Nadiia Chuchman v. Merrick B. Garland ( 2021 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3205
NADIIA BOHDANIVNA CHUCHMAN,
Petitioner,
v.
MERRICK B. GARLAND,
Attorney General of the United States,
Respondent.
____________________
Petition for Review of an Order of the Board of Immigration Appeals.
No. A206-590-765.
___________________
ARGUED JULY 7, 2021 — DECIDED JULY 12, 2021
____________________
Before EASTERBROOK, KANNE, and KIRSCH, Circuit Judges.
KANNE, Circuit Judge. Nadiia Chuchman, a citizen of
Ukraine, appeals the denial of her application for asylum
based on political opinion. She maintains that the Ukrainian
government persecuted her nearly a decade ago for her polit-
ical activity in opposing the former president. She primarily
argues that the Immigration Judge and the Board of Immigra-
tion Appeals erred in finding that she had not experienced
past persecution after government actors beat her severely,
2 No. 20-3205
detained her for a day, and pressured her university’s dean to
expel her if she remained politically active. She also maintains
that they ignored evidence of ongoing corruption in Ukraine
when finding that her political party’s rise to power meant she
was unlikely to be persecuted in the future. Because substan-
tial evidence supports the Board’s conclusion that Chuch-
man’s experience in Ukraine did not rise to the level of perse-
cution, and because she failed to present compelling evidence
that the new Ukrainian government would persecute her if
she returned, we deny the petition for review.
I. BACKGROUND
In November 2010, Chuchman, then a seventeen-year-old
university student, joined the Ukrainian Democratic Alliance
for Reform (UDAR), a political party that opposed then-pres-
ident Viktor Yanukovych. (Yanukovych would later be re-
moved from office in the 2014 Ukrainian Revolution.) As a
party member, she participated in meetings and protests,
spoke out against the Yanukovych regime, and tried to recruit
students and community members to oppose Yanukovych
and join UDAR.
In September 2012, her university’s dean warned Chuch-
man that she could be expelled for her political activity. The
dean said that government representatives had ordered him
to stop student protests against Yanukovych, and they had
singled her out by name. He asked her to leave UDAR. De-
spite the warning, she continued her political activity.
Two months later, police assaulted, arrested, and detained
Chuchman at a massive rally against electoral corruption. The
Berkut (an elite police force that worked for the Yanukovych
regime) closed in on the crowd with shields and batons, and
No. 20-3205 3
a Berkut officer grabbed Chuchman’s wrist. When she tried to
break free, the officer hit her in the shoulder with his baton
and then forced her into a nearby van. She was detained for a
day and then released without charges.
A few days later, the dean again implored Chuchman to
stop her political activity. He explained that he had resisted
pressure from government representatives to have her ex-
pelled, but he would not be able to protect her next time. Af-
terward, Chuchman said she was “scared,” and for several
months she stopped her political activism. The next spring,
however, her UDAR colleagues persuaded her to rejoin the
party.
In April 2013, Chuchman was assaulted by the Berkut after
attending another large protest. An officer—seeing that she
carried a flag representing opposition to the Yanukovych re-
gime—yelled and cursed at Chuchman, then grabbed and
shook her. Having heard that police were beating protestors,
she pepper-sprayed the officer and fled. Before going far, she
was hit from behind and lost consciousness. She awakened
with blood all over her face, a broken nose, and a concussion;
she was hospitalized for three weeks.
Soon after leaving the hospital, Chuchman flew to the
United States and entered the country using a J-1 cultural-ex-
change visa.
Two months later, Ukrainian police began searching for
her. They sent summonses to her university dormitory and to
her parents’ house, ordering her to appear for interrogation
about unspecified criminal charges.
Over the next nine months, while Chuchman was in the
United States, a wave of demonstrations and civil unrest
4 No. 20-3205
broke out across Ukraine. The Euromaidan, or “Revolution of
Dignity,” culminated in Yanukovych’s ouster in February
2014. UDAR later merged with the new president’s party.
In April 2014, when she had been in the United States for
just under one year, Chuchman applied for asylum, withhold-
ing of removal, and protection under the Convention Against
Torture. Two months later, the Department of Homeland Se-
curity served her with a Notice to Appear, charging her with
removability for overstaying her visitor’s visa. See 8 U.S.C.
§ 1227(a)(1)(B). In July 2014, at a brief appearance before an
Immigration Judge, Chuchman, with assistance of counsel,
conceded removability.
Meanwhile, back in Ukraine, the police continued to
search for Chuchman. Her parents received additional sum-
monses in her name (these continued through at least 2018),
and the police questioned the parents twice about her where-
abouts. When Chuchman’s mother pressed for details, police
said only that the case involved “public disturbances as a hoo-
ligan” or “assault.” The record contains over 40 summonses
in total.
At her hearing before an IJ in June 2018, Chuchman de-
scribed her experience with UDAR and the Ukrainian govern-
ment. Although Yanukovych had since been ousted and
UDAR had become a part of the ruling majority, Chuchman
testified that she feared reprisal from the many pro-Yanu-
kovych officials (including police officers and judges) who re-
mained in office and continued to punish those who had op-
posed him. She also testified that former UDAR members
continued to be imprisoned and harmed (though she did not
give names or other details). She provided country-condition
evidence in the form of news articles and reports by humans-
No. 20-3205 5
rights organizations describing, for instance, a lack of ac-
countability for police misconduct, ongoing corruption in the
judiciary, and a soaring number of political prisoners.
The IJ denied Chuchman’s petition. He found Chuchman
credible but concluded that she had not demonstrated that the
harm she suffered constituted persecution. In particular, he
gave little weight to the police summonses because the record
was unclear whether police were seeking Chuchman because
of her political activity or because she had pepper-sprayed an
officer. And even if she could show past persecution, the IJ
decided, the changed conditions in Ukraine made it unlikely
she would be persecuted in the future: UDAR was now part
of the leading political party, and the reported arrests of po-
litical dissidents were taking place in parts of the country
other than where Chuchman had lived (the Kyiv region).
The Board of Immigration Appeals adopted and affirmed
the IJ’s decision. The Board agreed with the IJ that the harm
Chuchman suffered during her two police encounters was not
persecution; nor were the threats she faced as a result of the
police summonses (which conceivably could be part of a le-
gitimate prosecution) or the dean’s “expression of concern”
that he could not protect her from expulsion if she continued
her political activities. Next, the Board agreed with the IJ that
Chuchman had not established a well-founded fear of future
persecution: not only had there been a transfer of political
power, but she also did not argue that the pro-Yanukovych
officials whom she feared were motivated by political animus.
Although Chuchman asked the Board to take judicial notice
of UDAR’s loss of power in 2019, it is noted that her brief to
the court does not renew any arguments concerning present
conditions in Ukraine.
6 No. 20-3205
II. ANALYSIS
We understand Chuchman to make a two-part challenge
to the conclusion of the IJ and the Board that she did not suffer
past persecution. First, she appears to argue that the two po-
lice encounters were themselves enough to establish past per-
secution.
Under the deferential substantial-evidence standard, this
court does not disturb the Board’s decision unless the record
“compel[s]” a contrary conclusion. Herrera-Garcia v. Barr,
918 F.3d 558, 561 (7th Cir. 2019) (emphasis omitted) (quoting
Minghai Tian v. Holder, 745 F.3d 822, 828 (7th Cir. 2014)). Based
on the available evidence, a finding of persecution is not com-
pelled here. This court has determined that detentions and
beatings of severity comparable to or greater than what
Chuchman experienced did not compel a finding of persecu-
tion. See, e.g., Tsegmed v. Sessions, 859 F.3d 480, 482, 485
(7th Cir. 2017) (petitioner detained twice for three days each,
once without food, and punched in the face both times); Mema
v. Gonzales, 474 F.3d 412, 416, 418 (7th Cir. 2007) (abduction at
gunpoint by police followed by beating that caused loss of
consciousness); Zhu v. Gonzales, 465 F.3d 316, 319–20 (7th Cir.
2006) (wound from beating required seven stitches).
Next, Chuchman argues that the Board focused too nar-
rowly on the two police encounters and failed to consider the
cumulative weight of her other evidence. She maintains that
the Board ignored the attempts by police to question her and
the dean’s warnings of expulsion. But she misapprehends the
Board’s analysis. The Board explained why those events did
not support a finding of persecution: The dean expressed con-
cern but did not threaten to expel her, and the police sum-
monses could have been part of a legitimate criminal
No. 20-3205 7
prosecution rather than a pretext for political retaliation. In
any event, Chuchman points to no case, and we can find none,
suggesting that such events elevate her experience to one of
persecution.
Chuchman also raises two arguments challenging the
Board’s rejection of her claim asserting a fear of future perse-
cution. First, she postulates that she is entitled to a presump-
tion that she faces future persecution because she was perse-
cuted in the past. But she did not establish past persecution
and so was not entitled to any presumption that she would be
persecuted in the future. See W.G.A. v. Sessions, 900 F.3d 957,
962 (7th Cir. 2018). Second, she believes that the Board (and
IJ) ignored her country-condition evidence about ongoing
corruption and politically motivated arrests. But none of her
proffered evidence compels the finding that the current
Ukrainian government seeks to harm former UDAR members
or anti-Yanukovych activists. As the IJ noted, the country-con-
dition evidence suggests that the politically motivated arrests
occur in regions of Ukraine other than where Chuchman
lived.
Finally, Chuchman raises a narrow factual challenge: that
the Board misconstrued her argument by stating that she de-
nied that her fear of persecution was based on her member-
ship in UDAR. But even if she is correct (i.e., if in fact she had
denied only that her fear was based on UDAR’s status as an
opposition party), any error would be harmless because she
has established neither past persecution nor a well-founded
fear of future persecution.
III. CONCLUSION
Accordingly, we DENY the petition for review.