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
____________
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
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 investigation
into the 1996 murder of a leader in an organized criminal
group named Foyder. Pavlyk suspected that a local busi-
nessman, 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 launder-
ing 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 Stetsyk was involved in
1
At the hearing before the Immigration Judge, Pavlyk stated that
he recovered a rifle “used when Mr. Foyder was murdered,” but
in a translated written statement submitted in the course of
(continued...)
No. 05-4444 3
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 controversial 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 prosecutor’s
office to scrutinize Pavlyk’s work. Stetsyk also confronted
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 hiding, Pavlyk obtained
a passport and visa under the alias Nikolai Naryjkin, which
(...continued)
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
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 Convention
Against Torture. While the IJ noted that the applications
were untimely, he also addressed their merits. Curiously,
the IJ doubted whether Pavlyk actually served as a prosecu-
tor, 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, withholding of removal, and
relief under the Convention Against Torture.
No. 05-4444 5
II.
We first address the timeliness of the asylum applications.
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 circum-
stances which materially affect the applicant’s eligibility for
asylum or extraordinary circumstances 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 un-
timely 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 jurisdiction to review any determination of the
Attorney General 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 jurisdic-
tion 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
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
6 No. 05-4444
delay and that the IJ never explicitly addressed this conten-
tion. 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 determina-
tion that the petitions were untimely. Consequently, we lack
jurisdiction to review the timeliness of the asylum applica-
tions or their underlying merits. See also Vasile v. Gonzales,
417 F.3d 766, 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], prevents us from reviewing the BIA’s factual determi-
nation.”).
No. 05-4444 7
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 deferen-
tial 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 probability’
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 persecution 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 persecution “because of” his member-
ship in a particular social group or his political opinion.
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]
8 No. 05-4444
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 fundamental
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 prosecu-
tors.” More specifically, Pavlyk classifies himself within a
subset of uncorrupt prosecutors who were subjected to
persecution for exposing government 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 subse-
quently 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
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
No. 05-4444 9
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 confiden-
tial investigators, including their aliases, and about pro-
tected 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 demon-
strate 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.
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
10 No. 05-4444
any persecution stemmed from his conduct in those particu-
lar 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 determi-
nation. 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, 416
F.3d 681, 685 (7th Cir. 2005) (citations omitted). For exam-
ple, “[s]omeone who campaigns against the government
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 themselves 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
No. 05-4444 11
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 corruption
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 not insulate their communications
from employer discipline.” Garcetti v. Ceballos, 126 S. Ct.
1951, 1960 (2006). This holding reinforces the characteriza-
tion of Pavlyk’s conduct 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 Amendment.
Even assuming that Pavlyk suffered persecution, his
actions within his position as a prosecutor that brought
about the alleged persecution do not constitute expressions
12 No. 05-4444
of political opinion. Even further assuming that Pavlyk
expressed a political opinion, the Board’s factual determina-
tion 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:
[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, punishing him
or her for an act he or she or a third person has commit-
ted 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.
No. 05-4444 13
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 considered
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).
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,
14 No. 05-4444
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 suffering 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 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 discussed
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
No. 05-4444 15
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-
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.
16 No. 05-4444
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-4-06