Andriy Yasinskyy v. Eric Holder, Jr.
724 F.3d 983
| 7th Cir. | 2013Background
- Andriy Yasinskyy, a Ukrainian national, entered the U.S. in 2007 on an H-2B visa, later conceded removability, and applied for asylum, withholding of removal, and CAT relief.
- He testified he was politically active for the Fatherland party and suffered two beatings (one causing a concussion and kidney injury requiring a week in the hospital), repeated anonymous threatening calls, loss of employment, temporary relocation to the U.K., and subsequent police inquiries in Ukraine.
- The IJ found Yasinskyy credible but determined his asylum application was untimely and rejected exceptions to the one-year filing rule.
- The IJ concluded Yasinskyy failed to prove past persecution or a clear probability of future persecution because the attacks were by unknown assailants without shown government involvement and the evidence did not show the Ukrainian government would acquiesce to torture.
- The BIA affirmed, and the Seventh Circuit reviewed withholding of removal and CAT claims, denying the petition for review.
Issues
| Issue | Yasinskyy's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether past persecution was shown (withholding of removal) | Attacks, injuries, and threats tied to his political activity amounted to past persecution | Harms were from unknown assailants; record lacks government involvement or inability to protect | Court: IJ erred in minimizing severity (court would find persecution) but denial stands because no government nexus shown |
| Whether future persecution is more likely than not | Continued threats, police summonses, and political climate make persecution likely | Living in Ukraine after attacks and lack of direct threats/credible evidence make future persecution unlikely | Held: Substantial evidence supports denial of future persecution claim |
| Whether CAT protection is warranted (torture more likely than not) | Country reports and police politicization show risk of torture if returned | Country reports acknowledge abuse but show prosecutions and no evidence of systematic political torture; petitioner failed to show acquiescence | Held: Denial of CAT relief supported by substantial evidence |
| Timeliness of asylum filing | (Not meaningfully contested on appeal) | IJ/BIA: application untimely and exceptions not met | Court did not reconsider; asylum barred for untimeliness |
Key Cases Cited
- Irasoc v. Mukasey, 522 F.3d 727 (7th Cir. 2008) (past persecution analysis)
- Zhu v. Gonzales, 465 F.3d 316 (7th Cir. 2006) (harms insufficient for past persecution)
- Prela v. Ashcroft, 394 F.3d 515 (7th Cir. 2005) (no past persecution)
- Dandan v. Ashcroft, 339 F.3d 567 (7th Cir. 2003) (past persecution analysis)
- Asani v. INS, 154 F.3d 719 (7th Cir. 1998) (harsh physical harm can constitute persecution)
- Sirbu v. Holder, 718 F.3d 655 (7th Cir. 2013) (role of IJ vs. appellate review in past‑persecution findings)
- Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011) (definition of persecution threshold)
- Munoz-Avila v. Holder, 716 F.3d 976 (7th Cir. 2013) (review of BIA adopting and supplementing IJ)
- Mustafa v. Holder, 707 F.3d 743 (7th Cir. 2013) (same)
- Vahora v. Holder, 707 F.3d 904 (7th Cir. 2013) (government nexus required for past persecution)
- Firishchak v. Holder, 636 F.3d 305 (7th Cir. 2011) (waiver for unaddressed arguments)
- Stevens v. Housing Auth. of South Bend, Ind., 663 F.3d 300 (7th Cir. 2011) (requirement to develop arguments)
- Smeigh v. Johns Manville, Inc., 643 F.3d 554 (7th Cir. 2011) (same)