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Tsegmed v. Sessions

United States Court of Appeals, Seventh Circuit

June 15, 2017

Otgonbaatar Tsegmed, Petitioner,
Jefferson B. Sessions III, Attorney General of the United States, Respondent.

          Argued February 8, 2017

         Petition for Review of an Order of the Board of Immigration Appeals. No. A089-272-651.

          Before Wood, Chief Judge, Flaum, Circuit Judge, and Conley, District Judge. [*]

          WOOD, Chief Judge.

         Otgonbaatar Tsegmed, a citizen of Mongolia, overstayed a non-immigrant visa and has been living in the United States since 2004. He came to the attention of the Department of Homeland Security in 2008, after his second arrest for Driving Under the Influence in Illinois. The government placed him in removal proceedings. He conceded that he was removable, but he filed an application with the immigration court in July 2008 seeking asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Immigration Judge (IJ) denied his application and ordered him removed to Mongolia; the Board of Immigration Appeals (BIA) affirmed. Tsegmed now challenges those decisions. Because we lack jurisdiction to review the denial of his asylum application, and the evidence does not compel the conclusion that he is eligible for withholding or relief under the CAT, we deny his petition for review.


         Tsegmed is a member of the Taij ethnic group, which is reportedly descended from nobility and still privileged in Mongolia. He attended school in the Soviet Union and then became a high-ranking officer in the Mongolian military. In that position, he worked on highly-classified assignments and had knowledge of the internal workings of the governing Communist regime. But he and his close friend, Bayarbat, eventually became involved with the pro-democracy movement in Mongolia while the country was ruled by Mongolia's Communist Party. The police arrested Tsegmed and Bayarbat in 1989 while the two were distributing pro-democracy pamphlets. After the arrest, the police held Tsegmed for 72 hours, punched him in the face three times, called him names, and gave him no food. The police arrested him again in 1994, along with Bayarbat, during an election protest organized by the Democratic Party.

         In 1999, Tsegmed's young son died a tragic and mysterious death, for which he blames the Mongolian government. The ambulance that Tsegmed called in the midst of his son's medical emergency never arrived, and, following his son's death, an unidentified person called and mocked Tsegmed, telling him that such things happened to members of the Democratic Party. In 2001, Bayarbat's family was murdered. The Communist Party framed Bayarbat for the murders and arrested him; he eventually died in prison. Around this time, the police brought Tsegmed in for questioning, ostensibly related to Bayarbat's arrest on murder charges. They instead interrogated him about political information that they believed Bayarbat's father had given him. The police detained him that time for 72 hours, during which they punched him in the face between four and six times. Although Tsegmed relocated to the United States in 2004, Tsegmed's brother, who remained in Mongolia, told him in 2007 that unidentified people (presumably communists) had come to him looking for his "dirty brother." A month after reporting this to Tsegmed, his brother died. The death was ruled a heart attack, but Tsegmed believes it may have been caused by something else because his brother was in good physical shape.

         Tsegmed provided this information in the Form 1-589 Application for Asylum and for Withholding of Removal he filed in July 2008, and in his testimony at two immigration court hearings conducted in December 2013 and January 2014. The IJ found Tsegmed credible, but the judge noted that much of his testimony lacked corroboration and therefore deserved less weight. The IJ denied relief in July 2014, and the BIA affirmed in December 2015. They rejected Tsegmed's asylum application because he did not meet any exception to the one- year filing deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ, seconded by the Board, denied withholding of removal and protection under CAT on the merits, finding that the harm that Tsegmed alleged on account of his membership in the Democratic Party was not serious enough to qualify as "persecution, " and that Tsegmed had failed to establish that it was more likely than not that he would be tortured upon return. Tsegmed has petitioned us for review of the BIA's decision.

         Because the IJ denied the application and the BIA affirmed with a written opinion, we review both decisions. N.L.A. v. Holder, 744 F.3d 425, 430 (7th Cir. 2014). We consider legal conclusions de novo, and we review factual issues under the substantial evidence standard, "which requires us to assess whether the Board's determination is supported by reasonable, substantial, and probative evidence on the record considered as a whole and to reverse only if the evidence compels a contrary conclusion." Abdoulaye v. Holder, 721 F.3d 485, 490 (7th Cir. 2013) (internal citations omitted).



         Although Tsegmed challenges the BIA's and IJ's determinations that he did not meet any exception to the one-year filing deadline for asylum, we lack jurisdiction to reconsider the Board's finding. The statute requires someone seeking asylum to apply for asylum within one year after entering the United States. 8 U.S.C. § 1158(a)(2)(B). That rule can be relaxed if the applicant can demonstrate "either the existence of changed circumstances which materially affect the applicant's eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within [one year]." § 1158(a)(2)(D). Section 1158(a)(3) further specifies that no court has jurisdiction to review the determination about the timeliness of the application or whether changed or extraordinary circumstances excuse a late filing. Nonetheless, we retain the authority to review "constitutional claims or questions of law related to the timely filing of an asylum application." Bitsin v. Holder, 719 F.3d 619, 625 (7th Cir. 2013) (citing 8 U.S.C. § 1252(a)(2)(D)). "We have interpreted this exception to apply 'to strictly legal controversies/ by which we 'mean[ ] that the parties contest a legal issue, and that the alien wins if the law provides what he says it does and loses if it provides what the agency says it does.'" Id. at 625-26 (quoting Restrepo v. Holder, 610 F.3d 962, 965 (7th Cir. 2010)).

         Tsegmed contends that he has shown just such an error of law, because (in his view) the evidence of a material change of circumstances in Mongolia is so strong that a contrary conclusion is inconsistent with the statute. But we rejected exactly this method of showing "material changes" in Viracacha v. Mukasey,518 F.3d 511, 514-15 (7th Cir. 2008), and "extraordinary circumstances" in Bitsin, 719 F.3d at 626. Making a determination about either "material changes" or "extraordinary circumstances" requires this court only "to apply a legal standard to a given set of facts." Bitsin, 719 F.3d at 626. This "does not raise a question of law, and [] therefore does not fall within § 1252's exception to the jurisdictional bar of § 1158." Id. at 627. ...

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