United States Court of Appeals For the Seventh Circuit
Immigration – asylum — Ukraine
Where an asylum claimant failed to show that his past persecution was at the hands of the government, his asylum claim was properly denied.
“[W]e are bewildered by the IJ’s assertion that a beating resulting in a concussion and kidney injury—requiring a week’s stay in the hospital—followed by a second beating and countless telephone threats could not constitute persecution. The IJ assessed the harms to Yasinskyy by comparing his experiences to those of petitioners in previous cases before this court. That approach, however, ‘turn[s] the system upside down’ by confusing our deferential review—asking whether the administrative record compels a finding of past persecution—with the role of immigration judges to draw on their expertise to decide whether the applicant actually has shown past persecution. See Sirbu v. Holder, 718 F.3d 655, 659-60 (7th Cir. 2013). Immigration judges must ask whether there was ‘the use of significant physical force against a person’s body, or the infliction of comparable physical harm without direct application of force … or nonphysical harm of equal gravity’ which crossed the line between harassment and persecution, i.e., ‘the line between the nasty and the barbaric[.]’ Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011). We conclude that it did. But that does not help Yasinskyy because he did not demonstrate that the beatings and threats were carried out by the Ukrainian government or by a group that the government was unable or unwilling to control—a necessary element for showing past persecution, see Almutairi v. Holder, No. 12-2734, 2013 WL 3481356, at *7 (7th Cir. July 12, 2013); Vahora v. Holder, 707 F.3d 904, 908 (7th Cir. 2013). So his request for withholding of removal is doomed.”
Petition for Review of an Order of the Board of Immigration Appeals, Williams, J.