Kholyavskiy, Arkadiy v. Mukasey, Michael B.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1020
A RKADIY L. K HOLYAVSKIY,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney
General of the United States,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A71-093-229
____________
A RGUED JANUARY 8, 2008—D ECIDED A UGUST 28, 2008
____________
Before F LAUM, R IPPLE and M ANION, Circuit Judges.
R IPPLE, 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. Addi-
tionally, 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 situa-
tion 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
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 924.1 As
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 2 by the United States Embassy in Moscow; Mr.
Kholyavskiy was fifteen at the time. The Kholyavskiy
family moved to the United States, and, in January 1995,
1
Presumably, the caller was referencing the 1938 “Kristallnacht,
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).
2
Mr. Kholyavskiy’s parents had applied for refugee status in
1989.
4 No. 07-1020
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
2001,3 he has been under the care of Dr. Donald Jacobson,
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 counter-
feit prescription forms. Mr. Kholyavskiy’s criminal
record led to the commencement of removal pro-
ceedings against him in May 2001.
B. Administrative Proceedings
1.
A merits hearing was conducted before an Immigration
3
Mr. Kholyavskiy first started seeking medical treatment for
his problems in 1996.
No. 07-1020 5
Judge (“IJ”) in December 2004. 4 At that hearing, Mr.
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 5 and the
recent rise of nationalism, anti-Semitism and anti-
Westernism 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 incom-
petent. 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.
4
Mr. Kholyavskiy previously had been found removable by an
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.
5
A propiska, or resident permit, was a document required in
the former Soviet Union to obtain housing and other govern-
ment benefits in a particular locality. Dr. Wixman testified that,
although officially outlawed, the use of the propiska system
continues.
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 re-
sponse 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 medica-
tion. 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 medica-
tions 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
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 756-57.6 Finally, Dr. Jacobson testified
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.7 After reviewing the
6
Dr. Jacobson stated: “I think if he did not have the support of
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.
7
The IJ first disposed of the Government’s claim that Mr.
Kholyavskiy was statutorily ineligible for asylum and with-
holding of removal because he had committed a particularly
(continued...)
8 No. 07-1020
evidence presented, the IJ found that Mr. Kholyavskiy had
testified credibly, but that “his fears of future mistreat-
ment in Russia [we]re based on exaggerations and misin-
formation.” 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
7
(...continued)
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).
No. 07-1020 9
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 respon-
dent’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 subse-
quently 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 “particu-
lar 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
8
Similarly, the IJ determined that Mr. Kholyavskiy did not
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)).
9
The IJ did state that “the Court is sensitive to the fact that
there are anti-Semitic groups in Russia, a fact that the respon-
dent has amply documented.” A.R. at 478.
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 sympa-
thetic 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 sup-
porting 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
unsupported by the evidence. Additionally, there is
nothing preventing the respondent’s family from
mailing his medication to him and making arrange-
ments 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 “illus-
trate 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.1 0
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 well-
founded 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
10
Having failed to establish eligibility for asylum, the IJ also
determined that Mr. Kholyavskiy was not entitled to with-
holding of removal or relief under the CAT.
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 Immigra-
tion 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 deter-
mined 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 par-
ticular social group. With respect to Jewish refugees
who have been resettled in the United States, and presum-
ing the immutability of Mr. Kholyavskiy’s experiences
in this regard, the BIA did “not find that these characteris-
tics are the kind of shared past experiences that con-
stitute membership in a particular social group.” Id.
The BIA acknowledged that Mr. Kholyavskiy’s familial
status and Jewish background could place him in a pro-
tected category. However, it found that Mr. Kholyavskiy
had “failed to demonstrate a well-founded fear of persecu-
tion 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 gen-
eralized discrimination against Jews, in addition to occa-
sional 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 at-
tacks.” 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 determina-
tion 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 regula-
tions 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 oppor-
tunity” to present evidence on his own behalf as guaran-
teed 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
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,1 1 the Federal Rules of Evidence do not
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
11
Federal Rules of Evidence Rule 702 provides:
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.
No. 07-1020 17
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.1 2 It would
12
Although the Board noted that the IJ should not have assessed
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...)
18 No. 07-1020
appear, therefore, that Dr. Wixman himself acknowl-
edged 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 anti-
Semitic 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
12
(...continued)
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.
No. 07-1020 19
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. Essen-
tially, the IJ asked Mr. Kholyavskiy to review the volumi-
nous 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 563-64.1 3
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-
13
Although the IJ made this request, he later allowed
Mr. Kholyavskiy to submit documentation in excess of the
usual 100-page limitation. See A.R. at 637.
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 ob-
jected 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 oppor-
tunity 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 pre-
sented 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
lenges the BIA’s denial of his request for asylum. 1 4 Con-
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 per-
son’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 . . . .
14
Mr. Kholyavskiy also challenges the BIA’s denial of withhold-
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 re-
quirements 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.
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 persecu-
tion, this gives rise to a presumption of future persecu-
tion that “[t]he Government may rebut . . . if it estab-
lishes, 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 persecu-
tion 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 demon-
strated 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 estab-
lished 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
(citing 8 U.S.C. § 1158(a) & (b)).1 5
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 specifi-
cally, 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.16 Finally, he claims that he qualifies for a grant
15
Of course, the IJ may not exercise his discretion in an arbitrary
or capricious manner. See Mitev v. INS, 67 F.3d 1325, 1329
n.3 (7th Cir. 1995).
16
Mr. Kholyavskiy also argues that he is entitled to a regulatory
presumption of future persecution because he already has
been accorded refugee status. According to Mr. Kholyavskiy,
(continued...)
No. 07-1020 25
of humanitarian asylum under the applicable regulatory
standards. We evaluate each of these claims.
16
(...continued)
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.
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 ad-
ministered 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) (quot-
ing 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 well-
founded 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, Immi-
gration 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 persecu-
tion, the IJ stated that
the respondent’s claim is generally limited to two
specific incidents: the first was when he was humili-
ated by his fellow classmates and the second, when
he was attacked by a dog belonging to another stu-
dent. 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 persecu-
tion. 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 cir-
cumcision. 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 self-
respect 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 “photo-
graph[ed] . . . while naked”). Furthermore, it has been
recognized by Congress and the courts that childhood
sexual abuse and mistreatment may have harmful, long-
term 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
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 con-
sider the evidence of record as a whole” (internal quota-
tion marks and citations omitted)).1 7 Mr. Kholyavskiy
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-
17
“This court, as well as other courts of appeals, have cautioned
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).
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 mail-
box with a Star of David, and his family received threaten-
ing telephone calls warning them of a coming “Crystal
Night” or pogrom.
A review of the BIA’s decision leaves us with the con-
viction 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
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.1 8
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
18
The IJ determined that, had Mr. Kholyavskiy met the require-
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 determina-
tion was based on erroneous factual determinations and
improper legal considerations).
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 charac-
teristic 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 indi-
vidual 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 member-
ship 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 consti-
tute[] a cognizable “particular social group.” Specifi-
cally, his illness is not immutable. Unlike one’s tribal
affiliation or parentage, the respondent’s mental ill-
ness 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 medica-
tions 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 (empha-
sis 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 particu-
lar social group because his mental illness was not an
No. 07-1020 35
“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 323.1 9 We do not believe that the
record compels a contrary result.
In his brief, Mr. Kholyavskiy identifies only two docu-
ments 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 respon-
sible health care for the mentally ill” and that these provi-
sions 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
19
Mr. Kholyavskiy never has claimed that he has suffered past
persecution on the basis of his mental illness.
36 No. 07-1020
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 legiti-
mate—concern is not that he will suffer future persecu-
tion 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.2 0 However, there is no
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 ob-
served 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
20
The IJ discounted Mr. Kholyavskiy’s fear because, according
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 medica-
tions internationally.
No. 07-1020 37
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.2 1 The
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.2 2
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.
21
The BIA recognized that “the respondent’s Jewish back-
ground can constitute more than one protected ground under
the Act.” A.R. at 4.
22
“The case-specific establishment of a well-founded fear of
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 coun-
try.” Kllokoqi v. Gonzales, 439 F.3d 336, 345 (7th Cir. 2005)
(citations omitted).
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 anti-
Semitism, efforts by the government to combat hate-
based crimes, and statements by Jewish leaders that the
government has been taking steps to combat anti-Semi-
tism). 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, discrimina-
tion 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 reli-
giously 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 perse-
cuted on that basis if returned to Russia. “Persecution is
something a government does, either directly or by abet-
ting (and thus becoming responsible for) private dis-
crimination 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 estab-
lish that, if removed, he will more likely than not be
tortured by the Russian government. See 8 C.F.R.
No. 07-1020 39
§ 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, there-
fore, has no bearing on whether, on remand, the Govern-
ment 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 humani-
tarian 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).2 3 As
23
The regulation provides in relevant part:
(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...)
40 No. 07-1020
23
(...continued)
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 pre-
sumption may be rebutted if an asylum officer or immigra-
tion 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 appli-
cant 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 resi-
dence, on account of race, religion, nationality, membership
in a particular social group, or political opinion; or
(B) The applicant could avoid future persecution by relocat-
ing to another part of the applicant’s country of nationality
(continued...)
No. 07-1020 41
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 appli-
cant 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 persecu-
tion.” 8 C.F.R. § 1208.13(b)(1)(iii)(A). Or, under the
second prong of the humanitarian asylum analysis, the
23
(...continued)
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 persecu-
tion. 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.
42 No. 07-1020
asylum seeker can show “a reasonable possibility
that he or she may suffer other serious harm upon re-
moval 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 479.2 4 It is
true that, typically, humanitarian asylum has been re-
served 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 at-
tendant effects on Mr. Kholyavskiy’s mental health;
nevertheless, even considering Mr. Kholyavskiy’s age
at the time, we cannot equate Mr. Kholyavskiy’s experi-
ences in the former Soviet Union with the truly heinous
abuses endured by the victims of the Holocaust or the
“Cultural Revolution.”
24
The BIA did not address directly Mr. Kholyavskiy’s claim of
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.
No. 07-1020 43
This does not end, however, our discussion of humani-
tarian 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 persecu-
tion,” 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 con-
trolled 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 home-
lessness 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
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.2 5 For these reasons, the petition for
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 perse-
cution, 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).
25
Similarly, the BIA’s denial of withholding of removal and of
relief under the CAT finds support in the record.
No. 07-1020 45
The parties will bear their own costs on this appeal.
P ETITION G RANTED in part and
D ENIED in part; R EMANDED
8-28-08