Boika v. Holder

• Decision Date: 16 August 2013
• Docket Number: No. 11–3655.,11–3655.
• Citation: 727 F.3d 735
• Parties: Tatsiana BOIKA and Sergey Zhits, Petitioners, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

727 F.3d 735

Tatsiana BOIKA and Sergey Zhits, Petitioners,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 11–3655.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 27, 2012.

Decided Aug. 16, 2013.

Alexander J. Segal, Attorney, Grinber & Segal, New York, NY, for petitioner.

Colin J. Tucker (submitted), Trial Attorney, Department of Justice, Washington, DC, for Respondent.

Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

Tatsiana Boika, a Belarusian citizen, entered the United States legally in May 2006 but overstayed her authorized stay. At her removal proceedings, she conceded removability but applied for asylum under 8 U.S.C. § 1158, withholding of removal under 8 U.S.C. § 1231(b)(3), and relief pursuant to the Convention Against Torture. Boika's husband, Sergey Zhits, also made parallel claims. His claims are derivative from Boika's claims based on their marital status under 8 U.S.C. § 1158(b)(3)(A), so we do not address his claims separately.

Based on past persecution for her political involvement in Belarus, principally between 2004 and 2006, Boika claimed that she could establish a well-founded fear of future persecution upon return to Belarus. An immigration judge (IJ) denied her asylum application due in large part to an adverse credibility finding after two hearings in which Boika could not satisfactorily explain inconsistencies in her testimony and corroborating documents. The Board of Immigration Appeals affirmed the IJ's denial of asylum, and we denied Boika's subsequent petition for review. Boika v. Holder, 418 Fed.Appx. 559 (7th Cir.2011).

Boika then moved to reopen based on materially changed country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Boika asserted that after Belarusian President Alexander Lukashenko's election in 2010, the Belarusian government's severe crackdown on political opposition had resulted in widespread human rights abuses. These abuses were serious enough that the United States and the European Union imposed new sanctions on the Belarusian government in February 2011. Boika also submitted new corroborating evidence that she has been active in the Belarusian opposition movement while she has been in the United States.

The Board denied Boika's motion to reopen, explaining only that the evidence she offered did not reflect a material change in conditions in Belarus and was not sufficient to show a prima facie claim for eligibility for asylum. We grant Boika's and her husband's petition for review and remand to the Board for further proceedings consistent with this opinion. The terse Board opinion did not provide an adequate explanation for rejecting Boika's new evidence and denying her motion to reopen. The prior credibility finding against Boika regarding her pre–2007 political opposition inside Belarus does not necessarily taint her new evidence concerning both her new political activity in the United States or the new, severe crackdown on the government's political opponents in Belarus. That evidence needs a fresh look.

I. Motions to Reopen

Motions to reopen removal proceedings must be filed within 90 days of the final order, subject to several exceptions. 8 U.S.C. § 1229a(c)(7)(C)(i). Boika filed her motion to reopen long after the 90–day deadline expired. To excuse her delay, she relied on an exception based on changed country conditions that materially affect her eligibility for relief. 8 U.S.C. § 1229a(c)(7)(C)(ii); Xiao Jun Liang v. Holder, 626 F.3d 983, 987–88 (7th Cir.2010). Any motion to reopen, regardless of timing, can be denied properly if: (1) it is not supported by previously unavailable and material evidence; (2) it fails to establish the applicant's prima facie eligibility for the underlying relief sought; or (3) the Board determines discretionary relief is not appropriate in the petitioner's case. Mansour v. INS, 230 F.3d 902, 907 (7th Cir.2000). We review the Board's denial of a motion to reopen for an abuse of discretion. Xiao Jun Liang, 626 F.3d at 988. We will find an abuse of discretion and remand the denial of a motion to reopen if, among other things, the decision “was made without a rational explanation.” Mansour, 230 F.3d at 907 (internal quotations omitted).

“In determining whether evidence accompanying a motion to reopen demonstrates a material change in country conditions that would justify reopening, we compare the evidence of country conditions submitted with the motion to those that existed at the time of the merits hearing below.” In re S–Y–G, 24 I. & N. Dec. 247, 253 (BIA 2007). To constitute a change in country conditions, the conditions must have done more than simply worsen cumulatively. Id. That does not mean that the conditions before and after the motion to reopen will not be related or connected. Evaluating gradations of human misery can be a daunting task. Where significant human rights abuses previously existed, perhaps all changes could be understood as a cumulative worsening, but differences in degree matter. Some situations present conditions so grave that a new threshold has been met. Boika's new evidence, corroborated in substantial part by our own government's decision to impose new sanctions on Belarus in response to the new campaign to suppress political opposition after the 2010 elections, seems to meet this standard and deserves more attention than it has received thus far in this case.

Boika's motion to reopen included over one hundred pages showing that the treatment of the political opposition in Belarus had changed dramatically since the election of President Lukashenko in 2010, after her 2007 application for asylum had been denied. Credible international sources reported that the election was not fair and that the results were not reliable. OSCE Observers Told to Leave Belarus Over Election Fraud Claims, Associated Press, The Guardian, Dec. 31, 2010, available at http:// www. guardian. co. uk/ world/ 2010/ dec/ 31/ osce-leave-belarus-election-fraud-claims; Michael Schwirtz, Belarus Police Arrest Opposition Leaders, N.Y. Times, Dec. 20, 2010, available atwww. nytimes. com/ 2010/ 12/ 21/ world/ europe/ 21 belar- us. html?_ r= 0 (reporting that Western election observers on ground “highlighted apparent fraud”). In a December 20, 2010 statement, the White House said that the “United States cannot accept as legitimate the results of the presidential election announced by the Belarusian Central Election Commission.” Orest Deychakiwsky et al., Belarusian Regime Resolutely Dashes Any Hopes for Democratic Liberalization, Commission on Security & Cooperation in Europe, U.S. Helsinki Commission, Jan. 6, 2011, available at http:// www. csce. gov/ index. cfm? Fuse Action= Content Records. View Detail & Content Record_ id= 482& Region_ id = 0& Issue_ id= 0& ContentType= G& Content Record Type= G& CFID= 27057194& CFTOKEN= 31349947 [hereinafter Helsinki Commission ]. The White House also stated that the violence on election day represented “a clear step backwards on issues central to our relationship with Belarus.” Michael Schwirtz, Belarus Police Arrest Opposition Leaders, N.Y. Times, Dec. 20, 2010, available atwww. nytimes. com/ 2010/12/21/world/ europe/ 21 belarus. html?_ r= 0. ¹

After the election, 40,000 opposition supporters rallied and called for President Lukashenko's resignation. The Helsinki Commission later explained that “the brutal and bloody election-night crackdown against political opposition supporters, including mass arrests of demonstrators, as well as candidates, who challenged the 16–year rule of Alexander Lukashenk[o], was unprecedented.” Helsinki Commission (emphasis added).

The violent crackdown on the political opposition after the 2010 presidential elections is the materially changed country condition that Boika relies upon to justify her motion to reopen. Human Rights Watch conducted an extensive investigation in February 2011 and concluded, in part, that the human rights abuses that occurred during and after the 2010 elections, “including abuse of detainees, trials behind closed doors and raids on human rights organizations,” constituted a “serious deterioration in the already poor state of human rights in Belarus.” Human Rights Watch, Shattering Hopes: PostElection Crackdown in Belarus, at 1, March 2011, available at www. hrw. org/ sites/ default/ files/ reports/ belarus 0311 Web. pdf.

The violence and oppression were not limited to election night. The Belarusian government continued rounding up and arresting opposition members at least six weeks after the elections. Michael Schwirtz, U.S. and Europe Move Against Belarus's Leader, N.Y. Times, Jan. 31, 2011, available at http:// www. nytimes. com/ 2011/ 02/ 01/ world/ europe/ 01 belaru s.html. Reports of this oppressive, anti-democratic behavior targeting opposition groups continued through June 2011, when Boika filed her motion to reopen. See Radio Free Europe, Belarusian Police Disperse Opposition Flash Mob, June 15, 2011, available at http:// www. rferl. org/ article printview/ 24236371. html; Aliaksandr Kudrytski & Emma O'Brien, Police, Protesters Meet in Minsk Amid Warnings, Bloomberg, June 16, 2011, available athttp:// democratic belarus. eu/ news/ police-protesters-meet-minsk-amid-warnings. The Belarusian government also shut down the internet and social networking sites, leaving independent media “on the verge of being wiped out,” as reported by the Belarusian deputy chair of the non-governmental Association of Journalists. Fred Weir, Belarus Crackdown Strains Ties with both EU and Russia, The Christian Science Monitor, Jan. 12, 2011, available at http: //www. csmonitor. com/ World/ Europe/ 2011/ 0112/ Belarus–crackdown–strains–ties–with–both–EU–and–Russia.

The clearest indication that conditions materially worsened in Belarus after the 2010 election came in the form of the United States and European Union reactions to the events. In February 2011, the...