Sosnovskaia v. Gonzales, 03-3470.

• Decision Date: 31 August 2005
• Docket Number: No. 03-3470.,03-3470.
• Citation: 421 F.3d 589
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: Youlua SOSNOVSKAIA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.

421 F.3d 589

Youlua SOSNOVSKAIA, Petitioner, v. Alberto R. GONZALES,¹ Respondent.

No. 03-3470.

United States Court of Appeals, Seventh Circuit.

Argued September 21, 2004.

Decided August 31, 2005.

Yana Margolin (argued), Deerfield, IL, for Petitioner.

George P. Katsivalis, Dept. of Homeland Sec., Office of the Dist. Counsel, Chicago, IL, Paul Fiorino (argued), Keith I. Bernstein, Dept. of Justice, Civ, Div., Immigration Litigation, Washington, DC, for Respondent.

Before EASTERBROOK, RIPPLE, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Youlua Sosnovskaia, a Ukrainian national, was admitted to the United States on February 8, 1995, as a nonimmigrant visitor for pleasure. Later that year she applied for asylum, claiming she feared persecution in Ukraine based on her religion. An immigration judge ("IJ") initially declared Ms. Sosnovskaia's testimony incredible and denied her application. However, the Board of Immigration Appeals ("BIA") reversed this ruling, finding Ms. Sosnovskaia credible and remanding the case to the IJ. On remand, the IJ again denied Ms. Sosnovskaia's application, and this time the BIA affirmed the IJ's decision without comment. As we find that the IJ failed to give due consideration to the evidence favoring Ms. Sosnovskaia, we grant the petition for review and remand for further proceedings consistent with this opinion.

I. BACKGROUND

Ms. Sosnovskaia is a native-born citizen of Ukraine. The product of a mixed Russian-Jewish marriage, she has always considered herself Jewish and practiced the Jewish religion. While the parties dispute the current strength of anti-Semitism in Ukraine, they agree that it was widespread in earlier years, and Ms. Sosnovskaia has testified that she suffered individually before she came to the United States.

Representative incidents from her testimony include a rape, a groundless arrest, and several beatings, all of which she ascribes to anti-Semitic animus. As disturbing as these events are, Ms. Sosnovskaia has also testified that a fellow member of an organization dedicated to saving a Jewish cemetery died after an anti-Semitic group poisoned her.

Ms. Sosnovskaia came to the United States on February 8, 1995, entering as a nonimmigrant visitor for pleasure. She applied for asylum on July 17, 1995. Noting that Ms. Sosnovskaia's authorization to stay in the country expired on August 7, 1995, the Immigration and Naturalization Service ("INS")² initiated removal procedures against her on August 25, 1995, pursuant to 8 U.S.C. § 1251(a)(1)(C)(i) (1994) (currently codified at 8 U.S.C. § 1227(a)(1)(C)(i) (2000)).

On December 13, 1995, the IJ assigned to Ms. Sosnovskaia's case denied her applications for asylum and withholding of removal, declaring her testimony not credible, but granted Ms. Sosnovskaia's request for voluntary departure. The BIA reversed the IJ in part, holding on July 10, 1997, that Ms. Sosnovskaia's testimony was indeed credible and demonstrated that she had suffered past persecution.

On remand, the Agency put forward substantial evidence in support of the proposition that the situation in Ukraine had changed fundamentally since the time of Ms. Sosnovskaia's earlier persecution. It cited a decrease in government tolerance of anti-Semitism, an increase in the number of Jewish schools and synagogues, and a set of newly elected Jewish mayors. The Agency relied primarily on Country Reports from the State Department to support its arguments.

To rebut the Agency's claim that anti-Semitism was on the wane in Ukraine, Ms. Sosnovskaia submitted contemporaneous news articles and reports from Jewish advocacy groups regarding ongoing discrimination in the country. Ms. Sosnovskaia bolstered her case with a recent letter from her mother, who delivered her own view of the situation in Ukraine, where she still lived.

In response to the Agency's suggestion that she relocate within Ukraine, Ms. Sosnovskaia made two arguments. First, she submitted additional news articles that detailed ongoing anti-Semitic discrimination in the supposedly safe areas. Second, she argued that internal relocation was legally infeasible for her on account of Ukraine's "propiska" system. Under that system, a party who desires to move from one city to another must first demonstrate that he or she has arranged a job and a place to live in the destination city. Without a grant of propiska a party is not permitted to move internally within Ukraine.

The Agency acknowledged that such a propiska system existed in the past but argued that the modern Ukraine no longer enforced such draconian limits on internal relocation. As proof of the propiska system's continuing force, Ms. Sosnovskaia presented a document she claimed had come from the Ukrainian government, denying her request to move to Kiev. The Agency challenged the authenticity of that document, and forensic analysis proved inconclusive.

The IJ who first ruled against Ms. Sosnovskaia received the case again on remand. This time around, the IJ scheduled an evidentiary hearing for October 16 2001. However, on July 3, 2001, well before the planned hearing, the IJ issued her final ruling on Ms. Sosnovskaia's case. Ms. Sosnovskaia apparently first learned of this ruling on October 16, 2001, when she appeared for the (ultimately moot) hearing.

Ms. Sosnovskaia requested and received a copy of the IJ's ruling on October 17, 2001. In the ruling, the IJ listed two reasons why Ms. Sosnovskaia's past persecution did not suffice to establish that she had a well-founded fear of future persecution. First, the IJ stated that the conditions in Ukraine had changed substantially since Ms. Sosnovskaia last lived there. Second, the IJ held that Ms. Sosnovskaia could avoid further persecution by relocating to safer areas within Ukraine.

Ms. Sosnovskaia took issue with various facets of the IJ's ruling. In particular, she objected to the IJ's statement that she had "testified that she simply never attempted to receive the necessary documentation (the `propiska')." In fact, Ms. Sosnovskaia had delivered no such testimony and had lost her opportunity to testify when the IJ canceled the October 16 hearing. The IJ's ruling mentioned neither the letter Ms. Sosnovskaia had purportedly received in response to her request for a propiska, nor any of the other evidence Ms. Sosnovskaia had submitted, despite the BIA's finding that her testimony was credible. Rather, the IJ appeared to base her decision almost exclusively on the Country Reports, which Ms. Sosnovskaia alleged were biased.

Ms. Sosnovskaia appealed the IJ's July 3rd ruling, and the BIA declared her appeal timely in recognition of her delayed receipt of the ruling. The BIA affirmed the IJ's ruling without comment, and Ms. Sosnovskaia appealed.

II. ANALYSIS

A. Standard of Review

With respect to the asylum issues presented in this appeal, we have jurisdiction to review the BIA's decision pursuant to 8 U.S.C. § 1252. When the BIA affirms an IJ's ruling without opinion, we review the IJ's ruling itself, granting it the same deference we would an explicit opinion from the BIA. Krouchevski v. Ashcroft, 344 F.3d 670, 671 (7th Cir.2003). In particular, we must uphold the IJ's findings of fact "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B) (2000); see also Nikrodhanondha v. Reno, 202 F.3d 922, 925 (7th Cir.2000). This will be the case only if those findings are not "supported by reasonable, substantial, and probative evidence on the record [considered] as a whole." Angoucheva v. INS, 106 F.3d 781, 788 (7th Cir.1997) (quoting 8 U.S.C. § 1105a(a)(4) (1994) (repealed 1996)) (internal quotation marks omitted) (alteration added to conform with the statute). To earn such deference, however, the IJ must "announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted." Mansour v. INS, 230 F.3d 902, 908 (7th Cir.2000) (quoting Becerra-Jimenez v. INS, 829 F.2d 996, 1000 (10th Cir.1987)) (internal quotation marks omitted).

B. Improper Analysis of Well-Founded Fear of Persecution

Based on our review of the record, we find that the IJ failed to follow proper procedure in assessing Ms. Sosnovskaia's asylum claim, thus necessitating that we vacate the IJ's ruling and remand this case to the BIA. Specifically, Ms. Sosnovskaia concedes deportability but seeks asylum, which would prevent the Agency from removing her or returning her to Ukraine. See 8 U.S.C. § 1158(c)(1)(A) (2000). The Secretary of Homeland Security or the Attorney General may grant asylum to aliens who apply for asylum in a timely fashion, meet certain procedural requirements, and qualify as refugees. 8 U.S.C.A. § 1158(b)(1)(A) (West 2005). A "refugee" is defined as a person who is unable or unwilling to return to the country of her nationality because of "persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ...." 8 U.S.C. § 1101(a)(42)(A) (2005); Zheng v. Gonzales, 409 F.3d 804, 808 (7th Cir.2005).

Applicants for asylum bear the burden of proving by a preponderance of the evidence that they qualify as refugees according to this definition. 8 C.F.R. § 208.13(a) (2005). However, an applicant who is determined to have suffered past persecution is presumed to have a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1); see also Angoucheva, 106 F.3d at 788 ("If the alien establishes past persecution, moreover, a rebuttable presumption arises in favor of granting asylum."). To rebut this presumption, the Agency must prove by a preponderance of the evidence either that there has been such a "fundamental change in circumstances" in the applicant's country that the applicant's fear of persecution is no longer well-founded, id., or that the applicant "could avoid future persecution by relocating...