Valentin Bitsin v. Eric Holder, Jr. , 719 F.3d 619 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2717
V ALENTIN A SENOV B ITSIN,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A088-188-257
A RGUED JANUARY 22, 2013—D ECIDED M AY 31, 2013
Before R IPPLE and R OVNER, Circuit Judges, and B ARKER,
District Judge.Œ
R IPPLE, Circuit Judge. Valentin Asenov Bitsin, a native
and citizen of Bulgaria, petitions for review of an order
Œ
The Honorable Sarah Evans Barker, of the United States
District Court for the Southern District of Indiana, sitting
by designation.
2 No. 12-2717
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.2 Once his papers were
filed, Mr. Bitsin attempted to contact the attorney by
telephone to check the status of his application, but “[t]he
1
He previously had come to the United States in both 2003
and 2004, also on visitor visas.
2
A.R. at 128.
No. 12-2717 3
telephone was out of service.” 3 He later went to the at-
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 pro-
ceedings.
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 com-
pany. 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, acci-
dentally 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 pros-
ecutor, however, refused to pursue the matter on the
3
Id.
4
Id. at 133.
4 No. 12-2717
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’ organi-
zation. 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 pro-
ceedings began, the fact that Asen was planning to
testify became known, and the Bulgarian government
took him into protective custody. The trial recom-
menced in 2010, 5 and Asen testified in the proceedings. In
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 pro-
ceedings.” 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
5
When the trial recommenced, Mr. Bitsin’s mother and sister
went to visit relatives in France. At the time of Mr. Bitsin’s
merits hearing, they still resided there.
6
A.R. at 144.
No. 12-2717 5
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 fa-
ther’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 ]
7
Id. at 86.
8
Id. at 87.
6 No. 12-2717
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 cor-
ruption. That is not sufficient to establish a likelihood
of persecution.” 9 The IJ also found that Mr. Bitsin had
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 govern-
ment 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 “extra-
ordinary circumstances.” 1 0 Nor had he “shown receipt of
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-
9
Id.
10
Id. at 3 (internal quotation marks omitted); see 8 U.S.C.
§ 1158(a)(2)(D).
No. 12-2717 7
trative parole.” 11 Furthermore, he had not established
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 [Bul-
garia],’ ” 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).1 2
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 rea-
son.” 1 3 Moreover, Mr. Bitsin had “provided little detail
about the circumstances surrounding the alleged explo-
sion 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.” 1 4 Additionally,
Mr. Bitsin had not met his burden of showing that “the
Bulgarian government would be unable or unwilling
11
A.R. at 3 (internal quotation marks omitted).
12
Id. at 4 (first alteration in original).
13
Id. at 5.
14
Id.
8 No. 12-2717
to protect [him], as [he] testified that the government
protected his father whom it placed in a witness protec-
tion program.” 15
Finally, the BIA concluded that the IJ “properly con-
cluded 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.” 1 6 Conse-
quently, Mr. Bitsin did not qualify for relief 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
15
Id. at 6.
16
Id.
No. 12-2717 9
United States. An alien’s application for asylum never-
theless “may be considered” if he “demonstrates . . .
either the existence of changed circumstances which
materially affect [his] eligibility for asylum or extraordi-
nary 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 determina-
tion regarding the timeliness of an alien’s applica-
tion for asylum or the existence of changed or extraordi-
nary circumstances to excuse his late filing.1 7
17
8 U.S.C. § 1158 provides, in relevant part:
(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 desig-
nated port of arrival and including an
alien who is brought to the United States
after having been interdicted in interna-
tional or United States waters), irrespec-
tive 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...)
10 No. 12-2717
Despite § 1158(a)(3), this court may review constitutional
claims or questions of law related to the timely filing of
17
(...continued)
(B) Time limit
Subject to subparagraph (D), para-
graph (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, notwith-
standing subparagraphs (B) and (C), if
the alien demonstrates to the satisfac-
tion 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 period specified in sub-
paragraph (B).
(3) Limitation on judicial review
No court shall have jurisdiction to re-
view any determination of the Attorney
General under paragraph (2).
No. 12-2717 11
an asylum application. See 8 U.S.C. § 1252(a)(2)(D).1 8 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.” 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 asy-
lum—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 Re-
volutionary Armed Forces of Colombia (FARC),
an insurgent group that threatened him with
death after he opposed its operations. But be-
cause he told the immigration judge that he had
18
8 U.S.C. § 1252(a)(2)(D) provides:
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.
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 “con-
stitutional claims or questions of law.” Id. at 514 (cita-
tions 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 mate-
rial.” 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 extra-
ordinary 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 mate-
rial. 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 At-
torney 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-circum-
stances claim was based on an evaluation of the facts
and circumstances of her case. We do not have jurisdic-
tion 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
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 Memo-
randum, 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.1 9 This memoran-
dum, however, addresses how to calculate the period
of unlawful presence for purposes of determining inad-
missibility; it does not purport to speak to filing dead-
lines for asylum.20
19
See Interpretation of “Period of Stay Authorized by the
Attorney General” in determining “unlawful presence” under
INA section 212(a)(9)(B)(ii) (2003), http://www.uscis.gov/files/
pressrelease/PofStay4023Pub.pdf.
20
Mr. Bitsin also submits that a memorandum explaining
the “Deferred Action for Childhood Arrivals” Program sup-
ports his claim. See Exercising Prosecutorial Discretion with
Respect to Individuals Who Came to the United States as Chil-
dren (2012), http://www.dhs.gov/xlibrary/assets/s1-exercising-
pro se cu to ria l-d isc retio n-ind ividuals-who -cam e-to-us-as-
children.pdf. Mr. Bitsin did not come to the United States as a
child. Moreover, the memorandum only sets forth the agency’s
(continued...)
No. 12-2717 15
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 Reg-
ulations 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
20
(...continued)
priorities with respect to allocation of prosecutorial resources;
it does not speak to, nor does it create, rights for private
individuals.
16 No. 12-2717
with the Bulgarian government constituted an “ac-
tivit[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, how-
ever, that the IJ had not erred because there was
“no support” for the conclusion that Asen’s “involve-
ment in a Bulgarian case should be construed as an ‘ac-
tivity’ ” 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 circum-
stances. Indeed, in the present case, the BIA con-
sidered 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
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 probabil-
ity,” 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 2 1 with respect to a denial of with-
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 con-
sidered 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).
21
Where, as here, the Board issued its own opinion, the Board’s
decision forms the basis for our review. See, e.g., Liu v. Ashcroft,
380 F.3d 307, 311 (7th Cir. 2004).
18 No. 12-2717
1.
Mr. Bitsin first maintains that, with respect to the
decision to deny withholding of removal, the IJ mis-
takenly 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 cooper-
ating 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 credi-
bility 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
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 in-
truder 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 pre-
sented required the BIA to conclude that, based on
his familial ties with his father,2 2 he will suffer harm at
22
Mr. Bitsin contends that he will suffer persecution on the
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...)
20 No. 12-2717
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 re-
ceived only six months’ probation.
22
(...continued)
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 pro-
tected grounds.”).
No. 12-2717 21
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; never-
theless, although Mr. Bitsin was in Bulgaria intermit-
tently 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 conclu-
sion that it is not unwilling or unable to protect indi-
viduals who have been the victims of ethnic attacks.
Vahora v. Holder, 707 F.3d 904, 908 (7th Cir. 2013). Addi-
tionally, the Bulgarian government has been providing
Asen with protection, and has kept him safe, for al-
most two years following the conclusion of the Galev
Brothers’ trial. Thus, this case does not present a situa-
tion 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
23
In his reply brief, Mr. Bitsin argues that the IJ and the
(continued...)
22 No. 12-2717
23
(...continued)
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 previ-
ously 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 dem-
onstrate 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 em-
ployed 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
C. Relief under the CAT
Mr. Bitsin also seeks review of the BIA’s determina-
tion 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 sub-
stantial 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 acquies-
cence 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-
23
(...continued)
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.
24 No. 12-2717
tection for Asen during the course of criminal pro-
ceedings, 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 juris-
diction 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 with-
holding of removal and relief under the CAT.
P ETITION D ISMISSED in part AND
D ENIED in part
5-31-13