In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-1020

ARKADIY L. KHOLYAVSKIY,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney

General of the United States, 

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A71-093-229 

____________

ARGUED JANUARY 8, 2008—DECIDED AUGUST 28, 2008

____________

Before FLAUM, RIPPLE and MANION, Circuit Judges.

RIPPLE, Circuit Judge. Arkadiy Kholyavskiy, a native

of the former Soviet Union, petitions for review of an order

of the Board of Immigration Appeals (“BIA”) denying

him asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”). For the reasons

set forth in this opinion, we grant the petition in part,

deny it in part, and remand for further proceedings.
2 No. 07-1020

I

BACKGROUND

A. Facts

Mr. Kholyavskiy was born in 1977 in Moscow, in the

former Soviet Union. Mr. Kholyavskiy is Jewish, and he

began to experience harassment as a result of his religion

and ethnicity when he started school in 1984. According

to Mr. Kholyavskiy, each quarter, he was required to stand

in front of his class and state his ethnicity; as a result,

students would laugh at him and refer to him as a “kike.”

A.R. at 645-48. Mr. Kholyavskiy suffered additional

humiliations at the hands of his fellow students. On more

than one occasion, other students urinated on him. Additionally, when he was in the second grade, older students

forced him into a bathroom, pulled down his pants and

laughed at him, commenting on the fact that he was

circumcised. His parents attempted to address the situation with school officials; the response of the school’s

director was that the stories “could not have been true”

and “that the Jewish child [wa]s just making things up.”

A.R. at 811.

Mr. Kholyavskiy was mistreated by neighborhood

children as well. Mr. Kholyavskiy’s mother, Irina, stated

that, when he would leave the family apartment, other

children would torment him; they would laugh at him,

call him names and take or destroy toys and games that he

brought outside. Irina Kholyavskiy also testified to a

beating by one of Mr. Kholyavskiy’s schoolmates that

resulted in a broken arm. Irina stated that she became

afraid to let Mr. Kholyavskiy play outside.
No. 07-1020 3

Presumably, the caller was referencing the 1938 “Kristallnacht,

1

a pogrom throughout Germany in which the Nazis destroyed

synagogues and Jewish-owned homes and property, as well

as arbitrarily arrested thousands of Jews.” Schellong v. U.S. INS,

805 F.2d 655, 661 (7th Cir. 1986).

Mr. Kholyavskiy’s parents had applied for refugee status in 2

1989.

Both Mr. Kholyavskiy and his mother recounted

another incident that resulted in physical injury. They

testified that a classmate in the neighborhood called

Mr. Kholyavskiy a “kike” and had her German shepherd

attack him. Soviet police would not assist in the effort to

locate the dog. As a result of the attack, Mr. Kholyavskiy

had to undergo a series of forty rabies shots. Subsequently,

he became extremely scared of being beaten and harmed;

he dropped out of school and began hiding in the attic

of his family’s apartment.

In addition to actions directed specifically at Mr.

Kholyavskiy, there also were threats and harassment

targeted at Mr. Kholyavskiy’s entire family. In 1991 and

1992, Mr. Kholyavskiy’s family received several telephone

calls during which the caller informed them that the

“Crystal Night” or pogrom was coming. A.R. at 924. As 1

well, Stars of David were scratched into his family’s

apartment mailbox. A.R. at 926.

In 1992, Mr. Kholyavskiy’s family was granted refugee

status by the United States Embassy in Moscow; Mr. 2

Kholyavskiy was fifteen at the time. The Kholyavskiy

family moved to the United States, and, in January 1995,
4 No. 07-1020

Mr. Kholyavskiy first started seeking medical treatment for 3

his problems in 1996.

Mr. Kholyavskiy’s status was adjusted to that of a lawful

permanent resident. Later that year, Mr. Kholyavskiy

graduated from high school.

However, Mr. Kholyavskiy continued to suffer the

emotional effects of his experiences in the former Soviet

Union. Prior to leaving the Soviet Union, Mr. Kholyavskiy

began to fear encounters with other people. By the time

he was sixteen, he was experiencing panic attacks. Since

2001, he has been under the care of Dr. Donald Jacobson, 3

a board certified psychiatrist, who diagnosed Mr.

Kholyavskiy with severe social anxiety disorder and

depression.

Approximately one year after Mr. Kholyavskiy began

experiencing his panic attacks, he had his first run-in with

the law. Over the next few years, Mr. Kholyavskiy’s record

reveals the following criminal activity: trespassing, retail

theft (two separate incidents), harassment, battery (two

incidents), burglary and unlawful possession of counterfeit prescription forms. Mr. Kholyavskiy’s criminal

record led to the commencement of removal proceedings against him in May 2001.

B. Administrative Proceedings

1.

A merits hearing was conducted before an Immigration
No. 07-1020 5

Mr. Kholyavskiy previously had been found removable by an 4

IJ. He appealed the decision, which was affirmed by the Board

of Immigration Appeals. Later, Mr. Kholyavskiy moved to

reopen proceedings on the ground that his prior counsel had

been ineffective. The Board granted the motion to reopen. The

merits hearing described above followed the reopening of

proceedings by the Board.

A propiska, or resident permit, was a document required in 5

the former Soviet Union to obtain housing and other government benefits in a particular locality. Dr. Wixman testified that,

although officially outlawed, the use of the propiska system

continues.

Judge (“IJ”) in December 2004. At that hearing, Mr. 4

Kholyavskiy called Dr. Ronald Wixman, a professor from

the University of Oregon, to testify. Despite Dr. Wixman’s

extensive credentials, the IJ believed that Dr. Wixman

was biased in favor of Jewish emigration to the United

States; as a result, the IJ refused to recognize Dr. Wixman

as an expert witness on ethnic groups in Russia or on any

other topic. Nevertheless, the IJ allowed Dr. Wixman to

testify with respect to the “propiska” system and the 5

recent rise of nationalism, anti-Semitism and antiWesternism in Russia.

After Dr. Wixman had testified, but before Mr.

Kholyavskiy could be called as a witness, Mr. Kholyavskiy

suffered an acute psychotic breakdown. Dr. Jacobson

was present and declared Mr. Kholyavskiy legally incompetent. The IJ continued Mr. Kholyavskiy’s merits hearing

until January 5, 2005. In the interim, Mr. Kholyavskiy

was transferred from the custody of the Department of

Homeland Security to a mental health facility.
6 No. 07-1020

At the continued hearing on January 5, 2005, Mr.

Kholyavskiy testified to the incidents of abuse that he

suffered at the hands of his classmates and neighbors. He

also detailed the history of his mental illness, as well as

his run-ins with the law. Mr. Kholyavskiy expressed his

fears at the possibility of returning to Russia. He believed

that, as a Jew, he would be attacked with impunity. He

did not believe that he would be able to obtain a

“propiska” and, therefore, would have to live on the street.

Finally, he feared that he would not be able to obtain the

medications necessary to control his disorder. In response to the question whether Mr. Kholyavskiy wanted

to return to Russia, he stated:

I’ll die in Russia it’s impossible. It’s impossible. I have

no money; I have nothing there who will take care

of me? If I, if I turn to the police for help they will put

me in jail and then I won’t be able to get any medication. I won’t have any medication there. I can’t even

imagine I’m just again didn’t think about that.

A.R. at 751.

At the final stage of the hearing in February 2005, Mr.

Kholyavskiy called Dr. Jacobson as a witness. Dr. Jacobson

stated that he had treated Mr. Kholyavskiy since 2001, that

he suffered from social anxiety disorder, and that it had

taken some time to determine the combination of medications that would control most effectively Mr. Kholyavskiy’s

symptoms. He further stated that, for approximately

two years, Mr. Kholyavskiy had been on Paxil and

Klonopin, drugs that were not available in Russia. In

addition to depriving him of his medication, Dr. Jacobson
No. 07-1020 7

Dr. Jacobson stated: “I think if he did not have the support of 6

his family and was off both the Paxil and the Klonopin I think

he would have a very difficult time maintaining his sanity.” A.R.

at 793.

The IJ first disposed of the Government’s claim that Mr. 7

Kholyavskiy was statutorily ineligible for asylum and withholding of removal because he had committed a particularly

(continued...)

believed that removal to Russia would be devastating to

Mr. Kholyavskiy because he would be incapable of

taking care of his day-to-day needs. Indeed, Dr. Jacobson

believed that Mr. Kholyavskiy would suffer an acute

psychotic breakdown if he were separated from his

family. See A.R. at 756-57. Finally, Dr. Jacobson testified 6

that he was aware of Mr. Kholyavskiy’s criminal history.

However, Dr. Jacobson did not believe that Mr.

Kholyavskiy was capable of intentional violence or that

he was a danger to his family or to the community.

Mr. Kholyavskiy’s mother, Irina, also testified on his

behalf. She stated that, while living in Russia, Mr.

Kholyavskiy consistently was mocked and beaten by other

children because he was a Jew. A.R. at 812. Irina

Kholyavskiy also corroborated Dr. Jacobson’s testimony

regarding her son’s inability to live on his own.

2.

Approximately one month after the hearing concluded,

the IJ issued a written opinion. After reviewing the 7
8 No. 07-1020

(...continued) 7

serious crime. The IJ determined that none of the crimes for

which Mr. Kholyavskiy had been convicted fell into that

category; consequently, he was not statutorily ineligible for

relief on that basis. See 8 U.S.C. §§ 1158(b)(2)(A)(ii) &

1231(b)(3)(B)(ii).

evidence presented, the IJ found that Mr. Kholyavskiy had

testified credibly, but that “his fears of future mistreatment in Russia [we]re based on exaggerations and misinformation.” A.R. at 473. Concerning the other witnesses,

the IJ commented:

Similarly, the respondent’s mother, Irina Kholyavskiy,

impressed the Court with her obvious concern for her

son and desire to assist him in any way she could.

Furthermore, the Court finds the testimony of the

remaining witnesses [sic] Dr. Donald Jacobson, to be

credible. In contrast, Professor Wixman seemed to be

an advocate for the respondent, and tried to fit any

information into the mold of anti-Semitism, without

endeavoring to make an objective judgment.

Id. at 474. 

Turning to Mr. Kholyavskiy’s asylum claim, the IJ

determined that Mr. Kholyavskiy’s status as a refugee

when he arrived in 1992 did not continue in perpetuity, but

ended when he was granted lawful permanent resident

status. Consequently, the IJ concluded that he was not

entitled to a presumption that he would suffer persecution

if returned to Russia. Apart from his previous refugee

status, the IJ found that Mr. Kholyavskiy had not suffered
No. 07-1020 9

Similarly, the IJ determined that Mr. Kholyavskiy did not 8

qualify for a grant of humanitarian asylum. According to the

IJ, Mr. Kholyavskiy’s mistreatment “is simply not one of the

extreme cases” for which humanitarian asylum is appropriate.

A.R. at 479 (citing Bucur v. INS, 109 F.3d 399, 404-06 (7th

Cir. 1997)).

The IJ did state that “the Court is sensitive to the fact that 9

there are anti-Semitic groups in Russia, a fact that the respondent has amply documented.” A.R. at 478.

past persecution. The IJ observed that, “although the

respondent felt humiliated by having his pants pulled

down in the bathroom by older students who called him

derogatory names, this incident does not rise to the level

of persecution.” Id. at 475. Additionally, the court stated

that, although it did not want to “downplay the respondent’s mistreatment,” it did not believe that “a single

isolated incident of violence where the respondent was

assaulted by a dog owned by an adolescent and subsequently required rabies shots” constituted persecution. Id.8

Additionally, the IJ determined that Mr. Kholyavskiy

was not likely to suffer future persecution based on any

other protected status. Specifically, Mr. Kholyavskiy’s

mental illness did not render him a member of a “particular social group” because his “illness is not immutable.”

Id. at 477. Furthermore, the IJ determined that Mr.

Kholyavskiy’s fear of mistreatment on the basis of his

Jewish identity was not objectively reasonable because,

inter alia, anti-Semitism had been “officially condemned”

by then-Russian President Vladmir Putin. Id. at 478.9
10 No. 07-1020

Finally, the IJ determined that, even if Mr. Kholyavskiy

had qualified for asylum, in the exercise of discretion, he

would have denied Mr. Kholyavskiy’s application. The

court stated that “it has become clear that the respondent’s

fear of returning to Russia is rooted in his mental illness

and the possibility of being separated from his family

rather than his Jewish identity, and the Court is sympathetic to the respondent’s circumstances.” Id. at 480. The IJ

continued:

Notwithstanding, the respondent’s mental illness

and the difficult circumstances both he and his family

face if he is returned to Russia, his claim for asylum is

extremely weak in several regards. The first is that his

claim of past persecution is grounded on incidents

which occurred long before he departed Russia and

while he was the subject of an openly anti-Semitic

Soviet Union which has long since expired. While

troubling, the incidents upon which the respondent

relies simply do not rise to the level of persecution. The

second weakness to his claim centers around the

complete absence of documentary evidence supporting the proposition that Jews are systematically

targeted for persecution. The respondent has never

held himself out as being Jewish and his claim that he

will be recognized as Jewish because of his physical

appearance or that he is destined to become homeless

because he will be unable to find housing because of

his mental illness and because he is Jewish are self

serving and simply unsupported by the record. In

short, the respondent’s case is based on a profusion of

arguments based on “worst case scenarios” that are
No. 07-1020 11

Having failed to establish eligibility for asylum, the IJ also 10

determined that Mr. Kholyavskiy was not entitled to withholding of removal or relief under the CAT.

unsupported by the evidence. Additionally, there is

nothing preventing the respondent’s family from

mailing his medication to him and making arrangements to ensure that he is cared for.

Id. Finally, the court noted that Mr. Kholyavskiy did not

come before the court with a “clean slate.” Id. Although the

court noted that “the respondent’s crime must be kept in

perspective and not inflated so as to suggest either that he

is a nascent terrorist or a career criminal,” the court

determined that the crimes that he had committed “illustrate that the respondent is a man who repeatedly

engages in inconsistent and erratic behavior,” which

could not be attributed entirely to his mental illness. Id.10

Mr. Kholyavskiy appealed to the BIA.

3.

The BIA affirmed the decision of the IJ. It believed that

the IJ correctly had found that Mr. Kholyavskiy was

“ineligible for asylum and withholding of removal as he

failed to demonstrate either past persecution or a wellfounded fear of future persecution.” A.R. at 323. Like the

IJ, the BIA found that, with respect to future persecution,

Mr. Kholyavskiy had not established that his fear of future

persecution based on his Jewish ethnicity, his mental

illness or his status as a returning refugee from the United
12 No. 07-1020

States was objectively reasonable. Id. Additionally, the

BIA agreed with the IJ that, upon his adjustment of status

to lawful permanent resident, Mr. Kholyavskiy had

“relinquished his refugee status.” Id. Finally, the BIA

rejected Mr. Kholyavskiy’s contention that the IJ had

denied him a fair hearing by limiting the testimony of

Dr. Wixman. The BIA concluded that the IJ had “adhered

to the role of impartiality assigned to him as one acting

in a judicial or quasi-judicial capacity.” Id. at 324.

Mr. Kholyavskiy timely petitioned for review. After a

briefing schedule had been set, the Government “move[d]

to remand this petition for review to the Board of Immigration Appeals . . . for further proceedings and consideration

of Petitioner’s claims that he is a member of a protected

social group under the Immigration and Nationality Act,

and that because of his prior grant of refugee status under

8 U.S.C. § 1157, a legal presumption should have been

applied to his claims for asylum and withholding of

removal.” Kholyavskiy v. Gonzales, No. 05-3775, Motion

to Remand at 1. We granted the Government’s motion.

4.

On remand, the BIA first noted that it previously had

“determined that membership in a particular social group

refers to membership in a group of people all of whom

share a common, immutable characteristic, namely, a

characteristic that is either beyond the power of the

individual members to change, or that is so fundamental

to their identities or consciences that it should not be

required to be changed.” A.R. at 2. The BIA then went on
No. 07-1020 13

to evaluate Mr. Kholyavskiy’s membership in a number

of possible social groups.

Turning first to Mr. Kholyavskiy’s mental illness, the BIA

initially noted that “the IJ in this case previously determined that the respondent’s mental illness does not

qualify as a cognizable particular social group because

such a trait is not immutable.” Id. at 3. The BIA “agree[d]”

with these findings and further found that “respondent

has failed to illustrate any error in the Immigration

Judge’s analysis of his purported social group in this

regard.” Id. The BIA similarly agreed with the IJ that

criminal deportees did not meet the definition of a particular social group. With respect to Jewish refugees

who have been resettled in the United States, and presuming the immutability of Mr. Kholyavskiy’s experiences

in this regard, the BIA did “not find that these characteristics are the kind of shared past experiences that constitute membership in a particular social group.” Id.

The BIA acknowledged that Mr. Kholyavskiy’s familial

status and Jewish background could place him in a protected category. However, it found that Mr. Kholyavskiy

had “failed to demonstrate a well-founded fear of persecution on account of either of these social groups.” Id. at 4.

Specifically, the IJ stated that, “[a]lthough the respondent

cites to news reports that confirm the existence of generalized discrimination against Jews, in addition to occasional violence, he has not shown that the threats directed

toward Jews are increasing or that the government fails

to investigate and charge the perpetrators of such attacks.” Id. at 5.
14 No. 07-1020

Finally, the BIA turned to the question of whether, given

Mr. Kholyavskiy’s past refugee status, he was entitled to

a presumption of future persecution. The BIA noted

that there was not any controlling Seventh Circuit case

law holding that, once a refugee adjusted his status to

that of a permanent resident, he also maintained his

refugee status. However, the Third Circuit had addressed

the issue and determined that refugee status did not

survive the adjustment of status. See id. at 6 (citing

Romanishyn v. Attorney General, 455 F.3d 175, 179 (3d Cir.

2006)). Furthermore, the Board observed that its holding

was consistent with that of Matter of Smriko, 23 I. & N. Dec.

836 (BIA 2005), in which the BIA had held that an alien,

who had adjusted his status to that of a lawful permanent

resident, could be placed in removal proceedings without

the termination of refugee status as a precondition to

removal. See id. at 8.

In sum, the BIA held that Mr. Kholyavskiy had not

suffered past persecution and was not likely to suffer

future persecution on any protected basis. Again,

Mr. Kholyavskiy timely petitioned for review in this court.

II

DISCUSSION

Mr. Kholyavskiy challenges several aspects of the BIA’s

decision. First, Mr. Kholyavskiy maintains that the BIA

erred in holding that he was provided a fair opportunity

to present his evidence. He also maintains that the BIA

erred in failing to afford him a statutory presumption of
No. 07-1020 15

refugee status. He further argues that the BIA’s determination with respect to past persecution is not supported

by substantial evidence. He contends that the BIA erred

when it failed to recognize that he belonged to several

protected social groups and that he would suffer future

persecution based on his membership in those groups

and based on his Jewish identity. Finally, Mr. Kholyavskiy

maintains that the BIA failed to recognize his eligibility

for a grant of asylum based on humanitarian concerns.

We evaluate Mr. Kholyavskiy’s arguments below.

A.

Mr. Kholyavskiy first maintains that he was denied a

fair hearing before the IJ. Although Mr. Kholyavskiy

couches his argument in constitutional terms, we have held

that the immigration laws and their implementing regulations governing removal proceedings afford the alien all

the rights to which he is entitled under the due process

clause. Apouviepseakoda v. Gonzales, 475 F.3d 881, 885 (7th

Cir. 2007). Therefore, the correct inquiry is whether Mr.

Kholyavskiy was provided with a “reasonable opportunity” to present evidence on his own behalf as guaranteed by 8 U.S.C. § 1229a(b)(4)(B).

Mr. Kholyavskiy argues that the IJ failed to afford him

a reasonable opportunity to present evidence in three

ways: (1) by failing to recognize Dr. Wixman as an expert

on the treatment of Jews and the mentally ill in Russia,

(2) by failing to admit all of the evidence submitted in

support of Mr. Kholyavskiy’s motion to reopen, and (3) by

interjecting himself into the proceedings in a way that

exacerbated Mr. Kholyavskiy’s mental illness. 
16 No. 07-1020

Federal Rules of Evidence Rule 702 provides: 11

If scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by

knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise, if

(1) the testimony is based upon sufficient facts or data,

(2) the testimony is the product of reliable principles and

methods, and (3) the witness has applied the principles

and methods reliably to the facts of the case.

1. Dr. Wixman’s Testimony

With respect to Dr. Wixman’s testimony, Mr.

Kholyavskiy takes issue with the IJ’s failure to recognize

Dr. Wixman as an expert. According to Mr. Kholyavskiy,

Dr. Wixman “has the knowledge, skill[,] experience,

training and education to be qualified as an expert

witness who could assist the IJ in determining what

would happen to Mr. Kholyavskiy as a Jew, a Jewish

refugee to the U.S., and a mentally ill person, if he were

returned to Russia.” Appellant’s Br. at 22.

Although Mr. Kholyavskiy frames his argument in terms

of admissibility of expert testimony under the Federal

Rules of Evidence, the Federal Rules of Evidence do not 11

apply in immigration hearings. Instead, the IJ evaluates

evidence to determine whether it is “probative and its

admission fundamentally fair.” See Doumbia v. Gonzales, 472

F.3d 957, 962 (7th Cir. 2007). The pivotal question in

evaluating an IJ’s evidentiary ruling is whether the

ruling frustrated the alien’s reasonable opportunity to
No. 07-1020 17

Although the Board noted that the IJ should not have assessed

12

the possible bias of any witness prior to hearing his testimony,

the Board “agree[d] with the Immigration Judge’s conclusion

that Dr. Wixman is not an expert witness on the treatment of

the mentally ill in Russia or the treatment of returning Russians

(continued...)

present evidence on his own behalf. In this case, the IJ’s

failure to recognize Dr. Wixman as an expert did not

impinge Mr. Kholyavskiy’s right to a fair hearing.

With respect to Dr. Wixman’s expertise concerning the

treatment of the mentally ill in the former Soviet Union,

Dr. Wixman stated in his affidavit that he was not an

expert on mental disorders, but that he was “familiar

with” Russian views and policies with respect to the

mentally ill. Dr. Wixman, however, never has conducted

any academic studies or research concerning the

mentally ill in Russia. The only evidence he sought to

offer with respect to this subject was anecdotal evidence

acquired second- and third-hand. See A.R. at 607-09.

Such evidence was of limited reliability and, consequently,

had minimal probative value.

Turning to Dr. Wixman’s expertise on the treatment of

Russian Jews and Jewish refugees returning to Russia,

Dr. Wixman stated in his affidavit: “I do not directly

write on the Jews of Russia and the other republics . . .

because I am Jewish with ancestors (grandparents) from

Lithuania, Ukraine, Moldova, and Russia.” A.R. at 1288.

He did state, however, that he “keep[s] close watch on

Jewish issues” in the post-Soviet republics. Id. It would 12
18 No. 07-1020

(...continued) 12

from the United States given his limited expertise in these

subjects, in addition to the generalized and unsupported

assessments contained in his written statement.” A.R. at 325.

appear, therefore, that Dr. Wixman himself acknowledged that, from an academic standpoint, he was not an

expert in the treatment of Russian Jews, but simply an

individual who was interested in the subject matter. 

Furthermore, although the IJ did not recognize Dr.

Wixman as an expert in the treatment of Russian Jews, he

did allow Dr. Wixman to testify extensively. Dr. Wixman’s

testimony was curtailed only on two occasions. The first of

these was when Dr. Wixman was testifying as to antiSemitic events in Irkutsk. The IJ, at that point, interjected

and asked counsel to explain why events in Irkutsk, nearly

1500 miles from where Mr. Kholyavskiy had resided, were

relevant. Counsel, however, did not follow up with any

questions that established the relevance of any anti-Semitic

events in Irkutsk to Mr. Kholyavskiy. On the second

occasion, the IJ sustained the Government’s objection to

Dr. Wixman’s testimony concerning experimentation

conducted on individuals confined to institutions for the

mentally ill. According to Dr. Wixman, these statements

were not based on any studies of those institutions, any

personal interviews with inmates or his visits to such

facilities, but instead on information provided to him by

unidentified relatives of those housed in the facilities. See

A.R. at 608-10. Such evidence was of limited probative

value and trustworthiness, and the IJ was not required to
No. 07-1020 19

Although the IJ made this request, he later allowed 13

Mr. Kholyavskiy to submit documentation in excess of the

usual 100-page limitation. See A.R. at 637.

consider it. Cf. Alexandrov v. Gonzales, 442 F.3d 395, 405 (6th

Cir. 2006) (noting that the consideration of “[h]ighly

unreliable hearsay” might raise due process concerns

(internal quotation marks and citations omitted)).

2. Exclusion of Evidence

Mr. Kholyavskiy maintains that the IJ also deprived him

of a reasonable opportunity to be heard when the IJ

required him to condense materials that he had supplied

to the Board in support of his motion to reopen. Essentially, the IJ asked Mr. Kholyavskiy to review the voluminous documentary record that had been compiled for

the BIA and to present only those documents pertinent

to the specific issues before the court. See A.R. at 563-64.13

Such a request was well within the authority of the IJ to

“receive and consider material and relevant evidence, rule

upon objections, and otherwise regulate the course of the

hearing.” 8 C.F.R. § 1240.1(c).

Furthermore, Mr. Kholyavskiy has not shown how the

omission of the proffered material prejudiced him. Mr.

Kholyavskiy merely identifies some of the materials that

were omitted, see Appellant’s Br. at 24 n.7; however, he

does not identify any critical information contained in

these materials nor how the receipt of that information

would have altered the IJ’s decision. Absent such a show-
20 No. 07-1020

ing, Mr. Kholyavskiy’s argument must fail. See Shmyhelskyy

v. Gonzales, 477 F.3d 474, 482 (7th Cir. 2007) (noting that

a showing of prejudice is required).

3. Conduct of the Proceedings

Mr. Kholyavskiy also maintains that he was deprived of

a reasonable opportunity to be heard because the IJ was

predisposed to deny his applications for relief. Mr.

Kholyavskiy points to the IJ’s characterization of his claim

for relief as “dubious” and “ridiculous,” A.R. at 613, the

IJ’s determination that Dr. Wixman was not an expert,

and the IJ’s repeated interruptions, as evidence of the IJ’s

intent to deprive him of a fair hearing. We do not believe

that these instances, taken individually or collectively,

establish that Mr. Kholyavskiy was deprived of a fair

hearing.

With respect to the use of “dubious” and “ridiculous,”

the IJ used this terminology in his discussion with Mr.

Kholyavskiy’s counsel after the Government had objected to Dr. Wixman’s testimony concerning mental

institutions. The IJ had been expressing his concerns about

the lack of basis for Dr. Wixman’s testimony on mental

institutions and the lack of connection between Mr.

Kholyavskiy’s situation and the proposed testimony. The

IJ stated that he did not believe that scholars in general

would accept the “dubious” proposition that a person who

had left Russia when he was fifteen would end up on

a government “target” list. A.R. at 613. To assume

further that an individual on that target list would be

placed in a mental institution was moving from the
No. 07-1020 21

dubious to the ridiculous. Thus, read in context, the IJ’s

comments—although not articulated in the most carefully

chosen or judicious language—were not employed to

characterize all of Mr. Kholyavskiy’s claims for relief,

rather they applied simply to the testimony being offered

by Dr. Wixman on a discreet subject.

Mr. Kholyavskiy also points to the IJ’s “repeated[]”

interruptions of testimony as evidence of the IJ’s bias.

Appellant’s Br. at 24. However, the only interruptions

noted by Mr. Kholyavskiy are those discussed above

concerning Dr. Wixman’s testimony. Both were efforts

by the IJ to have Mr. Kholyavskiy ground Dr. Wixman’s

testimony in some objective evidence and to have

Mr. Kholyavskiy establish a connection between Dr.

Wixman’s anecdotes and the views held generally by

Russians. These efforts to establish the credentials of

Dr. Wixman and the relevancy of the evidence did not

hamper Mr. Kholyavskiy’s right to a reasonable opportunity to be heard on the issues pertinent to his claim.

Indeed, the IJ’s actions in this regard were consistent

with his responsibility to ensure that the evidence presented was reliable and probative.

B.

In addition to challenging the manner in which the IJ

conducted the proceedings, Mr. Kholyavskiy also chal-
22 No. 07-1020

Mr. Kholyavskiy also challenges the BIA’s denial of withhold- 14

ing of removal and relief under the CAT. However, because

the standards for granting withholding of removal and relief

under the CAT are more stringent than the standard for asylum,

we address his asylum claim first. See, e.g., Kaharudin v. Gonzales,

500 F.3d 619, 623 (7th Cir. 2007), cert. denied, 128 S. Ct. 2959

(2008) (observing that withholding of removal requires the

petitioner to establish “a clear probability that she will face

persecution” and that this is “a more stringent burden than that

applied to asylum claims”); Selimi v. Ashcroft, 360 F.3d 736, 741

(7th Cir. 2004) (reiterating that “[t]o establish a prima facie case

under CAT, [the petitioners] must show that it is more likely

than not that they would be tortured” if removed and observing

that “[t]his . . . is a more stringent requirement than the requirements for asylum”). If Mr. Kholyavskiy fails to meet

his burden with respect to asylum, he necessarily has failed

to meet his burden with respect to the other forms of relief that

he seeks.

lenges the BIA’s denial of his request for asylum. Con- 14

gress has given the Attorney General discretion to grant

asylum if an applicant qualifies as a refugee under 8

U.S.C. § 1101(a)(42)(A). The Immigration and Nationality

Act (“INA”) defines “refugee” as

any person who is outside any country of such person’s nationality . . . and who is unable or unwilling to

return to, and is unable or unwilling to avail himself or

herself of the protection of, that country because of

persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in

a particular social group, or political opinion . . . .
No. 07-1020 23

8 U.S.C. § 1101(a)(42)(A). Therefore, to qualify for asylum,

the petitioner must establish either that he has suffered

past persecution or that he has a well-founded fear of

future persecution. See Ssali v. Gonzales, 424 F.3d 556, 562

(7th Cir. 2005) (quoting Capric v. Ashcroft, 355 F.3d 1075,

1086 (7th Cir. 2004)). If an alien establishes past persecution, this gives rise to a presumption of future persecution that “[t]he Government may rebut . . . if it establishes, by a preponderance of the evidence, that ‘[t]here has

been a fundamental change in circumstances such that

the applicant no longer has a well-founded fear of persecution in the applicant’s country of nationality.’ ” Brucaj

v. Ashcroft, 381 F.3d 602, 606-07 (7th Cir. 2004) (quoting

8 C.F.R. § 1208.13(b)(1)(i)(A)). “Even if the Government

rebuts the presumption of future persecution . . . , the

Attorney General has the authority to grant asylum as

a matter of discretion for humanitarian reasons . . . .” Id.

at 608 (internal quotation marks and citations omitted).

Now codified at 8 C.F.R. § 1208.13(b)(1)(iii), an alien

may qualify for humanitarian asylum if he “has demonstrated compelling reasons for being unwilling or unable

to return to the country [designated for removal] arising

out of the severity of the past persecution” or “has established that there is a reasonable possibility that he or she

may suffer other serious harm upon removal to that

country.” 8 C.F.R. § 1208.13(b)(1)(iii)(A) & (B). Regardless

of whether the alien qualifies for asylum by establishing

past persecution, future persecution or eligibility for

humanitarian relief, “the IJ may, in his discretion, deny

asylum.” Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004)
24 No. 07-1020

Of course, the IJ may not exercise his discretion in an arbitrary 15

or capricious manner. See Mitev v. INS, 67 F.3d 1325, 1329

n.3 (7th Cir. 1995).

Mr. Kholyavskiy also argues that he is entitled to a regulatory 16

presumption of future persecution because he already has

been accorded refugee status. According to Mr. Kholyavskiy,

(continued...)

(citing 8 U.S.C. § 1158(a) & (b)).15

Eligibility for asylum “is a factual determination which

we review under the substantial evidence test.”

Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir. 1992). We

shall disturb the BIA’s findings “only if the record lacks

substantial evidence to support its factual conclusions.”

Malek v. INS, 198 F.3d 1016, 1021 (7th Cir. 2000). “To win

a reversal under this deferential standard, [the alien]

must show not merely that the record evidence supports

a conclusion contrary to that reached by the BIA but

that the evidence compels that contrary conclusion.”

Bradvica v. INS, 128 F.3d 1009, 1011 (7th Cir. 1997).

Mr. Kholyavskiy claims that he is eligible for asylum

based on past persecution, on the likelihood of future

persecution and on humanitarian grounds. More specifically, he claims that he was persecuted in the former

Soviet Union on account of his Jewish ethnicity and

religion. He also claims that, if returned to Russia, he

will suffer future persecution because of his Jewish

identity and also because of his membership in two

social groups: (1) the mentally ill, and (2) returning Jewish

refugees. Finally, he claims that he qualifies for a grant

16
No. 07-1020 25

(...continued) 16

when he was admitted to the United States in 1992, he was

admitted as a refugee. Although he subsequently adjusted his

status to that of lawful permanent resident, Mr. Kholyavskiy

contends that the adjustment did not alter his status as a refugee.

We have held that, when an individual adjusts his status to

that of lawful permanent resident, he still may meet the definition

of a refugee under 8 U.S.C. § 1101(a)(42); however, he no

longer retains his refugee status under 8 U.S.C. § 1157. See

Gutnik v. Gonzales, 469 F.3d 683, 699 (7th Cir. 2006). 

Here, however, it appears that Mr. Kholyavskiy’s prior grant

of refugee status was based on a determination that one or

both of his parents met the definition of refugee under 8 U.S.C.

§ 1101(a)(42), not on a determination that he personally met

that definition. The BIA determined that, because Mr.

Kholyavskiy was a minor at the time of his entry to the United

States, he likely was granted asylum on a derivative basis

because of the persecution endured by his parents. See A.R. at 6.

Although the experiences that Mr. Kholyavskiy shared with

his family certainly can factor into an asylum analysis, see infra

at 29-30, Mr. Kholyavskiy has not come forward with any

evidence to establish that his prior grant of asylum was based

on persecution that he endured, either individually or as a

member of his family. In short, Mr. Kholyavskiy simply cannot

point to a prior administrative finding of past persecution on

which a regulatory presumption of future persecution can

be based.

of humanitarian asylum under the applicable regulatory

standards. We evaluate each of these claims.
26 No. 07-1020

1. Past Persecution

Mr. Kholyavskiy challenges the BIA’s conclusion that he

has not suffered past persecution on the basis of his

ethnicity and religion. We have defined persecution as

“ ‘punishment’ or ‘the infliction of harm’ which is administered on account of . . . race, religion, nationality,

group membership, or political opinion.” Asani v. INS, 154

F.3d 719, 723 (7th Cir. 1998) (quoting Borca v. INS, 77 F.3d

210, 214 (7th Cir. 1996)). “Although the conduct in question

need not necessarily threaten the petitioner’s ‘life or

freedom,’ it must rise above the level of mere ‘harassment’

to constitute persecution.” Borca, 77 F.3d at 214 (citations

omitted). “Types of actions that might cross the line from

harassment to persecution include: ‘detention, arrest,

interrogation, prosecution, imprisonment, illegal searches,

confiscation of property, surveillance, beatings, or torture”.’

Begzatowski, v. INS, 278 F.3d 665, 669 (7th Cir. 2002) (quoting Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995)).

In assessing whether incidents cross the line from

harassment to persecution, we look not only at the nature

of the abuse that the individual endured, but also the

age of the petitioner at the time the events took place.

See Liu v. Ashcroft, 380 F.3d 307, 314 (7th Cir. 2004). We

have stated that, in the adjudication of asylum claims,

age “may bear heavily on the question of whether an

applicant was persecuted or whether she holds a wellfounded fear of future persecution. The Guidelines for

Children’s Asylum Claims advises that ‘harm a child fears

or has suffered . . . may be relatively less than that of an

adult and still qualify as persecution.’ ” Id. (quoting Guide-
No. 07-1020 27

lines for Children’s Asylum Claims, INS Policy and

Procedural Memorandum from Jeffrey Weiss, Acting

Director, Office of Int’l Affairs, to Asylum Officers, Immigration Officers, and Headquarters Coordinators (Asylum

and Refugees) 14, (Dec. 10, 1998) (available at 1998 WL

34032561)).

With respect to Mr. Kholyavskiy’s claims of past persecution, the IJ stated that 

the respondent’s claim is generally limited to two

specific incidents: the first was when he was humiliated by his fellow classmates and the second, when

he was attacked by a dog belonging to another student. Although the respondent was required to receive

rabies shots as a result of the dog bite, neither incident

involved serious injury to the respondent.

Thus, after carefully reviewing the record, the

Court finds that the respondent has not demonstrated

that he suffered past persecution.

A.R. at 475-76. The BIA took a similar view of

Mr. Kholyavskiy’s experiences:

We find that the Immigration Judge correctly found

the respondent ineligible for asylum and withholding

of removal as he failed to demonstrate either past

persecution or a well-founded fear of future persecution. The record illustrates that the respondent’s

abuse and harassment in Russia by his classmates

and school teachers occurred over 13 years ago when

he was a child. Moreover, the specific mistreatment

the respondent described in his testimony does not

rise to the level of persecution under the Act.
28 No. 07-1020

A.R. at 323 (internal citations omitted).

We do not believe that these accounts of Mr.

Kholyavskiy’s experiences accurately depict either the

severity or pervasiveness of the abuses he suffered.

Turning initially to the first of the “two specific incidents”

noted by the IJ, Mr. Kholyavskiy was forced into a

school bathroom, where his fellow students pulled down

his pants, exposed his genitals and laughed at his circumcision. As one of our sister circuits has observed: “We

cannot conceive of a more basic subject of privacy than the

naked body. The desire to shield one’s unclothed figure

from view of strangers . . . is impelled by elementary selfrespect and personal dignity.” York v. Story, 324 F.2d 450,

455 (2d Cir. 1963); cf. Ibrahim v. Titan Corp., 391 F. Supp. 2d

10, 12 (D.D.C. 2005) (noting that, among the “broad and

serious” allegations of “torture[]” alleged against private

contractor were that detainees were “forc[ed] . . . to

be naked for prolonged periods of time” and “photograph[ed] . . . while naked”). Furthermore, it has been

recognized by Congress and the courts that childhood

sexual abuse and mistreatment may have harmful, longterm effects. See, e.g., United States v. Danser, 270 F.3d

451, 455 (7th Cir. 2001) (discussing Congress’ intent “to

provide victims of sexual abuse with expansive relief”

including “anticipated future costs of psychological

treatment”); Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.

1997) (noting that “[s]exual abuse . . . can cause severe

physical and psychological harm”).

The second incident mentioned by the IJ was a dog bite.

Mr. Kholyavskiy and his mother both recounted this

incident in their testimony before the IJ. Mr. Kholyavskiy
No. 07-1020 29

“This court, as well as other courts of appeals, have cautioned 17

IJs against viewing events in the record ‘in isolation, rather than

considering what kind of patterns they composed,’ Kantoni v.

Gonzales, 461 F.3d 894, 898 (7th Cir. 2006) (collecting cases), and

against employing the ‘erroneous’ ‘technique of addressing

the severity of each event in isolation, without considering

its cumulative significance,’ Poradisova v. Gonzales, 420 F.3d 70,

79 (2d Cir. 2005).” Tchemkou v. Gonzales, 495 F.3d 785, 790

(7th Cir. 2007).

stated that a girl “sicced” her dog on him, A.R. at 652;

according to Mr. Kholyavskiy, the girl took this action “so

that I would not forget who I was,” id. at 653, namely, a

Jew. The attack required a trip to the hospital. The

Russian police would not help locate the dog, and, because

the dog could not be located, Mr. Kholyavskiy had to

undergo a series of forty rabies shots. Mr. Kholyavskiy

has permanent physical scarring as a result of the incident.

These two serious incidents must be viewed in light of

the more pervasive background of harassment and

threats endured by Mr. Kholyavskiy and his entire

family. See Tchemkou v. Gonzales, 495 F.3d 785, 790 (7th

Cir. 2007) (noting that “the agency is obligated to consider the evidence of record as a whole” (internal quotation marks and citations omitted)). Mr. Kholyavskiy 17

testified that his teachers required him, on a quarterly

basis, to stand up and identify himself as a Jew and that

children regularly mocked him and urinated on him;

school officials not only sat silently by, but they also told

his parents that the “Jewish child [wa]s just making

things up.” A.R. at 811. This discrimination and harass-
30 No. 07-1020

ment pervaded his neighborhood as well. Other children

called him a “kike” and subjected him to physical abuse.

As a result, Mr. Kholyavskiy became afraid both to

attend school and to go outside. Instead, he took to

hiding in the attic of his family’s apartment. However, the

record suggests that even Mr. Kholyavskiy’s home was

not a safe haven. Vandals had marked his family’s mailbox with a Star of David, and his family received threatening telephone calls warning them of a coming “Crystal

Night” or pogrom.

A review of the BIA’s decision leaves us with the conviction that the Board did not consider the “cumulative

significance” of the events recounted by Mr. Kholyavskiy

and his mother. Tchemkou, 495 F.3d at 790 (quoting

Poradisova, 420 F.3d at 79). More important, the BIA had

an obligation to evaluate the impact of these actions on

a child between the ages of eight and thirteen. It does not

appear, however, that, in addressing the question of past

persecution, the BIA considered Mr. Kholyavskiy’s age

at the time these events occurred—a factor that, we have

noted, “may bear heavily on the question of whether

an applicant was persecuted.” Liu, 380 F.3d at 314.

In sum, the BIA did not employ the correct standard in

evaluating Mr. Kholyavskiy’s claims. The proper course

of action in these circumstances is not for us to decide the

question of past persecution in the first instance, but

to allow the BIA to re-evaluate the evidence under the

proper standard. Ramirez-Peyro v. Gonzales, 477 F.3d 637,

641 (8th Cir. 2007) (“Generally speaking, a court of

appeals should remand a case to an agency for decision of
No. 07-1020 31

The IJ determined that, had Mr. Kholyavskiy met the require- 18

ments for asylum, he would not have exercised his discretion in

Mr. Kholyavskiy’s favor. This determination is based largely on

a misunderstanding of the nature of Mr. Kholyavskiy’s mental

illness, see discussion infra at pages 33-35, and of the strength

of Mr. Kholyavskiy’s asylum claim, which we have discussed

at length above. Thus, the IJ’s statements in this regard do not

preclude our remand to the BIA for further proceedings. See

Zhang v. Gonzales, 434 F.3d 993, 1002 (7th Cir. 2006) (remanding

for further proceedings, despite “IJ’s alternative determination

that Zhang would not merit a favorable exercise of discretion

even if he were found eligible for asylum” because determination was based on erroneous factual determinations and

improper legal considerations).

a matter that statutes place primarily in agency hands.”

(quoting INS v. Ventura, 537 U.S. 12, 16 (2002))); see also

Asani, 154 F.3d at 723 (remanding to the BIA to apply the

correct standard for persecution under the asylum laws).

Therefore, we remand for further proceedings Mr.

Kholyavskiy’s application for asylum based on past

persecution. We are confident that, on remand, the BIA

will evaluate the record comprehensively according to

the standard that we have articulated here.

18

2. Future Persecution

Mr. Kholyavskiy also maintains that, if returned to

Russia, he will suffer persecution on several grounds,

specifically on the basis of his Jewish identity and his

membership in two social groups: the mentally ill and

Jewish refugees who resettled in the United States. The
32 No. 07-1020

Board determined that Mr. Kholyavskiy’s status as a Jew

and as a member of his Jewish family qualified him for

protection under the asylum law. However, it held

that Jewish refugees resettled in the United States and

mentally ill were not “particular social groups” entitled

to protection. In any event, it determined that he was not

likely to suffer future persecution on any of these

bases. We evaluate these determinations below.

a. refugee status

We turn first to the question whether Mr. Kholyavskiy

was a member of any social group protected by the

asylum laws. With respect to the first of these—Jewish

refugees returning from the United States—the Board

stated that this group does not have a shared characteristic that is fundamental to its members’ individual

identities or consciences. See A.R. at 4. Other than repeating

that his status as a Jew and as a refugee living in the

United States cannot be changed, Mr. Kholyavskiy does not

attempt to address the Board’s concern that the individual members of this group lack the social visibility

and recognizability usually required to establish a “social

group.” See Appellant’s Br. at 27-28.

Essentially, Mr. Kholyavskiy attempts to reverse the

statutory methodology for determining whether one

qualifies as a refugee. Instead of establishing his membership in a particular social group and then showing the

possibility of persecution based on that social group

membership, Mr. Kholyavskiy attempts to show that he

likely will suffer discrimination on a number of bases—his
No. 07-1020 33

Jewish identity, his status as a returning refugee, and his

ties to the West. The combination of those categories, he

maintains, is a social group, and the cumulative effect

of the discrimination is persecution.

Because Mr. Kholyavskiy has not met his burden of

establishing that returning Jewish refugees meet the

criteria of a “particular social group,” we affirm the

BIA’s denial of discretionary relief on this basis.

b. mental illness

Mr. Kholyavskiy also claims that he will be persecuted

on the basis of his mental illness and that the mentally

ill constitute a social group for purposes of asylum. The IJ

stated:

The Court finds that under the circumstances of this

case, the respondent’s mental illness does not constitute[] a cognizable “particular social group.” Specifically, his illness is not immutable. Unlike one’s tribal

affiliation or parentage, the respondent’s mental illness can be treated with medication such that by his

own actions he will be able to avoid persecution.

Accordingly, the respondent’s mental illness is not a

cognizable basis for seeking asylum. 

A.R. at 477 (footnotes omitted). The BIA “agree[d]” with

these findings. Id. at 3. 

This determination is not supported by the record. In his

affidavit, Dr. Jacobson recounted the history of Mr.

Kholyavskiy’s treatment. Beginning in 2002, he began his
34 No. 07-1020

current medications, which, thus far, have been most

effective at controlling his mental illness. Dr. Jacobson

noted that, as of April 15, 2003, Mr. Kholyavskiy was

able “to get back into sports in the limited setting of

boxing.” A.R. at 938. As of September 23, 2003, Mr.

Kholyavskiy continued to box, “but that was the entire

extent of his socialization. Otherwise, he would remain

largely at home. . . . Within the family itself, he remained

withdrawn. Since then, he has been on a combination of

Paxil and Klonopin. He remains incapable of tolerating

close, interpersonal relationships.” Id. (emphasis added).

Dr. Jacobson’s affidavit further expounded on Mr.

Kholyavskiy’s current diagnosis; he stated accordingly:

“He does have a character disorder. This consists of

avoidant, schizoid, and narcissistic personality features.

At this point, I do not believe that his personality disorder is

amenable to change. . . .” A.R. at 939 (emphasis added).

Furthermore, he noted that Mr. Kholyavskiy’s “[c]urrent

treatment for social anxiety disorder consists of medications of the SSRI class”; Dr. Jacobson further explained

that Mr. Kholyavskiy had responded well to Paxil, in

combination with Klonopin. A.R. at 939-40. With respect

to this disorder, Dr. Jacobson concluded that Mr.

Kholyavskiy’s “prognosis for remaining comfortable but

disabled on Paxil and Klonopin is good.” Id. at 940 (emphasis added). According to Dr. Jacobson, therefore, not

only are Mr. Kholyavskiy’s disorders permanent, they

also are not completely controlled by medication.

As noted above, the IJ and the BIA determined that Mr.

Kholyavskiy’s mental illness did not place him in a particular social group because his mental illness was not an
No. 07-1020 35

Mr. Kholyavskiy never has claimed that he has suffered past 19

persecution on the basis of his mental illness.

“immutable” trait—a conclusion which finds no support in

the record. The BIA did not consider whether, if the illness

were “immutable,” Mr. Kholyavskiy’s condition would

qualify him for membership in a particular social group.

Consequently, under usual circumstances, we would

remand to the BIA for further consideration of whether

the mentally ill otherwise qualify for social group status.

However, we need not follow this path here because, the

BIA also determined that, even if the mentally ill qualified

as a particular social group, Mr. Kholyavskiy had not

established that, if he were returned to Russia, he likely

would suffer persecution on the basis of his mental

illness. See A.R. at 323. We do not believe that the 19

record compels a contrary result.

In his brief, Mr. Kholyavskiy identifies only two documents in the record that speak to “a prevalent anti-mental

illness attitude” and “considerable lack of mental

health treatment” in Russia. Appellant’s Br. at 38. After

reviewing those documents, we cannot agree with Mr.

Kholyavskiy’s summary of their contents. The most recent

of these documents note that “[p]rogress has been made

in instituting legal provisions for humane and responsible health care for the mentally ill” and that these provisions set “minimum standards for humane treatment of

psychiatric patients.” A.R. at 1054-55. Another, more

recent document among Mr. Kholyavskiy’s submitted

materials observes that “[a] series of reforms have seen
36 No. 07-1020

The IJ discounted Mr. Kholyavskiy’s fear because, according 20

to the IJ, his parents could “mail” him the medication. See A.R.

at 477. However, there simply is no basis in the record for

establishing that Mr. Kholyavskiy’s doctor ethically could

prescribe these medications without on-going supervision or

that Mr. Kholyavskiy’s parents legally could ship the medications internationally.

the focus of psychiatric care change. Sprawling, stark

asylums are being replaced with modern hospitals, with

patients allowed to live in the community as much as

possible.” A.R. at 1129. 

It appears that Mr. Kholyavskiy’s true—and very legitimate—concern is not that he will suffer future persecution on the basis of his mental illness, but that, if returned

to Russia, he will not be able to obtain Paxil and

Klonopin, the medications that effectively have kept

many of his symptoms in check. However, there is no 20

evidence in the record to suggest that the unavailability

of the medication is the result of the Russian government’s

attempt to injure Mr. Kholyavskiy or, more generally,

individuals with mental illnesses, and, as we have observed on many occasions, “the motive of those

engaging in oppressive actions is a ‘critical’ element” of the

asylum laws. Tamas-Mercea v. Reno, 222 F.3d 417, 425 (7th

Cir. 2000) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483

(1992)). Thus, with respect to its determination that

Mr. Kholyavskiy did not establish his eligibility for

asylum based on his mental illness, the BIA’s decision is

supported by substantial evidence. However, as we

shall discuss later in this opinion, the unavailability of
No. 07-1020 37

The BIA recognized that “the respondent’s Jewish back- 21

ground can constitute more than one protected ground under

the Act.” A.R. at 4.

“The case-specific establishment of a well-founded fear of 22

future persecution encompasses objective and subjective

elements. To satisfy the subjective component, an individual

must show that he has a genuine fear of returning to his home

country. To satisfy the objective component, the applicant

must demonstrate that a reasonable person in his circumstances

would fear persecution if forced to return to his native country.” Kllokoqi v. Gonzales, 439 F.3d 336, 345 (7th Cir. 2005)

(citations omitted).

Mr. Kholyavskiy’s medications is a valid consideration

for purposes of humanitarian asylum. See infra pp. 39-42. 

c. Jewish ethnicity and religion

In addition to his other social group memberships,

Mr. Kholyavskiy also maintains that he will endure

future persecution on the basis of his Jewish identity. The 21

BIA and the IJ both determined that Mr. Kholyavskiy had

not demonstrated that his fear of future persecution is

objectively reasonable given current country conditions.22

First, the department of State’s country reports

indicate that while Jews continue to face societal

discrimination, prejudice, and occasional acts of

violence, there does not appear to be a pattern of

systemic abuse against Jews which rises to the level

of persecution. Further, Jewish leaders have publicly

said that the state-sponsored anti-Semitism of the

Soviet era no longer exists in Russia.
38 No. 07-1020

A.R. at 323; see also A.R. at 477-78 (decision of the IJ noting

the Russian government’s official condemnation of antiSemitism, efforts by the government to combat hatebased crimes, and statements by Jewish leaders that the

government has been taking steps to combat anti-Semitism). These conclusions find support in the record. See

A.R. at 1012 (country report). The record as a whole

reveals that “Jews continued to face prejudice, discrimination and some acts of violence,” without, however, the

official imprimatur of the Soviet regime. Id. Indeed, such

actions likely will be met with official condemnation

and possibly prosecution, although the response varies

widely accordingly to locale. Id. at 1043. In short, the

record does not paint a picture of an ethnically and religiously tolerant Russia; however, that is not the focus of

the asylum law. The question for purposes of the asylum

law is whether Mr. Kholyavskiy, as a Jew, will be persecuted on that basis if returned to Russia. “Persecution is

something a government does, either directly or by abetting (and thus becoming responsible for) private discrimination by throwing in its lot with the deeds or by

providing protection so ineffectual that it becomes a

sensible inference that the government sponsors the

misconduct.” Hor v. Gonzales, 400 F.3d 482, 485 (7th Cir.

2005). Based on the evidence before the BIA, we cannot

say that the record compels a conclusion that, if returned

to Russia, Mr. Kholyavskiy will be persecuted by the

Russian government.

For the same reasons, we cannot say that Mr.

Kholyavskiy has met his burden under the CAT to establish that, if removed, he will more likely than not be

tortured by the Russian government. See 8 C.F.R.
No. 07-1020 39

The regulation provides in relevant part: 23

(b) Eligibility. The applicant may qualify as a refugee either

because he or she has suffered past persecution or because

he or she has a well-founded fear of future persecution.

(1) Past persecution. An applicant shall be found to be a

refugee on the basis of past persecution if the applicant can

(continued...)

§ 208.16(c)(2) (“The burden of proof is on the applicant . . .

to establish that it is more likely than not that he or

she would be tortured if removed to the proposed

country of removal.”).

We note that the burden was on Mr. Kholyavskiy, in

the first instance, to establish future persecution and

that our review of the BIA’s determination as to whether

Mr. Kholyavskiy met his burden is based on the record

before us and is highly deferential. Our decision, therefore, has no bearing on whether, on remand, the Government will be able to rebut any presumption of future

persecution based on the conditions in Russia at that time.

C.

Finally, we turn to Mr. Kholyavskiy’s claim of humanitarian asylum. Humanitarian asylum originated with the

BIA’s recognition in Matter of Chen, 20 I. & N. Dec. 16, 18

(BIA 1989), that an alien may have endured such severe

persecution that, even in the absence of a threat of future

persecution, removal to his country of origin would

be inhumane. As referenced above, this type of asylum

is now codified at 8 C.F.R. § 1208.13(b)(1)(iii). As 23
40 No. 07-1020

(...continued) 23

establish that he or she has suffered persecution in the past

in the applicant’s country of nationality or, if stateless, in his

or her country of last habitual residence, on account of race,

religion, nationality, membership in a particular social

group, or political opinion, and is unable or unwilling to

return to, or avail himself or herself of the protection of,

that country owing to such persecution. An applicant who

has been found to have established such past persecution

shall also be presumed to have a well-founded fear of

persecution on the basis of the original claim. That presumption may be rebutted if an asylum officer or immigration judge makes one of the findings described in paragraph

(b)(1)(i) of this section. If the applicant’s fear of future

persecution is unrelated to the past persecution, the applicant bears the burden of establishing that the fear is

well-founded.

(i) Discretionary referral or denial. Except as provided in

paragraph (b)(1)(iii) of this section, an asylum officer shall,

in the exercise of his or her discretion, refer or deny, or an

immigration judge, in the exercise of his or her discretion,

shall deny the asylum application of an alien found to be

a refugee on the basis of past persecution if any of the

following is found by a preponderance of the evidence:

(A) There has been a fundamental change in circumstances

such that the applicant no longer has a well-founded fear

of persecution in the applicant’s country of nationality or, if

stateless, in the applicant’s country of last habitual residence, on account of race, religion, nationality, membership

in a particular social group, or political opinion; or

(B) The applicant could avoid future persecution by relocating to another part of the applicant’s country of nationality

(continued...)
No. 07-1020 41

(...continued) 23

or, if stateless, another part of the applicant’s country of

last habitual residence, and under all the circumstances, it

would be reasonable to expect the applicant to do so.

(ii) Burden of proof. In cases in which an applicant has

demonstrated past persecution under paragraph (b)(1) of

this section, the Service shall bear the burden of establishing

by a preponderance of the evidence the requirements

of paragraphs (b)(1)(i)(A) or (B) of this section.

(iii) Grant in the absence of well-founded fear of persecution. An applicant described in paragraph (b)(1)(i) of this

section who is not barred from a grant of asylum under

paragraph (c) of this section, may be granted asylum, in the

exercise of the decision-maker’s discretion, if:

(A) The applicant has demonstrated compelling reasons

for being unwilling or unable to return to the country

arising out of the severity of the past persecution; or

(B) The applicant has established that there is a reasonable

possibility that he or she may suffer other serious harm

upon removal to that country.

codified, the Attorney General

may grant humanitarian asylum to a victim of past

persecution, even where the government has rebutted

the applicant’s fear of future persecution, if the applicant establishes one of two things. First, the

asylum seeker can show “compelling reasons for being

unwilling or unable to return to the country [that he

fled] arising out of the severity of the past persecution.” 8 C.F.R. § 1208.13(b)(1)(iii)(A). Or, under the

second prong of the humanitarian asylum analysis, the
42 No. 07-1020

The BIA did not address directly Mr. Kholyavskiy’s claim of 24

humanitarian asylum. It did determine, however, that the

abuses suffered by Mr. Kholyavskiy did not rise to the level

of persecution. See A.R. at 323.

asylum seeker can show “a reasonable possibility

that he or she may suffer other serious harm upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii)(B);

see also Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir.

2004).

Hanna v. Keisler, 506 F.3d 933, 939 (9th Cir. 2007) (emphasis

added). 

The IJ determined that the abuses that Mr. Kholyavskiy

suffered did not rise to the level of severity associated

with a grant of humanitarian asylum. See A.R. at 479. It is 24

true that, typically, humanitarian asylum has been reserved for those who have endured torture, extended

imprisonment or repeated physical abuse, usually at the

hands of totalitarian regimes. See, e.g., Bucur v. INS, 109

F.3d 399, 405 (7th Cir. 1997) (listing “German Jews, the

victims of the Chinese ‘Cultural Revolution’ . . . [and]

survivors of the Cambodian genocide” as examples of

individuals who may qualify for humanitarian asylum).

We do not mean to diminish, in any way, the seriousness

of the abuses endured by Mr. Kholyavskiy and the attendant effects on Mr. Kholyavskiy’s mental health;

nevertheless, even considering Mr. Kholyavskiy’s age

at the time, we cannot equate Mr. Kholyavskiy’s experiences in the former Soviet Union with the truly heinous

abuses endured by the victims of the Holocaust or the

“Cultural Revolution.”
No. 07-1020 43

This does not end, however, our discussion of humanitarian asylum. As noted above, the regulation provides

two means of qualifying for a grant of humanitarian

asylum. Mr. Kholyavskiy cannot avail himself of the

first means by relying on the “severity of the past persecution,” 8 C.F.R. § 1208.13(b)(1)(iii)(A), but he still has

available to him the second means—establishing that he

suffered past persecution, see 8 C.F.R. § 1208.13(b)(1)(i), and

“that there is a reasonable possibility that he . . . will suffer

other serious harm upon removal to that country,” id.

§ 1208.13(b)(1)(iii)(B). As discussed above, there is

evidence in the record to suggest that Mr. Kholyavskiy

suffered past persecution. Similarly, the record suggests

that, if returned to Russia, Mr. Kholyavskiy would be

without the only medications that effectively have controlled the symptoms of his mental illness and would be

incapable of functioning on his own. It also is highly

questionable whether he would be able to obtain

housing and medical treatment, especially given his lack

of “propiska.” See supra note 5. Debilitation and homelessness both would appear to constitute serious harms

for purposes of 8 C.F.R. § 1208.13(b)(iii)(B).

However, neither the BIA nor the IJ addressed whether

Mr. Kholyavskiy qualified for humanitarian relief based

on his past persecution and the “possibility [of] . . . other

serious harm.” Id. Because this is a determination that

the agency should make in the first instance, see supra

pp. 30-31, we remand this issue for further consideration

by the BIA.
44 No. 07-1020

Similarly, the BIA’s denial of withholding of removal and of 25

relief under the CAT finds support in the record.

Conclusion

In evaluating Mr. Kholyavskiy’s claim for asylum based

on past persecution and based on humanitarian

concerns, the BIA failed to apply the correct legal standard

and to evaluate the record as a whole. However, its

determination with respect to Mr. Kholyavskiy’s claim

of asylum based on future persecution is supported by

substantial evidence. For these reasons, the petition for 25

review is granted in part and denied in part, and the

case is remanded to the BIA.

On remand, the BIA first must determine whether,

according to the standards that we have articulated here,

Mr. Kholyavskiy has suffered past persecution. If it

determines that Mr. Kholyavskiy has suffered past persecution, it then must evaluate whether the Government

has met its burden of rebutting the presumption of

future persecution based on conditions in Russia at that

time—a determination that undoubtedly will require the

consideration of new evidence. Finally, the BIA must

evaluate Mr. Kholyavskiy’s claim for humanitarian

asylum under the regulatory standard set forth in 8 C.F.R.

§ 1208.13(b)(iii)(B).
No. 07-1020 45

The parties will bear their own costs on this appeal.

PETITION GRANTED in part and

DENIED in part; REMANDED

8-28-08