Miratbek Zhakypbaev v. Jefferson B. Sessions III
Miratbek Zhakypbaev v. Jefferson B. Sessions III
Opinion
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 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,
The Secretary of Homeland Security or the Attorney General may grant asylum to aliens who qualify as refugees under
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 I J’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 Ba-kiev 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 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 *885 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 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 Ba-kiev 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 interr im 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 *886 because Eldar’s father, Turatbek Madylbe-kov, 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.
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 basés of his alleged social group. According to the IJ, in his application, the petitioner “emphasized his longtime 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 San-zhar 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 overall. We review that credibility determination deferentially, upholding it as long as it is supported by substantial evidence.
Cojo
cari,
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 *887 could lack homogeneity in that it was not clear how tenuous one’s connections to Ba-kiev 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 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,
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,
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 Mádylbekov 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 *888 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 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,
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 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,
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,
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 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,
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,
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,
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
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.
Reference
- Full Case Name
- Miratbek ZHAKYPBAEV, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent
- Cited By
- 17 cases
- Status
- Published