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

Background

Bitsin, a Bulgarian citizen, entered the U.S. as a visitor in May 2005 and sought a student visa in August 2005 to study in Chicago; he believed he could stay while processing but could not work; his attorney and the college were involved in processing; he faced a closed attorney office and later was arrested in 2007 leading to removal proceedings; his asylum, withholding, and CAT relief were at issue; his factual claims center on his father’s cooperation against the Galev Brothers and related threats.
His father, Asen Bitsin, a Bulgarian former security official, cooperated in an investigation against the Galev Brothers, leading to protective custody for Asen and later criminal proceedings in Bulgaria.
Bitsin presented evidence of threats to his father, the 2000 shooting by his father, other witnesses’ harm, and a reporter’s fear, tying these to potential persecution upon return.
The IJ denied asylum as time-barred, but found credibility on some conditions for withholding and CAT, concluding insufficient likelihood of persecution or torture; the BIA affirmed, concluding untimely asylum and no clear probability of persecution or torture.
Bitsin appeals the asylum timeliness, withholding, and CAT determinations; the court ultimately dismisses the asylum portion for lack of jurisdiction but denies withholding and CAT relief on the merits.
Bulgarian government actions against the Galev Brothers and Asen’s protection by Bulgarian authorities are central to the assessment of protection sufficiency.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the asylum timeliness determination is reviewable	Bitsin argues for review of changed/extraordinary circumstances.	HOLDER asserts §1158(a)(3) bars review of timeliness questions.	No jurisdiction to review the timeliness issue.
Whether extraordinary or changed circumstances excuse late asylum filing	Bitsin contends facts show changed/extraordinary circumstances.	BIA and IJ relied on factual determinations outside jurisdiction; legal questions not reviewable.	Issue not reviewable under §1252(a)(2)(D).
Whether derivative asylum claims can invoke changed circumstances for delay exemption	Bitsin argues derivative claim should benefit from changed circumstances.	BIA rejected this interpretation; no clear legal error established.	No reversible error; not reviewable.
Whether withholding of removal requires government unwillingness or inability to protect against private harm	Bitsin asserts private harm tied to his family and government protection should fail.	Bulgarian government has pursued criminal proceedings and provided protection; not unable/unwilling to protect.	Evidence supports government protection; withholding denied.
Whether CAT relief was correctly denied given state protection	Bitsin argues likelihood of torture if returned due to govt complicity or acquiescence.	Bulgarian authorities punished perpetrators and protected Asen; no likelihood of torture by govt action or acquiescence.	CAT relief denied.

Key Cases Cited

Viracacha v. Mukasey, 518 F.3d 511 (7th Cir. 2008) (addressed reviewability of changed/extraordinary circumstances for asylum delay)
Sukwanputra v. Gonzales, 434 F.3d 627 (3d Cir. 2006) (materiality of changed/extraordinary circumstances for asylum timing)
Wanjiru v. Holder, 705 F.3d 258 (7th Cir. 2013) (deferential review of CAT and related burdens)
INS v. Elias-Zacarias, 502 U.S. 478 (U.S. 1992) (persecution defined; government protection relevance)
Cardoza-Fonseca v. INS, 480 U.S. 421 (U.S. 1987) (clear probability standard for asylum)
Hor v. Gonzales, 421 F.3d 497 (7th Cir. 2005) (government protection relevance in asylum/persecution)
Margos v. Gonzales, 443 F.3d 593 (7th Cir. 2006) (government not required to be completely unable to provide protection)
Jun Ying Wang v. Gonzales, 445 F.3d 993 (7th Cir. 2006) (two-step asylum showings; persecution on protected grounds)