In the
United States Court of Appeals
For the Seventh Circuit
No. 11‐3655
TATSIANA BOIKA and SERGEY ZHITS,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of
an Order of the Board of Immigration Appeals.
Nos. A088‐223‐087 and A088‐223‐088.
ARGUED SEPTEMBER 27, 2012 — DECIDED AUGUST 16, 2013
Before RIPPLE, WILLIAMS, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Tatsiana Boika, a Belarusian
citizen, entered the United States legally in May 2006 but
overstayed her authorized stay. At her removal proceedings,
she conceded removability but applied for asylum under
8 U.S.C. § 1158, withholding of removal under 8 U.S.C.
§ 1231(b)(3), and relief pursuant to the Convention Against
Torture. Boika’s husband, Sergey Zhits, also made parallel
claims. His claims are derivative from Boika’s claims based on
2 No. 11‐3655
their marital status under 8 U.S.C. § 1158(b)(3)(A), so we do not
address his claims separately.
Based on past persecution for her political involvement in
Belarus, principally between 2004 and 2006, Boika claimed that
she could establish a well‐founded fear of future persecution
upon return to Belarus. An immigration judge (IJ) denied her
asylum application due in large part to an adverse credibility
finding after two hearings in which Boika could not satisfacto‐
rily explain inconsistencies in her testimony and corroborating
documents. The Board of Immigration Appeals affirmed the
IJ’s denial of asylum, and we denied Boika’s subsequent
petition for review. Boika v. Holder, 418 Fed. App’x. 559 (7th
Cir. 2011).
Boika then moved to reopen based on materially changed
country conditions. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Boika
asserted that after Belarusian President Alexander Luka‐
shenko’s election in 2010, the Belarusian government’s severe
crackdown on political opposition had resulted in widespread
human rights abuses. These abuses were serious enough that
the United States and the European Union imposed new
sanctions on the Belarusian government in February 2011.
Boika also submitted new corroborating evidence that she has
been active in the Belarusian opposition movement while she
has been in the United States.
The Board denied Boika’s motion to reopen, explaining
only that the evidence she offered did not reflect a material
change in conditions in Belarus and was not sufficient to show
a prima facie claim for eligibility for asylum. We grant Boika’s
and her husband’s petition for review and remand to the Board
No. 11‐3655 3
for further proceedings consistent with this opinion. The terse
Board opinion did not provide an adequate explanation for
rejecting Boika’s new evidence and denying her motion to
reopen. The prior credibility finding against Boika regarding
her pre‐2007 political opposition inside Belarus does not
necessarily taint her new evidence concerning both her new
political activity in the United States or the new, severe crack‐
down on the government’s political opponents in Belarus. That
evidence needs a fresh look.
I. Motions to Reopen
Motions to reopen removal proceedings must be filed
within 90 days of the final order, subject to several exceptions.
8 U.S.C. § 1229a(c)(7)(C)(i). Boika filed her motion to reopen
long after the 90‐day deadline expired. To excuse her delay,
she relied on an exception based on changed country condi‐
tions that materially affect her eligibility for relief. 8 U.S.C.
§ 1229a(c)(7)(C)(ii); Xiao Jun Liang v. Holder, 626 F.3d 983,
987–88 (7th Cir. 2010). Any motion to reopen, regardless of
timing, can be denied properly if: (1) it is not supported by
previously unavailable and material evidence; (2) it fails to
establish the applicant’s prima facie eligibility for the underly‐
ing relief sought; or (3) the Board determines discretionary
relief is not appropriate in the petitioner’s case. Mansour v. INS,
230 F.3d 902, 907 (7th Cir. 2000). We review the Board’s denial
of a motion to reopen for an abuse of discretion. Xiao Jun Liang,
626 F.3d at 988. We will find an abuse of discretion and remand
the denial of a motion to reopen if, among other things, the
decision “was made without a rational explanation.” Mansour,
230 F.3d at 907 (internal quotations omitted).
4 No. 11‐3655
“In determining whether evidence accompanying a motion
to reopen demonstrates a material change in country condi‐
tions that would justify reopening, we compare the evidence
of country conditions submitted with the motion to those that
existed at the time of the merits hearing below.” In re S‐Y‐G,
24 I. & N. Dec. 247, 253 (BIA 2007). To constitute a change in
country conditions, the conditions must have done more than
simply worsen cumulatively. Id. That does not mean that the
conditions before and after the motion to reopen will not be
related or connected. Evaluating gradations of human misery
can be a daunting task. Where significant human rights abuses
previously existed, perhaps all changes could be understood as
a cumulative worsening, but differences in degree matter.
Some situations present conditions so grave that a new
threshold has been met. Boika’s new evidence, corroborated in
substantial part by our own government’s decision to impose
new sanctions on Belarus in response to the new campaign to
suppress political opposition after the 2010 elections, seems to
meet this standard and deserves more attention than it has
received thus far in this case.
Boika’s motion to reopen included over one hundred pages
showing that the treatment of the political opposition in
Belarus had changed dramatically since the election of Presi‐
dent Lukashenko in 2010, after her 2007 application for asylum
had been denied. Credible international sources reported that
the election was not fair and that the results were not reliable.
OSCE Observers Told to Leave Belarus Over Election Fraud Claims,
Associated Press, The Guardian, Dec. 31, 2010, available at
http://www.guardian.co.uk/world/2010/dec/31/osce‐leave‐be
larus‐election‐fraud‐claims; Michael Schwirtz, Belarus Police
No. 11‐3655 5
Arrest Opposition Leaders, N.Y. Times, Dec. 20, 2010, available
at www.nytimes.com/2010/12/21/world/europe/21belar‐
us.html?_r=0 (reporting that Western election observers on
ground “highlighted apparent fraud”). In a December 20, 2010
statement, the White House said that the “United States cannot
accept as legitimate the results of the presidential election
announced by the Belarusian Central Election Commission.”
Orest Deychakiwsky et al., Belarusian Regime Resolutely Dashes
Any Hopes for Democratic Liberalization, Commission on
Security & Cooperation in Europe, U.S. Helsinki Commission,
Jan. 6, 2011, available at http://www.csce.gov/index.cfm?
FuseAction=ContentRecords.ViewDetail&ContentRecord_id
=482&Region_id=0&Issue_id=0&ContentType=G&ContentR
ecordType=G&CFID=27057194&CFTOKEN=31349947 [herein‐
after Helsinki Commission]. The White House also stated that
the violence on election day represented “a clear step back‐
wards on issues central to our relationship with Belarus.”
Michael Schwirtz, Belarus Police Arrest Opposition Leaders, N.Y.
Times, Dec. 20, 2010, available at www.nytimes.com/
2010/12/21/world/europe/21belarus.html?_r= 0.1
After the election, 40,000 opposition supporters rallied and
called for President Lukashenko’s resignation. The Helsinki
Commission later explained that “the brutal and bloody
election‐night crackdown against political opposition support‐
ers, including mass arrests of demonstrators, as well as
candidates, who challenged the 16‐year rule of Alexander
Lukashenk[o], was unprecedented.” Helsinki Commission
(emphasis added).
1
All websites cited in this opinion were last visited on August 16, 2013.
6 No. 11‐3655
The violent crackdown on the political opposition after the
2010 presidential elections is the materially changed country
condition that Boika relies upon to justify her motion to
reopen. Human Rights Watch conducted an extensive investi‐
gation in February 2011 and concluded, in part, that the human
rights abuses that occurred during and after the 2010 elections,
“including abuse of detainees, trials behind closed doors and
raids on human rights organizations,” constituted a “serious
deterioration in the already poor state of human rights in
Belarus.” Human Rights Watch, Shattering Hopes: Post‐Election
Crackdown in Belarus, at 1, March 2011, available at
www.hrw.org/sites/default/files/reports/belarus0311Web.pdf.
The violence and oppression were not limited to election
night. The Belarusian government continued rounding up and
arresting opposition members at least six weeks after the
elections. Michael Schwirtz, U.S. and Europe Move Against
Belarus’s Leader, N.Y. Times, Jan. 31, 2011, available at
http://www.nytimes.com/2011/02/01/world/europe/01belaru
s.html. Reports of this oppressive, anti‐democratic behavior
targeting opposition groups continued through June 2011,
when Boika filed her motion to reopen. See Radio Free Europe,
Belarusian Police Disperse Opposition Flash Mob, June 15, 2011,
available at http://www.rferl.org/articleprintview/
24236371.html; Aliaksandr Kudrytski & Emma O’Brien, Police,
Protesters Meet in Minsk Amid Warnings, Bloomberg, June 16,
2011, available at http://democraticbelarus.eu/news/
police‐protesters‐meet‐minsk‐amid‐warnings. The Belarusian
government also shut down the internet and social networking
sites, leaving independent media “on the verge of being wiped
out,” as reported by the Belarusian deputy chair of the non‐
No. 11‐3655 7
governmental Association of Journalists. Fred Weir, Belarus
Crackdown Strains Ties with both EU and Russia, The Christian
Science Monitor, Jan. 12, 2011, available at
http://www.csmonitor.com/World/Europe/2011/0112/Belarus
‐crackdown‐strains‐ties‐with‐both‐EU‐and‐Russia.
The clearest indication that conditions materially worsened
in Belarus after the 2010 election came in the form of the
United States and European Union reactions to the events. In
February 2011, the United States and the European Union
imposed sanctions on President Lukashenko and other
Belarusian politicians, prohibiting them from entering the
United States or the European Union and freezing all assets
belonging to them in the United States and the European
Union. Both the European Union and the United States had
previously imposed some sanctions in 2006, but the European
Union had lifted them. After the 2010 election, however, the
European Union imposed sanctions on Belarus, while the
United States greatly tightened the earlier sanctions. Michael
Schwirtz, U.S. and Europe Move Against Belarus’s Leader, N.Y.
Times, Jan. 31, 2011, available at
http://www.nytimes.com/2011/02/01/world/europe/01belaru
s.html. The “new sanctions are more far‐reaching than any
imposed earlier, taking aim at many more officials.” Id. The
New York Times reported that the United States took this
unprecedented action because President Lukashenko “began
a campaign of repression that even seasoned opposition
figures say has exceeded anything in the president’s 16‐year
rule.” Id.
8 No. 11‐3655
II. Judicial Review of the Board’s Decision
A. Changed Country Conditions
The Board denied Boika’s motion to reopen as untimely,
finding that she did not qualify for the exception for materially
changed country conditions. The Board’s terse explanation said
only that “the evidence proffered with the respondents’
present motion does not reflect changed country conditions in
Belarus that materially affect their eligibility for asylum,
withholding of removal, and protection under the Convention
Against Torture.” That is the only sentence in the Board’s
dismissal that explains why the new evidence, including the
United States and European Union sanctions after the 2010
elections and crackdown, did not suffice as changed country
conditions that materially affected Boika’s asylum claim.
“We have frequently remanded cases when the BIA’s or the
IJ’s failure to discuss potentially meritorious arguments or
evidence calls into question whether it adequately considered
these arguments.” Kebe v. Gonzalez, 473 F.3d 855, 857 (7th Cir.
2007) (“Although the BIA might have offered reasons for
rejecting the evidence of changed conditions, or for denying
relief despite changed conditions, the absence of any articu‐
lated reasons in the BIA’s decision constitutes an abuse of
discretion and requires a remand.”); see also Moosa v. Holder,
644 F.3d 380, 386 (7th Cir. 2011) (“[W]e have consistently found
an abuse of discretion where the Board ignores or misapplies
an applicant’s evidence.”).
We have previously found that even more detailed Board
decisions provided so little explanation that we could not
properly exercise judicial review. In Mekhael v. Mukasey,
No. 11‐3655 9
509 F.3d 326, 327 (7th Cir. 2007), for example, the Board denied
the petitioner’s motion to reopen the denial of his asylum
application because the evidence presented merely “detail[ed]
ongoing problems in Lebanon, and therefore, was discoverable
and available” before the original asylum application and
furthermore that “to the extent that any specific incidents
alleged by the [petitioner] occurred after that time, they are
merely cumulative, and as such, not persuasive.” We found
that the Board’s explanation in that decision was insufficient to
allow us to exercise our review appropriately. In reversing the
Board, we said that “we have repeatedly reversed the Board
when it has failed to give reasoned consideration to post‐
hearing evidence.” Id. (collecting cases).
The same reasoning applies here to the Board’s even more
opaque conclusion denying Boika’s motion to reopen. The
Board did not appropriately explain why it rejected her
evidence of changed country conditions. As in Mekhael, “[w]e
take no position on the merits of the motion to reopen. The
only ground of our decision is the Board’s failure to articulate
a reasoned response to the motion. We understand the Board’s
staggering workload. But the Department of Justice cannot be
permitted to defeat judicial review by refusing to staff the
Immigration Court and the Board of Immigration Appeals
with enough judicial officers to provide reasoned decisions.”
Id. at 328.
B. Prima Facie Claim for Asylum
If Boika could not show a prima facie case for eligibility,
then the Board’s failure to provide a sufficient explanation of
the denial would be harmless because reopening the case
10 No. 11‐3655
would be futile. Boika’s motion to reopen asserted that she
could show a prima facie claim of asylum based in part on her
membership in a political group suffering persecution in
Belarus. See 8 C.F.R. § 1208.13(b)(2)(iii) (applicant can show
well‐founded fear of persecution by showing membership in
group subject to pattern or practice of persecution).
An asylum application based on a well‐founded fear of
future persecution must demonstrate that the petitioner faces
a “reasonable possibility of suffering such persecution if he or
she were to return to that country,” 8 C.F.R. § 1208.13
(b)(2)(i)(B), and the petitioner is “unable or unwilling to return
to, or avail himself or herself of the protection of, that country
because of such fear.” 8 C.F.R. § 1208.13(b)(2)(i)(C). A person
has a well‐founded fear of persecution if a reasonable person
in the same position would fear persecution. Jukic v. INS, 40
F.3d 747, 749 (5th Cir. 1994). To show a prima facie case for
eligibility for asylum, a petitioner must present “sufficient
evidence to demonstrate a reasonable likelihood of success on
the merits so as to make it worthwhile to develop the issues
further at a full evidentiary hearing.” In re A‐N & R‐M‐N,
22 I. & N. Dec. 953, 956 (BIA 1999).
To demonstrate her current membership in the political
opposition group being persecuted in Belarus, Boika presented
her own testimony and an affidavit signed by the president of
the Belarusian‐American Association Inc., which advocates
democratic rule in Belarus. The affidavit testified to Boika’s
frequent involvement and participation with the group since
she has arrived in the United States. The organization holds
rallies, protests, and other mass actions in opposition to
President Lukashenko’s regime. Boika testified to her regular
No. 11‐3655 11
involvement and presented pictures of her active participation
in the group protests and other events in New York. While the
government questions the authenticity of these documents in
its brief and at oral argument, the Board did not opine on the
issue and therefore we do not either. Those are matters for a
hearing on remand.
On the basis of this evidence as well as the new crackdown
in Belarus itself, Boika argued that she had a reasonable fear of
future persecution. She would be vulnerable to pattern and
practice discrimination because she could, based on this new
evidence, show her “inclusion in, and identification with, such
group of persons such that [her] fear of persecution upon
return is reasonable.” See 8 C.F.R. § 1208.13(b)(2)(iii).
Regarding Boika’s ability to establish a prima facie case for
asylum eligibility in her motion to reopen, the Board’s decision
said a bit more but not enough to allow us to affirm it. The
Board said that, “the submitted country information describing
political conditions generally and episodes of human rights
violations and violence against perceived political opponents
in Belarus alone is insufficient to establish the respondents’
prima facie eligibility for relief from removal.” The Board then
explained that the evidence of changed country conditions did
not show that the Belarusian government is personally
interested in Boika, so that she cannot establish a prima facie
case.
This statement was not complete or correct. Boika does not
have to show that she has been or will be personally targeted
upon removal. Under section 1208.13(b)(2)(iii), she can also
show a well‐founded fear of persecution upon return to
12 No. 11‐3655
Belarus by showing that she belongs to a group that is cur‐
rently being persecuted. Boika offered evidence that she
belonged to the opposition movement that has suffered severe
human rights abuses since the 2010 election. The Board’s
opinion was silent on this point. Again, “we have consistently
found an abuse of discretion where the Board ignores or
misapplies an applicant’s evidence.” Moosa, 644 F.3d at 386.
Here the Board’s failure to acknowledge or comment on
Boika’s current involvement in the opposition movement in the
United States was an abuse of discretion.
C. The Prior Adverse Credibility Finding
The government also argues that the Board’s lack of
explanation was harmless because Boika’s evidence of her
political activity while in the United States cannot be credited.
The theory is that the IJ’s adverse credibility finding in reject‐
ing her first application for asylum means that her evidence
about her more recent and current political activity in the
United States should not be believed. Boika’s original applica‐
tion for asylum focused on the political oppression occurring
before 2007. Her application detailed three incidents in which
she claimed she was arrested and beaten badly enough to
require medical attention, all because of her political participa‐
tion in the opposition movement in Belarus. The application
was denied, and the denial was affirmed by the Board despite
the IJ’s finding that “political persecution is a harsh reality in
the present day Belarus,” because the IJ made an adverse
credibility determination regarding Boika’s claimed political
participation and resulting targeting, harassment, and abuse.
In light of the deferential review we give to cogent credibility
No. 11‐3655 13
findings, e.g., Hassan v. Holder, 571 F.3d 631, 636–37 (7th Cir.
2009), we affirmed that denial.
We do not revisit the IJ’s adverse credibility finding from
that earlier proceeding. For present purposes, though, the
critical point is that such adverse credibility findings do not
necessarily discredit Boika’s new evidence in her motion to
reopen regarding and her claims of current political participa‐
tion in the United States, for which she provided corroborating
evidence. See Gebreeyesus v. Gonzalez, 482 F.3d 952, 955 (7th Cir.
2007). To the extent that this is what the Board meant when it
said that Boika’s previously discredited claims are “somewhat
entwined in the respondents’ present filing,” that too would be
an abuse of discretion, at least without further consideration of
the new evidence.
We are not suggesting that the Board was required to forget
the prior credibility finding, but the Board needed to engage
with the new evidence. Moreover, the difficulties that aliens
seeking asylum often face in obtaining corroborating evidence
can sometimes mean that an earlier adverse finding may have
been reasonable on the available record but wrong in an
objective sense. Thus it would have been an abuse of discretion
for the Board to rely only on the prior adverse credibility
finding to discredit Boika’s new evidence without a proper
evidentiary hearing.
The government argues, however, that adverse credibility
findings are cordoned off from future credibility determina‐
tions only when “the factual predicate of [the] claim of future
persecution is independent of the testimony that the [Immigra‐
tion Judge] found not to be credible.” Gov. Br. at 27, quoting
14 No. 11‐3655
Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir. 2006). This argument
is not persuasive.
The factual predicates are distinct here: Boika first claimed
asylum based on her pre‐2007 political activity in Belarus,
which the IJ discredited. She now claims asylum based on her
political activity in the United States—a claim that has not been
and could not be discredited without an evidentiary hearing—
as well as the crackdown in Belarus after the 2010 election.
“Given these distinct facts, the prior adverse finding need not
undermine [Boika’s] theory of future persecution.” Gebreeyesus
482 F.3d at 955. In Gebreeyesus, we granted review of denial of
an alien’s motion to reopen an asylum petition based on
changed country conditions in a remarkably similar case from
Ethiopia. We held that the IJ’s earlier credibility finding against
the alien did not excuse the Board from engaging with her new
evidence concerning changes in country conditions and her
political opposition activity in the United States.
Boika may “prevail on a theory of future persecution
despite an IJ’s adverse credibility ruling as to past persecution,
so long as the factual predicate of [her] claim of future persecu‐
tion is independent of the testimony that the IJ found not to be
credible.” Id. (internal quotations omitted). In Gebreeyesus, we
were also troubled by the fact that “[t]he BIA’s reliance on the
prior adverse credibility finding is especially unsound because
it ignored the facts in Worku’s affidavit supporting her theory
of future persecution.” Id. at 955 n.3. The same concerns apply
with equal force here.
Finally, the Government argues that the documents
corroborating Boika’s current political participation are not
No. 11‐3655 15
credible because they lack proper authentication. This was not
the Board’s rationale, however, and for that reason alone we
could reject the argument. SEC v. Chenery Corp., 332 U.S. 194
(1947). “The government’s other post hoc rationales fall short
for similar reasons … . The government’s first theory—that the
Board’s adverse determination of [Boika’s] credibility during
[her political] persecution asylum claim ‘carries over’ to a later
asylum claim based on distinct facts—has been expressly
rejected by this court and others.” Ji Cheng Ni v. Holder,
715 F.3d 620, 630 (7th Cir. 2013). Such a conclusion would
almost certainly be an abuse of discretion if the petitioner were
not afforded an evidentiary hearing first.
The Board therefore should have considered Boika’s
factually distinct claims of future persecution and could not
properly reject them based solely on the past adverse credibil‐
ity finding. The Board’s silence on this point, combined with
the failure to acknowledge or comment on Boika’s supporting
documentation, means the denial of her motion to reopen was
an abuse of discretion.
The petition for review is GRANTED and the case is
REMANDED to the Board of Immigration Appeals for further
proceedings consistent with this opinion.