In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3651
KATSIARYNA SOBALEVA and ALEXANDRU POTORAC,
Petitioners,
v.
ERIC HOLDER, JR., Attorney General
of the United States,
Respondent.
____________________
Petition for Review of a Decision
of the Board of Immigration Appeals.
Nos. A200-981-396 & A200-981-397.
____________________
ARGUED APRIL 1, 2014 — DECIDED JULY 24, 2014
____________________
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 stu-
dent visa. She applied for asylum, contending that the Bela-
∗ Of the Northern District of Illinois, sitting by designation.
2 No. 13-3651
rusian 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, Alexan-
dru Potorac, a citizen of Moldova. (Because Potorac’s eligibil-
ity for asylum derives entirely from Sobaleva’s, it does not
require separate consideration.) An immigration judge de-
nied Sobaleva’s application and ordered that she and Potorac
be removed to their respective countries. The Board of Im-
migration 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 ap-
plied the wrong legal standard to conclude that Sobaleva
was not persecuted in Belarus. Second, both the judge and
the Board misconstrued and disregarded important evi-
dence, 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) (de-
scribing the arrests and detentions of group members for
their political activity); Amnesty International, 2007 Report
No. 13-3651 3
on Belarus (April 3, 2007) (ascribing the five-year prison sen-
tence of Malady Front leader Alyaksandr Kazulin to a “sys-
tematic campaign of harassment, intimidation, and obstruc-
tion 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) (summa-
rizing evidence that, since Lukashenko’s disputed election in
December 2010, the Belarusian government has been par-
ticularly aggressive toward opponents).
Sobaleva filed a timely application for asylum roughly
nine months after her arrival in the United States. Her appli-
cation described her participation in anti-government pro-
tests 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, So-
baleva recounted that police officers arrived at an Octo-
ber 2009 protest and began beating protesters indiscrimi-
nately. 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 of-
ficer 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 sta-
tion.
4 No. 13-3651
Sobaleva also testified that, on May 16, 2010, she had an-
other experience with politically motivated violence by po-
lice. While she and two fellow protesters were walking to-
gether after a demonstration, they were stopped by officers
who demanded identification. Although Sobaleva and her
companions had left the protest site, they were wearing pic-
tures 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 shov-
ing her against a building, knocking her unconscious. When
she regained consciousness, her friends told her that the of-
ficer had kicked her while she was on the ground. Nauseat-
ed 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 hospitaliza-
tion, 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. So-
baleva, 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 evi-
dence at her asylum hearing that the summons concerned
the events of May 16, but she testified that she believes it did
No. 13-3651 5
because her companions from that day were fined and be-
cause she knows of no other reason she would have been
summoned. She believes that she received a summons in-
stead of being fined because she had previously been arrest-
ed for protesting—something the officers would have
learned when they radioed in the information from her
passport—and because she challenged them during the en-
counter.
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 men-
tion 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 inci-
dent.” And the judge concluded that the summons she re-
ceived “standing alone” did not suggest that she would be
persecuted in the future.
6 No. 13-3651
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 “condemna-
ble” but “did not rise to the level of persecution” as shown
by a comparison with the treatment of other asylum appli-
cants 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 ei-
ther 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 rebut-
table 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
No. 13-3651 7
and has a well-founded fear of future persecution, entitling
her to asylum.
Because the Board provided its own analysis and also af-
firmed the immigration judge’s decision, we review both de-
cisions. 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 wheth-
er the agency applied the proper legal standard in evaluat-
ing Sobaleva’s application, see Sirbu v. Holder, 718 F.3d 655,
658 (7th Cir. 2013), and also whether the agency’s conclu-
sions are supported by a reasoned analysis of the evidence,
see Cece v. Holder, 733 F.3d 662, 678 (7th Cir. 2013) (en banc).
Only if the record “compels” a finding of past persecution or
a well-founded fear of future persecution will we conclude
on judicial review that the applicant is eligible for asylum.
Nzeve v. Holder, 582 F.3d 678, 684 (7th Cir. 2009).
For two reasons, the decisions of the immigration judge
and Board in this case cannot stand. We do not decide at this
time whether the record actually compels a finding of perse-
cution; rather, we conclude that the flaws we have identified
require remand to the Board for further consideration of So-
baleva’s application.
The first major flaw is that both the immigration judge
and the Board apparently applied this court’s standard for
assessing persecution claims on judicial review rather than the
standard that applies to their own judgments in the first in-
stance. We held in a similar case, Sirbu, 718 F.3d at 658–60,
that this is a legal error that requires remand.
8 No. 13-3651
The two standards for assessing evidence of persecution
are distinct. As explained above, on judicial review of a de-
nial of asylum, we ask whether the petitioner’s evidence
compels a finding of persecution. By contrast, the “proper is-
sue for the immigration judge and the Board is whether the
applicant has actually shown past persecution,” which is a
less demanding standard that calls for the agency to apply
its expert judgment. Id. at 659.
In Sirbu, the immigration judge concluded that the asy-
lum applicant’s evidence did not “compel” a finding of per-
secution, and the Board, without using the word compel,
“distinguished on factual grounds” our decision in Asani v.
INS, 154 F.3d 719 (7th Cir. 1998), in which we “held that the
facts were indeed so powerful as to ‘compel’ a finding of
past persecution.” 718 F.3d at 658. “The Board then found
guidance from our decision in Dandan [v. Ashcroft, 339 F.3d
567 (7th Cir. 2003)] 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.” Id.; see Asani, 154 F.3d at 722–
24 (7th Cir. 1998) (explaining that Board erred in concluding
that petitioner was not seriously harmed by being detained
for a week, being deprived of food, and having two of his
teeth knocked out); Dandan, 339 F.3d at 574 (“A three-day in-
terrogation resulting in a ‘swollen’ face does not compel us
to conclude that the BIA was incorrect [in not finding past
persecution].”). We concluded in Sirbu that the judge and the
Board both had applied the appellate court standard for ju-
dicial review rather than making an independent determina-
tion. 718 F.3d at 658. We granted the petition for review for
that reason and remanded the case for further consideration.
Id. at 660.
No. 13-3651 9
As in Sirbu, the immigration judge and the Board in this
case seem to have considered whether Sobaleva’s evidence
would compel a finding of persecution on judicial review
rather than considering whether she was in fact persecuted.
The immigration judge did not use the word compel, but in
concluding that Sobaleva’s treatment did not equal persecu-
tion, he said that her case “closely resembles the facts in
Dandan and not the facts in Asani.” This reliance on a simple
comparison to our cases disregarded the fact that when we
apply deferential judicial review, we “expect the immigra-
tion 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.” Sirbu,
718 F.3d at 658. Facts that may not have compelled a finding
of persecution in one case may nevertheless support such a
finding in another case. The Board and immigration judges
must keep in mind the difference between our standard and
theirs when they assess evidence of persecution.
Rather than correcting the immigration judge’s Sirbu er-
ror, the Board actually exacerbated the problem. It support-
ed its conclusion that Sobaleva’s “arrest and detention did
not rise to the level of persecution” with a citation to Nzeve v.
Holder, 582 F.3d 678 (7th Cir. 2009), followed by this paren-
thetical: “being beaten with batons, kicked, struck with the
butt of a gun, and threatened does not compel holding that
such harm rises to the level of persecution.” This citation re-
ferring to compulsion suggests that the Board asked itself
only whether the evidence compelled, rather than warrant-
ed, a finding of persecution. And an additional citation to
Stanojkova v. Holder, 645 F.3d 943 (7th Cir. 2011), in which we
held that a family’s account of abuse by police compelled a
finding of past persecution, does nothing to remove that im-
10 No. 13-3651
pression. In short, when citing this court’s cases, the Board
must not assess an asylum applicant’s evidence as this court
would on judicial review. Remand is necessary so that So-
baleva’s evidence of persecution can be reassessed under the
proper standard. (Moreover, the mistreatment at issue in
Nzeve is distinguishable from Sobaleva’s. The petitioner in
that case, who suffered some “blisters and bruises,” was not
arrested after the assault. Nzeve, 582 F.3d at 683–84.)
The second major flaw in the immigration judge’s and
Board’s decisions is that neither gave due consideration to
the evidence Sobaleva presented. Both disregarded some ev-
idence, improperly isolated or mischaracterized other evi-
dence, and took logical leaps that do not withstand scrutiny.
“An asylum applicant is entitled to a reasoned analysis of her
case supported by relevant, probative evidence.” Cece, 733
F.3d at 678. Where such analysis is lacking, remand for fur-
ther consideration is required. See id.; Qiu Yun Chen v. Holder,
715 F.3d 207, 214 (7th Cir. 2013) (remanding because Board’s
mischaracterization of some evidence and disregard of other
evidence “depriv[ed] the Board’s order denying asylum of a
rational foundation”); Iao v. Gonzales, 400 F.3d 530, 533 (7th
Cir. 2005) (“We do not decide that [the petitioner] is entitled
to asylum; that is a decision for the immigration authorities
to make. But she is entitled to a rational analysis of the evi-
dence by them.”).
Again, our review for substantial evidence requires us to
ask whether the agency complied with its duty to provide a
reasoned analysis of that evidence. We conclude that it did
not. Our focus is primarily on the Board’s decision, but a few
aspects of the immigration judge’s decision bear mentioning
first.
No. 13-3651 11
In his description of Sobaleva’s 2009 arrest and detention,
the judge inexplicably ignored that she was hit twice and
pushed to the ground. He also observed that Sobaleva did
not think the 2009 incident was “significant,” which is an ob-
servation unsupported by evidence. That she continued her
political activities surely suggests commitment to the cause
rather than the absence of persecution. The fact that she did
not mention the incident to the U.S. Embassy seems a poor
reason to conclude that she thought it was insignificant.
In then discussing the court summons Sobaleva received
after the 2010 incident, the immigration judge observed that
“standing alone” it did not establish a well-founded fear of
future persecution. But of course it should not be considered
standing alone. Standing alone, the unexplained court sum-
mons to answer an unspecified charge said little. In the con-
text of Sobaleva’s testimony, which was found credible, the
summons takes on greater significance. And under the law,
that evidence must be considered along with all the other
evidence, including Sobaleva’s past experience with the au-
thorities and her mother’s account of events since her depar-
ture. See Chen v. Holder, 604 F.3d 324, 334–35 (7th Cir. 2010)
(“totality of evidence” must be considered in deciding perse-
cution questions); Bejko v. Gonzales, 468 F.3d 482, 486
(7th Cir. 2006) (explaining that “it is axiomatic that the evi-
dence of persecution must be considered as a whole, rather
than piecemeal”).
The Board’s decision includes the same type of errors.
Most problematic is the Board’s treatment of Sobaleva’s May
2010 stop by police and her subsequent summons to court.
In concluding that Sobaleva failed to meet her burden under
8 U.S.C. § 1158(b)(1)(B)(i) of showing that her political opin-
12 No. 13-3651
ion was “at least one central reason” for the May 2010 inci-
dent, the Board observed that she had left the protest site be-
fore the stop and that the police officers did not arrest her,
did not mention her politics or tell her to cease her activities,
and did not harm her friends. The officers behaved this way,
the Board pointed out, despite the group’s “apparent politi-
cal activism” and known history of protesting. From this the
Board concluded that the officers most likely mistreated So-
baleva simply because she reached for her passport.
The Board’s characterization of the situation improperly
discounted the context in which the stop took place as well
as key facts suggesting that Sobaleva’s political activity was a
primary reason for her mistreatment. In Ndonyi v. Mukasey,
541 F.3d 702, 711 (7th Cir. 2008), we found error in the
Board’s conclusion that the petitioner was mistreated during
a political protest not on account of her political opinion but
“for disturbing the peace or for attempting to break into an
administrative office.” As the Board acknowledged here, So-
baleva’s political activity was “apparent” and her arrest rec-
ord was known to the officers. The Board should have con-
sidered the possibility that the officers “were partially moti-
vated by politics.” Ndonyi, 541 F.3d at 710–11.
The Board, however, concluded that the officers’ more le-
nient treatment of Sobaleva’s companions negated the possi-
bility that her politics played a role in motivating the attack.
We do not follow that reasoning. Sobaleva became the most
vocal and resistant member of the group when her passport
was not returned as it would have been during a routine
stop. She also had been arrested and detained fairly recently.
Both facts are consistent with the officers being motivated by
her political opposition to the regime. The fact that the offic-
No. 13-3651 13
ers were content to give her a concussion without arresting
her at the time does not suggest, as the Board reasoned, a
non-political motive.
Further undermining the Board’s assessment of the May
2010 incident is that Sobaleva received the court summons
shortly thereafter. The Board conceded that the summons
was likely connected to the May 2010 incident and that in
Belarus “the judiciary succumbs to political interference.”
But the Board then found that Sobaleva had not shown “any
improper basis for the summons,” apparently reasoning that
summoning her to court on mystery criminal charges after
she was severely injured by an officer in response to having
reached for her passport would be proper. Again, we do not
understand the Board’s reasoning. The fact that Sobaleva
was quickly summoned to answer unknown charges only
supports the idea that the unknown charges were based at
least in part on her political activity.
The Board went on to explain that the “fact that the re-
spondent’s friends received only fines undermines her claim
that the summons is politically motivated.” The conclusion
does not follow. If Sobaleva’s mistreatment was solely the
result of her own behavior during the stop and not her polit-
ical opinion, why were her companions fined? They did not
misbehave. The Board did not attempt to answer that ques-
tion.
Finally, the Board mentioned only in passing Sobaleva’s
mother’s account of events since her daughter’s departure,
giving that account no apparent weight. But her mother’s
account is additional support for the idea that Sobaleva was
not summoned to court simply because she reached for her
passport. According to Sobaleva’s mother, the police have
14 No. 13-3651
been diligent in seeking her daughter since the missed court
date and have even threatened her with the loss of her job.
This diligence and intensity surely seem greater than would
be expected if the authorities viewed Sobaleva as merely a
common disturber of the peace. Sobaleva’s mother’s account
is relevant not only to whether the police had a political mo-
tive for Sobaleva’s treatment in May 2010, but also to the crit-
ical question of how she would likely be treated if she were
returned to Belarus. Ignoring evidence that relates to key is-
sues is error. See Qiu Yun Chen, 715 F.3d at 212–13.
Taking all of this into account, we must conclude that So-
baleva did not receive a reasoned analysis of her evidence.
She must be provided with one on remand. If the Board then
concludes that the police officers were motivated by So-
baleva’s political opinion during the May 2010 incident, it
must consider whether the combination of that incident and
her October 2009 arrest and detention amounts to past per-
secution. The Board must also take care on remand to reas-
sess Sobaleva’s eligibility for asylum independently, as di-
rected by Sirbu.
The petition for review is GRANTED and the case is
REMANDED to the Board of Immigration Appeals for fur-
ther proceedings consistent with this opinion.