credible but conclu ded that hi s testim ony and supp or tin g documents di d not demo ns t r ate eli gib i li ty for relief. Yasinskyy was barred from seeking6 No. 12-3561 asylum, the I J conclu ded, becau se he di d not fi le wi thi n the 1 -y e a r d e adlin e a nd d id no t d e mo ns t r a t e ch a ng e d

c i r c u m s t a n c e s m a t e r i a l l y a f f e c t i n g h i s e l i g i b i l i t y o r ext rao rdin ary ci rcums tances r elatin g to the delay in filing hi s appli cati on. See 8 U.S.C. § 1158(a); 8 C.F.R. § 1208.4(a). Though Yasinskyy had not speci fi cally addressed whether he met one of those exceptions, the IJ added, hi s purpor ted explanation for

w a i t i n g t o f i l e

— d e l a y s i n o b t a i n i n g s u p p o r t i n g documents—c ould not satis fy ei ther e xception. Next, the IJ conclu ded that Yasinskyy was ineli gib le for wi thholdi ng o f r e moval becau se he had not demonstrate d a clear probabi li ty that he would be persecuted o n accoun t of poli tic al opin i on i f he ret urns to Ukr ai ne. Yasinskyy had fai led to demonstrate past persecuti on, the IJ reasoned, beca use the evidenc e di d not show that the Ukr ai ni an g o v ernment sponsored the beati ngs or telephone threat s. And in any event, the IJ asserted, the harm (physic al and econo mi c) and threat s Yasinskyy exper i enced nev er ro se to the level of persecuti on. In reachi ng this last conclu si on, the IJ fi rst catalogued sever al of our prior deci si ons, di viding them between cases where we conclu ded that sub stanti al evidenc e di d or di d not supp or t a finding of no past persecuti on, see Ira s oc v. Mukasey, 522 F.3d 727, 730 (7th Ci r. 2008) (finding past persecuti on ); Zhu v. Gonza les , 465 F. 3 d 3 1 6, 319–20 (7th Ci r. 2006) (finding sub stanti a l evidenc e supp or ted no past persecuti on); Prela v. Ash c r of t, 394 F.3d 515, 518 (7th Ci r. 2005) (finding no past persecuti on) ; Dandan v. Ashcroft, 339 F.3d 567, 573–74 (7th Ci r. 2003) (finding no past persecuti on); Asani v. INS , 154 F.3d 719, 722–23 (7th Ci r. 1998) (remanding for appli cati on o f co rr ect past persecuti on standard and expr essing di sbeli ef “that theNo. 12-3561 7

BIA does not beli eve that knocking a person’s teet h out i s harm enough to consti tute past persecuti on”). The IJ then assi gned Yasinskyy t o one o f those two camps: Here, the respondent has alleged that he was beaten twi ce, resulti ng i n injuries to hi s head and kidn eys, that he was repeat edly ha rassed by unknown assai lants opposed to hi s p o l it i cal acti viti es, and that he and hi s fami ly received several threat ening telephone calls

. The amount of harm the respondent suffered, though, was si gni fi cantly less than tha t in Dandan , Iraso c, or Asani and closer to that in Zhu or P r ela

. Though he was attacke d twi ce and repeat edly threat ened, hi s fir st attack r esulted only i n “li ght body harm” accordi ng to the documentati on he sub mi tte d, and hi s second attack di d not require i mmedi ate medi ca l a t tention

... Thi s level o f p hy si cal harm, wi thout more, does not ris e to the level of persecuti on. Mor eo v e r, he has not alleged that he received threat s more si gni fi cant or cr e dible than a seri es of inti mi datin g, anonymo us ph one calls.
The IJ also conclu ded that Yasinskyy had not shown that he i s more li kely than not to suffer future persecuti on i f remov ed to Ukr ai ne. The IJ deemed si gni fi cant that Yasinskyy had li ved i n U kr ai ne for nearly two year s a ft e r the second beating and, duri ng that tim e, had no contact wi th hi s a l l e ged persecutors except for a no nymous phone calls

. The IJ also reasoned that the country repo rt s sub mi tte d by Yasinskyy show a reducti on i n poli tic ally m otivated vi olence, and that nothing as i de from Yasinskyy’s own specu lation suggests that the Y anukovy ch admini st rat i on has made Ukr aine more dangero us for nonsupp or ter s. And the sum monses Yasinskyy received di d8 No. 12-3561

not show he wa s li kely to be persecuted becau se, the IJ conclu ded, Yasinskyy di d not explain what “hooligani sm”

means under Ukr ai ni an law, and thus he could not show that he was being unjustly charged or prosecuted for poli tic al acti vity that would be pro tected in the Uni ted S tate s. Fin ally, the IJ deni ed relief under the C o nv ention Ag ainst Tort ure. The IJ noted t hat the analysi s under CAT i s “sub stanti ally si mi lar” to wi thholdi ng of re m ov a l and, becau se Yasinskyy di d not show t hat the Ukr ai ni an gov ernment was
unw i lling or un able to prot ect hi m from harm, “he could not meet the more narro wly and explic i tly d e fined standard for gov ernment ‘acqui escenc e’ in the h a rmful acti vity.” Mor eov er, although the St a t e Department Countr y Repor t on Human Ri ghts and Practi ces explain s that tor ture by law enforcement offi cers i s a seri ous problem in Ukr ai ne, i t also says that many state agents who engaged in tor ture were prosecuted for their mi scondu ct, and thus Yasinskyy could not show that pris oners and detai nees are more li kely t han not to be tor tured.
Yasinskyy appealed to the BIA, whi ch affi rmed the IJ’s

or der. First, the BIA conclu ded that the IJ corr ectly deter mined that Yasinskyy di d not establi sh that hi s appli cati on for asylum

was fi led wi thin one year of hi s arr i val in the Uni ted States or that he fi t into any of the exceptions. Next, the BIA agr eed that Yasinskyy co uld not show past persecuti on or a clear probabi li ty of future persecuti on becau se (1) he di d not show th a t t he Ukr ai ni an gov ernment condoned or was helpless to prot ect hi m from th e be a tin gs or threat s made by unknown persons, and (2) hi s ret urn to Ukr aine after moving to England i s i nconsi stent wi th the acti ons of a person fleeing persecuti on. Lastly, the BIA conclu ded tha t Y a sins kyy di d not prov i deNo. 12-3561 9

suffi ci ent evidenc e suggesti ng that the Ukr aini an gov ernment would tort ure hi m i f he had to ret urn. II. ANALY SIS
Yasins kyy does not address the tim eli ness of hi s asylum appli cati on, so we evaluate only hi s clai ms for wi thholding of

remov al and prot ecti on under C A T. The BIA adopted and supp lemented the IJ’s decis i on, so we rev i ew the IJ’s deci si on
as supp lemented by the BIA. See Munoz-A v i l a v

. Holder, 716 F.3d 976, 978 (7th Ci r. 2013); Mustafa v. Holder, 707 F.3d 743, 750 (7th Ci r. 2013).
A. Denial of Withholdi ng of Removal Supported by Subst antialEvidence
Yasinskyy’s bri ef on appea l su ffers from a profo und di sconnec t from reality. Most of hi s arg uments fai l to tr ack the deci si ons of the IJ or the BIA, and he attr ibutes quotes to the IJ that appear nowhere inthe re cord. As the gov ernment notes, the arg uments appear to have been li fted from some unrelated bri ef to t he BIA.
Concernin g wi thholdi ng of remov al, Yasinskyy insi sts that the IJ required hi m to prov e that he was “seri ously harmed” in
or der to show past persecuti on and thus relied on an incorre ct legal standard. He adds t ha t he “exper i enced consi derable harm by local p olic e, thugs, and other [s] contro lled by the gov ernment mi li tants” and “was kic ked, beaten, col lapsed and lost consci ousness .”
Yasinskyy’s assert i ons mi sch aracter i ze the admini strat i ve
recor d and, as the gov ernment contends, violate Rule 28(a)( 9)(A) of the Federal Ru les of Appellate P ro cedure. First,10 No. 12-3561

the IJ di d not require Yasinskyy to show that he was “seri ously harmed.” Instead, the IJ noted the fact-s peci fi c nature o f t he p a st persecuti on deter minati on, compared Ya s in s kyy’ s a l l e ge d harms—wh i ch the IJ credi ted—to other asylum cases, and conclu ded that t he evidenc e di d not demons tr ate harm ri sing to t he level of per secu tion. Although we would h ave r eached

a di fferent conclu si on were we in the IJ’s sh oes (more on that later ), the recor d does not supp or t Yasinskyy’s assertio n that the IJ requi red a showing of s erious harm. Second, Yasinskyy

never testifi ed that he was injured by “local poli ce, thugs, and other [s] contro lled by the gov e rnment mi li tants.” Nor di d he i nsi st that those responsible for hi s injuries were acti ng on behalf of or wi th the appro val of t he gov ernment. Instead, he consi stently testifi ed that he di d not know who had attacke d hi m or made the t hreate ning phone calls.
In the haystack o f Yasinskyy’s bri ef, however , there i s a needle of tr uth. Yasinskyy says he collapsed after being kic ked and beaten duri ng th e fi rst attack. But Yasinskyy has not d e v e l o p e d a l e g a l a r g um e nt a b o u t h o w t ha t o ne i nci dent—carried out by unknown assai lants wi th no demonstrable connecti on to the gov ernment—equates to past persecuti on on accoun t of p o l it i cal opin i on. We wi ll not enter t a i n baseles s and uns upporte d factual contentions or undeveloped legal arg ument s, see Fed. R. App. P. 28(a)( 9)(A) (requi ring that appellant’s br ie f inclu de hi s “contentions and the reasons for them, wi th ci tations to the authoriti es and parts of the recor d on whi ch the appellant relies ”); Stevens v. Housin g Auth. of South Bend, Ind. , 663 F.3d 300, 310–11 (7th Ci r. 2011) ; Smeigh v. Johns Manville, Inc. , 643 F

. 3 d 554, 564 n.3 (7th Ci r. 2011), a nd once the i naccurate facts are remov ed, there i s noNo. 12-3561 11

basi s fo r Yasinskyy’s contention that he suffered past persecuti on. Hi s bri ef does not address t he IJ’s or the BIA’s conclu si on about future persecuti on, and so any relat ed arg ument i s wai ved . See F irishc hak v. Holder, 636 F.3d 305, 309 n.2 (7th Ci r. 2011).
That sai d, we are bewi ldered by the IJ’s assert io n that a beati ng resulti ng i n a concu ss i on a nd kidn ey injury —requiring
a week’s stay i n the hospi tal—followed by a se co nd beati ng and countless telephone threat s co uld not consti tute persecuti on. The IJ a ss e ss e d the harms to Yasinskyy by compari ng hi s exper i ences to those of petiti oners in prev i ous
cases before thi s court. That a p p r o ach, however , “turn[s] the system upsi de down” by confus ing our de fe r e nt ia l

rev i ew—asking whether t he admini strat i ve r ecord compels a finding of past persecuti on—wi th the ro le of i mmi gr ation judges to draw on their exper tis e to d e cid e whether the appli cant a ct ually has shown past persecuti on. See Sirbu v. Holder, 718 F.3d 655, 659-60 (7th Ci r. 2013). Immi gr ation judges

mus t ask whether there was “the use of signi fic ant physi cal force again st a person’s body, or the infli cti o n of comparable physi cal harm wi thout di rect appli cati on of fo r ce

... or nonphysi cal harm of equal gr avity” whi ch crossed the line between harassmen t and persecuti on, i .e., “the line between the nasty and the barbaric [.]” Stanojko va v. Holder, 645 F.3d 943, 948 (7 t h Ci r. 2011). We conclu de that i t di d. But that does not help Yasinskyy becau se he di d not demonstrate that the beati ngs and threat s were carried out by the Ukr aini an gov ernment or by a gr oup that the gov ernment was unabl e or
unw i lling to contro l—a necess ary element for showing past persecuti on, see Almutairi v. Holder, No. 12-2734, 2013 WL12 No. 12-3561
3481356, at *7 (7th Ci r. July 12, 2013); Vahora v. Holder , 707 F.3d 904, 908 (7th C ir. 2013). So hi s request for wi thholdi ng of

remov al i s doomed.
B. Denial of CAT Protection Supported by Subst antial Evidence
What remain s i s Yasinskyy’s challen ge to the deni al of CAT relief, whi ch i s si mi larly defi ci ent. He arg ues that the IJ di d not recog ni ze that wi thholdi ng of remov al a nd relief under CAT

are analytic ally di stinct. That contention i s not tr ue: The IJ reci ted the standard that the petiti oner had to meet—that i t is

more li k e l y than not that he would be tor tured i f ret urned to Ukr ai ne, see Bitsin v. Holder, No. 12- 2717, 2013 WL 2402855, at *8 (7th Ci r. May 31, 2013)—bu t conclu ded that Yasinskyy had fai led to meet hi s burden. Yasinskyy presses that the “country repo rt on human rights practic es” shows that he wi ll be tor tured i f he ret urns becau se, he contends, “t he poli ce i s always i nflu enced by the ruli ng party to arr est and tor ture the opposi ng part y m embers.” Yasinskyy does not say, however , whi ch of the two country repo rt s he su bmitted supp or ts that

c onte nti on or p rovide any recor d ci tations, again viola ti n g Ru l e 2 8 ( a ) ( 9 ) (A). But any ci tation would have been futi le becau se the country repor ts contradic t hi s arg ument. In fact, the 2008 and 2009 St ate Department repo rt s, whi le acknowledgi ng tor ture of pris oners and pret rial detain ees, clari fy t hat there were no repo rt s of poli tic al pris oners or detain ees.

III. CONCLUSION
For the foreg oin g reasons, we DENY the petiti on for

rev i ew.