In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2320

VICTOR SIRBU AND IULIA PRODAN,

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. A088-390-329 & A088-390-330. 

ARGUED JANUARY 29, 2013—DECIDED MAY 20, 2013

Before BAUER, WILLIAMS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge. Moldovan citizens Victor Sirbu

and his wife Iulia Prodan applied for asylum in the

United States, as well as for withholding of removal

and protection under the Convention Against Torture.

Sirbu fears persecution by the Moldovan government

based on his active and vocal opposition to the Communist Party. (Although the evidence indicates mistreat-
2 No. 12-2320

ment of both Mr. Sirbu and Ms. Prodan for their antiCommunist political activities, Mr. Sirbu’s application

is the lead one; Ms. Prodan’s application is derivative

of his.) An immigration judge denied relief, finding

that Sirbu’s evidence did not “compel a finding” of

past persecution that could support asylum. The Board

of Immigration Appeals affirmed the denial. Sirbu

and Prodan have petitioned for review. Because the immigration judge and then the Board applied the wrong

legal standard in deciding whether Sirbu had shown

past persecution for his political activities, we grant

the petition for review and remand the case for further

proceedings.

I. Factual and Procedural Background

Sirbu and Prodan entered the United States as nonimmigrant tourists in 2009 and overstayed their visas.

They then filed a timely application for asylum, withholding of removal, and relief under the Convention

Against Torture. The government responded by charging

Sirbu and Prodan as removable for overstaying their

visas. See 8 U.S.C. § 1227(a)(1)(B). The couple admitted

removability before an immigration judge in February

2010, and Sirbu renewed their application for asylum

and related relief.

Sirbu’s persecution claim is based on politically motivated mistreatment that occurred in Moldova between

2000 and 2009. In 2001, the Moldovan Communist

Party won the presidency and more than two-thirds of

the seats in parliament. Moldovan security forces began
No. 12-2320 3

Since the immigration judge made no adverse credibility 1

finding, our account of the facts specific to Sirbu is based

largely on his written and oral testimony.

to harass, detain, and beat members of opposition parties. See U.S. Department of State, 2008 Country Reports

on Human Rights Practices: Moldova (Feb. 25, 2009).

Sirbu was an active opponent of the Communist Party

and was a victim of this political harassment and

violence on several occasions, three of them in 2003. In

January 2003, Sirbu participated in a large protest urging

that Moldova join NATO and the European Union. He

was arrested and detained for five hours. The next

two encounters were violent. In February 2003, Sirbu

participated in another anti-Communist protest. Two

policemen hit him on the legs so sharply that he fell to

the ground. He was then detained for about 40 hours

without food or water. And in November 2003, police

caught Sirbu participating in an anti-Communist Party

meeting, struck him in the back, knocked him to the

ground, and then detained and interrogated him

overnight.1

In the following years, Sirbu experienced further

political harassment and mistreatment, including the

loss of his job, but was not deterred from political activity. For our purposes, we focus on the most serious incident, which finally led Sirbu and Prodan to leave

Moldova and later to seek asylum in the United States.

Moldova held parliamentary elections on April 5, 2009.

Both Sirbu and Prodan ran as candidates for parliament
4 No. 12-2320

See Communists Lose in Moldova Vote, NY Times (July 30, 2

2009), http://www.nytimes.com/2009/07/31/world/europe/

31moldova.html?scp=16&sq=&st=nyt. Four opposition parties

formed a new majority coalition that continues to govern

Moldova. See CIA World Factbook, available at https://

ww w.cia.gov/library/publications/the-w orld-factbook/

geos/md.html (last visited May 16, 2013).

in opposition to Communist Party candidates. The Communist Party claimed victory, but on April 7, Sirbu

and Prodan joined a large protest in the nation’s

capital accusing the Communist Party of voter fraud. The

protestors began to riot and the police arrested 300

people. See Protests in Moldova Explode, With Help of

Twitter,NY Times (Apr. 7, 2009), http://www.nytimes.com/

2009/04/08/world/europe/08moldova.html?pagewanted=

all. Both Sirbu and Prodan were arrested and taken to a

police station. While in police custody Sirbu was hit

frequently on the head until he lost consciousness.

Several other detainees died in custody after the protest

and arrests. The police transferred Sirbu and Prodan to

a police station in their hometown, and Sirbu was

treated at a medical clinic for a concussion. They left for

the United States later in April 2009.

After their departure from Moldova, Sirbu said, the

police went to his parents’ home and told them he was

on a “black list.” At the removal hearing Sirbu testified

that he still feared returning to Moldova because many

Communists still held positions of power even though

opposition parties had won a narrow victory in new

elections in July 2009 prompted by the April protests.2
No. 12-2320 5

The immigration judge denied Sirbu’s application

for asylum. The judge explained: “After careful consideration of the record in its entirety, and considering all

the incidents in the aggregate, [Sirbu’s] facts do not

compel a finding that he suffered past persecution.” App. 9

(emphasis added). According to the immigration judge,

Sirbu’s detentions were brief, he reported a physical

injury resulting from only one of them (when he

was beaten unconscious in April 2009), and after

each incident he was able to pursue his anti-Communist

political activities. Nor did Sirbu show a well-founded

fear of future persecution, the judge concluded, because

he did not corroborate his assertion about being on a

police black list, the July 2009 elections had unseated

the Communist Party president, and opposition parties

had formed a strong coalition. Because Sirbu was

ineligible for asylum, the judge concluded, he also

failed to meet the higher standards for withholding of

removal or Convention Against Torture protection.

The Board agreed with the immigration judge that

Sirbu had “not met his burden of proof to establish that

he suffered past persecution” and dismissed Sirbu’s

appeal. In reaching this conclusion, the Board cited our

decision in Stanojkova v. Holder, 645 F.3d 943, 948

(7th Cir. 2011), for the proposition that persecution involves “the use of significant physical force against a

person’s body, or the infliction of comparable physical

harm without direct application of force . . . or nonphysical harm of equal gravity.” The Board acknowledged

that Sirbu had been beaten but noted he had sought

medical treatment only once. In an important passage,
6 No. 12-2320

the Board acknowledged that an applicant for asylum

need not prove “serious injuries,” citing Asani v. INS,

154 F.3d 719, 722-24 (7th Cir. 1998), but found that

Sirbu’s abuse did not rise to the level suffered in Asani.

The Board found, instead, that the abuse of Sirbu was

more comparable to the abuse in Dandan v. Ashcroft,

339 F.3d 567, 573-74 (7th Cir. 2003), which the Board

described as having upheld a finding of no past persecution where the applicant had been detained for three

days without food or water and had been beaten.

The Board did not address the issue of fear of future

persecution, including whether, if past persecution

had been shown, the government had shown political

changes in Moldova sufficient to rebut the inference

of reasonable fear of future persecution.

II. Discussion

In his petition for judicial review, Sirbu argues that

the Board erred in concluding that he failed to establish that he suffered past persecution. He believes

that his testimony and the documentary evidence show

that he was persecuted for being politically active and

for expressing his anti-Communist opinions and that

he reasonably fears persecution if he were returned

to Moldova.

Where the Board has agreed with the immigration

judge’s decision and supplemented that opinion with

its own observations, as it did here, we review both

decisions. See Sarhan v. Holder, 658 F.3d 649, 653 (7th
No. 12-2320 7

Cir. 2011). We have reviewed both decisions and

Sirbu’s evidence.

The immigration judge made a clear legal error by

concluding that the “facts do not compel a finding

that he suffered past persecution.” As the government

acknowledged in the oral argument, whether the facts

compel a finding of past persecution is the standard

for judicial review, not for the immigration judge in

the first instance. We expect the immigration 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.

The Board appears to have repeated the immigration judge’s legal error. Though the Board did not say

explicitly that the facts would not compel a finding of

past persecution, the Board distinguished on factual

grounds a case in which we had reversed a finding of

no past persecution and held that the facts were indeed

so powerful as to “compel” a finding of past persecution. App. 24, citing Asani, 154 F.3d at 722-24. The

Board then found guidance from our decision in

Dandan 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. App. 24, citing Dandan, 339

F.3d at 573-74. The Board also did not acknowledge

the immigration judge’s legal error. The combination of

the immigration judge’s application of the wrong

standard, the Board’s failure to note the error, and the

Board’s citations to Asani and Dandan persuades us

that the Board applied the wrong legal standard.
8 No. 12-2320

The proper issue for the immigration judge and the

Board is whether the applicant has actually shown past

persecution, not whether the evidence compels a finding

of past persecution. The difference may seem subtle, but

it is actually vital in administering the law of asylum.

Whether the facts compel a particular finding is a matter

for appellate courts to determine in our deferential

review of the Board’s decisions. See INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992); Bueso-Avila v. Holder, 663 F.3d

934, 937 (7th Cir. 2011); Matter of E-R-M-F- & A-S-M-, 25

I. & N. Dec. 580, 587 n.8 (BIA 2011). Our standard of

review for factual questions is substantial evidence:

“the agency’s determination will stand if it is supported

by reasonable, substantial, and probative evidence on

the record considered as a whole.” Vahora v. Holder,

626 F.3d 907, 912 (7th Cir. 2010); see Elias-Zacarias, 502

U.S. at 481.

We defer to the immigration judges and the Board

because we expect them to exercise their expertise and

judgment in the difficult cases. In cases like this one,

though, where the Board and the immigration judge

misread our decisions denying review because the evidence did not compel a finding of persecution as

holding that the evidence either did not or could not

support a finding of persecution, the proper roles of

agency and reviewing court have been reversed.

That has happened too often. As we explained in

Stanojkova v. Holder, the Board’s regulations and decisions do not provide a useful definition of persecution,

and the Board seems to have abandoned this difficult
No. 12-2320 9

Our cases illustrate this fine parsing of misery and cruelty. 3

For cases reversing findings of no past persecution, see, e.g.,

Stanojkova, 645 F.3d at 947-48 (paramilitary police invaded

home, beat applicant and held gun to his head, sexually

fondled his wife, and robbed the couple); Vladimirova v. Ashcroft, 377 F.3d 690, 692 (7th Cir. 2004) (one beating caused miscarriage, and applicant suffered two other physical assaults and

detentions and was threatened with sexual assault); Bace v.

Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003) (applicant was

(continued...)

responsibility to the courts. 645 F.3d 943, 948-49 (7th

Cir. 2011), citing Sahi v. Gonzales, 416 F.3d 587, 588-89

(7th Cir. 2005), and Gomes v. Gonzales, 473 F.3d 746, 753-

54 (7th Cir. 2007).

Our cases reviewing denials of asylum can read like

grim exercises in measuring the precise extent of

human cruelty and misery. We try to distinguish

between harassment and persecution, “between the

nasty and the barbaric.” Stanojkova, 645 F.3d at 948.

How many times was the victim beaten? How severe

were the beatings? Were bones broken? Did the victim

lose consciousness? How many teeth were knocked

out? Were there permanent injuries or scarring? How

serious were the threats, and how cruelly were they

communicated? That grim accounting cannot be

avoided. Because of the deferential standard of review,

our job in these cases is ordinarily to decide whether

the evidence would compel any reasonable trier of

fact to find that prior abuse of the petitioners amounted

to persecution within the meaning of the law.3
10 No. 12-2320

(...continued) 3

beaten on four occasions, his face was cut with a razor, and

he was forced to watch his wife being raped); Begzatowski v.

INS, 278 F.3d 665, 670 (7th Cir. 2002) (ethnic Albanian soldiers

in Serbian army were forced into battle as human shields

without ammunition and tools needed for survival); Asani,

154 F.3d at 721 (applicant was detained in cell for two weeks

with only enough room to stand handcuffed to radiator,

was given one slice of bread and one glass of water a day, lost

his job, and was later detained again and beaten, losing

two teeth). Compare those to the following cases affirming

findings of no past persecution: Nzeve v. Holder, 582 F.3d 678,

683-84 (7th Cir. 2009) (applicant suffered blisters and bruises

and was threatened with death); Mema v. Gonzales, 474 F.3d

412, 416-18 (7th Cir. 2007) (applicant was beaten unconscious

while in detention, but denial of asylum was reversed for

failure to address fear of future persecution); Bejko v. Gonzales,

468 F.3d 482, 485 (7th Cir. 2006) (applicant was detained

twice, once for two weeks in primitive conditions without

enough food and water, but without need for medical treatment, and applicant was threatened that house would be

blown up); Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006)

(one beating with head injury requiring stitches); Prela v.

Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (applicant was interrogated, searched, and detained for 24 hours, arrested, and

threatened with unspecified injury); Dandan, 339 F.3d at 573-74

(applicant was detained for three days without food, interrogated, and beaten resulting in a swollen face); Yadegar-Sargis

v. INS, 297 F.3d 596, 602 (7th Cir. 2002) (harassment and hardship did not show persecution; applicant had not been

detained or physically assaulted); Skalak v. INS, 944 F.2d 364,

(continued...)
No. 12-2320 11

(...continued) 3

365 (7th Cir. 1991) (applicant was jailed twice for three days

and interrogated about political activity); Zalega v. INS, 916

F.2d 1257, 1260 (7th Cir. 1990) (applicant was detained and

interrogated several times and suffered economic losses but

was not physically abused).

In the close cases, where a reasonable trier of fact

could make a decision either way, we should be able to

defer to the judgment of the immigration judges and

the Board. But the immigration judges and the Board

turn the system upside down if they use our deferential decisions as setting new, lower floors for

human cruelty than our immigration law says must be

tolerated without granting asylum. That is what has

happened in this case. It was a reversible error of law

and the case must be remanded.

We express no opinion at this time on whether the

incidents Sirbu described are severe enough to compel a

finding of past persecution. On remand, though, the

Board will need to consider all the evidence of persecution and in particular will need to address the significance of Sirbu’s testimony that he was beaten to

the point of losing consciousness and suffering a concussion while in police custody. We are confident that

this evidence is more than sufficient to support a finding

of past persecution. See Stanojkova, 645 F.3d at 948 (use

of significant physical force against a person’s body is

persecution); Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995)

(applicant for asylum must show “specific, detailed facts

supporting the reasonableness of her fear that she will

be singled out for persecution”).
12 No. 12-2320

If the Board concludes that Sirbu has demonstrated

past persecution, the burden will shift to the government to prove that changed circumstances mean that

Sirbu’s fear of persecution in Moldova is no longer wellfounded. See 8 C.F.R. § 208.13(b)(1)(ii). The Board did

not address that issue, and we also do not address it

at this stage. We GRANT the petition for review and

REMAND the case for further proceedings consistent

with this opinion.

5-20-13