In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3104
S ERGEY B OROVSKY,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97-671-055
A RGUED A PRIL 13, 2010—D ECIDED JULY 26, 2010
Before W ILLIAMS, S YKES, and T INDER, Circuit Judges.
T INDER, 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.
2 No. 09-3104
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 ille-
gal 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.”
No. 09-3104 3
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 indi-
viduals 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 reg-
istering 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 re-
viewed several background articles on anti-Semitism in
4 No. 09-3104
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 dispro-
portionately 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 ap-
pealed 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 pro-
ceedings in Chicago by video-conference, or the Eighth
No. 09-3104 5
Circuit, since the parties appeared in the immigration
court in Kansas City. After a series of motions, the Attor-
ney 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 Harm-
less 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
6 No. 09-3104
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 im-
migration 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
No. 09-3104 7
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 (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 standard for withholding
of removal (a standard generally applicable across all
8 No. 09-3104
circuits). We are confident that the BIA’s Eighth Circuit
case citations did not affect the outcome, and we decline
to send this case back only to have the BIA excise
those citations from its opinion, replace them with a
pair of Seventh Circuit cases, and reissue a substantially
identical opinion denying Borovsky’s claims.
B. Withholding of Removal and CAT Protection
Moving to the merits of Borovsky’s petition, we review
the denial of his claims for withholding of removal and
CAT protection under the deferential “substantial evi-
dence” standard. We will uphold the agency’s decision
“if it is supported by reasonable, substantial, and proba-
tive evidence” and reverse only if the record “com-
pels” a contrary result. Moab, 500 F.3d at 660 (quotations
omitted).
To qualify for withholding of removal, an applicant
must show a “clear probability” that his life or freedom
would be threatened on account of a protected trait.
Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir. 2005). The
applicant may satisfy this burden by showing that he
suffered “past persecution” in the country of removal, in
which case a rebuttable presumption arises that he
would again be persecuted there. 8 C.F.R. § 1208.16(b)(1)(i).
Absent a showing of past persecution, the applicant
must demonstrate that it is more likely than not that
he will suffer future persecution if removed. Id.
§ 1208.16(b)(2).
We begin with Borovsky’s claim for withholding of
removal to Ukraine. Borovsky attempted to show past
No. 09-3104 9
persecution through his testimony on the anti-Semitic
attacks, insults, and threats that he endured as a child.
This childhood abuse was unfortunate, but we must
conclude that it was not severe enough to compel a
finding of past persecution.
As for the attacks, although physical abuse need not
cause serious injury to constitute persecution, abuse that
is more frequent and severe will more likely compel
a finding of persecution. Tarraf v. Gonzales, 495 F.3d 525,
534-35 (7th Cir. 2007). Borovsky claimed that he was
beaten “many times” by his fellow schoolchildren and
others, but he provided detailed accounts on only two
beatings: one when he refused to give up his bike
and another in the school cafeteria when he refused to
give up his bread. The IJ could conclude that these acts
of apparent bullying, which were short-lived and re-
sulted in no extensive injury, did not rise to the level of
persecution. See Prela, 394 F.3d at 518 (multiple deten-
tions, beatings, and harassment did not compel finding
of past persecution); Dandan v. Ashcroft, 339 F.3d 567,
573-74 (7th Cir. 2003) (three-day detention and beating
that caused a swollen face did not compel finding of
past persecution).
The anti-Semitic insults of “Jeed” and “Jewish pig” that
Borovsky recalled, while offensive, also did not rise to
the level of persecution. Derogatory name-calling rarely
if ever surpasses mere harassment to persecution. See
Kaharudin v. Gonzales, 500 F.3d 619, 623 (7th Cir. 2007)
(name-calling, spitting, hitting with rocks, and touching
on the buttocks fell “far short of persecution”). Regarding
10 No. 09-3104
the other threats described by Borovsky, in order to
constitute past persecution, these threats must be “most
immediate” or the perpetrators must have attempted
to follow through on them. Bejko v. Gonzales, 468 F.3d
482, 486 (7th Cir. 2006). Borovsky referred to a series of
unspecified threats against him and his family, as well
as frequent chalking of the Star of David on the
family’s apartment door. Without more evidence that
these threats presented an imminent risk of harm, they
did not compel a finding of past persecution. See id.
(threat to blow up a political opponent’s home was not
persecution in the absence of actions to follow through);
Ahmed v. Gonzales, 467 F.3d 669, 674 (7th Cir. 2006)
(verbal threats that never led to actual harm were
mere harassment).
In addition to past persecution, Borovsky attempted to
show a likelihood of future persecution in Ukraine
through a series of background articles on anti-Semitism
in the country. An initial problem with Borovsky’s claim
is that he failed to establish that the acts reported in
the articles were attributable to the Ukrainian govern-
ment. Discrimination may constitute persecution
only if the government perpetrates it or is “unable or
unwilling to protect [the applicant] from the responsible
parties.” Tarraf, 495 F.3d at 528 n.2. The articles sub-
mitted by Borovsky did not indicate that the Ukrainian
government condoned or was unable to combat anti-
Semitism. Although the articles described several crimes
against Jews that never led to arrests or prosecutions,
they also reported other such crimes to which the gov-
ernment response was swift and effective. According to
No. 09-3104 11
the State Department 2006 Country Report and the 2007
International Religious Freedom Report, acts of anti-
Semitism led to multiple arrests by law enforcement,
as well as widespread condemnation by Ukranian
religious leaders. These reports provided the IJ with
substantial evidence to conclude that Borovsky did not
satisfy the state-action requirement of his persecution
claim. (We add parenthetically that the most recent
2009 State Department Country Report, which was not
before the IJ, describes a downward trend in attacks
against Jews coupled with an upward trend in official
and public condemnation of anti-Semitism.)
Even if the reported acts of anti-Semitism could be
attributed to the Ukrainian government, Borovsky did not
show that it is more likely than not that he would
be targeted for persecution. The background articles
focused on acts that were isolated in nature and directed
toward openly practicing Jews, such as vandalism of
Jewish synagogues or attacks against Jews attending
religious ceremonies. The IJ thought it unlikely that
Borovsky would be singled out for such an attack, since
he never had and did not intend to practice Judaism
in Ukraine. The record supports this reasoning, and
Borovsky has not shown a likelihood of future persecu-
tion in Ukraine.
Besides Ukraine, Borovsky also seeks withholding of
removal to Israel based on his fear of imprisonment
for failing to perform mandatory military service. Ini-
tially, we credit the IJ’s conclusion that Borovsky failed to
establish that he would face any prison time for simply
12 No. 09-3104
leaving Israel before he was 18 years old, the age when
his mandatory service obligation began. In support of
his fear of imprisonment, Borovsky offered only a
single Web page containing the opinion of a person
identified as a justice officer in the Israeli Army. This
source was not authoritative enough to compel the
finding that Borovsky would be imprisoned upon his
return to Israel. Cf. Pelinkovic v. Ashcroft, 366 F.3d 532,
538 (7th Cir. 2004) (single article on sporadic attempts
to punish draft evaders failed to show that applicants
would be punished). Although the Web page provided
the name and title of the authoring officer, it provided
no information on his background, authority to deter-
mine punishment for military desertion, or the legal
sources that he relied on. Also, the terse nature of the
officer’s responses does little to bolster this source’s
reliability. In response to a question posted by an indi-
vidual similarly situated to Borovsky, the officer simply
stated, “You[r] return to Israel will result in your arrest
in the airport, military tribunal, prison, follow[ed] by
service in the army.” Responses to other queries were
similarly brief and invariably concluded that the
person would face prison time.
Even assuming that Borovsky would face imprison-
ment for military desertion, Borovsky failed to show
that such imprisonment would amount to persecution.
“[I]t is well established that governments may draft
citizens for military service and punish those who
avoid the draft.” Ghebremedhin v. Ashcroft, 385 F.3d 1116,
1120 (7th Cir. 2004). In order for such punishment to
become “persecution,” the government must punish the
No. 09-3104 13
applicant more severely than other draft evaders based
on some protected trait. Id. As the IJ correctly noted,
Borovsky had no evidence that the Israeli government
would single him out for draft evasion based on a pro-
tected trait such as his religion or nationality. In the
absence of such disproportionate treatment, Borovsky
cannot base his withholding of removal claim on any
imprisonment that he might receive for draft evasion.
In his final argument, Borovsky re-presents his fear
of imprisonment for military desertion as a claim for
relief under the CAT. In his view, it would be “torture”
to imprison him for failing to perform mandatory
military service.
The burden for CAT protection is no less stringent than
that for withholding of removal; the applicant must
show “that it is more likely than not that he or she would
be tortured if removed to the proposed country of re-
moval.” 8 C.F.R. § 1208.16(c)(2). “Torture” is defined as
the intentional infliction of “severe pain or suffering” for
the purpose of coercion, punishment, or discrimination.
Id. § 208.18(a)(1). Torture does not include “lesser forms
of cruel, inhuman or degrading treatment or punishment,”
id. § 208.18(a)(2), or suffering inherent to “lawful sanc-
tions” imposed for violating the law, id. § 208.18(a)(3).
Borovsky offered no evidence that any imprisonment
that he might receive for violating Israeli military service
law would involve an “extreme form of cruel and
inhuman treatment.” Id. § 208.18(a)(2); see also Pavlyk v.
Gonzales, 469 F.3d 1082, 1090-91 (7th Cir. 2006) (rejecting
a CAT claim based on prison conditions of overcrowding,
14 No. 09-3104
lack of adequate sanitation and medical facilities, and
mistreatment by police). The agency properly denied
his claim for CAT protection.
III. Conclusion
We D ENY the petition for review.
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