The opinion
In the
United States Court of Appeals
For the Seventh Circuit
No. 17‐1459
MIRATBEK ZHAKYPBAEV,
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. A205‐802‐225
ARGUED SEPTEMBER 19, 2017 — DECIDED JANUARY 26, 2018
Before WOOD, Chief Judge, and EASTERBROOK and ROVNER,
Circuit Judges.
ROVNER, Circuit Judge. The petitioner Miratbek Zhakypbaev
was a native and citizen of Kyrgyzstan, who was admitted to
the United States in September 2012 as a nonimmigrant
student to attend the Computer Systems Institute. His wife and
2 No. 17‐1459
three daughters were admitted in December 2012 based on his
status. The petitioner did not attend the Computer Systems
Institute after February 4, 2013, and in April 2013, filed
applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). The
petitioner’s claims were premised on the events surrounding
the ouster of Kyrgyz president Kurmanbek Bakiev in
Kyrgyzstan in April 2010. The petitioner claimed that based on
his connections with the Bakiev family and with the political
party associated with Bakiev, he was persecuted during that
time. He argued that he was eligible for asylum and
withholding of removal because he was a victim of past
persecution and had a well‐founded fear of future persecution
in Kyrgyzstan on account of his political opinion and his
membership in a particular social group—that of persons
associated with the Bakiev family. In addition, he claimed that
he was entitled to protection under CAT.
The Immigration Judge (the IJ) denied relief, holding that
the petitioner had failed to demonstrate that his persecution
was connected to his political opinion or social group, and that
he had failed to establish a threat of torture. The Board of
Immigration Appeals (the Board) adopted and affirmed that
denial, while also writing separately. The petitioner now
appeals those determinations to this court.
Because the Board adopted and affirmed the IJ’s conclusion
with respect to the asylum and withholding of removal claims,
as well as providing its own analysis, we review both
decisions. Bathula v. Holder, 723 F.3d 889, 897 (7th Cir. 2013).
We review the decisions denying asylum and withholding of
removal for substantial evidence, applying de novo review to
No. 17‐1459 3
legal questions but reversing factual findings only if the record
lacks substantial evidence to support them. Id. at 897–98.
Under the substantial evidence standard, we uphold the
agency determination if it is supported by “reasonable,
substantial, and probative evidence on the record considered
as a whole.” Id. at 898. “Reversal is appropriate only where,
reviewing the record as a whole, ‘a reasonable factfinder
would have to’ reach a contrary conclusion.” Id., quoting INS
v. Elias‐Zacarias, 502 U.S. 478, 481 (1992).
The Secretary of Homeland Security or the Attorney
General may grant asylum to aliens who qualify as refugees
under 8 U.S.C. § 1101(a)(42)(A). Cojocari v. Sessions, 863 F.3d
616, 620 (7th Cir. 2017); 8 U.S.C. § 1158(b)(1)(A). A person
seeking asylum must meet the “stringent statutory
requirements for all asylum seekers which require that the
applicant prove (1) that she has suffered or has a well‐founded
fear of suffering harm that rises to the level of persecution, (2)
on account of race, religion, nationality, membership in a
particular social group, or political opinion, and (3) is unable
or unwilling to return to her country because of the
persecution or a well‐founded fear of persecution.” Cece v.
Holder, 733 F.3d 662, 675 (7th Cir. 2013) (en banc); 8 U.S.C. §§
1101(a)(42)(A), 1158(b)(1). Pursuant to the REAL ID Act of
2005, the applicant must show that one of those five protected
grounds was at least one central reason for her persecution.
Cece, 733 F.3d at 672 n.6; 8 U.S.C. § 1158(b)(1)(B)(i). Once an
applicant proves past persecution, she is presumed to have a
well‐founded fear of future persecution, which the Attorney
General may rebut by demonstrating that there is a change in
4 No. 17‐1459
country conditions in the applicant’s home country. Cece, 733
F.3d at 668; 8 C.F.R. § 1208.13(b)(1).
We turn first to the petitioner’s claim that the Board and IJ
erred in determining that he was not entitled to asylum or
withholding of removal. In the proceedings below, the
petitioner argued that his political opinion, and his
membership in a particular social group, was a central reason
for the harm and threats he suffered. The petitioner at oral
argument emphasized that his appeal centered on the social
group portion of the asylum and withholding of removal
decision, but we will address the political opinion component
as well because it is argued in the briefs. The petitioner does
not challenge the discussion of facts as set forth in the IJ’s
decision and adopted by the Board, and therefore we rely on
that recitation here.
During the petitioner’s childhood, he grew up in the Jalal‐
Abad district, which is the area from which Bakiev originated.
He was a neighbor of Bakiev’s nephews, Kushtar and Sanzhar
Bakiev, but did not remain in close contact with them beyond
his childhood. In addition, while employed at a hotel
restaurant in 1997, he met members of the Temirbaev family,
which was a politically‐powerful family under the Bakiev
regime. Bakiev was president from 2005 until he was ousted in
a coup on April 7, 2010. The petitioner believes that Bakiev was
ousted with the help of Russia because he would not agree to
close the American military base at Manas International
Airport.
At the time of the coup, the petitioner was employed at
Megacom, a telecommunications company which was owned
No. 17‐1459 5
by one of Bakiev’s sons, Maksim. On April 8, 2010, the
petitioner was contacted by Kushtar Bakiev who told the
petitioner that one of his properties had been confiscated by
the interim government, and asked the petitioner to look after
another property, a night club, that he owned. The petitioner
went to the night club and witnessed what he described as an
attack on the club by individuals connected to the interim
government, culminating in the club owner being forced to
transfer title of the property. Some of the people involved in
the forced transfer of title later became parliamentary deputies
for the ruling party, including Turatbek Madylbekov and
Raikan Tologonov.
Madylbekov also became the head of the Internal Affairs
Department for the city of Bishkek. On May 25, 2010, the
petitioner was told to report to the prosecutor’s office in
Bishkek for an investigation. He was informed that his
testimony was sought regarding criminal charges against
Bakiev, members of Bakiev’s staff, and the managers of
Megacom. He was questioned by a man named Aibek, who
informed him that they knew of his employment at Megacom
and his movements on April 7 and 8. Aibek also alleged that
the petitioner had helped Bakiev flee the country. According to
the petitioner, Aibek wanted him to provide false testimony
against Bakiev and the people connected to Bakiev’s regime
and Megacom, and proposed dictating a statement for the
petitioner.
After the petitioner refused to testify or write such a
statement, three men were summoned to the room and
attacked him by forcing a plastic bag over his head for
approximately one minute, grabbing him by the neck and
6 No. 17‐1459
slamming his head into the desk, and kicking him when he fell
to the ground, eventually causing him to lose consciousness.
When the petitioner regained consciousness, a nurse was in the
prosecutor’s office with him, and he was taken to the hospital
where he received stitches and remained for three days.
The petitioner testified to the IJ that he was beaten at the
prosecutor’s office because he witnessed the illegal seizure of
the private property belonging to the Bakiev family by
Madylbekov and Tologonov during the coup. Madylbekov’s
son Eldar was working as an investigator at the same
prosecutor’s office where the petitioner was beaten. The
prosecutors wanted him to remain silent about those unlawful
takings, and wanted him to testify against the Bakiev family
and the Megacom management in order to provide a
justification for the company’s seizure and nationalization.
On June 6, the petitioner again was notified to report to the
prosecutor’s office. He went to the office and was again
pressured to cooperate with the prosecution, but he was not
subjected to further physical abuse. He returned to the
prosecutor’s office some days later and attempted to file a
complaint regarding the mistreatment he had experienced but
was unsuccessful in that effort.
A financial police unit filed a complaint in 2011 against
Andrei Silich, the director of Megacom, alleging financial
wrongdoing. Silich subsequently fled the country. In addition
to being summoned to the prosecutor’s office twice, the
petitioner was interrogated by the financial police five times at
his place of employment and two other times at the offices of
the financial police. Following the 2010 coup, the interim
No. 17‐1459 7
government obtained 49% of the shares of Megacom, and in
2014 the government obtained the remaining shares of the
company.
Although Bakiev was ousted, his political party, Ata‐Zhurt,
won the most seats in parliament following the 2010 coup,
which forced the ruling interim government to cooperate with
the party despite the party’s support for Bakiev. In July 2012,
Eldar Madylbekov and Musa Tologonov were arrested in
connection with their fathers’ crimes during the 2010 coup.
According to the petitioner, the sons were arrested because
their fathers, as deputies in the parliament, were immune from
prosecution. In August 2012, the petitioner received a
summons to appear at the Office of Internal Affairs in Bishkek,
which he believed was in relation to the arrests of Eldar and
Musa. He did not appear as requested because Eldar’s father,
Turatbek Madylbekov, was the head of the office of Internal
Affairs at the time, and he believed that he would be
threatened and told to remain silent regarding the case against
Eldar and Musa, and forced to testify against people related to
Bakiev and the Ata‐Zhurt party if he appeared.
In September 2012, the general director of the petitioner’s
company was replaced and the new director told him to resign.
He did so and left for the United States. The police continued
to send him summonses to his former residence and his
mother’s house throughout 2013. In 2014, his brother‐in‐law
was contacted by the prosecutor’s office and informed that
there was now a criminal case against the petitioner and that
he was suspected of concealing information.
8 No. 17‐1459
The petitioner fears that he will be harmed by Eldar and
Musa if he returns to Kyrgyzstan because he witnessed their
fathers’ unlawful actions in forcing the transfer of the title to
the property. Although the petitioner testified that Eldar was
convicted at trial and sentenced to nine years’ imprisonment,
he also contradicted that by stating that Eldar and Musa were
cleared of charges and released from prison, and again by
stating that the cases remained open on the same charges and
that his testimony as a witness was still being sought.
The IJ found that the petitioner was generally credible in his
testimony. The IJ noted, however, that in some instances the
petitioner’s testimony was inconsistent with his prior
statements in his asylum application, and those inconsistencies
related to his connections with the Bakiev and Temirbaev
families that formed the bases of his alleged social group.
According to the IJ, in his application, the petitioner
“emphasized his long‐time relationships with members of the
Bakiev and Temirbaev families and also stated that he was
promoted rapidly within Megacom ‘due to [his] old
connections and the friendship with the nephews of President
Bakiev, Kushtar and Sanzhar, as well as with Arstan
Temirbaev.’ However, in his testimony, he admitted that he
did not remain in contact with Kushtar and Sanzhar after
childhood; they merely grew up nearby each other. He also
asserted that he obtained his position with Megacom through
his experience and education, and he denied that he was ever
promoted because of his connections.” IJ Op. at 7. The IJ
concluded that the petitioner had exaggerated the extent of his
connections with the Bakiev and Temirbaev families, but that
apart from that aspect, the petitioner’s testimony was credible
No. 17‐1459 9
overall. We review that credibility determination deferentially,
upholding it as long as it is supported by substantial evidence.
Cojocari, 863 F.3d at 621.
As was stated, the petitioner in the proceedings below
sought to demonstrate that he was unable or unwilling to
return to his country because of persecution or a well‐founded
fear of persecution on account of his membership in a
particular social group or political opinion. On appeal, he
argues that the court erred in denying his claim related to his
political opinion and to his membership in the social group.
With respect to those claims, the IJ held that the beating that
the petitioner suffered might be sufficient by itself to rise to the
level of persecution, but that the petitioner had failed to
demonstrate that the persecution was on account of his
political opinion or his membership in the social group.
The IJ noted that a social group, in order to be cognizable,
must share an immutable characteristic, and have sufficient
homogeneity and cohesiveness. The claimed social group here
was defined as “persons associated with the Bakiev family.”
The IJ was concerned that the group could lack homogeneity
in that it was not clear how tenuous one’s connections to
Bakiev could be while still falling within the group, but the IJ
determined that the group was cognizable if limited to those
persons whose connections with Bakiev are strong enough to
have pro‐Bakiev political views imputed to them. The IJ held,
however, that the evidence indicated that he was sought out
because of his potential usefulness as a witness, and that there
was no evidence that he was interrogated or beaten because of
his membership in that social group, or that he had a well‐
founded fear of such persecution on that basis. The Board in
10 No. 17‐1459
reviewing the IJ’s decision noted that a persecutor’s motivation
is a matter of fact to be determined by the IJ, and is reviewed
only for clear error. The Board concluded that the IJ did not
clearly err in finding that the petitioner was interrogated and
beaten because the prosecutor thought that he had information
that would be useful in prosecuting individuals for financial
crimes rather than because of his connection to the Bakiev
family.
The critical issue in this appeal is whether the IJ and the
Board erred in concluding that the petitioner had failed to
demonstrate that the interrogation and beating were on
account of his association with the Bakiev family. We defer to
the factual conclusions, reversing only if the evidence compels
a different result. N.L.A. v. Holder, 744 F.3d 425, 430 (7th Cir.
2014).
In order to demonstrate eligibility for asylum on the basis
asserted here, it is not enough to establish that he is part of the
claimed social group. Even if we assume that the petitioner is
part of a cognizable social group consisting of persons
associated with Bakiev, and that the petitioner was persecuted,
the petitioner must also establish a particular link between his
mistreatment and his membership in the social group. Cece, 733
F.3d at 674. For instance, as we explained in Cece, “an ethnic
Rom (gypsy) who has been mistreated by the town mayor
because of a long‐standing business dispute would not be
eligible for asylum even if the mayor has undoubtedly and
unfairly mistreated him, and even if he belongs to an ethnic
group that was frequently the target of persecution in his
country. The persecution must still be ‘on account of’ the
protected category.” Id. The petitioner must demonstrate a
No. 17‐1459 11
nexus between the persecution and the membership in the
social group. Orellana‐Arias v. Sessions, 865 F.3d 476, 484 (7th
Cir. 2017).
Petitioner’s own testimony as to the prosecutor’s
motivation supports the IJ’s determination that the persecution
was not related to his social group. The petitioner testified to
the IJ that he was beaten at the prosecutor’s office because he
witnessed the illegal seizure of the private property belonging
to the Bakiev family by Madylbekov and Tologonov during the
coup. Madylbekov’s son, Eldar, was working as an investigator
at the same prosecutor’s office where the petitioner was beaten.
The petitioner further testified that the prosecutors wanted him
to remain silent about those unlawful takings, and wanted him
to testify against the Bakiev family and the Megacom
management in order to provide a justification for the
company’s seizure and nationalization. That testimony
supports the findings of the IJ and the Board that he was
targeted because he witnessed the illegal taking and his
testimony could harm Madylbekov and Tologonov or could
provide a justification for the taking.
The petitioner’s arguments on appeal also support the IJ
and Board findings. On appeal, the petitioner repeats the
assertions above as to the motivation for the persecution. In
addition, he argues that he fears he will be harmed if returned
to Kyrgyzstan because he witnessed Madylbekov’s and
Tologonov’s misdeeds; he does not argue that he will be
harmed because of his association with the Bakiev family.
Finally, on appeal the petitioner argues that he is caught in the
middle of two factions—those supporting the Bakiev
government and those supporting the new government. He
12 No. 17‐1459
asserts that because he knew what was occurring from the
inside, his testimony would be important to each side in the
fight.
That supports the findings by the IJ and the Board that he
was targeted because of the value of his testimony as a witness,
not because he was perceived as being associated with the
Bakiev family. As he recognizes, he was a person whose
testimony could help or hinder the case against either of the
two factions. That is different from being targeted based on his
affiliation with one faction.
Our opinion in Orellana‐Arias, 865 F.3d 476, is illustrative of
that distinction. In that case, Orellana‐Arias argued that he was
targeted for extortion because he was a member of a social
group consisting of persons who are perceived by gangs and
corrupt officials to have money because they are returning
from the United States. Id. at 485. We recognized that the gang
mentioned his return from the United States when it first
approached him asking for money, and perceived him to be
wealthy based on that association. Id. Nevertheless, we held
that the nexus was not established because he presented no
evidence that he was more of a target because he was deported
from the United States, as opposed to any other country
perceived to be wealthy, or if he had been identified as wealthy
due to other factors such as through his job or lottery winnings.
Id. We held that it was his perceived wealth alone that made
him a target for the gang. Id.
Similarly, the evidence in this case indicates that petitioner
was targeted for his perceived usefulness as a witness. He
appears to have been identified as a potential witness because
No. 17‐1459 13
of his presence at the scene of the forcible taking of property on
April 8, 2010, and because of his employment at Megacom and
the perception that he had connections with Bakiev associates.
But it was his usefulness in the criminal investigation, and his
potential damage to the individuals involved in the forced
taking, that made him a target here. Even if his usefulness as
a witness—and the potential threat he posed—was more
apparent based on his perceived association with the Bakiev
family, just as Orellana‐Arias’ perceived wealth stemmed from
his association with the United States, the IJ and Board did not
err in concluding that the petitioner was not targeted based on
that association. See also Bathula, 723 F.3d at 901 (rejecting
claim based on a social group of “those willing to participate
in the legal process, despite great personal risk,” where there
was “no suggestion in the record that the land mafia sought to
destroy the legal process generally, or to attack those who
supported it,” and the filings clearly demonstrated that the
petitioner was a victim of intimidation for his specific
testimony in a specific case against the land mafia); Jun Ying
Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir. 2006) (rejecting
claim where the persecutors seeking to harm Wang did not do
so based on her membership in a particular group or for any
political opinion, but rather for her decision to cooperate with
the government to reduce her own sentence). Based on the
evidence here, the IJ and the Board properly could conclude
that a person not associated with Bakiev but who possessed the
petitioner’s employment position and witnessed that forced
transfer would also have been interrogated and beaten to seek
his testimony, or at least that the association was not a central
reason for the persecution.
14 No. 17‐1459
The IJ and Board determination that the nexus was not
established must be upheld unless the evidence compels a
contrary conclusion. Bueso‐Avila v. Holder, 663 F.3d 934, 938
(7th Cir. 2011). For instance, in Bueso‐Avila, the petitioner
presented evidence that he was persecuted by the gangs on
account of his evangelical Christianity and that the
government was unable to stop it. Id. at 935–36. Bueso‐Avila
testified that he was only threatened and injured by the gang
after he joined his church youth group, and that he
proselytized on behalf of that church and encouraged others
not to join the gangs. Id. at 935. On two occasions, he was
attacked by gang members following church youth group
meetings, but suffered the most serious attack when returning
home from work. Id. at 935–36. The gang members did not
mention his religious affiliation or give any other indication
that it was a factor, but Bueso‐Avila testified that they were
motivated to stop the encroachment on their territory by the
church youth group. Id. at 935. We affirmed the Board’s
determination that the persecution was based on the gang’s
desire to recruit him and that his religious affiliation was not
a central reason for the persecution. We recognized that the
evidence supported a legitimate inference that the gang
members persecuted Bueso‐Avila on account of his religious
and church membership, but held that the evidence was not so
compelling that no reasonable fact‐finder could fail to find that
the gang was motivated to persecute him based on his
religious affiliation. Id. at 938.
Because the evidence does not compel the conclusion that
the petitioner’s persecution was connected to his membership
in that social group, we must uphold the decision of the IJ and
No. 17‐1459 15
the Board. At best, the petitioner produced permissible
evidence that could support an inference of the unlawful
motive, but we cannot reverse unless the evidence is so strong
as to require the factfinder to accept it. Bathula, 723 F.3d at 902;
Bueso‐Avila, 663 F.3d at 937, quoting Elias‐Zacarias, 502 U.S. at
483–84 (“for reversal, the evidence must be ‘so compelling that
no reasonable factfinder could fail to find the requisite fear of
persecution’” on account of race, religion, nationality,
membership in a particular social group, or political opinion).
We turn, then, to his argument that he was persecuted on
account of his political opinion. The relevant focus for this
claim is the petitioner’s political opinion, not that of the
persecutor. Elias‐Zacarias, 502 U.S. at 482 (“The ordinary
meaning of the phrase ‘persecution on account of … political
opinion’ in § 101(a)(42) is persecution on account of the victimʹs
political opinion, not the persecutor’s.”) The petitioner
contends that he participated in political activities, including
collecting signatures and spreading leaflets for the Ata‐Zhurt
party, and attended political rallies for that party, although he
did not actually join the party because his employer at that
time prohibited it. That involvement, however, occurred in
August 2010, months after he was interrogated and beaten in
the prosecutor’s office. Therefore, that support for the political
party could not have been the basis for the past persecution. As
the IJ noted, the petitioner’s account of the initial interrogation
and the demands of the prosecutor contained no reference to
the petitioner’s political views, but of course that would not be
dispositive. It is a rare case in which a persecutor will openly
declare the motivation for the abuse. It is certainly possible, of
course, that the persecutors attributed a political opinion to the
16 No. 17‐1459
petitioner based on his affiliation with Megacom and his
relationships with the Bakiev family. But that is just a re‐
characterization of the social group argument just rejected, in
that both are premised on the notion that his affiliation with
Bakiev and his party was a central reason for the persecution,
and it fails for the same reason. The evidence in this case does
not compel a determination that the petitioner’s political
opinion was a central reason for the persecution. Elias‐Zacarias,
502 U.S. at 481 n.1 (to reverse the IJ and Board finding, the
evidence must compel the conclusion that the persecution was
on account of his membership in a protected group.)
The petitioner has also failed to demonstrate that he had a
well‐founded fear of future persecution. A fear of persecution
is “well‐founded” if it is “subjectively genuine and objectively
reasonable.” Musollari v. Mukasey, 545 F.3d 505, 508 (7th Cir.
2008). The evidence indicates that he returned to the
prosecutor’s office for questioning on a number of occasions
after the date of the beating, and was not subjected to further
abuse. In addition, he was questioned on more than five
occasions by the financial police but again not subject to other
mistreatment. There is insufficient evidence in the record to
compel the conclusion that the questioning was for a motive
other than the desire to pursue valid criminal cases. In fact,
although he maintains that the interrogators wanted him to file
a false statement, he concedes that he does not actually know
the content that they sought from him because it never got to
that point. Finally, the evidence indicated that the political
party which the petitioner claims to support, Ata‐Zhurt, won
the majority of the votes in the October 2010 election. Given all
of those facts, the IJ and the Board did not err in determining
No. 17‐1459 17
that the petitioner failed to demonstrate a well‐founded fear of
future persecution.
Finally, the IJ and Board did not err in determining that the
petitioner was not entitled to withholding of removal or to
protection under the CAT. Where, as here, a petitioner cannot
demonstrate entitlement to asylum, he “necessarily cannot
satisfy the more stringent requirement for withholding of
removal under 8 U.S.C. § 1231(b)(3).” Bueso‐Avila, 663 F.3d at
937, quoting Ahmed v. Ashcroft, 348 F.3d 611, 615 (7th Cir. 2003).
Regarding the CAT claim, the petitioner presents on appeal
only the bare assertion that the Board erred in finding there
was no substantial grounds for believing that he would be in
danger of torture, but has failed to provide any argument as to
why that determination was erroneous. The record on its face
supports the determination of the IJ and Board. The petition for
review is therefore
DENIED.