### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 16

Ȭ 1036

O TGONBAATAR T SEGMED

,

Petitioner

,

v.

J EFFERSON B. S ESSIONS III, Attorney General of the United

States,

Respondent

.

____________________

Petition for Review of an Order of theȱȱ Board of Immigration Appeals.

No. A089

Ȭ 272

Ȭ 651.

____________________

A RGUED F EBRUARY 8, 2017

— D ECIDED J UNE 15, 2017

____________________

Before W OOD

, Chief Judge

, F LAUM

, Circuit Judge

, and

C ONLEY

, District Judge

.

W OOD

, Chief Judge

. Otgonbaatar Tsegmed, a citizen of

Mongolia, overstayed a non

Ȭ immigrant visa and has been liv

Ȭ ing in the United States since 2004. He came to the attentionȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱȱ

Of the Western District of Wisconsin, sitting by designation.2 No. 16

Ȭ 1036

of the Department of Homeland Security in 2008, after his sec

Ȭ

ond arrest for Driving Under the Influence in Illinois. The

government placed him in removal proceedings. He con

Ȭ

ceded that he was removable, but he filed an application with

the immigration court in July 2008 seeking asylum, withhold

Ȭ ing of removal, and protection under the Convention Against

Torture (CAT). The Immigration Judge (IJ) denied his appli

Ȭ

cation and ordered him removed to Mongolia; the Board of

Immigration Appeals (BIA) affirmed. Tsegmed now chal

Ȭ lenges those decisions. Because we lack jurisdiction to review

the denial of his asylum application, and the evidence does

not compel the conclusion that he is eligible for withholding

or relief under the CAT, we deny his petition for review.ȱȱ

**I**

Tsegmed is a member of the Taij ethnic group, which is

reportedly descended from nobility and still privileged in

Mongolia. He attended school in the Soviet Union and then

became a high

Ȭ ranking officer in the Mongolian military. In

that position, he worked on highly

Ȭ classified assignments and

had knowledge of the internal workings of the governing

Communist regime. But he and his close friend, Bayarbat,

eventually became involved with the pro

Ȭ democracy move

Ȭ

ment in Mongolia while the country was ruled by Mongolia’s

Communist Party. The police arrested Tsegmed and Bayarbat

in 1989 while the two were distributing pro

Ȭ democracy pam

Ȭ phlets. After the arrest, the police held Tsegmed for 72 hours,

punched him in the face three times, called him names, and

gave him no food. The police arrested him again in 1994,

along with Bayarbat, during an election protest organized by

the Democratic Party.ȱȱNo. 16

Ȭ 1036 3

In 1999, Tsegmed’s young son died a tragic and mysterious

death, for which he blames the Mongolian government. The

ambulance that Tsegmed called in the midst of his son’s med

Ȭ

ical emergency never arrived, and, following his son’s death,

an unidentified person called and mocked Tsegmed, telling

him that such things happened to members of the Democratic

Party. In 2001, Bayarbat’s family was murdered. The Com

Ȭ

munist Party framed Bayarbat for the murders and arrested

him; he eventually died in prison. Around this time, the police

brought Tsegmed in for questioning, ostensibly related to

Bayarbat’s arrest on murder charges. They instead interro

Ȭ gated him about political information that they believed

Bayarbat’s father had given him. The police detained him that

time for 72 hours, during which they punched him in the face

between four and six times. Although Tsegmed relocated to

the United States in 2004, Tsegmed’s brother, who remained

in Mongolia, told him in 2007 that unidentified people (pre

Ȭ sumably communists) had come to him looking for his “dirty

brother.” A month after reporting this to Tsegmed, his brother

died. The death was ruled a heart attack, but Tsegmed be

Ȭ

lieves it may have been caused by something else because his

brother was in good physical shape.ȱȱ

Tsegmed provided this information in the Form I

Ȭ 589 Ap

Ȭ plication for Asylum and for Withholding of Removal he filed

in July 2008, and in his testimony at two immigration court

hearings conducted in December 2013 and January 2014. The

IJ found Tsegmed credible, but the judge noted that much of

his testimony lacked corroboration and therefore deserved

less weight. The IJ denied relief in July 2014, and the BIA af

Ȭ

firmed in December 2015. They rejected Tsegmed’s asylum

application because he did not meet any exception to the one

Ȭ4 No. 16

Ȭ 1036

year filing deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ, se

Ȭ

conded by the Board, denied withholding of removal and pro

Ȭ

tection under CAT on the merits, finding that the harm that

Tsegmed alleged on account of his membership in the Demo

Ȭ

cratic Party was not serious enough to qualify as “persecu

Ȭ

tion,” and that Tsegmed had failed to establish that it was

more likely than not that he would be tortured upon return.

Tsegmed has petitioned us for review of the BIA’s decision.ȱȱ

Because the IJ denied the application and the BIA affirmed

with a written opinion, we review both decisions. N.L.A. v.

Holder

, 744 F.3d 425, 430 (7th Cir. 2014). We consider legal con

Ȭ

clusions de novo

, and we review factual issues under the sub

Ȭ

stantial evidence standard, “which requires us to assess

whether the Board’s determination is supported by reasona

Ȭ

ble, substantial, and probative evidence on the record consid

Ȭ

ered as a whole and to reverse only if the evidence compels a

contrary conclusion.” Abdoulaye v. Holder

, 721 F.3d 485, 490

(7th Cir. 2013) (internal citations omitted).

**II**

A

Although Tsegmed challenges the BIA’s and IJ’s determi

Ȭ

nations that he did not meet any exception to the one

Ȭ year fil

Ȭ ing deadline for asylum, we lack jurisdiction to reconsider the

Board’s finding. The statute requires someone seeking asylum

to apply for asylum within one year after entering the United

States. 8 U.S.C. § 1158(a)(2)(B). That rule can be relaxed if the

applicant can demonstrate “either the existence of changed

circumstances which materially affect the applicant’s eligibil

Ȭ ity for asylum or extraordinary circumstances relating to the

delay in filing an application within [one year].”No. 16

Ȭ 1036 5

§ 1158(a)(2)(D). Section 1158(a)(3) further specifies that no

court has jurisdiction to review the determination about the

timeliness of the application or whether changed or extraor

Ȭ dinary circumstances excuse a late filing. Nonetheless, we re

Ȭ

tain the authority to review “constitutional claims or ques

Ȭ

tions of law related to the timely filing of an asylum applica

Ȭ

tion.” Bitsin v. Holder

, 719 F.3d 619, 625 (7th Cir. 2013) (citing

8 U.S.C. § 1252(a)(2)(D)). “We have interpreted this exception

to apply ‘to strictly legal controversies,’ by which we ‘mean[ ]

that the parties contest a legal issue, and that the alien wins if

the law provides what he says it does and loses if it provides

what the agency says it does.’” Id

. at 625–26 (quoting Restrepo

v. Holder

, 610 F.3d 962, 965 (7th Cir. 2010)).

Tsegmed contends that he has shown just such an error of

law, because (in his view) the evidence of a material change

of circumstances in Mongolia is so strong that a contrary con

Ȭ

clusion is inconsistent with the statute. But we rejected exactly

this method of showing “material changes” in Viracacha v.

Mukasey

, 518 F.3d 511, 514–15 (7th Cir. 2008), and “extraordi

Ȭ

nary circumstances” in Bitsin

, 719 F.3d at 626. Making a deter

Ȭ

mination about either “material changes” or “extraordinary

circumstances” requires this court only “to apply a legal

standard to a given set of facts.” Bitsin

, 719 F.3d at 626. This

“does not raise a question of law, and [] therefore does not fall

within § 1252’s exception to the jurisdictional bar of § 1158.”

Id

. at 627. Because Tsegmed does not present any constitu

Ȭ

tional claims or questions of law, we lack jurisdiction to con

Ȭ

sider the denial of his asylum application.ȱȱ6 No. 16

Ȭ 1036

B

Two other forms of relief are unaffected by the one

Ȭ year

rule: withholding of removal, and relief under the CAT.

Tsegmed seeks both.

An alien is entitled to withholding of removal if his “life

or freedom would be threatened in [the home] country be

Ȭ

cause of the alien’s race, religion, nationality, membership in

a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(A); Bitsin

, 719 F.3d at 628. “A threat to life

or freedom is synonymous with persecution, which this Cir

Ȭ

cuit defines as ‘detention, arrest, interrogation, prosecution,

imprisonment, illegal searches, confiscation of property, sur

Ȭ

veillance, beatings, torture, behavior that threatens the same,

and non

Ȭ life

Ȭ threatening behavior such as torture and eco

Ȭ

nomic deprivation if the resulting conditions are sufficiently

severe.’” Halim v. Holder

, 755 F.3d 506, 511–12 (7th Cir. 2014)

(quoting Yi Xian Chen v. Holder

, 705 F.3d 624, 629

(7th Cir. 2013)). “Persecution involves, we suggest, the use of

significant physical force against a person’s body, or the inflic

Ȭ

tion of comparable physical harm without direct application

of force (locking a person in a cell and starving him would be

an example), or nonphysical harm of equal gravity” such as

refusing to allow a person to practice his religion or a credible

threat to inflict grave physical harm. Stanojkova v. Holder

,

645 F.3d 943, 948 (7th Cir. 2011).

If an applicant establishes that he has suffered past perse

Ȭ

cution, he is entitled to a rebuttable presumption of future

persecution on the same basis. 8 C.F.R. § 1208.16(b)(1). If he

cannot establish past persecution, he still may be entitled to

relief if he can demonstrate a “clear probability” of future per

Ȭ

secution, meaning that it is more likely than not that he wouldNo. 16

Ȭ 1036 7

be subject to persecution if he were returned.

Halim

, 755 F.3d at 512. The “clear probability” standard for

withholding is more stringent than the “well

Ȭ founded fear of

future persecution” standard for asylum applications. Prela v.

Ashcroft

, 394 F.3d 515, 519 (7th Cir. 2005).

Tsegmed argues that his past harms are properly charac

Ȭ

terized as persecution on account of his Taij ethnicity, his

membership in the Democratic Party, and his unique position

in the military. He presents no arguments or evidence related

to his ethnicity or his military position, however, and so we

cannot rely on either of those grounds. This leaves his argu

Ȭ

ment that he was persecuted on account of his membership in

the Democratic Party (that is, on the basis of his political opin

Ȭ

ion or membership in a particular social group).ȱȱ

If we were reviewing his petition as a matter of first im

Ȭ pression, we might have come to a different conclusion. But

we may reverse the BIA’s determination only if we are com

Ȭ pelled by the evidence to conclude that the agency erred. Dan

Ȭ

dan v. Ashcroft

, 339 F.3d 567, 572 (7th Cir. 2003). The IJ and BIA

found insufficient evidence to support the contention that

Tsegmed’s son and brother were murdered in 1999 and 2007,

respectively. They also ruled that Tsegmed could not rely on

“derivative persecution” of Bayarbat, as he had not alleged

that Bayarbat had been framed in order to persecute Tsegmed.

See Zhou Ji Ni v. Holder

, 635 F.3d 1014, 1018 (7th Cir. 2011).

While Tsegmed’s story is a deeply troubling one, even with

these qualifications, we cannot say that the Board’s findings

were tainted by legal error or a lack of support in the record.

Tsegmed’s petition describes events that are reminiscent of

other cases in which we have affirmed findings of past perse

Ȭ

cution. See, e.g.

, Vaduva v. INS

, 131 F.3d 689, 690 (7th Cir. 1997)8 No. 16

Ȭ 1036

(finding that the BIA reasonably concluded that the petitioner

suffered past persecution based on being beaten up by

strangers warning him about political activity, but affirming

denial of asylum based on the lack of a well

Ȭ founded fear of

future persecution). His claims of arrest, assault, and deten

Ȭ

tion without food on account of his political party member

Ȭ ship and activity depict more than “mere” harassment (a dis

Ȭ turbingly vague concept). See Stanojkova

, 645 F.3d at 948. But

we also have affirmed findings that similar physical harms

did not warrant a finding of past persecution. See, e.g.

, Sirbu

v. Holder

, 718 F.3d 655, 659 n.3 (7th Cir. 2013) (listing cases af

Ȭ firming findings of no past persecution). As we have previ

Ȭ ously recognized, our past

Ȭ persecution cases are “all over the

lot.” Stanojkova

, 645 F.3d at 947. That is why both Tsegmed and

the government “are able to cite cases that support their posi

Ȭ

tion; [the citations] cancel each other out.” Id. “In the close

cases, where a reasonable trier of fact could make a decision

either way, we should be able to defer to the judgment of the

immigration judges and the Board.” Sirbu

, 718 F.3d at 660.

That principle guides our decision to accept the Board’s con

Ȭ

clusion that Tsegmed did not manage to show past persecu

Ȭ

tion.ȱȱȱ

Because he has not established past persecution, Tsegmed

has the burden of demonstrating a clear probability that he

will be persecuted in the future. Although the BIA did not

reach this issue, the IJ found that he had not met his burden.

The IJ concluded that although Tsegmed had a subjectively

genuine fear of persecution if he is sent back to Mongolia, that

fear is not objectively reasonable. The Democratic Party con

Ȭ

trols the presidency and a plurality of the Mongolian parlia

Ȭ

ment. The U.S. State Department reports that there are no of

Ȭ

ficial political prisoners or detainees in Mongolia. U.S. Dep’tNo. 16

Ȭ 1036 9

of State, Mongolia 2015 Human Rights Report

, https://www.state.gov/documents/organization/252995.pdf.

The IJ noted that there was no evidence that the Communist

Party retains the ability to threaten Tsegmed, and that there

was insufficient evidence that the party would be motivated

to target an opponent who had not been politically active for

a long time.ȱȱ

Nothing in the record requires us to conclude that

Tsegmed faces a clear probability of future persecution. While

Tsegmed argues that he had a “well

Ȭ founded fear of future

persecution” and that he faces a “reasonable possibility of fu

Ȭ

ture persecution” if he returns, that is not what he needs to

show for withholding of removal. See Prela

, 394 F.3d at 519.

Showing a “well

Ȭ founded fear” or “reasonable possibility” of

persecution is a far cry from establishing that future persecu

Ȭ

tion is “more likely than not.”

C

Finally, Tsegmed urges that he has demonstrated that he

qualifies for relief under the CAT, which requires an applicant

to show that it is more likely than not that he will be tortured

if returned to the country in question. 8 C.F.R. § 1208.16;

Bitsin

, 719 F.3d at 631. Torture is defined as “any act by which

severe pain or suffering[ ]

« is intentionally inflicted on a per

Ȭ

son

« when such pain or suffering is inflicted by or at the

instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.”

8 C.F.R. § 1208.18(a)(1).

But Tsegmed presents no arguments in support of this

claim. He says only that “the evidence overwhelmingly estab

Ȭ

lished that he met his burden for withholding of removal and10 No. 16

Ȭ 1036

CAT as well.” This is not sufficient to preserve his claim for

our review. Puffer v. Allstate Ins. Co.

, 675 F.3d 709, 718

(7th Cir. 2012). But even if it were, the evidence we already

have reviewed shows that the Board was entitled to find that

Tsegmed has not shown that it is more likely than not he will

be tortured if returned to Mongolia.

His petition for review is D ENIED

.