Pavlyk, Volodymyr v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4444
VOLODYMYR PAVLYK, NATALIA PAVLYK,
and IRYNA PAVLYK,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A 95 924 674, A 93 415 976, & A 95 924 704
____________
ARGUED SEPTEMBER 8, 2006—DECIDED DECEMBER 4, 2006
AMENDED DECEMBER 7, 2006Œ
____________
Before EASTERBROOK, Chief Judge, and CUDAHY and
MANION, Circuit Judges.
MANION, Circuit Judge. Volodymyr Pavlyk, a former
Ukrainian prosecutor, along with his wife and daughter,
seek review of the final decision of the Board of Immi-
gration Appeals that denied them asylum, withholding
of removal, and relief under the Convention Against
Torture. Because of the untimeliness of their applica-
tions, we lack jurisdiction over their asylum claims and
dismiss their petition for review. Additionally, we deny
Œ
The opinion is hereby amended to include the inadvertently
omitted concurrence by Judge Cudahy.
2 No. 05-4444
the petition for review on the remaining claims because
Pavlyk has not demonstrated persecution on account of
membership in a social group or political opinion. Nor
has he shown a sufficient likelihood of torture.
I.
Volodymyr Pavlyk is a citizen of Ukraine. After serving
in the Soviet Army he married Natalia Lashkiv, who gave
birth to their one daughter, Iryna. Pavlyk meanwhile
studied law in Ukraine, graduating with honors in 1992.
Following graduation, he became a criminal investigator
and then a prosecutor in Lvivskaya, a region in Ukraine. As
a prosecutor, Pavlyk investigated and prosecuted murders,
rapes, and other serious criminal matters. Pavlyk seeks
asylum and other relief for himself, and for his wife and
daughter derivatively, based on alleged persecution he
experienced in the course of his work as a prosecutor. We
recount the incidents as Pavlyk describes them.
The alleged persecution arose from Pavlyk’s investiga-
tion into the 1996 murder of a leader in an organized
criminal group named Foyder. Pavlyk suspected that a
local businessman, Stetsyk Igor Ivanovich, participated in
the murder, perhaps having hired it. In the course of the
investigation, Pavlyk learned that Stetsyk had engaged in
money laundering and had served as an undercover
informant for the Soviet KGB. Pavlyk also recovered a rifle
during a search of Stetsyk’s apartment.1 Believing that
1
At the hearing before the Immigration Judge, Pavlyk stated
that he recovered a rifle “used when Mr. Foyder was mur-
dered,” but in a translated written statement submitted in the
(continued...)
No. 05-4444 3
Stetsyk was involved in the murder, Pavlyk detained
Stetsyk, but higher officials arranged for Stetsyk’s release
and cautioned Pavlyk not to proceed further with the case.
At about the same time, Pavlyk pursued another contro-
versial investigation into the beating and torture of two
detained men by police officers. His superiors, however,
removed him from that case.
Following his interaction with Stetsyk, Pavlyk began
to receive threats against himself and his family. Stetsyk
accused Pavlyk of soliciting a bribe, causing the prosecu-
tor’s office to scrutinize Pavlyk’s work. Stetsyk also con-
fronted Pavlyk outside the prosecution’s office building,
threatening his wife and daughter. Pavlyk also noticed
strangers watching him, and discovered that strangers had
even visited his daughter’s school, where they asked the
teacher to identify Pavlyk’s daughter. The various threats
and accusations against Pavlyk culminated with shots
being fired at his car as he left the prosecutor’s building
one evening. Ultimately, Pavlyk resigned from his position
as prosecutor.
While these events transpired, Pavlyk’s wife was in the
United States on a non-immigrant visitor visa attending
a conference. Because of the threats, Pavlyk advised his
wife to stay in the United States and arranged for his
daughter to reside with her grandparents in Ukraine.
Pavlyk then went into hiding. Ukraine subsequently
charged Pavlyk with accepting a bribe and a warrant for
Pavlyk’s arrest remains outstanding there. After a year of
(...continued)
course of seeking asylum, Pavlyk wrote that “a rifle was found
but not the murder weapon.” The Immigration Judge did not
address this discrepancy.
4 No. 05-4444
hiding, Pavlyk obtained a passport and visa under the
alias Nikolai Naryjkin, which he used to enter the United
States on April 27, 1998. Pavlyk reunited with his wife. Two
years later, on February 11, 2000, their daughter Iryna
joined them, entering the United States on a non-immigrant
visitor visa. The family then resided in Chicago, where
they worked, paid taxes, and Iryna attended school.
Ukraine continued to pursue its charges against Pavlyk.
By letter, a Ukrainian official requested assistance from
the Department of Justice in investigating and apprehend-
ing Pavlyk. The record, however, does not indicate that
Ukraine ever requested that the United States extradite
Pavlyk. The United States subsequently detained Pavlyk
for overstaying his visa and on June 11, 2003, notified him
that he was subject to removal. He then petitioned for
asylum, withholding of removal, and relief under the
Convention Against Torture. His wife and daughter
similarly sought asylum derivatively from Pavlyk’s claims.
Pavlyk was released on bond for the duration of the
proceedings.
At a hearing on April 29, 2004, the Immigration Judge
(“IJ”) denied the Pavlyks’ applications for asylum, requests
for withholding of removal, and relief under the Conven-
tion Against Torture. While the IJ noted that the applica-
tions were untimely, he also addressed their merits.
Curiously, the IJ doubted whether Pavlyk actually served
as a prosecutor, but concluded that even if Pavlyk’s
testimony were credible, he had failed to demonstrate
persecution that was because of his political opinion or
membership in a social group. The Board of Immigration
Appeals adopted and affirmed the IJ’s decision, with
additional reasoning. Pavlyk, along with his wife and
daughter, petition this court to review the denial of asylum,
No. 05-4444 5
withholding of removal, and relief under the Convention
Against Torture.
II.
We first address the timeliness of the asylum applica-
tions. An alien may apply for asylum if “the application
has been filed within 1 year after the date of the alien’s
arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). It is
undisputed that Pavlyk and his wife and daughter did
not file an application within one year of their entry into
the United States. The statute, however, provides for two
exceptions to this time limit: “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 cir-
cumstances relating to the delay in filing an application
within the” one-year time limit. 8 U.S.C. § 1158(a)(2)(D). If
an application is deemed untimely under the one-year
limit or the exceptions under 8 U.S.C. § 1158(a)(2), then
the statute provides that “[n]o court shall have jurisdic-
tion to review any determination of the Attorney Gen-
eral under paragraph (2) [of 8 U.S.C. § 1158(a)].” 8 U.S.C.
§ 1158(a)(3). We have previously held that this statutory
language “is sufficiently specific to show that Congress
intended to preclude judicial review of agency action under
§ 1158(a)(2).” Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.
2004) (citations omitted). Therefore, if an IJ makes a
determination of untimeliness, we lack jurisdiction to
review the decision.
Although Pavlyk does not dispute the untimeliness of
his application, he does contest whether the IJ made a
determination of untimeliness that would preclude our
6 No. 05-4444
jurisdiction. Specifically, Pavlyk claims that he did not
seek asylum due to fear for his daughter’s safety while
she remained in Ukraine, and due to continued fear even
after her arrival in the United States. He submits that his
fear was an extraordinary circumstance warranting the
delay and that the IJ never explicitly addressed this
contention. The IJ’s oral decision, however, states:
Finally [I] come to the one year bar. . . . I do not agree
that [Pavlyk] has established either a material change
in country conditions so compelling as to justify that
delay or that there were extraordinary circumstances
which excused the timely filing of his application.
However, I have independently analyzed this claim
assuming [for] the sake of discussion that he had
established some justification for [t]he delay.
Pavlyk argues that this statement does not constitute
a holding of untimeliness, but rather “assumed an excep-
tion” since the IJ proceeded to the merits of the asylum
claim. The IJ’s statement, however, tracked the language
of the two exceptions, disagreed with Pavlyk regarding
their fulfillment, and constituted an alternative basis for
denying asylum. Furthermore, the Board stated in its
affirmance that “[w]e agree with the Immigration Judge,
in so far as he found the respondents’ application for
asylum untimely.” If the Board “adopts the IJ’s decision
while supplementing the decision with its own reasoning,
the IJ’s decision, as supplemented by the BIA’s decision,
becomes the basis for review.” Gjerazi v. Gonzales, 435
F.3d 800, 807 (7th Cir. 2006) (citation omitted). Thus, the
agency has made a determination that the petitions
were untimely. Consequently, we lack jurisdiction to
review the timeliness of the asylum applications or their
underlying merits. See also Vasile v. Gonzales, 417 F.3d 766,
No. 05-4444 7
768 (7th Cir. 2005) (“[T]his jurisdictional bar, even as
qualified by the REAL ID Act [which confers jurisdiction
to review constitutional claims or questions of law], pre-
vents us from reviewing the BIA’s factual determination.”).
Despite the untimeliness of the asylum application,
Pavlyk remained “eligible to request withholding of
removal.” Zaidi, 377 F.3d at 681 (citing 8 C.F.R. § 208.3(b);
Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir. 2004)). An alien
may not be removed “if the Attorney General decides
that the alien’s life or freedom would be threatened in that
country because of the alien’s race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). We review a decision
denying “withholding of removal under the highly defer-
ential substantial evidence standard.” Mabasa v. Gonzales,
455 F.3d 740, 745 (7th Cir. 2006) (citation omitted). In order
“to reverse the IJ’s decision, [Pavlyk] must show that
‘the evidence not only supports that conclusion, but com-
pels it.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992)); see also 8 U.S.C. § 1252(b)(4)(B).
To qualify for withholding of removal, an alien bears the
burden of proof and “must demonstrate a ‘clear prob-
ability’ that he or she will face persecution in the country
to which he or she will be removed.” Firmansjah v. Gonzales,
424 F.3d 598, 605 (7th Cir. 2005) (citation omitted). The
alien must show that if he were removed to the country
in question he would “more likely than not” face persecu-
tion based on one of the specified grounds, “a more
stringent test than the standard for establishing eligibility
for asylum.” Id. (citation omitted). We therefore examine
the two grounds under which Pavlyk requests relief:
whether Pavlyk would more likely than not face persecu-
tion “because of” his membership in a particular social
group or his political opinion.
8 No. 05-4444
We first address Pavlyk’s claim based on membership
in a social group. To make a claim on this basis, Pavlyk
must “1) identify a particular social group; 2) establish that
[ ]he is a member of that group; and, 3) establish that h[is]
well-founded fear of persecution is based on h[is] member-
ship in that group.” Yadegar-Sargis v. INS, 297 F.3d 596, 603
(7th Cir. 2002) (internal quotation and citation omitted). We
have held that “a characteristic that defines a ‘social
group’ within the meaning of the immigration laws ‘must
be one that the members of the group either cannot change,
or should not be required to change because it is funda-
mental to their individual identities or consciences.’ ”
Orejuela v. Gonzales, 423 F.3d 666, 672 (7th Cir. 2005)
(quoting Lwin v. INS, 144 F.3d 505, 512 (7th Cir. 1998)
(quoting In re Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985))).
Pavlyk asserts that he is a member of a “particular group
of Ukrainian prosecutors.” More specifically, Pavlyk
classifies himself within a subset of uncorrupt prosecutors
who were subjected to persecution for exposing gov-
ernment corruption. Pavlyk identifies only one other
member of this amorphous group, Vitaly Petlyuk, who
was convicted of bribery and sentenced to four years of
imprisonment in deplorable conditions. Regardless of the
precise contours of the group, being a prosecutor is not an
unchangeable or fundamental attribute. Pavlyk, in fact,
resigned from his position and has subsequently worked as
a carpenter and a painter in this country. It is Pavlyk’s
particular conduct as a prosecutor and not his status as a
member of such a purported social group that caused the
alleged persecution.
Pavlyk further presses his social group claim by citing
Aguilera-Cota v. INS, 914 F.2d 1375, 1380 n.3 (9th Cir. 1990),
for the proposition that government employees may
No. 05-4444 9
constitute a social group. In Aguilera-Cota, the alien
worked for the Central Board of Elections in El Salvador.
Although “politically neutral,” he began to receive threats
based on his work for the government. Id. at 1378. Aguilera-
Cota, however, merely suggested in dicta that “a strong
case” for asylum could be made based on a social group
theory, but held instead that asylum was warranted based
on political opinion because the persecutors, “armed
political rebels,” had imputed a political opinion to the
government employee for assisting with an election and
persecuted him on that basis. Id.Potentially more relevant for Pavlyk is a recent decision
in this circuit, in which we noted that “former employees
of a particular institution” could constitute a social group
from which an individual obviously “cannot resign.”
Sepulveda v. Gonzalez, 464 F.3d 770, 772 (7th Cir. 2006)
(citing inter alia In re Fuentes, 19 I. & N. Dec. 658, 662 (BIA
1988)). In Sepulveda, the alien was a former member of the
Colombian Attorney General’s Office who possessed
information about confidential investigators, including
their aliases, and about protected witnesses. Id. at 771.
From that office, 136 active employees had been murdered
or kidnaped during a five-year period. Id. We granted
review and directed the IJ to consider whether Sepulveda’s
knowledge would make him a target of the insurgents
on account of his social group since “we don’t know how
many former employees, if any, have been victimized.” Id.
at 772. Pavlyk does not demonstrate that he possessed
special knowledge or a particular vulnerability intrinsic
to his alleged social group. Critically, however, Pavlyk did
not define his social group as that of former prosecutors,
thereby removing this case from the ambit of Sepulveda and
Fuentes.
10 No. 05-4444
Regardless, even assuming that the various threats and
actions against Pavlyk constituted persecution and that
the prosecutors constituted a social group, Pavlyk cannot
demonstrate that the persecution was “because of” his
membership in a social group. 8 U.S.C. § 1231(b)(3)(A).
Rather, Pavlyk’s story chronicles individualized threats
arising from two investigations. At most, this suggests that
any persecution stemmed from his conduct in those
particular investigations and not because of his status as
a member of a group of prosecutors. See In re C-A-, 23
I. & N. Dec. 951, 957 (BIA 2006) (noting that “if a former
police officer were singled out for reprisal, not because of
his status as a former police officer, but because of his role
in disrupting particular criminal activity, he would not
be considered, without more, to have been targeted as a
member of a particular social group.”). As the Board
stated in this case, “[w]e do not believe that [Pavlyk]
produced evidence from which it is reasonable to conclude
that the harm threatened was motivated, even in part, by
an actual or imputed protected ground.” The Board’s
determination that the persecution was not caused by a
protected ground is a factual determination. See Musabelliu
v. Gonzales, 442 F.3d 991, 996 (7th Cir. 2006). The evidence
does not compel a result different from the IJ’s or the
Board’s determination that there was no persecution on
account of a social group and, accordingly, Pavlyk is not
entitled to withholding of removal on this basis. Mabasa,
455 F.3d at 745.
Pavlyk more aptly claims that he is entitled to with-
holding of removal because of threats based on his political
opinion. We have stated that “[a] political opinion is one
that is expressed through political activities or through
some sort of speech in the political arena.” Li v. Gonzales,
No. 05-4444 11
416 F.3d 681, 685 (7th Cir. 2005) (citations omitted). For
example, “[s]omeone who campaigns against the govern-
ment and urges the voters to throw the rascals out is
engaged in political speech,” as is “someone who writes
an op-ed piece or otherwise urges the people to rid them-
selves of corrupt officials.” Musabelliu, 442 F.3d at 995.
Pavlyk did not engage in any of these classic political
activities.
This does not end our analysis, however, because this
court has acknowledged that “[w]histle-blowing about
public corruption can be a form of political opinion.” Id.(citations omitted). Pavlyk argues that he was a whistle-
blower who tried to expose government corruption and
faced persecution as a consequence of his efforts. His
claim falls short because in his investigation into corrup-
tion he “did not take [his evidence of corruption] to the
public in quest of a political decision.” Id. at 996 (citations
omitted). Instead, Pavlyk pursued an investigation within
his role as a prosecutor. See id. (noting that the alien “made
his views known within the chain of command, as part
of his official duties,” which was insufficient to constitute
an expression of political opinion).
Furthermore, we previously noted that “[i]t is an open
question even in the United States whether the first amend-
ment gives public officials a right to be free of retaliation
when they speak within an agency’s hierarchy on an issue
of public concern, as part of their duties.” Id. (noting that
the Supreme Court had granted certiorari in Garcetti v.
Ceballos, 125 S. Ct. 1395 (2005), to address this issue).
Subsequently, the Supreme Court held that “when public
employees make statements pursuant to their official
duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does
12 No. 05-4444
not insulate their communications from employer disci-
pline.” Garcetti v. Ceballos, 126 S. Ct. 1951, 1960 (2006). This
holding reinforces the characterization of Pavlyk’s con-
duct within his employment as a prosecutor as non-
political speech; it would be implausible to offer broader
protection for speech to an alien under the immigration
laws than is provided to citizens under the First Amend-
ment.
Even assuming that Pavlyk suffered persecution, his
actions within his position as a prosecutor that brought
about the alleged persecution do not constitute expressions
of political opinion. Even further assuming that Pavlyk
expressed a political opinion, the Board’s factual determi-
nation that Pavlyk did not suffer persecution because of his
political opinion is supported by substantial evidence.
Since Pavlyk does not demonstrate that his “life or freedom
would be threatened in that country because of . . . political
opinion,” he is not entitled to withholding of removal.
8 U.S.C. § 1231(b)(3)(A). Furthermore, because his wife’s
and daughter’s claims are derivative of his own, they
also do not qualify for withholding of removal.
Pavlyk next claims that he is entitled to withholding of
removal under the Convention Against Torture (“CAT”).
We again review the denial of relief under the substan-
tial evidence standard, analyzing whether “the record
compels a contrary result.” Mabasa, 455 F.3d at 744 (internal
quotation and citations omitted). Relief under the CAT
does not have to be on account of membership in a
social group or political opinion to qualify for relief.
Instead, to obtain relief under CAT, Pavlyk must show
that “it is more likely than not that if removed to Ukraine,
he will be subject to torture.” Boyanivskyy v. Gonzales, 450
F.3d 286, 292 n.3 (7th Cir. 2006). The regulations define
torture as:
No. 05-4444 13
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or her
or a third person information or a confession, punish-
ing him or her for an act he or she or a third person has
committed or is suspected of having committed, or
intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind,
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). Notably, however, the regulations
exclude lawful sanctions from the definition of torture:
“[t]orture does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions . . .
includ[ing] judicially imposed sanctions and other en-
forcement actions authorized by law.” Id. at § 208.18(a)(3).
There is a further exception to the exception, which
states that lawful “sanctions that defeat the object and
purpose of the [CAT] to prohibit torture” may be consid-
ered torture. Id.
Both the IJ and the Board concluded that Pavlyk did not
meet his burden of proof to show a sufficient likelihood
of torture upon his return to Ukraine. Pavlyk makes two
arguments with respect to his likelihood of torture. He
first cites death threats against him and his family, as
well as the incident of shooting at him while in his vehicle.
With respect to this argument, we note that there is insuf-
ficient evidence to conclude that the threats and shoot-
ings were “inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other per-
son acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
14 No. 05-4444
Pavlyk was threatened by Stetsyk, who was not a public
official or acting in an official capacity, and Pavlyk could
not identify the shooters, although he speculated that the
police “organized” the shooting.
Pavlyk next argues that he will be subjected to torture
if he returns to Ukraine because he may be convicted of
bribery and sentenced to two to fifteen years in prison.
According to the State Department Report for 2004, prison
conditions have “improved somewhat,” but remain
“sometimes overcrowded or lacked adequate sanitation
and medical facilities.” There have been “reports that
police regularly beat detainees and prisoners.” It is not,
however, assured that Pavlyk would be convicted if
returned to Ukraine. The allegations of bribery recounted
in the letter from a Ukrainian official seem to arise, at least
in part, from money transfers from Mariya Zasypko in the
United States to Pavlyk in Ukraine. At the hearing before
the immigration judge, however, Zasypko testified that
she sent the money to Pavlyk to pay for the construction
of a house in Ukraine, that Pavlyk acted as a courier of
the money to the builder, and that the house was in fact
built. Furthermore, even if convicted, the pain and suffer-
ing caused by the prison conditions would fall within
the exception to torture for lawful sanctions. 8 C.F.R.
§ 208.18(a)(3). Pavlyk’s arguments do not “compel a
contrary result” from the IJ’s and the Board’s decisions.
Mabasa, 455 F.3d at 744. Since Pavlyk fails to demonstrate
that “it is more likely than not that if removed to Ukraine,
he will be subject to torture,” he is not entitled to relief
under the CAT. Boyanivskyy, 450 F.3d at 292 n.3.
We must also address Pavlyk’s contention that the
government waived its arguments regarding the untimeli-
ness of Pavlyk’s petition and regarding relief under the
No. 05-4444 15
CAT by not briefing those arguments before the Board. The
government, however, never intentionally relinquished
or abandoned a known right, as is required for waiver.
United States v. Thigpen, 456 F.3d 766, 769 (7th Cir. 2006)
(citation omitted). Instead, the government in its two-page
brief to the Board “concur[red] with [the] findings by the
Immigration Judge” and requested affirmance. As dis-
cussed above, the IJ did make findings regarding the
timeliness and the CAT. We find no basis for waiver. This
argument is without merit.
Finally, Pavlyk requests that we remand the case to the
IJ to consider new evidence presented on appeal based on
alleged ineffective assistance of counsel in the proceed-
ings before the IJ. The Board denied the motion to remand,
a decision that we review for abuse of discretion. Boykov
v. Ashcroft, 383 F.3d 526, 529-30 (7th Cir. 2004) (citation
omitted). “Under this standard, the Board’s decision
will be upheld unless it was made without a rational
explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as
invidious discrimination against a particular race or
group.” Id. at 530 (internal quotation and citation omitted).
The Board concluded that Pavlyk did not demonstrate
prejudice from his counsel’s alleged ineffectiveness, and
therefore denied the motion to remand. Since this is an
appropriate reason for denial, the Board did not abuse
its discretion, and Pavlyk is not entitled to a remand.
III.
Because the agency determined that Pavlyk’s petition is
untimely, we lack jurisdiction to review the asylum claims.
Furthermore, because Pavlyk is not entitled to withhold-
16 No. 05-4444
ing of removal to Ukraine because he has not demon-
strated that his life or freedom would be threatened based
on his political opinion or his membership in a social
group, and because he has not demonstrated a likelihood
of torture, we deny the petition for review.
CUDAHY, Circuit Judge, concurring. I join the majority
opinion in all respects save its importation (in dicta) into
the Immigration and Nationality Act of concepts having
their basis in the First Amendment jurisprudence ap-
plicable to public employees. Thus, the majority cites
dicta in Musabelliu v. Gonzales, 442 F.3d 991 (7th Cir.
2006), for the proposition that political opinions expressed
in the course of an alien’s official duties are not to be
considered in connection with persecution and hence
eligibility for asylum or withholding of removal under
the Act. See Majority Op. at 11-12, citing Musabelliu, 442
F.3d at 996. The Musabelliu court noted that it was an “open
question” whether the First Amendment protects public
employees in the United States when they speak as part
of their duties—a question since closed in part by Garcetti
v. Ceballos, 126 S. Ct. 1951 (2006)—and found it “implausi-
ble” to grant asylum to aliens persecuted for speech
“near the outer limit of the first amendment’s coverage.”
Musabelliu, 442 F.3d at 966 (citing to and discussing
Garcetti, then awaiting decision by the Supreme Court).
It seems to me that this importation of our First Amend-
ment’s “extra-employment” condition for protection of
No. 05-4444 17
speech into the Immigration and Naturalization Act’s
conditions for asylum and withholding of removal ig-
nores the plain language of the Act’s relevant provisions,
which require only that “the alien’s life or freedom would
be threatened . . . because of the alien’s . . . political
opinion,” 8 U.S.C. § 1231(b)(3)(A) (withholding of re-
moval), or that the alien face “persecution or a well-
founded fear of persecution on account of . . . political
opinion,” 8 U.S.C. § 1101(a)(42)(A); see also id.§ 1158(b)(1)(A); 8 C.F.R. § 208.13(b)(1) (asylum). This
language does not require any expression of opinion, only
the holding of one, and it certainly does not exclude
from the Attorney General’s consideration any specific
type of expression, such as speech pursuant to a public
employee’s official duties.
Besides these plain statutory requirements, the con-
cerns shaping the First Amendment rights of public
employees are unlike the policies underlying asylum and
withholding of removal. The First Amendment attempts
to balance the societal value of a government employee’s
speech on matters of public concern against the govern-
ment’s interest in controlling the conduct of its employees.
Garcetti, 126 S. Ct. at 1960. The Immigration and National-
ization Act’s asylum provisions, by contrast, are designed
to protect aliens against not just any sanction, but persecu-
tion on account of their political opinions, a sanction more
severe than any public employee is likely to face in the
United States. See, e.g., Dandan v. Ashcroft, 339 F.3d 567, 573-
74 (7th Cir. 2003) (upholding a Board determination that
detaining a person for three days without food and beat-
ing him until his face swelled was not severe enough to
constitute persecution). The Act is not motivated by a
desire to fine-tune the balance between informed public
18 No. 05-4444
debate and the efficient provision of public services in
foreign nations, but by the belief that severe persecution
on account of a political opinion is wrong and that those
unfortunate enough to be subjected to it should be shel-
tered. Given the difference in goal, it is not surprising
that the statute should protect some individuals who
express their political opinions in ways that would not be
protected by the First Amendment if performed in the
United States. Even within our borders, a “powerful
network of legislative enactments” extends the Constitu-
tion’s minimum protection of politically charged speech.
Garcetti, 126 S. Ct. at 1962. The Immigration Act’s polit-
ical asylum provisions similarly extend that protection.
It is true that, in general, asylum applicants who have
not expressed their political opinions in classically polit-
ical activities, such as public political campaigns or news-
paper articles, may find it more difficult as a practical
evidentiary matter to prove that any persecution directed
at them was motivated by their political opinions. See
Majority Op. at 11, citing Musabelliu, 442 F.3d at 995; see
also Marquez v. INS, 105 F.3d 374, 381 (7th Cir. 1997). But
in some situations, an applicant’s conduct of her public
duties may carry an obvious political implication that
invites persecution. See, e.g., Bace v. Ashcroft, 352 F.3d 1133,
1137-38 (7th Cir. 2003) (holding that persecution of an
election commissioner for failure to certify an election
was on account of a political opinion); Chouchkov v. INS,
220 F.3d 1077, 1084 (9th Cir. 2000) (holding that persecu-
tion of a Russian atomic energy agency employee for
objecting within the agency to the agency’s sale of mate-
rials to Iran was on account of a political opinion); Reyes-
Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir. 1999) (holding
that persecution of a public prosecutor for investigating
No. 05-4444 19
corruption by members of a rival political party was on
account of a political opinion).
For these reasons, as to Pavlyk’s political opinion claim,
I would rely only on the Board’s factual determination
that Pavlyk was not threatened because of his political
opinion—a finding that is supported by substantial evi-
dence.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-7-06