The Honorable Sarah Evans Barker, of the United States 

District Court for the Southern District of Indiana, sitting

by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2717

VALENTIN ASENOV BITSIN,

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. A088-188-257 

ARGUED JANUARY 22, 2013—DECIDED MAY 31, 2013

Before RIPPLE and ROVNER, Circuit Judges, and BARKER,

District Judge.



RIPPLE, Circuit Judge. Valentin Asenov Bitsin, a native

and citizen of Bulgaria, petitions for review of an order
2 No. 12-2717

He previously had come to the United States in both 2003 1

and 2004, also on visitor visas.

A.R. at 128. 2

of the Board of Immigration Appeals (“BIA”) denying

him asylum, withholding of removal and relief under

the Convention Against Torture (“CAT”). For the

reasons set forth in this opinion, we dismiss the petition

in part and deny it in part.

I

BACKGROUND

A. Facts

Mr. Bitsin last entered the United States in May 2005

as a visitor, authorized to stay until October 2005.

1

Before his visa expired, Mr. Bitsin decided that he

would like to remain in the United States to pursue

further education at Solex College in Chicago, Illinois. In

August 2005, therefore, he submitted an application for

a student visa; he was assisted in his application by an

attorney, whom the college had suggested. Mr. Bitsin

was advised that his application could take between

six months and one year to process. According to

Mr. Bitsin’s testimony at his removal hearing, it was his

understanding that he would be “allowed to just stay,”

but not to work, while the immigration authorities

were processing his application. Once his papers were 2

filed, Mr. Bitsin attempted to contact the attorney by

telephone to check the status of his application, but “[t]he
No. 12-2717 3

Id. 3

Id. at 133. 4

telephone was out of service.” He later went to the at- 3

torney’s office in person only to discover that the

office had been closed. In 2007, he was arrested

by immigration authorities and placed in removal proceedings.

B. Administrative Proceedings

1.

In removal proceedings, Mr. Bitsin applied for asylum,

withholding of removal and relief under the CAT.

During the hearing, Mr. Bitsin testified that his father

was Asen Bitsin, a retired military officer in Bulgaria.

After retiring, he began his own private security company. Mr. Bitsin further stated that his father was

quite successful and that this success threatened the

business interests of an organized crime syndicate run

by the “Galev Brothers,” who also were in the business

of providing security services.4

In 2000, one of Asen’s businesses was attacked by

individuals affiliated with the Galev Brothers. Asen was

on the property at the time; he fired warning shots, accidentally hitting one of the intruders. Mr. Bitsin testified

that, as a result of this incident, local police accused

his father of unauthorized use of a weapon; the prosecutor, however, refused to pursue the matter on the
4 No. 12-2717

When the trial recommenced, Mr. Bitsin’s mother and sister 5

went to visit relatives in France. At the time of Mr. Bitsin’s

merits hearing, they still resided there.

A.R. at 144. 6

ground that there was no evidence of criminal intent.

Mr. Bitsin was a student in Blagoevgrad and was not

present when the incident occurred.

Mr. Bitsin testified that, unbeknownst to him, his

father continued to have difficulties with the Galev

Brothers over the next few years and began to cooperate

in an ongoing investigation of the Galev Brothers’ organization. In 2007, Bulgarian officials instituted a criminal

proceeding against the Galev Brothers, which later was

postponed because the targets of the investigation

were seeking elected office. At some point after the proceedings began, the fact that Asen was planning to

testify became known, and the Bulgarian government

took him into protective custody. The trial recommenced in 2010, and Asen testified in the proceedings. In

5

November 2010, the Galev Brothers were acquitted. To

Mr. Bitsin’s knowledge, his father remains under

the protection of the Bulgarian government while the

authorities “look[] for chances to reopen . . . the court proceedings.”6

Mr. Bitsin further testified that he is afraid to return

to Bulgaria because of his father’s activities. He pointed

to another cooperating witness by the name of Chorata,

who was murdered while in police custody. Additionally,

in 2009, neighbors of Asen, who, according to Mr. Bitsin,

also were cooperating with the investigation of the
No. 12-2717 5

Id. at 86. 7

Id. at 87. 8

Galev Brothers, were killed when a bomb exploded in

their garage. Finally, Mr. Bitsin submitted evidence

concerning a reporter, Lidia Pavlova, who lived in fear

because she had attempted to expose the Galev Brothers’

criminal activities. An individual affiliated with the

Galev Brothers attacked Pavlova’s son and received

only six months’ probation for the attack.

2.

In an oral ruling, the Immigration Judge (“IJ”) held

that Mr. Bitsin’s application for asylum was time-barred

because he had not applied for asylum within one year

of arriving in the United States and did not “fall[] within

any one of the exceptions contained in the regulations.”7

With respect to the application for withholding of

removal, the IJ determined that Mr. Bitsin had testified

credibly concerning

his manner of entry into the United States, his

repeated admissions as a J1, the incident in

2000 in which his father shot an intruder, his father’s involvement in a security business, and

the threats against his father by what appears

to have been a criminal mafia known as the

Gruprovki and his fear of the Galev Brothers,

and the criminal proceedings against the Galev

Brothers which were undertaken in Bulgaria.[8]
6 No. 12-2717

Id. 9

Id. at 3 (internal quotation marks omitted); see 8 U.S.C. 10

§ 1158(a)(2)(D).

Nevertheless, the IJ concluded that Mr. Bitsin had not

established that he was more likely than not to

suffer persecution should he be returned to Bulgaria.

Specifically, the IJ found that “[h]e merely alleged that

in the most general terms that he was the victim of corruption. That is not sufficient to establish a likelihood

of persecution.” The IJ also found that Mr. Bitsin had 9

not met his burden of establishing that it was more

likely than not that he would be tortured by the

Bulgarian government or that the Bulgarian government would be complicit in his torture, should he

be returned to his native country. Consequently, he

was not eligible for relief under the CAT.

3.

The BIA affirmed with its own opinion. It agreed

with the IJ that Mr. Bitsin had not established an

exception that would excuse the late filing of his asylum

application. Specifically, he had not established that

his filing for a change in status constituted “extraordinary circumstances.” Nor had he “shown receipt of 10

an affirmative communication from the [Department of

Homeland Security], that would support his assertion

on appeal that he was given the equivalent of an adminis-
No. 12-2717 7

A.R. at 3 (internal quotation marks omitted). 11

Id. at 4 (first alteration in original). 12

Id. at 5. 13

Id. 14

trative parole.” Furthermore, he had not established 11

that his father’s involvement in the court case against the

Galev Brothers “should be construed as an ‘activity’ that

the respondent ‘bec[ame] involved in outside of [Bulgaria],’ ” so as to fall within the exception to the one-year

requirement set forth in 8 C.F.R. § 1208.4(a)(4)(i)(B).12

Consequently, his asylum application was untimely.

The BIA also agreed with the IJ that Mr. Bitsin had not

established one of the requirements for withholding of

removal: a clear probability of persecution on account of

a protected category, namely his membership in a

social group. It noted that Mr. Bitsin had lived in

Bulgaria after Asen began having difficulties with the

Galev Brothers, but that Mr. Bitsin “ha[d] not received

any threats from any individual or entity for any reason.” Moreover, Mr. Bitsin had “provided little detail 13

about the circumstances surrounding the alleged explosion at another witness’s house or the shooting of a

former cohort of the Galev Brothers, such that would

support the conclusion that the respondent, as a son of

a witness, would . . . more likely than not be targeted

for persecution by the Galev Brothers.” Additionally, 14

Mr. Bitsin had not met his burden of showing that “the

Bulgarian government would be unable or unwilling
8 No. 12-2717

Id. at 6. 15

Id. 16

to protect [him], as [he] testified that the government

protected his father whom it placed in a witness protection program.”15

Finally, the BIA concluded that the IJ “properly concluded that the respondent did not satisfy his burden

of showing that it is more likely than not that he will

be tortured by or at the instigation of or with the consent

or acquiescence of the Bulgarian government.” Conse- 16

quently, Mr. Bitsin did not qualify forrelief under the CAT.

Mr. Bitsin timely appealed.

II

DISCUSSION

On appeal, Mr. Bitsin seeks review and reversal of the

BIA’s determinations with respect to his applications

for asylum, withholding of removal and relief under

the CAT. We turn our attention first to his arguments

concerning asylum.

A. Jurisdiction to Review Asylum Determination

1.

Section 1158(a)(2)(B) of Title 8 requires that aliens apply

for asylum within one year after their arrival in the
No. 12-2717 9

8 U.S.C. § 1158 provides, in relevant part: 17

(a) Authority to apply for asylum

(1) In general

Any alien who is physically present in

the United States or who arrives in the

United States (whether or not at a designated port of arrival and including an

alien who is brought to the United States

after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for

asylum in accordance with this section

or, where applicable, section 1225(b) of

this title.

(2) Exceptions

. . . .

(continued...)

United States. An alien’s application for asylum nevertheless “may be considered” if he “demonstrates . . .

either the existence of changed circumstances which

materially affect [his] eligibility for asylum or extraordinary circumstances relating to the delay” in filing the

application within the prescribed one-year period.

8 U.S.C. § 1158(a)(2)(D). Section 1158(a)(3), however,

deprives courts of jurisdiction to review a determination regarding the timeliness of an alien’s application for asylum or the existence of changed or extraordinary circumstances to excuse his late filing.17
10 No. 12-2717

(...continued) 17

(B) Time limit

Subject to subparagraph (D), paragraph (1) shall not apply to an alien

unless the alien demonstrates by clear

and convincing evidence that the

application has been filed within

1 year after the date of the alien’s

arrival in the United States.

. . . .

(D) Changed circumstances

An application for asylum of an

alien may be considered, notwithstanding subparagraphs (B) and (C), if

the alien demonstrates to the satisfaction of the Attorney General either

the existence of changed circumstances which materially affect the

applicant’s eligibility for asylum or

extraordinary circumstances relating

to the delay in filing an application

within the period specified in subparagraph (B).

(3) Limitation on judicial review

No court shall have jurisdiction to review any determination of the Attorney

General under paragraph (2). 

Despite § 1158(a)(3), this court may review constitutional

claims or questions of law related to the timely filing of
No. 12-2717 11

8 U.S.C. § 1252(a)(2)(D) provides: 18

Nothing in subparagraph (B) or (C), or in any other

provision of this chapter (other than this section)

which limits or eliminates judicial review, shall be

construed as precluding review of constitutional

claims or questions of law raised upon a petition for

review filed with an appropriate court of appeals

in accordance with this section.

an asylum application. See 8 U.S.C. § 1252(a)(2)(D). We 18

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.” Restrepo v. Holder, 610

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

In Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008), we

considered whether an alien’s argument—that changed

circumstances justified a delay in applying for asylum—was a pure question of law for purposes of

§ 1252(a)(2)(D). In that case, 

[a]n immigration judge concluded that

[Viracacha] had not established “the existence

of changed circumstances which materially

affect the applicant’s eligibility for asylum,”

§ 1158(a)(2)(D). He argued that he fears the Revolutionary Armed Forces of Colombia (FARC),

an insurgent group that threatened him with

death after he opposed its operations. But because he told the immigration judge that he had
12 No. 12-2717

left Colombia in 1998 precisely because of the

FARC’s threats, the IJ found that he should

have applied for asylum immediately on arriving

in the United States. [Viracacha] testified that

he delayed because he expected the domestic

situation in Colombia to improve, but that it had

instead (in his view) become worse. The IJ did

not see this as an adequate justification, both

because conditions in Colombia had not changed

materially and because hoping for improvement

does not justify delay in filing.

Id. at 512. The BIA affirmed. Before this court, Viracacha

maintained that the IJ and the BIA “erred on a question

of law,” and, therefore, his petition for review fell

within the exception to the jurisdictional bar for “constitutional claims or questions of law.” Id. at 514 (citations omitted) (internal quotation marks omitted).

We disagreed. We noted that the IJ had found that

Viracacha “had deliberately refrained from making a

timely application for asylum, and that any change

in conditions in Colombia since then [wa]s not material.” Id. We explained that the first conclusion is one

of “fact and the second is an application of law to fact;

neither rests on or reflects a legal mistake.” Id.; see also

Ferry v. Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006)

(“Ferry’s argument that his pending adjustment of

status application qualified as either a changed or extraordinary circumstance to excuse his untimely asylum

application is a challenge to an exercise of discretion

that remains outside our scope of review.”). Consequently,

we did not have jurisdiction to consider the alien’s ar-
No. 12-2717 13

guments. We likewise are precluded from considering

Mr. Bitsin’s arguments concerning the materiality of any

change in circumstances in Bulgaria.

Our review of Mr. Bitsin’s claim that he established

“extraordinary circumstances” that justify the delay in

his application similarly is barred. Whether particular

facts constitute “extraordinary circumstances” is akin to

whether particular “changed circumstances” are material. See Sukwanputra v. Gonzales, 434 F.3d 627, 635 (3d

Cir. 2006) (holding that whether petitioner had “met

her burden of demonstrating changed circumstances

materially affecting asylum eligibility or extraordinary

circumstances relating to the delay challenges [the Attorney General’s] exercise of discretion” and therefore

“[s]uch a claim does not raise a constitutional claim

or question of law covered by the REAL ID Act’s

judicial review provision”). In either case, the question

requires us to apply a legal standard to a given set of

facts. See Zhu v. Gonzales, 493 F.3d 588, 596 (5th Cir. 2007)

(“Thus, the IJ’s rejection of Zhu’s extraordinary-circumstances claim was based on an evaluation of the facts

and circumstances of her case. We do not have jurisdiction to review the IJ’s determination that Zhu’s asylum

application was untimely.”). As we held in Viracacha,

this type of issue does not raise a question of law, and

it therefore does not fall within § 1252’s exception to

the jurisdictional bar of § 1158.

2.

Mr. Bitsin argues that the court nonetheless may

consider his asylum application because the BIA com-
14 No. 12-2717

See Interpretation of “Period of Stay Authorized by the 19

Attorney General” in determining “unlawful presence” under

INA section 212(a)(9)(B)(ii) (2003), http://www.uscis.gov/files/

pressrelease/PofStay4023Pub.pdf.

Mr. Bitsin also submits that a memorandum explaining 20

the “Deferred Action for Childhood Arrivals” Program supports his claim. See Exercising Prosecutorial Discretion with

Respect to Individuals Who Came to the United States as Children (2012), http://www.dhs.gov/xlibrary/assets/s1-exercisingprosecutorial-discretion-individuals-who-came-to-us-aschildren.pdf. Mr. Bitsin did not come to the United States as a

child. Moreover, the memorandum only sets forth the agency’s

(continued...)

mitted an error of law in its interpretation of 8 C.F.R.

§ 1208.4(a)(5)(iv). Section 1208.4(a)(5) sets forth some

“extraordinary circumstances” that justify an alien’s

delay in filing for asylum, among which is: “(iv) The

applicant . . . was given parole[] . . . .” Although Mr. Bitsin

never was granted parole, he nevertheless claims that

he obtained the equivalent of administrative parole

when he filed his application for a student visa.

He points to a United States Justice Department Memorandum, the subject of which is “Interpretation of

‘Period of Stay Authorized by the Attorney General’ in

determining ‘unlawful presence’ under INA section

212(a)(9)(B)(ii),” to support his claim. This memoran19

dum, however, addresses how to calculate the period

of unlawful presence for purposes of determining inadmissibility; it does not purport to speak to filing deadlines for asylum.20
No. 12-2717 15

(...continued) 20

priorities with respect to allocation of prosecutorial resources;

it does not speak to, nor does it create, rights for private

individuals.

3.

Finally, Mr. Bitsin submits that we may review his

asylum claim because the BIA incorrectly concluded, as

a matter of law, that an alien asserting a derivative

asylum claim may not invoke the changed circumstances

exception to the one-year filing deadline. The BIA’s

decision does not state, nor even suggest, such a result.

Section 1208.4 of Title 8 of the Code of Federal Regulations implements the one-year filing deadline for

asylum applications, as well as the exceptions to that

deadline, set forth in 8 U.S.C. § 1158. With respect to

the “changed circumstances” exception, it states that

“changed circumstances . . . shall refer to circumstances

materially affecting the applicant’s eligibility for asylum.”

Id. § 1208.4(a)(4)(i) (internal quotation marks omitted).

These

include, but are not limited to: . . . (B) Changes in the

applicant’s circumstances that materially affect

the applicant’s eligibility for asylum, including

changes in applicable U.S. law and activities the

applicant becomes involved in outside the country of

feared persecution that place the applicant at risk[.]

Id. (emphasis added).

Before the BIA, Mr. Bitsin argued that the IJ erred

in failing to consider whether his father’s cooperation
16 No. 12-2717

with the Bulgarian government constituted an “activit[y] the appellant bec[ame] involved in outside the

country of feared persecution” for purposes of 8 C.F.R.

§ 1208.4(a)(4)(i)(B). The BIA correctly determined, however, that the IJ had not erred because there was

“no support” for the conclusion that Asen’s “involvement in a Bulgarian case should be construed as an ‘activity’ ” that Mr. Bitsin himself “ ‘bec[ame] involved

in outside of the country of feared persecution.’ ”

A.R. at 4 (alteration in original) (quoting 8 C.F.R.

§ 1208.4(a)(4)(i)(B)). Nothing in this statement holds—as

Mr. Bitsin maintains—or even suggests that the actions

or political opinions of a relative in the applicant’s

country of origin cannot constitute changed circumstances. Indeed, in the present case, the BIA considered whether Asen’s cooperation materially affected

Mr. Bitsin’s application, but concluded that it did not.

See id.

In sum, none of the issues Mr. Bitsin raises with

respect to the determination that he does not fall within

an exception to the one-year filing deadline for asylum

applications are “constitutional claims or questions of

law.” 8 U.S.C. § 1252(a)(2)(D). Consequently, we do not

have jurisdiction to consider the denial of his asylum

application.

B. Withholding of Removal

An applicant is eligible for withholding of removal if

he “demonstrate[s] a clear probability of persecution on

account of his ‘race, religion, nationality, membership in
No. 12-2717 17

Where, as here, the Board issued its own opinion, the Board’s 21

decision forms the basis for our review. See, e.g., Liu v. Ashcroft,

380 F.3d 307, 311 (7th Cir. 2004).

a particular social group, or political opinion.’ ” Tariq

v. Keisler, 505 F.3d 650, 656 (7th Cir. 2007) (quoting

8 U.S.C. § 1231(b)(3)(A)). To establish a “clear probability,” the petitioner must show “that ‘it is more likely

than not that [he] would be subject to persecution’ in

the country to which he would be returned.” INS v.

Cardoza-Fonseca, 480 U.S. 421, 423 (1987) (quoting INS

v. Stevic, 467 U.S. 407, 429-30 (1984)). “Persecution” does

not include the actions of private citizens “unless the

government is complicit in those acts or is unable or

unwilling to take steps to prevent them.” Chakir v.

Gonzales, 466 F.3d 563, 570 (7th Cir. 2006). We review

the BIA’s decision with respect to a denial of with21

holding of removal under the substantial evidence test.

Haichun Liu v. Holder, 692 F.3d 848, 852 (7th Cir. 2012).

Under the substantial evidence test, the decision of the

Board “must be upheld if supported by reasonable,

substantial, and probative evidence on the record considered as a whole,” and we will “reverse[] only if the

evidence presented . . . was such that a reasonable

factfinder would have to conclude” that the petitioner

had met his burden. INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992) (internal quotation marks omitted).
18 No. 12-2717

1.

Mr. Bitsin first maintains that, with respect to the

decision to deny withholding of removal, the IJ mistakenly understood his claim to be based on his own,

as opposed to his father’s, activities in Bulgaria. We

observe that the IJ’s opinion does employ the first

and third person interchangeably, which may suggest

some confusion with respect to the nature of Mr. Bitsin’s

claim. Nevertheless, the BIA clearly understood that

Mr. Bitsin’s claim for relief centered on Asen’s activities,

see, e.g., A.R. at 5 (“The respondent has endeavored to

define his particular social group in several ways, but

the definitions were all, ultimately, derived from his

family relationship with his father who was a cooperating witness at a trial against the Galev Brothers[] . . . .”),

and, in any event, it is the BIA’s decision, not the IJ’s,

that this court reviews, Liu v. Ashcroft, 380 F.3d 307, 311

(7th Cir. 2004).

2.

Mr. Bitsin next claims that the BIA ignored the

credibility findings of the IJ and the wealth of the

evidence in concluding that Asen was not “subject[ed] to

a frivolous police investigation and slanderous media

publicity” concerning the shooting incident in 2000. A.R.

at 5 n.4. The IJ, however, did not make any credibility findings concerning the nature or significance of

the shooting incident, but merely determined that

Mr. Bitsin testified credibly that his father had shot an

intruder. The IJ later concluded that he could not
No. 12-2717 19

Mr. Bitsin contends that he will suffer persecution on the 22

basis of his membership in the social group consisting of

individuals who have testified (or will testify) against the

Galev Brothers and of those individuals’ family members. See

Pet’r’s Br. 25. He also claims that he will be persecuted on

the basis that his father’s political opinion—“his father’s status

as a whistleblower and his overt and public expressions of

disapproval of the corrupt practices of the police and local

authorities who provide assistance to the criminal activities

of the Galev Brothers”—will be imputed to him. Id. at 26. We

need not determine, however, whether Mr. Bitsin has met

his burden of establishing that he is a member of a particular

social group, or that his father’s activities constitute a political

(continued...)

attribute to the incident the significance urged by

Mr. Bitsin because it was “a non-political event

involving his father working as a guard or protecting

property as a security official.” Id. at 89. Moreover, neither

the fact that the prosecutor declined to bring charges

against Asen, nor the quotes from a local newspaper

that characterize the shots as “fired to ‘prevent’ the intruder from ‘running farther,’ ” Pet’r’s Br. 24 (quoting

A.R. at 190), required the BIA to conclude that the Galev

Brothers had commanded the assistance of local police

or the media in persecuting or slandering Asen.

3.

At bottom, Mr. Bitsin argues that the evidence he presented required the BIA to conclude that, based on

his familial ties with his father, he will suffer harm at 22
20 No. 12-2717

(...continued) 22

opinion that will be imputed to him, because we conclude

that Mr. Bitsin has not met his initial burden of showing a

clear probability of persecution should he be removed to

Bulgaria. Cf. Jun Ying Wang v. Gonzales, 445 F.3d 993, 997 (7th

Cir. 2006) (“Wang must make two showings. First, she must

establish that she has suffered past persecution or has a

well-founded fear of future persecution. Second, she must

show that the persecution she endured (or fears she will

endure) is ‘on account of’ one of the five statutorily protected grounds.”).

the hands of the Galev Brothers if returned to Bulgaria.

As we noted previously, however, “persecution . . . does

not encompass purely private actions.” Jonaitiene v.

Holder, 660 F.3d 267, 270 (7th Cir. 2011). Consequently,

Mr. Bitsin had to establish not only a clear probability

that he would be persecuted at the hands of the Galev

Brothers, but that the Bulgarian government either

would be complicit in these actions or would be unwilling

or unable to prevent them. See Chakir, 466 F.3d at 570.

Turning to the evidence supporting his claim that he

would be harmed if he returned to Bulgaria, Mr. Bitsin

points to his father’s participation in the trial against

the Galev Brothers, the threats received by his father

and his father’s placement in protective custody. He

also relies on the harm that has befallen Chorata

and Asen’s neighbors, whom, Mr. Bitsin asserts, were

slated to testify against the Galev Brothers, and the

attack on Pavlova’s son, for which the assailant received only six months’ probation.
No. 12-2717 21

In his reply brief, Mr. Bitsin argues that the IJ and the 23

(continued...)

Although Mr. Bitsin has produced evidence that he

may be at risk if he returns to Bulgaria, the evidence

does not require a reasonable factfinder to conclude

either that Mr. Bitsin established a clear probability that

he will suffer harm at the hands of the Galev Brothers

or that the Bulgarian government is unable or unwilling

to protect him. According to Mr. Bitsin, Asen has had

difficulties with the Galev Brothers since 2000; nevertheless, although Mr. Bitsin was in Bulgaria intermittently until 2005, he never personally was threatened

or harmed. More importantly, however, the Bulgarian

authorities have not been complicit in the actions of

the Galev Brothers, but have instituted and pursued

criminal proceedings against them. We previously have

observed that a government’s steps “to punish the

persons responsible for the violence” supports a conclusion that it is not unwilling or unable to protect individuals who have been the victims of ethnic attacks.

Vahora v. Holder, 707 F.3d 904, 908 (7th Cir. 2013). Additionally, the Bulgarian government has been providing

Asen with protection, and has kept him safe, for almost two years following the conclusion of the Galev

Brothers’ trial. Thus, this case does not present a situation where an individual has sought help, but simply

was “advi[sed] to maintain a low profile”—circumstances

which, we have concluded, are “strong evidence that

the government . . . is indeed incapable of protecting”

the applicant. Hor v. Gonzales, 421 F.3d 497, 502 (7th

Cir. 2005).23
22 No. 12-2717

(...continued) 23

BIA erred in evaluating his claim for withholding of removal

because they required him to meet a more onerous burden

than we have imposed in prior cases. According to Mr. Bitsin,

he was required to show “the complete helplessness of the

Bulgarian government” to protect him from the Galev

Brothers, whereas we previously have required only a

showing that the government was unwilling or unable to

afford protection. See Reply Br. 6-7 (internal quotation marks

omitted) (emphasis removed). Mr. Bitsin only fully developed

this argument in his reply brief, and, therefore, the argument

is waived. See Bodenstab v. County of Cook, 569 F.3d 651, 658

(7th Cir. 2009) (“Bodenstab, however, did not develop these

arguments until his reply brief and thus has waived any

such argument.”). 

Even if he had not waived the argument, however, we

cannot agree that it provides a basis for reversal. As we previously have noted, we review the decision of the BIA, not the IJ.

See supra note 21. In this case, the BIA did not fault Mr. Bitsin

for failing to establish the complete helplessness of the Bulgarian

government; instead, it stated that, “[e]ven if the Galev Brothers

were acquitted by a regional court, this alone does not demonstrate that the Bulgarian government would be unable or

unwilling to protect the respondent.” A.R. at 6 (emphasis added).

The BIA then cited correctly one of our opinions, Margos v.

Gonzales, 443 F.3d 593, 599 (7th Cir. 2006), in which we employed the following language: “This is not a case in which the

government at issue is unwilling and completely unable to

afford protection.” See also Hor v. Gonzales, 421 F.3d 497, 501 (7th

Cir. 2005) (“You cannot even claim asylum on the basis of

persecution by a private group unless the government either

condones it or is helpless to prevent it[] . . . .”). 

(continued...)
No. 12-2717 23

(...continued) 23

There simply is no evidence here that the BIA applied a

standard more stringent than that the government of Bulgaria

was “unable or unwilling” to protect Mr. Bitsin. 

C. Relief under the CAT

Mr. Bitsin also seeks review of the BIA’s determination that he “did not satisfy his burden of showing that

it is more likely than not that he will be tortured by or

at the instigation of or with the consent or acquiescence

of the Bulgarian government.” A.R. at 6. To prevail on

his petition for review, Mr. Bitsin must establish that

the BIA’s determination was not supported by substantial evidence. Wanjiru v. Holder, 705 F.3d 258, 265

(7th Cir. 2013). Under this deferential standard, we

shall reverse only if a reasonable factfinder would have

to conclude that Mr. Bitsin met his burden. See

Elias-Zacarias, 502 U.S. at 481.

In order to establish eligibility for relief under the

CAT, Mr. Bitsin must show that “ ‘it is more likely than

not that he . . . will be tortured’ ” if he is returned to

Bulgaria. Rashiah v. Ashcroft, 388 F.3d 1126, 1131 (7th

Cir. 2004) (quoting 8 C.F.R. § 208.16). According to the

regulations, torture is defined as “any act by which

severe pain or suffering[] . . . is intentionally inflicted on

a person . . . 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. § 208.18(a)(1). Given that the

Bulgarian authorities both have attempted to bring the

Galev Brothers to justice and also have provided pro-
24 No. 12-2717

tection for Asen during the course of criminal proceedings, we cannot conclude that Mr. Bitsin has met

his burden of showing that he will more likely than not

be tortured “at the instigation of or with the consent

or acquiescence of” the Bulgarian government should

he return to that country.

Conclusion

For the foregoing reasons, we dismiss for lack of jurisdiction that portion of Mr. Bitsin’s petition related to

his asylum application, and we deny that portion of

Mr. Bitsin’s petition related to his claims for withholding of removal and relief under the CAT.

PETITION DISMISSED in part AND

DENIED in part

5-31-13