Otganbaatar Tsegmed v. Loretta Lynch

Filing

Filed opinion of the court by Judge Wood. The Petition for Review is DENIED. Diane P. Wood, Chief Judge; Joel M. Flaum, Circuit Judge and William M. Conley, District Court Judge. [6848048-1] [6848048] [16-1036]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16 1036
OTGONBAATAR TSEGMED,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney General of the United
States,
Respondent.
____________________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A089 272 651.

____________________
ARGUED FEBRUARY 8, 2017 — DECIDED JUNE 15, 2017
____________________
Before WOOD, Chief Judge, FLAUM, Circuit Judge, and
CONLEY, District Judge.
WOOD, Chief Judge. Otgonbaatar Tsegmed, a citizen of
Mongolia, overstayed a non immigrant visa and has been liv
ing in the United States since 2004. He came to the attention

Of the Western District of Wisconsin, sitting by designation.

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of the Department of Homeland Security in 2008, after his sec
ond arrest for Driving Under the Influence in Illinois. The
government placed him in removal proceedings. He con
ceded that he was removable, but he filed an application with
the immigration court in July 2008 seeking asylum, withhold
ing of removal, and protection under the Convention Against
Torture (CAT). The Immigration Judge (IJ) denied his appli
cation and ordered him removed to Mongolia; the Board of
Immigration Appeals (BIA) affirmed. Tsegmed now chal
lenges those decisions. Because we lack jurisdiction to review
the denial of his asylum application, and the evidence does
not compel the conclusion that he is eligible for withholding
or relief under the CAT, we deny his petition for review.
I
Tsegmed is a member of the Taij ethnic group, which is
reportedly descended from nobility and still privileged in
Mongolia. He attended school in the Soviet Union and then
became a high ranking officer in the Mongolian military. In
that position, he worked on highly classified assignments and
had knowledge of the internal workings of the governing
Communist regime. But he and his close friend, Bayarbat,
eventually became involved with the pro democracy move
ment in Mongolia while the country was ruled by Mongolia’s
Communist Party. The police arrested Tsegmed and Bayarbat
in 1989 while the two were distributing pro democracy pam
phlets. After the arrest, the police held Tsegmed for 72 hours,
punched him in the face three times, called him names, and
gave him no food. The police arrested him again in 1994,
along with Bayarbat, during an election protest organized by
the Democratic Party.

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In 1999, Tsegmed’s young son died a tragic and mysterious
death, for which he blames the Mongolian government. The
ambulance that Tsegmed called in the midst of his son’s med
ical emergency never arrived, and, following his son’s death,
an unidentified person called and mocked Tsegmed, telling
him that such things happened to members of the Democratic
Party. In 2001, Bayarbat’s family was murdered. The Com
munist Party framed Bayarbat for the murders and arrested
him; he eventually died in prison. Around this time, the police
brought Tsegmed in for questioning, ostensibly related to
Bayarbat’s arrest on murder charges. They instead interro
gated him about political information that they believed
Bayarbat’s father had given him. The police detained him that
time for 72 hours, during which they punched him in the face
between four and six times. Although Tsegmed relocated to
the United States in 2004, Tsegmed’s brother, who remained
in Mongolia, told him in 2007 that unidentified people (pre
sumably communists) had come to him looking for his “dirty
brother.” A month after reporting this to Tsegmed, his brother
died. The death was ruled a heart attack, but Tsegmed be
lieves it may have been caused by something else because his
brother was in good physical shape.
Tsegmed provided this information in the Form I 589 Ap
plication for Asylum and for Withholding of Removal he filed
in July 2008, and in his testimony at two immigration court
hearings conducted in December 2013 and January 2014. The
IJ found Tsegmed credible, but the judge noted that much of
his testimony lacked corroboration and therefore deserved
less weight. The IJ denied relief in July 2014, and the BIA af
firmed in December 2015. They rejected Tsegmed’s asylum
application because he did not meet any exception to the one

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year filing deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ, se
conded by the Board, denied withholding of removal and pro
tection under CAT on the merits, finding that the harm that
Tsegmed alleged on account of his membership in the Demo
cratic Party was not serious enough to qualify as “persecu
tion,” and that Tsegmed had failed to establish that it was
more likely than not that he would be tortured upon return.
Tsegmed has petitioned us for review of the BIA’s decision.
Because the IJ denied the application and the BIA affirmed
with a written opinion, we review both decisions. N.L.A. v.
Holder, 744 F.3d 425, 430 (7th Cir. 2014). We consider legal con
clusions de novo, and we review factual issues under the sub
stantial evidence standard, “which requires us to assess
whether the Board’s determination is supported by reasona
ble, substantial, and probative evidence on the record consid
ered as a whole and to reverse only if the evidence compels a
contrary conclusion.” Abdoulaye v. Holder, 721 F.3d 485, 490
(7th Cir. 2013) (internal citations omitted).
II
A
Although Tsegmed challenges the BIA’s and IJ’s determi
nations that he did not meet any exception to the one year fil
ing deadline for asylum, we lack jurisdiction to reconsider the
Board’s finding. The statute requires someone seeking asylum
to apply for asylum within one year after entering the United
States. 8 U.S.C. § 1158(a)(2)(B). That rule can be relaxed if the
applicant can demonstrate “either the existence of changed
circumstances which materially affect the applicant’s eligibil
ity for asylum or extraordinary circumstances relating to the
delay in filing an application within [one year].”

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§ 1158(a)(2)(D). Section 1158(a)(3) further specifies that no
court has jurisdiction to review the determination about the
timeliness of the application or whether changed or extraor
dinary circumstances excuse a late filing. Nonetheless, we re
tain the authority to review “constitutional claims or ques
tions of law related to the timely filing of an asylum applica
tion.” Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013) (citing
8 U.S.C. § 1252(a)(2)(D)). “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.’” Id. at 625–26 (quoting Restrepo
v. Holder, 610 F.3d 962, 965 (7th Cir. 2010)).
Tsegmed contends that he has shown just such an error of
law, because (in his view) the evidence of a material change
of circumstances in Mongolia is so strong that a contrary con
clusion is inconsistent with the statute. But we rejected exactly
this method of showing “material changes” in Viracacha v.
Mukasey, 518 F.3d 511, 514–15 (7th Cir. 2008), and “extraordi
nary circumstances” in Bitsin, 719 F.3d at 626. Making a deter
mination about either “material changes” or “extraordinary
circumstances” requires this court only “to apply a legal
standard to a given set of facts.” Bitsin, 719 F.3d at 626. This
“does not raise a question of law, and [] therefore does not fall
within § 1252’s exception to the jurisdictional bar of § 1158.”
Id. at 627. Because Tsegmed does not present any constitu
tional claims or questions of law, we lack jurisdiction to con
sider the denial of his asylum application.

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B

Two other forms of relief are unaffected by the one year
rule: withholding of removal, and relief under the CAT.
Tsegmed seeks both.
An alien is entitled to withholding of removal if his “life
or freedom would be threatened in [the home] country be
cause of the alien’s race, religion, nationality, membership in
a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A); Bitsin, 719 F.3d at 628. “A threat to life
or freedom is synonymous with persecution, which this Cir
cuit defines as ‘detention, arrest, interrogation, prosecution,
imprisonment, illegal searches, confiscation of property, sur
veillance, beatings, torture, behavior that threatens the same,
and non life threatening behavior such as torture and eco
nomic deprivation if the resulting conditions are sufficiently
severe.’” Halim v. Holder, 755 F.3d 506, 511–12 (7th Cir. 2014)
(quoting Yi Xian Chen v. Holder, 705 F.3d 624, 629
(7th Cir. 2013)). “Persecution involves, we suggest, the use of
significant physical force against a person’s body, or the inflic
tion of comparable physical harm without direct application
of force (locking a person in a cell and starving him would be
an example), or nonphysical harm of equal gravity” such as
refusing to allow a person to practice his religion or a credible
threat to inflict grave physical harm. Stanojkova v. Holder,
645 F.3d 943, 948 (7th Cir. 2011).
If an applicant establishes that he has suffered past perse
cution, he is entitled to a rebuttable presumption of future
persecution on the same basis. 8 C.F.R. § 1208.16(b)(1). If he
cannot establish past persecution, he still may be entitled to
relief if he can demonstrate a “clear probability” of future per
secution, meaning that it is more likely than not that he would

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be subject to persecution if he were returned.
Halim, 755 F.3d at 512. The “clear probability” standard for
withholding is more stringent than the “well founded fear of
future persecution” standard for asylum applications. Prela v.
Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005).
Tsegmed argues that his past harms are properly charac
terized as persecution on account of his Taij ethnicity, his
membership in the Democratic Party, and his unique position
in the military. He presents no arguments or evidence related
to his ethnicity or his military position, however, and so we
cannot rely on either of those grounds. This leaves his argu
ment that he was persecuted on account of his membership in
the Democratic Party (that is, on the basis of his political opin
ion or membership in a particular social group).
If we were reviewing his petition as a matter of first im
pression, we might have come to a different conclusion. But
we may reverse the BIA’s determination only if we are com
pelled by the evidence to conclude that the agency erred. Dan
dan v. Ashcroft, 339 F.3d 567, 572 (7th Cir. 2003). The IJ and BIA
found insufficient evidence to support the contention that
Tsegmed’s son and brother were murdered in 1999 and 2007,
respectively. They also ruled that Tsegmed could not rely on
“derivative persecution” of Bayarbat, as he had not alleged
that Bayarbat had been framed in order to persecute Tsegmed.
See Zhou Ji Ni v. Holder, 635 F.3d 1014, 1018 (7th Cir. 2011).
While Tsegmed’s story is a deeply troubling one, even with
these qualifications, we cannot say that the Board’s findings
were tainted by legal error or a lack of support in the record.
Tsegmed’s petition describes events that are reminiscent of
other cases in which we have affirmed findings of past perse
cution. See, e.g., Vaduva v. INS, 131 F.3d 689, 690 (7th Cir. 1997)

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(finding that the BIA reasonably concluded that the petitioner
suffered past persecution based on being beaten up by
strangers warning him about political activity, but affirming
denial of asylum based on the lack of a well founded fear of
future persecution). His claims of arrest, assault, and deten
tion without food on account of his political party member
ship and activity depict more than “mere” harassment (a dis
turbingly vague concept). See Stanojkova, 645 F.3d at 948. But
we also have affirmed findings that similar physical harms
did not warrant a finding of past persecution. See, e.g., Sirbu
v. Holder, 718 F.3d 655, 659 n.3 (7th Cir. 2013) (listing cases af
firming findings of no past persecution). As we have previ
ously recognized, our past persecution cases are “all over the
lot.” Stanojkova, 645 F.3d at 947. That is why both Tsegmed and
the government “are able to cite cases that support their posi
tion; [the citations] cancel each other out.” Id. “In the close
cases, where a reasonable trier of fact could make a decision
either way, we should be able to defer to the judgment of the
immigration judges and the Board.” Sirbu, 718 F.3d at 660.
That principle guides our decision to accept the Board’s con
clusion that Tsegmed did not manage to show past persecu
tion.
Because he has not established past persecution, Tsegmed
has the burden of demonstrating a clear probability that he
will be persecuted in the future. Although the BIA did not
reach this issue, the IJ found that he had not met his burden.
The IJ concluded that although Tsegmed had a subjectively
genuine fear of persecution if he is sent back to Mongolia, that
fear is not objectively reasonable. The Democratic Party con
trols the presidency and a plurality of the Mongolian parlia
ment. The U.S. State Department reports that there are no of
ficial political prisoners or detainees in Mongolia. U.S. Dep’t

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of
State,
Mongolia
2015
Human
Rights
Report,
https://www.state.gov/documents/organization/252995.pdf.
The IJ noted that there was no evidence that the Communist
Party retains the ability to threaten Tsegmed, and that there
was insufficient evidence that the party would be motivated
to target an opponent who had not been politically active for
a long time.
Nothing in the record requires us to conclude that
Tsegmed faces a clear probability of future persecution. While
Tsegmed argues that he had a “well founded fear of future
persecution” and that he faces a “reasonable possibility of fu
ture persecution” if he returns, that is not what he needs to
show for withholding of removal. See Prela, 394 F.3d at 519.
Showing a “well founded fear” or “reasonable possibility” of
persecution is a far cry from establishing that future persecu
tion is “more likely than not.”
C
Finally, Tsegmed urges that he has demonstrated that he
qualifies for relief under the CAT, which requires an applicant
to show that it is more likely than not that he will be tortured
if returned to the country in question. 8 C.F.R. § 1208.16;
Bitsin, 719 F.3d at 631. Torture is defined as “any act by which
severe pain or suffering[ ] is intentionally inflicted on a per
son
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. § 1208.18(a)(1).
But Tsegmed presents no arguments in support of this
claim. He says only that “the evidence overwhelmingly estab
lished that he met his burden for withholding of removal and

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CAT as well.” This is not sufficient to preserve his claim for
our review. Puffer v. Allstate Ins. Co., 675 F.3d 709, 718
(7th Cir. 2012). But even if it were, the evidence we already
have reviewed shows that the Board was entitled to find that
Tsegmed has not shown that it is more likely than not he will
be tortured if returned to Mongolia.
His petition for review is DENIED.