Sobaleva v. Holder

• Decision Date: 24 July 2014
• Docket Number: No. 13–3651.,13–3651.
• Citation: 760 F.3d 592
• Parties: Katsiaryna SOBALEVA and Alexandru Potorac, Petitioners, v. Eric HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

760 F.3d 592

Katsiaryna SOBALEVA and Alexandru Potorac, Petitioners,

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

No. 13–3651.

United States Court of Appeals,Seventh Circuit.

Argued April 1, 2014.

Decided July 24, 2014.

Gary J. Yerman, Attorney, Yerman & Associates, LLC, New York, NY, for Petitioners.

OIL, Mona M. Yousif, Attorney, William C. Peachey, Attorney, Department of Justice, Washington, DC, for Respondent.

Before TINDER and HAMILTON, Circuit Judges, and KAPALA, District Judge.^*

HAMILTON, Circuit Judge.

Petitioner Katsiaryna Sobaleva, a citizen of Belarus, entered the United States on a valid student visa. She applied for asylum, contending that the Belarusian government persecuted her for her political opinion before she left and likely would do so again if she were to return. She also requested asylum for her husband, Alexandru Potorac, a citizen of Moldova. (Because Potorac's eligibility for asylum derives entirely from Sobaleva's, it does not require separate consideration.) An immigration judge denied Sobaleva's application and ordered that she and Potorac be removed to their respective countries. The Board of Immigration Appeals affirmed, explaining that Sobaleva had not established either past persecution based on her political opinion or a well-founded fear of future persecution.

Sobaleva and Potorac petition this court for review of the orders of removal. We conclude that two significant flaws in the decisions of both the immigration judge and the Board require that the petition be granted and the case remanded for further consideration. First, the judge and the Board applied the wrong legal standard to conclude that Sobaleva was not persecuted in Belarus. Second, both the judge and the Board misconstrued and disregarded important evidence, so that the decision to deny Sobaleva's application is not supported by a reasoned analysis.

I. Factual and Procedural Background

In Belarus, Sobaleva belonged to a group called Malady Front (Young Front), a large youth organization opposed to the country's longtime authoritarian leader, Alexander Lukashenko. Malady Front and affiliated organizations like Young Belarus have been frequent targets of government crackdowns on dissent. See, e.g., U.S. Department of State, 2010 Human Rights Report: Belarus 3–8 (April 8, 2011) (describing the arrests and detentions of group members for their political activity); Amnesty International, 2007 Report on Belarus (April 3, 2007) (ascribing the five-year prison sentence of Malady Front leader Alyaksandr Kazulin to a “systematic campaign of harassment, intimidation, and obstruction by the Belarusian authorities”). Conditions in Belarus have not improved since Sobaleva's departure in May 2010. See Boika v. Holder, 727 F.3d 735, 739 (7th Cir.2013) (summarizing evidence that, since Lukashenko's disputed election in December 2010, the Belarusian government has been particularly aggressive toward opponents).

Sobaleva filed a timely application for asylum roughly nine months after her arrival in the United States. Her application described her participation in anti-government protests and her mistreatment by police in connection with two of them. A hearing on her application was held before an immigration judge.

In her testimony at the hearing and in an affidavit, Sobaleva recounted that police officers arrived at an October 2009 protest and began beating protesters indiscriminately. One officer hit Sobaleva hard in the face, knocking off her glasses and causing her nose to bleed. While she was bent over to retrieve the glasses, an officer grabbed her by the neck and shoved her into a police bus, where another officer hit her in the arm. Upon arriving at the police station, she was pushed out of the bus onto the ground.

Officers questioned Sobaleva inside the station about her political activities. She and five other arrestees were then placed in a cold cell designed to accommodate only two people. The detention lasted overnight for a total of about 15 hours. After her release, her mother tried to file a complaint about the incident but was turned away from the police station.

Sobaleva also testified that, on May 16, 2010, she had another experience with politically motivated violence by police. While she and two fellow protesters were walking together after a demonstration, they were stopped by officers who demanded identification. Although Sobaleva and her companions had left the protest site, they were wearing pictures of political prisoners on their shirts. Sobaleva testified that it is not unusual in Belarus for police officers to request identification but that, in this instance, after radioing in their names for a check, an officer began copying information from their passports into a report.

At that point, Sobaleva reached for her passport and asked if she was under arrest. An officer responded by shoving her against a building, knocking her unconscious. When she regained consciousness, her friends told her that the officer had kicked her while she was on the ground. Nauseated and in pain, Sobaleva went to a medical clinic and was diagnosed with a concussion, as documented by a doctor's report in the record. The doctor recommended hospitalization, but Sobaleva chose instead to go home, where she stayed in bed for a week.

Soon after the incident, both of Sobaleva's companions from the May 16 protest received notices to pay a fine. Sobaleva, however, received a summons to come to court on June 10 “in the role of the accused.” The summons identified the case as “criminal” but did not indicate why Sobaleva was being summoned or with what crime she had been charged.

Having left for the United States on May 31, Sobaleva did not attend court on June 10. She could provide no direct evidence at her asylum hearing that the summons concerned the events of May 16, but she testified that she believes it did because her companions from that day were fined and because she knows of no other reason she would have been summoned. She believes that she received a summons instead of being fined because she had previously been arrested for protesting—something the officers would have learned when they radioed in the information from her passport—and because she challenged them during the encounter.

According to Sobaleva's mother, whose detailed written statement is also in the record, police officers came to her house looking for Sobaleva on June 10 after she did not show up in court. They have returned repeatedly since then and have threatened that Sobaleva's absence could cost her mother her job.

The immigration judge denied Sobaleva's application, finding that her evidence, when compared with other cases this court has decided, did not establish that she had been persecuted for her political opinion or that she has a well-founded fear of future persecution. Regarding her arrest in October 2009, the judge observed that Sobaleva was held for no more than 16 hours and “was not mistreated” during that time. Additionally, Sobaleva herself did not “consider[the 2009] incident to be significant,” which the judge inferred from her continued political activity and her failure to mention the incident when she applied for her visa at the U.S. Embassy. Regarding the confrontation with police in May 2010, the judge said that Sobaleva did not “contend that she was detained or seriously abused by the police in the incident.” And the judge concluded that the summons she received “standing alone” did not suggest that she would be persecuted in the future.

The Board of Immigration Appeals affirmed. The Board accepted the judge's assessment that Sobaleva gave credible testimony, and we do the same. See Ndonyi v. Mukasey, 541 F.3d 702, 709 (7th Cir.2008). The Board found, though, that the events she described and her supporting evidence were not enough to meet her burden of proof. Her treatment by police in and after the October 2009 protest was “condemnable” but “did not rise to the level of persecution” as shown by a comparison with the treatment of other asylum applicants in cases decided by this court. Regarding the May 2010 incident, which resulted in a concussion, the Board found that Sobaleva “did not meet her burden of showing that her political opinion was a central reason for the mistreatment she suffered.” The Board also found that Sobaleva had failed to establish a connection between the court summons she received and her political activity.

II. Analysis

To be eligible for asylum, Sobaleva needed to establish either that she has suffered past persecution on account of her political opinion (or another protected ground) or that she has a well-founded fear of future persecution on a protected ground. See 8 U.S.C. § 1101(a)(42)(A); N.L.A. v. Holder, 744 F.3d 425, 431 (7th Cir.2014). Past persecution raises a rebuttable presumption that the petitioner has a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1); N.L.A., 744 F.3d at 431. Sobaleva argues that the Board of Immigration Appeals and immigration judge misconstrued her evidence in numerous ways and failed to consider it in context. If properly considered, she contends, the evidence establishes that she was persecuted for her political opinion and has a well-founded fear of future persecution, entitling her to asylum.

Because the Board provided its own analysis and also affirmed the immigration judge's decision, we review both decisions. See Bathula v. Holder, 723 F.3d 889, 897 (7th Cir.2013). Our review of legal conclusions is de novo, and we review factual conclusions to determine whether they are supported by “substantial evidence.” Id. at 897–98. We must ask whether the agency applied the proper legal standard in evaluating Sobaleva's application, see Sirbu v. Holder, 718 F.3d 655, 658 (7th Cir.2013), and also whether the agency's conclusions are supported by a reasoned analysis of the evidence, see Cece v. Holder, 733 F.3d...