Boika v. Holder
727 F.3d 735
7th Cir.2013Background
- Tatsiana Boika, a Belarusian national, overstayed her U.S. admission, conceded removability, and sought asylum, withholding of removal, and CAT relief; her husband claimed derivative relief.
- An IJ denied her original asylum application based on an adverse credibility finding concerning her pre-2007 claims of political persecution in Belarus; the BIA affirmed and this Court previously denied review of that denial.
- Boika later moved to reopen based on materially changed country conditions after the disputed 2010 Belarusian presidential election and submitted new evidence of a post-2010 crackdown and her active participation in the Belarusian opposition while in the U.S.
- New evidence included reports from credible international sources documenting election fraud, mass arrests, continued repression through mid-2011, and U.S./EU sanctions imposed in February 2011.
- The BIA denied the motion to reopen in a one-sentence decision stating the evidence did not reflect changed country conditions materially affecting asylum eligibility; it did not analyze Boika’s new evidence or her claimed current opposition membership.
- The Seventh Circuit granted review, concluding the BIA’s terse dismissal was an abuse of discretion because it failed to articulate reasons addressing the new evidence and the distinction between prior discredited past claims and the new theory of future persecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the BIA abused its discretion by denying motion to reopen for changed country conditions | Boika: post-2010 crackdown and sanctions constitute a material change warranting reopening | Gov't: evidence is cumulative or insufficient; prior adverse credibility undermines new claims | Court: BIA abused discretion by failing to reasonedly address the new evidence; remand required |
| Whether the post-2010 conditions in Belarus constitute a "material change" justifying late reopening | Boika: events (mass arrests, continued repression, media shutdowns, sanctions) meet the In re S-Y-G standard | Gov't: prior conditions already severe; new reports are cumulative | Held: Court finds evidence plausibly meets material-change threshold and merits fuller consideration by BIA |
| Whether Boika established a prima facie asylum claim via group-based fear of persecution | Boika: current membership/participation in U.S.-based Belarusian opposition and country conditions show reasonable fear | Gov't: evidence doesn't show personal targeting; insufficient to establish prima facie case | Held: BIA misapplied the law by focusing on personal targeting and ignoring group-based theory; remand needed to assess prima facie showing |
| Effect of earlier adverse credibility finding on new, distinct claims | Boika: prior finding concerned pre-2007 facts; does not automatically discredit later U.S.-based activity and changed-country evidence | Gov't: earlier adverse credibility should carry over to bar new claims | Held: Prior adverse credibility does not automatically preclude consideration of factually distinct claims; BIA erred if it relied solely on prior finding without hearing/new analysis |
Key Cases Cited
- Mekhael v. Mukasey, 509 F.3d 326 (7th Cir. 2007) (remand required where BIA failed to give reasoned consideration to post-hearing evidence)
- Kebe v. Gonzales, 473 F.3d 855 (7th Cir. 2007) (BIA’s silence on meritorious evidence warrants remand)
- Moosa v. Holder, 644 F.3d 380 (7th Cir. 2011) (abuse of discretion where BIA ignores or misapplies applicant’s evidence)
- Gebreeyesus v. Gonzales, 482 F.3d 952 (7th Cir. 2007) (prior adverse credibility about past events does not bar future persecution claim based on distinct facts)
- Mansour v. INS, 230 F.3d 902 (7th Cir. 2000) (standards for denying late motions to reopen: timeliness exceptions and merits thresholds)
- SEC v. Chenery Corp., 332 U.S. 194 (U.S. 1947) (agency cannot defend decision on grounds not articulated in its original decision)