Sirbu v. Holder
| Decision Date | 20 May 2013 |
| Docket Number | No. 12-2320,12-2320 |
| Parties | VICTOR SIRBU AND IULIA PRODAN, Petitioners, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Petition for Review of an Order
of the Board of Immigration Appeals.
Nos. A088-390-329 & A088-390-330.
Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Moldovan citizens Victor Sirbu and his wife Iulia Prodan applied for asylum in the United States, as well as for withholding of removal and protection under the Convention Against Torture. Sirbu fears persecution by the Moldovan government based on his active and vocal opposition to the Communist Party. (Although the evidence indicates mistreat-ment of both Mr. Sirbu and Ms. Prodan for their anti-Communist political activities, Mr. Sirbu's application is the lead one; Ms. Prodan's application is derivative of his.) An immigration judge denied relief, finding that Sirbu's evidence did not "compel a finding" of past persecution that could support asylum. The Board of Immigration Appeals affirmed the denial. Sirbu and Prodan have petitioned for review. Because the immigration judge and then the Board applied the wrong legal standard in deciding whether Sirbu had shown past persecution for his political activities, we grant the petition for review and remand the case for further proceedings.
Sirbu and Prodan entered the United States as nonimmigrant tourists in 2009 and overstayed their visas. They then filed a timely application for asylum, withholding of removal, and relief under the Convention Against Torture. The government responded by charging Sirbu and Prodan as removable for overstaying their visas. See 8 U.S.C. § 1227(a)(1)(B). The couple admitted removability before an immigration judge in February 2010, and Sirbu renewed their application for asylum and related relief.
Sirbu's persecution claim is based on politically motivated mistreatment that occurred in Moldova between 2000 and 2009. In 2001, the Moldovan Communist Party won the presidency and more than two-thirds of the seats in parliament. Moldovan security forces beganto harass, detain, and beat members of opposition parties. See U.S. Department of State, 2008 Country Reports on Human Rights Practices: Moldova (Feb. 25, 2009).
Sirbu was an active opponent of the Communist Party and was a victim of this political harassment and violence on several occasions, three of them in 2003. In January 2003, Sirbu participated in a large protest urging that Moldova join NATO and the European Union. He was arrested and detained for five hours. The next two encounters were violent. In February 2003, Sirbu participated in another anti-Communist protest. Two policemen hit him on the legs so sharply that he fell to the ground. He was then detained for about 40 hours without food or water. And in November 2003, police caught Sirbu participating in an anti-Communist Party meeting, struck him in the back, knocked him to the ground, and then detained and interrogated him overnight.1
In the following years, Sirbu experienced further political harassment and mistreatment, including the loss of his job, but was not deterred from political activity. For our purposes, we focus on the most serious incident, which finally led Sirbu and Prodan to leave Moldova and later to seek asylum in the United States. Moldova held parliamentary elections on April 5, 2009. Both Sirbu and Prodan ran as candidates for parliamentin opposition to Communist Party candidates. The Communist Party claimed victory, but on April 7, Sirbu and Prodan joined a large protest in the nation's capital accusing the Communist Party of voter fraud. The protestors began to riot and the police arrested 300 people. See Protests in Moldova Explode, With Help of Twitter, NY Times (Apr. 7, 2009), http://www.nytimes.com/ 2009/04/08/world/europe/08moldova.html?pagewanted= all. Both Sirbu and Prodan were arrested and taken to a police station. While in police custody Sirbu was hit frequently on the head until he lost consciousness. Several other detainees died in custody after the protest and arrests. The police transferred Sirbu and Prodan to a police station in their hometown, and Sirbu was treated at a medical clinic for a concussion. They left for the United States later in April 2009.
After their departure from Moldova, Sirbu said, the police went to his parents' home and told them he was on a "black list." At the removal hearing Sirbu testified that he still feared returning to Moldova because many Communists still held positions of power even though opposition parties had won a narrow victory in new elections in July 2009 prompted by the April protests.2
The immigration judge denied Sirbu's application for asylum. The judge explained: "After careful consideration of the record in its entirety, and considering all the incidents in the aggregate, [Sirbu's] facts do not compel a finding that he suffered past persecution." App. 9 (emphasis added). According to the immigration judge, Sirbu's detentions were brief, he reported a physical injury resulting from only one of them (when he was beaten unconscious in April 2009), and after each incident he was able to pursue his anti-Communist political activities. Nor did Sirbu show a well-founded fear of future persecution, the judge concluded, because he did not corroborate his assertion about being on a police black list, the July 2009 elections had unseated the Communist Party president, and opposition parties had formed a strong coalition. Because Sirbu was ineligible for asylum, the judge concluded, he also failed to meet the higher standards for withholding of removal or Convention Against Torture protection.
The Board agreed with the immigration judge that Sirbu had "not met his burden of proof to establish that he suffered past persecution" and dismissed Sirbu's appeal. In reaching this conclusion, the Board cited our decision in Stanojkova v. Holder, 645 F.3d 943, 948 (7th Cir. 2011), for the proposition that persecution involves "the use of significant physical force against a person's body, or the infliction of comparable physical harm without direct application of force . . . or non-physical harm of equal gravity." The Board acknowledged that Sirbu had been beaten but noted he had sought medical treatment only once. In an important passage,the Board acknowledged that an applicant for asylum need not prove "serious injuries," citing Asani v. INS, 154 F.3d 719, 722-24 (7th Cir. 1998), but found that Sirbu's abuse did not rise to the level suffered in Asani. The Board found, instead, that the abuse of Sirbu was more comparable to the abuse in Dandan v. Ashcroft, 339 F.3d 567, 573-74 (7th Cir. 2003), which the Board described as having upheld a finding of no past persecution where the applicant had been detained for three days without food or water and had been beaten. The Board did not address the issue of fear of future persecution, including whether, if past persecution had been shown, the government had shown political changes in Moldova sufficient to rebut the inference of reasonable fear of future persecution.
In his petition for judicial review, Sirbu argues that the Board erred in concluding that he failed to establish that he suffered past persecution. He believes that his testimony and the documentary evidence show that he was persecuted for being politically active and for expressing his anti-Communist opinions and that he reasonably fears persecution if he were returned to Moldova.
Where the Board has agreed with the immigration judge's decision and supplemented that opinion with its own observations, as it did here, we review both decisions. See Sarhan v. Holder, 658 F.3d 649, 653 (7thCir. 2011). We have reviewed both decisions and Sirbu's evidence.
The immigration judge made a clear legal error by concluding that the "facts do not compel a finding that he suffered past persecution." As the government acknowledged in the oral argument, whether the facts compel a finding of past persecution is the standard for judicial review, not for the immigration judge in the first instance. We expect the immigration judge and the Board to exercise their independent judgment and expertise in deciding whether the abuse of an applicant for asylum rose to the level of persecution.
The Board appears to have repeated the immigration judge's legal error. Though the Board did not say explicitly that the facts would not compel a finding of past persecution, the Board distinguished on factual grounds a case in which we had reversed a finding of no past persecution and held that the facts were indeed so powerful as to "compel" a finding of past persecution. App. 24, citing Asani, 154 F.3d at 722-24. The Board then found guidance from our decision in Dandan in which we held that the abuse of the petitioner in police custody was not so severe as to "compel" a finding of past persecution. App. 24, citing Dandan, 339 F.3d at 573-74. The Board also did not acknowledge the immigration judge's legal error. The combination of the immigration judge's application of the wrong standard, the Board's failure to note the error, and the Board's citations to Asani and Dandan persuades us that the Board applied the wrong legal standard.
The proper issue for the immigration judge and the Board is whether the applicant has actually shown past persecution, not whether the evidence compels a finding of past persecution. The difference may seem subtle, but it is actually vital in administering the law of asylum. Whether the facts compel a particular finding is a matter for appellate courts to determine in our deferential review of the Board's decisions. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Bueso-Avila v. Holder, 663 F.3d 934, 937 (7th Cir. 2011); Matter of E-R-M-F- & A-S-M-, 25 I. & N. Dec. 580, 587 n.8 (BIA 2011). Our...
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