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7th Circuit

Boika v. Holder (7th Circuit, August 16, 2013)

HAMILTON, Ripple and Williams

Summary: After Tatsiana Boika, a Belarusian citizen, overstayed the time authorized to stay in the United States, she was placed in removal proceedings. Boika applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). Boika’s application was based on past persecution for her political involvement in the Belarusian opposition movement. The Immigration Judge (IJ) denied the application based on a finding of adverse credibility, holding that Boika was unable to explain the inconsistencies in her testimony and corroborating evidence. On appeal, the Board of Immigration Appeals (BIA) affirmed the IJ’s decision and the Seventh Circuit subsequently denied Boika’s petition for review.

Boika later filed a motion to reopen based on materially changed country conditions. She stated that the presidential election in 2010 and government crackdown on political opposition had led to widespread human rights abuses, and the United States and European Union had even decided to impose sanctions on Belarus. With her motion, Boika submitted new evidence of her activity in the opposition movement; however, the BIA denied the motion to reopen.

The Seventh Circuit found the BIA’s opinion in denying the motion to reopen was not an adequate explanation for rejecting the evidence presented and denying the motion to reopen. First, to determine changed country conditions, evidence from the merits must be compared with evidence from the motion to reopen. The Court stated that country conditions must have done more than worsen cumulatively and that differences in degree matter. The Seventh Circuit found that Boika’s new evidence meets this standard, but the BIA’s explanation was insufficient to allow the Court proper review. Next, if Boika was unable to show a prima facie claim, the BIA’s insufficient explanation would be harmless because reopening Boika’s case would be futile. However, Boika’s motion to reopen asserted she could establish a prima facie claim. The Court held that as the BIA ignored aspects of Boika’s evidence, it had abused its discretion. Lastly, the government argued that the IJ’s adverse credibility finding in Boika’s first asylum application compels the newer evidence to be determined to be not credible. Yet, the Court finds that this does not necessarily discredit Boika’s new evidence. For example, asylum seekers often encounter difficulties in finding corroborating evidence and this sometimes means that the earlier adverse credibility finding was reasonable on the available record but not in an objective sense. The Seventh Circuit held that it was an abuse of discretion for the BIA to rely only on the prior adverse credibility finding to discredit new evidence without holding an evidentiary hearing. For these reasons, the Seventh Circuit granted Boika’s petition for review and remanded to the BIA.

Read the full opinion here.

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