In the

United States Court of Appeals

For the Seventh Circuit

No. 12-3561

ANDRIY YASINSKYY,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United 

States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A088-182-430.

ARGUED JULY 9, 2013 — DECIDED AUGUST 1, 2013

Before EASTERBROOK, Chief Judge, and POSNER and

WILLIAMS, Circuit Judges.
2 No. 12-3561

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 Yasinskky 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 MarketInternational Corporation and permitted him to

work as a temporary employee at a grocery store in New York

City. See 8 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.
No. 12-3561 3

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 GrandMarket.See 8U.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
4 No. 12-3561

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
No. 12-3561 5

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
6 No. 12-3561

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. See 8 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 ortelephone 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
No. 12-3561 7

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 phone calls.

The IJ also concluded that Yasinskyy had not shown that he

is more likely than not to suffer future persecution if removed

to Ukraine. The IJ deemed significant that Yasinskyy had lived

in Ukraine for nearly two years after the second beating and,

during that time, had no contact with his alleged persecutors

except for anonymous phone calls. The IJ also reasoned that

the country reports submitted by Yasinskyy show a reduction

in politically motivated violence, and that nothing aside from

Yasinskyy’s own speculation suggests that the Yanukovych

administration has made Ukraine more dangerous for

nonsupporters. And the summonses Yasinskyy received did
8 No. 12-3561

not show he was likely to be persecuted because, the IJ

concluded, Yasinskyy did not explain what “hooliganism”

means under Ukrainian law, and thus he could not show that

he was being unjustly charged or prosecuted for political

activity that would be protected in the United States.

Finally, the IJ denied relief under the Convention Against

Torture. The IJ noted that the analysis under CAT is

“substantially similar” to withholding of removal and, because

Yasinskyy did not show that the Ukrainian government was

unwilling or unable to protect him from harm, “he could not

meet the more narrowly and explicitly defined standard for

government ‘acquiescence’ intheharmful activity.” Moreover,

although the State Department Country Report on Human

Rights and Practices explains that torture by law enforcement

officers is a serious problem in Ukraine, it also says that many

state agents who engaged in torture were prosecuted for their

misconduct, and thus Yasinskyy could not show that prisoners

and detainees are more likely than not to be tortured.

Yasinskyy appealed to the BIA, which affirmed the IJ’s

order. First, the BIA concluded that the IJ correctly determined

that Yasinskyy did not establish that his application for asylum

was filed within one year of his arrival in the United States or

that he fit into any of the exceptions. Next, the BIA agreed that

Yasinskyy could not show past persecution or a clear

probability of future persecution because (1) he did not show

that the Ukrainian government condoned or was helpless to

protect him from the beatings or threats made by unknown

persons, and (2) his return to Ukraine after moving to England

is inconsistent with the actions of a person fleeing persecution.

Lastly, the BIA concluded that Yasinskyy did not provide
No. 12-3561 9

sufficient evidence suggesting that the Ukrainian government

would torture him if he had to return.

II. ANALYSIS

Yasinskyy does not address the timeliness of his asylum

application, so we evaluate only his claims for withholding of

removal and protection under CAT. The BIA adopted and

supplemented the IJ’s decision, so we review the IJ’s decision

as supplemented by the BIA. See Munoz-Avila v. Holder, 716

F.3d 976, 978 (7th Cir. 2013); Mustafa v. Holder, 707 F.3d 743, 750

(7th Cir. 2013). 

A. Denial of Withholding of Removal Supported by

Substantial Evidence

Yasinskyy’s brief on appeal suffers from a profound

disconnect from reality. Most of his arguments fail to track the

decisions of the IJ or the BIA, and he attributes quotes to the IJ

that appear nowhere in the record. As the government notes,

the arguments appear to have been lifted from some unrelated

brief to the BIA.

Concerning withholding of removal, Yasinskyy insists that

the IJ required him to prove that he was “seriously harmed” in

order to show past persecution and thus relied on an incorrect

legal standard. He adds that he “experienced considerable

harm by local police, thugs, and other[s] controlled by the

government militants” and “was kicked, beaten, collapsed and

lost consciousness.” 

Yasinskyy’s assertions mischaracterize the administrative

record and, as the government contends, violate Rule

28(a)(9)(A) of the Federal Rules of Appellate Procedure. First,
10 No. 12-3561

the IJ did not require Yasinskyy to show that he was “seriously

harmed.” Instead, the IJ noted the fact-specific nature of the

past persecution determination, comparedYasinskyy’s alleged

harms—which the IJ credited—to other asylum cases, and

concluded that the evidence did not demonstrate harm rising

to the level of persecution. Although we would have reached

a different conclusion were we in the IJ’s shoes (more on that

later), the record does not support Yasinskyy’s assertion that

the IJ required a showing of serious harm. Second, Yasinskyy

never testified that he was injured by “local police, thugs, and

other[s] controlled by the government militants.” Nor did he

insist that those responsible for his injuries were acting on

behalf of or with the approval of the government. Instead, he

consistently testified that he did not know who had attacked

him or made the threatening phone calls. 

In the haystack of Yasinskyy’s brief, however, there is a

needle of truth. Yasinskyy says he collapsed after being kicked

and beaten during the first attack. But Yasinskyy has not

developed a legal argument about how that one

incident—carried out by unknown assailants with no

demonstrable connection to the government—equates to past

persecution on account of political opinion. We will not

entertain baseless and unsupported factual contentions or

undeveloped legal arguments, see Fed. R. App. P. 28(a)(9)(A)

(requiring that appellant’s brief include his “contentions and

the reasons for them, with citations to the authorities and parts

of the record on which the appellant relies”); Stevens v. Housing

Auth. of South Bend, Ind., 663 F.3d 300, 310–11 (7th Cir. 2011);

Smeigh v. Johns Manville, Inc., 643 F.3d 554, 564 n.3 (7th Cir.

2011), and once the inaccurate facts are removed, there is no
No. 12-3561 11

basis for Yasinskyy’s contention that he suffered past

persecution. His brief does not address the IJ’s or the BIA’s

conclusion about future persecution, and so any related

argument is waived. See Firishchak v. Holder, 636 F.3d 305, 309

n.2 (7th Cir. 2011). 

That said, we are bewildered by the IJ’s assertion that a

beating resulting in a concussionand kidney injury—requiring

a week’s stay in the hospital—followed by a second beating

and countless telephone threats could not constitute

persecution. The IJ assessed the harms to Yasinskyy by

comparing his experiences to those of petitioners in previous

cases before this court. That approach, however, “turn[s] the

system upside down” by confusing our deferential

review—asking whether the administrative record compels a

finding of past persecution—with the role of immigration

judges to draw on their expertise to decide whether the

applicant actually has shown past persecution. See Sirbu v.

Holder, 718 F.3d 655, 659-60 (7th Cir. 2013). Immigration judges

must ask whether there was “the use of significant physical

force against a person’s body, or the infliction of comparable

physical harm without direct application of force ... or

nonphysical harm of equal gravity” which crossed the line

between harassment and persecution, i.e., “the line between

the nasty and the barbaric[.]” Stanojkova v. Holder, 645 F.3d 943,

948 (7th Cir. 2011). We conclude that it did. But that does not

help Yasinskyy because he did not demonstrate that the

beatings and threats were carried out by the Ukrainian

government or by a group that the government was unable or

unwilling to control—a necessary element for showing past

persecution, see Almutairi v. Holder, No. 12-2734, 2013 WL
12 No. 12-3561

3481356, at *7 (7th Cir. July 12, 2013); Vahora v. Holder, 707 F.3d

904, 908 (7th Cir. 2013). So his request for withholding of

removal is doomed. 

B. Denial of CAT Protection Supported by Substantial

Evidence

What remains is Yasinskyy’s challenge to the denial of CAT

relief, which is similarly deficient. He argues that the IJ did not

recognize that withholding of removal and relief under CAT

are analytically distinct. That contention is not true: The IJ

recited the standard that the petitioner had to meet—that it is

more likely than not that he would be tortured if returned to

Ukraine, see Bitsin v. Holder, No. 12-2717, 2013 WL 2402855, at

*8 (7th Cir. May 31, 2013)—but concluded that Yasinskyy had

failed to meet his burden. Yasinskyy presses that the “country

report on human rights practices” shows that he will be

tortured if he returns because, he contends, “the police is

always influenced by the ruling party to arrest and torture the

opposing party members.” Yasinskyy does not say, however,

which of the two country reports he submitted supports that

contentionorprovide any record citations, againviolating Rule

28(a)(9)(A). But any citation would have been futile because the

country reports contradict his argument. In fact, the 2008 and

2009 State Department reports, while acknowledging torture

of prisoners and pretrial detainees, clarify that there were no

reports of political prisoners or detainees.

III. CONCLUSION

For the foregoing reasons, we DENY the petition for

review.