### In the 

# United States Court of Appeals
For the Seventh Circuit

____________________ No. 13

- 3651

K ATSIARYNA S OBALEVA and A LEXANDRU P OTORAC , P etitioners

,

v.

E RIC H OLDER , J R ., 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

.

____________________

A RGUED A PRIL 1, 2014

— D ECIDED J ULY 24, 2014

____________________

Before T INDER and H AMILTON , Circui t Judges

, and

K APALA , District Judge

. ∗

H AMILTON , Circuit Judge

. Petitioner Katsiaryna Sobaleva, a citizen of Belarus, entered the United States on a valid st udent visa. She applied for asylum, contending that the Bel a-

∗ Of the Northern District of Illinois, sitting by designation.2 No. 13

- 3651

rusia n 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, Alexa ndru Potorac, a citizen of Moldova. (Because Potorac’s eligibi lity for asylum derives entirely from Sobaleva’s, it does not require separate consideration.) An immigration judge d enied Sobaleva’s application and ordered that she and Potorac be removed to their respective countries. The Board of I mmigration 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 de cisions 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 a pplied the wrong legal standard to conclude that Sobaleva was not persecuted in Belaru s. Second, both the judge and the Board misconstrued and disregarded important ev idence, 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 gove rnment crackdowns on dissent. See, e.g., U.S. Department of State, 2010 Human Rights Report: Belarus 3

– 8 (April 8, 2011) (d escribing the arrests and detentions of group members for their political activity); Amnesty International, 2007 ReportNo. 13

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on Belarus (A pril 3, 2007) (ascribing the five

- year prison se ntence of Malady Front leader Alyaksandr Kazulin to a “sy stematic campaign of harassment, intimidation, and obstru ction 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) (summ arizing evidence that, since Lukashenko’s disputed election in December 2010, the Belarusian government has been pa rtic u larly aggressive toward opponents).

Sobaleva filed a timely application for asylum r oughly
nine months after h er arrival in the United States . Her appl ication described her participation in anti

- government pr otests 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 a t the hearing and in an affidavit

, S obaleva recounted that police officers arrived at an O ct ober 2009 protest and began beating protesters indiscrim inately. 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 o fficer hit her in the arm. Upon arriving at the police station,

s he 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 overni ght 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 st ation.4 No. 13

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Sobaleva also testified that, on May 16, 2010, she had a nother experience with politically motivated violence by p olice. While she and two fellow protesters were walking t ogether after a demonstration, they were stopped by officers who demanded identification. Although Sobaleva and her companions had left the protest site, they were wearing pi ctures of p olitical 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 pa ssports into a report.
At that point, Sobaleva reached for her passport and asked if she was under arrest. An officer responded by sho ving her against a building, knocking her unconscious. When she regained consciousness, her friends told her that the o ff icer had kicked her while she was on the ground. Nausea ted 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 hospitaliz ation, but Sobaleva chose inst ead 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. S obaleva, however, received a summons to come to court on June 10 “in the role of the accuse d.” 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 di d not attend court on June 10. S he could provide no dir ect ev idence at her asylum hearing that the summons concerned the events of May 16, but she testified that she believes it didNo. 13

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because her companions from that day were fined and b ecause she knows of no other reason she would have been
summoned. She believ es that she received a summons i nstead of being fined because she had previously been arres ted for protesting

— something the officers would have learned when they radioed in the information from her passport

— and because she challenged them during the e ncoun ter. 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, Sobale va herself did not “consider [ the 2009] incident to be significant,” which the judge inferred from her continued political activity and her failure to me ntion 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 inc ident.” And the judge concluded that the summons she r eceived “standing alone” did not suggest that she would be persecuted in the future.6 No. 13

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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 an d her supporting evidence were not enough to meet her burden of proof. Her treatment by police in and after the October 2009 protest was “condemn able” but “did not rise to the level of persecution” as shown by a comparison with the treatment of other asylu m appl icants 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 suffere d.” The Board also found that Sobaleva had failed
to establish a connection between the court summons she

re ceived and her political activity.

II. Analysis
To be eligible for asylum, Sobaleva needed to establish e ither that she has suffered past persecuti on 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 raise s a rebu ttable 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 nu merous ways and failed to consider it in context. If properly considered, she contends, the evidence establishes that she was persecuted for her political opinionNo. 13

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and has a well

- founded fear of future persecution, entitling her to asylum.

Because the Board provided its own analysis and also a ffirmed the immigration judge’s decision, we review both d ecisions. 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 wh ether they are supported by “substantial evidence.” Id. at 897

– 98. We must ask whet her the agency applied the proper legal standard in evalua ting Sobaleva’s application, see Sirbu v. Holder , 718 F.3d 655, 658 (7th Cir. 2013), and also whether the agency’s concl usions 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 j udicial 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 pers ecution; rather, we conclude that the flaws we have identified require remand to the Board for further consideration of S obaleva’s application.
The first major flaw is that both the immigration judge and the Board appar ently 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 i nstance. We held in a similar case, Sirbu , 718 F.3d at 658

– 60, that this is a legal error tha t requires remand.8 No. 13

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The two standards for assessing evidence of persecution are distinct. As explained above, on judicial review of a d enial of asylum, we ask whether the petitioner’s evidence compels a finding of persecution. By contrast, the “proper i ssue 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 as ylum applicant’s evidence did not “compel” a finding of pe rsecution, 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 in deed 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 ha ving two of his teeth knocked out); Dandan , 339 F.3d at 574 (“A three

- day i nterrogation 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 t he Board both had applied the appellate court standard for j udicial review rather than making an independent determin ation. 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

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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 no t use the word compel, but in concluding that Sobaleva’s treatment did not equal persec ution, 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 t hat when we apply deferential judicial review, we “expect the immigr ation 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 a t 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 eviden ce of persecution.
Rather than correcting the immigration judge’s Sirbu e rror, the Board actually exacerbated the problem. It suppor ted 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 pare nthetical: “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 r eferring to compulsion suggests that the Board asked itself only whether the evidence compelled, rather than warran ted, 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 i m-10 No. 13

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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 necess ary so that S obaleva’s evidence of persecution can be reassessed under the proper standard. (Moreover, the mis treatment at issue in
Nzeve is distinguishable from Sobaleva’s. The petitioner in that case, who suffered some “blisters and bruises,” was not

arr ested 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 e vidence, improperly isolated or mi scharacterized other ev idence, 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, rem and for fu rther 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 ev idence 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

asp ects of the immigration judge’s decision bear mentioning
first.No. 13

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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 20 09 incident was “significant,” which is an o bser vation un supported 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 th e U.S. Embassy seem s 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 su mmons to answer an unspecified charge said little. In the co ntext of Sobaleva’s testimony, which was found credible, the

summons t akes 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 a uthorities and her mother’s account of events since her depa rture. See Chen v. Holder , 604 F .3d 324, 334

– 35 (7th Cir. 2010) (“totality of evidence” must be considered in deciding pers ecution questions); Bejko v. Gonzales , 468 F.3d 482, 486 (7th Cir. 2006) (explaining that “it is axiomatic that the ev idence of persecution must be considered as a w hole, 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 opi n-12 No. 13

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ion was “at least one central reason” for the May 2010 inc ident, the Board observed that she had left the protest site b efore 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 polit ical activism” and known history of protesting. From this the
Board conclu ded that the officers most likely mistreated S obaleva 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 o pinion but “for disturbing the peace or for attempting to break into an administrative office.” As the Board acknowledged here, S obaleva’s political activity was “apparent” and her arrest re cord was known to the officers. The Board should have co nsidered t he possibility that the officers “were partially mot ivated by politics.” Ndonyi , 541 F.3d at 710

– 11.

The Board, however, concluded that the officers’ more l enient treatment of Sobaleva’s companions negated the poss ibility 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 offi c-No. 13

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ers were content to give her a concussion without arresting
her at the time does not s uggest, as the Board rea soned, a

non

- political m otive.
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 n ot shown “any improper basis for the summons, ” apparently reasoning that summoning her to court on mystery criminal charges a fter 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 r espondent’s friends received only fines undermine s her claim that the summons is politically motivated.” T he conclusion does not follow. If Sobaleva’s mistreatment was solely the result of her own behavior during the stop and not her poli tical opinion, why were her companions fined? They did not
misbehav e. The Board did not attempt to answer that que stion.
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 have14 No. 13

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been diligent in seeking her daughter since the missed court
date and have even threatened her with the loss o f 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 m otive f or Sobaleva’s treatment in May 2010, but also to the cri tical question of how she would likely be treated if she were returned to Belarus. Ignoring evidence that relates to key i ssues is error. See Qiu Yun Chen , 715 F.3d at 212

– 13.
Taking all of this into account, we must conclude that S obaleva 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 S obaleva’s political opinion during the May 2010 in cident, it
must consider whether the combination of that incident and her October 2009 arrest and detention amounts to past pe rsecution. The Board must also take care on remand to rea ssess Sobaleva’s eligibility for asylum independently, as d irected by Sir bu

. The petition for review is GRANTED and the case is REMANDED to the Board of Immigration Appeals for fu rther proceedings consistent with this opinion.