Borovsky v. Holder

• Decision Date: 26 July 2010
• Docket Number: No. 09-3104.,09-3104.
• Citation: 612 F.3d 917
• Parties: Sergey BOROVSKY, Petitioner,v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

612 F.3d 917

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

No. 09-3104.

United States Court of Appeals Seventh Circuit.

Argued April 13, 2010.

Decided July 26, 2010.

Ajay Choudhary (argued), Bruce A. Coane, Coane & Associates, Houston, TX, for Petitioner.

OIL, Elizabeth Young (argued), Department of Justice, Washington, DC, for Respondent.

Before WILLIAMS, SYKES, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Sergey Borovsky petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying his application for withholding of removal and protection under the Convention Against Torture (“CAT”). We deny the petition.

I. Background

Borovsky is a citizen of Ukraine, where he was born in 1980, and also of Israel, where his family relocated in 1993 and remained until 1997 when they left for Canada. After Borovsky's parents unsuccessfully applied for asylum in Canada, the family entered the United States illegally in 1998.

Borovsky and his family remained undocumented in the United States, apparently without incident, until 2003, when Borovsky was detained at a traffic stop in Kansas. Immigration officials discovered Borovsky's illegal status and initiated removal proceedings before the immigration court in Kansas City, Missouri. Borovsky applied for withholding of removal to his two countries of citizenship, Ukraine and Israel, and for CAT protection.

In proceedings before an Immigration Judge (“IJ”), the parties appeared in Kansas City, but the IJ participated from Chicago by video-conference. Borovsky testified about his childhood in Ukraine, where he, as the son of a Jewish father, was the target of anti-Semitic acts by his peers. His fellow school students and others called him derogatory, profane terms such as “Jeed” or “Jewish pig.” Borovsky also claimed that he was beaten “many, many times” on account of his Jewish heritage. Borovsky did not offer many specifics but did recall one incident when other children tried to steal his bike and, when Borovsky resisted, beat him in the face. Another time, Borovsky's fellow students beat him in the school cafeteria for refusing to give up his bread, while onlookers yelled things like “kill that Jew.”

Borovsky testified that his parents, too, received anti-Semitic threats, and a Star of David was chalked on the family's apartment door on several occasions. Borovsky's father told him that he frequently complained to local Ukrainian authorities, but they refused to help and even threatened reprisal if the complaints continued.

As for his fear of returning to Israel, Borovsky testified that he faced imprisonment for failing to register for mandatory military service before leaving the country in 1997, when he was 17 years old (one year younger than the mandatory service age of 18). In support of this fear, Borovsky offered a Web page with information on military desertion in a question-and-answer format; the questions were posted by several unidentified individuals and answered by a person purporting to be a justice officer in the Israeli Army. One question described a situation similar to Borovsky's, in which the individual left Israel with her parents before age 18 without registering for service. The officer's response was, “You[r] return to Israel will result in your arrest in the airport, military tribunal, prison, follow[ed] by service in the army.”

In his oral decision, the IJ denied Borovsky's withholding of removal and CAT claims with respect to both Ukraine and Israel. The IJ credited Borovsky's testimony about his childhood abuse in Ukraine but concluded that this abuse did not rise to the level of “past persecution.” The IJ further found that Borovsky failed to show that he would face “future persecution” in Ukraine. The IJ reviewed several background articles on anti-Semitism in Ukraine submitted by Borovsky, including the U.S. State Department 2006 Country Report, the State Department 2007 International Religious Freedom Report, and a variety of articles from independent organizations. The IJ noted that the State Department reports indicated some anti-Semitic attacks in Ukraine, but these incidents were isolated and directed against Jews attending synagogues or holding religious services. Since Borovsky testified that he never intended to practice Judaism in Ukraine, the IJ concluded that it was unlikely that Borovsky would be singled out for persecution. The IJ also noted that the reported attacks were not initiated or condoned by the Ukrainian government, which investigated the attacks and made several arrests.

Addressing Borovsky's fear of imprisonment in Israel, the IJ found that Borovsky failed to show that he would face any punishment for simply leaving the country before reaching the age of mandatory military service. The IJ also found that any imprisonment that Borovsky might receive would not be “persecution” within the meaning of the immigration statutes, absent evidence that Israel would punish Borovsky's draft evasion disproportionately based on a protected trait such as his race or nationality. The IJ ordered Borovsky removed to Israel, or in the alternative, to Ukraine. Borovsky appealed to the BIA, which affirmed the IJ.

Borovsky petitioned this court for review. Prior to briefing, a dispute arose on whether venue was proper in the Seventh Circuit, since the IJ completed the proceedings in Chicago by video-conference, or the Eighth Circuit, since the parties appeared in the immigration court in Kansas City. After a series of motions, the Attorney General conceded that venue was proper in this Circuit. See Ramos v. Ashcroft, 371 F.3d 948, 949 (7th Cir.2004).

II. Analysis

A. Procedural Matters: Agency Decision and Harmless Error

We begin by deciding which decision-the IJ's, the BIA's, or both-we must review. We have stated that where “the BIA does not expressly adopt the IJ's findings but rather issues its own opinion, we review the BIA's decision alone.” Xiao v. Mukasey, 547 F.3d 712, 717 (7th Cir.2008). “On the other hand, where the BIA's decision merely supplements the opinion of the IJ, ‘the IJ's opinion, as supplemented by the BIA's opinion, becomes the basis for review.’ ” Moab v. Gonzales, 500 F.3d 656, 659 (7th Cir.2007) (quoting Liu v. Ashcroft, 380 F.3d 307, 311 (7th Cir.2004)).

As Borovsky points out, the BIA's opinion contains no express words of adoption, but we do not think that such explicit language is always necessary to incorporate the IJ's decision as part of the agency decision under review. Cf. id. at 659 & n. 1 (noting that the BIA had not expressly or implicitly adopted the IJ's opinion). The BIA's opinion, read in the context of the proceedings before the IJ, may show that the BIA simply adopted the IJ's reasoning rather than conduct its own, independent analysis. Here, the BIA's opinion summarizes and agrees with each of the IJ's rationales, without discussing any alternative bases for denying Borovsky's claims. Cf. Liu, 380 F.3d at 311-12 (BIA disregarded the IJ's adverse credibility finding and denied the petition on alternative grounds). By implication, the BIA's opinion was only a supplement to the IJ's decision, so we will review the IJ's decision as supplemented. See Tchemkou v. Gonzales, 495 F.3d 785, 790 (7th Cir.2007).

Next, we address a second procedural issue related to the venue confusion described above. Although the parties now agree that venue is proper in the Seventh Circuit, the BIA apparently assumed that Borovsky's petition was subject to Eighth Circuit, rather than Seventh Circuit, case law. In its opinion, the BIA cited two Eighth Circuit cases Pavlovich v. Gonzales, 476 F.3d 613 (8th Cir.2007), and Suprun v. Gonzales, 442 F.3d 1078 (8th Cir.2006), when concluding that the threats and harassment that Borovsky experienced in Ukraine did not rise to the level of persecution. The BIA did not cite any Seventh Circuit cases.

The Attorney General concedes that the BIA should not have relied on Eighth Circuit case law but argues that the error was harmless. We agree. The BIA applied the standard for withholding of removal under the immigration regulations, 8 C.F.R. § 1208.16(b), and concluded that Borovsky failed to show “persecution” under that standard. Although the BIA bolstered its conclusion by citing a pair of Eighth Circuit cases, nothing suggests that the cited Pavlovich and Suprun cases were central to the BIA's decision. The BIA did not discuss these cases, and from our own reading of them, they contain no point of immigration law that conflicts with Seventh Circuit precedent. And given our conclusion above that the BIA's analysis merely supplemented the IJ's decision (which relied on Seventh Circuit case law), the BIA's passing reference to Eighth Circuit case law is even less consequential.

Borovsky counters with the Chenery doctrine, under which a court cannot uphold an agency's decision on a ground not actually relied on by the agency. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). But our conclusion that the BIA's citation to Eighth Circuit case law was harmless is not the type of alternative ground barred by Chenery. The Chenery doctrine prevents a court from affirming an agency's inadequately justified decision “by substituting what it considers to be a more adequate or proper basis” for the decision. Id. So had the BIA mischaracterized the record in finding that Borovsky did not suffer persecution see Kadia v. Gonzales, 501 F.3d 817, 822-23 (7th Cir.2007), or relied on facts not rationally related to the issue of persecution see Mengistu v. Ashcroft, 355 F.3d 1044, 1047 (7th Cir.2004), we could not simply scour the record to find some alternative basis to reach the same result.

Here, though, the BIA's apparent misunderstanding that Eighth Circuit law controlled does not undermine its primary ground of decision, that Borovsky failed to show persecution under the...