Irasoc, Simon P. v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2406
SIMON P. IRASOC,
Petitioner-Appellant,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent-Appellee.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A97 452 638
____________
ARGUED MARCH 4, 2008—DECIDED APRIL 3, 2008
____________
Before CUDAHY, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. After the Department of Home-
land Security (DHS) initiated removal proceedings against
Simon Irasoc in 2004, he applied for asylum based on the
religious persecution he suffered as a member of the
Pentecostal Church in Romania. He also sought with-
holding of removal and protection under the Conven-
tion Against Torture (CAT). The Immigration Judge (IJ)
denied his applications, and the Board of Immigration
Appeals (BIA) affirmed. Irasoc now petitions for review.
Irasoc, a 24-year-old native and citizen of Romania, fled
to the United States in November 2002. In April 2004, the
2 No. 07-2406
DHS served him with a Notice to Appear, charging
removability because he lacked legal status. Irasoc admit-
ted removability but applied for asylum, withholding of
removal, and protection under CAT. In his application
and at his hearing, Irasoc recounted the following events,
which (importantly) the IJ deemed credible. So on this
record, the following facts are undisputed.
Irasoc and his parents have been active members of the
Pentecostal Church, a minority religion in Romania, for
many years. Because they were church members, the
police arrested them several times and confiscated their
bibles. Following the downfall of Romania’s communist
regime, however, Irasoc and his family were able to
attend church at least three times a week. Irasoc himself
had become an a itinerant missionary in Romania, prosely-
tizing throughout the country, by his own count nearly
500 times. But even in post-communist Romania, he
continued to experience “considerable resentment” from
local police.
The incident at the crux of Irasoc’s claim of persecution
occurred in July 2002, when several police officers con-
fronted him as he preached to a gathering group of
people. The officers ordered Irasoc to stop preaching
and leave town, but before he could do so they began
striking him with their batons. They then arrested him,
put him in handcuffs, and took him to a police interroga-
tion room where the beatings continued. There, the
local police inspector derided him for supporting the
Pentecostal Church and slapped him while other officers
watched. Once the interrogation stopped, the officers
began forcefully kicking Irasoc in the testicles, where the
intense pain caused him to collapse to the floor uncon-
scious. When Irasoc awoke, he discovered that he had been
No. 07-2406 3
left alone in a prison cell. Before releasing him the next
day, the officers beat Irasoc again, warning him that
interrogations and beatings would continue if he did not
leave the area. Upon leaving the station, Irasoc met his
father, who also appeared to have been beaten.
Within two weeks of the incident, Irasoc’s father re-
ceived renewed threats from the police, telling him that
his son should leave the country. Heeding the threats,
Irasoc left Romania and subsequently arranged to be
smuggled into the United States in a shipping container.
He arrived here in either November or December of 2002.
Irasoc testified at the removal hearing that, as a result of
the July 2002 incident, he feared imprisonment if he
returned to Romania, though he wasn’t sure what else
the police would do. He also stated that he would con-
tinue to openly practice his religion.
After the hearing, the IJ denied Irasoc’s asylum applica-
tion because it was time-barred for having been filed
more than one year after his entry into the United States.
The IJ also held that Irasoc failed to meet his burden of
proof with respect to withholding of removal. He rea-
soned that Irasoc had openly practiced his religion for
most of his adult life and proselytized throughout
Romania without “great difficulty.” Further, he said that
religious freedom has “flourished” in Romania since the
overthrow of the Communist government; the Romanian
Pentecostal Church itself has over 30,000 members. The
IJ concluded that the July 2002 incident was not past
persecution because it was a single episode of mistreat-
ment during which Irasoc was not “serious harmed.”
Separately, the IJ determined that Irasoc had failed to
establish a “more likely than not” fear of future persecu-
tion. And, as to the CAT claim, the IJ found that Irasoc
4 No. 07-2406
offered no evidence that he was “more likely than not” to
be tortured upon removal to Romania. The BIA affirmed
the IJ’s decision and dismissed Irasoc’s appeal.
Irasoc’s petition for review only concerns the denial
of his application for withholding of removal. He argues
that he not only established past persecution, but also a
well-founded fear of future persecution were he to be
returned to Romania. He does not challenge the IJ’s denial
of his claim for relief under CAT or the denial of his
application for asylum.
Because the BIA adopted and affirmed the IJ’s rea-
soning, we review the IJ’s decision as supplemented by
the BIA. See Binrashed v. Gonzales, 502 F.3d 666, 670 (7th
Cir. 2007). We review the agency’s determination under
a highly deferential standard—we will uphold the deci-
sion so long as it is supported by substantial evidence,
and will not reverse unless the BIA made an error of
law, e.g., Asani v. INS, 154 F.3d 719, 722-23 (7th Cir.
1998), or the record compels a contrary result, e.g., Boci
v. Gonzales, 473 F.3d 762, 766 (7th Cir. 2007); Binrashed,
502 F.3d at 670; Dandan v. Ashcroft, 339 F.3d 567, 572 (7th
Cir. 2003).
To establish eligibility for withholding of removal, an
applicant must show a “clear probability” of persecution
on account of his religion, race, or nationality. 8 U.S.C.
§ 1231(b)(3)(A); Tariq v. Keisler, 505 F.3d 650, 656 (7th Cir.
2007). The applicant must demonstrate either that he
suffered past persecution (which creates a presumption
of future persecution) or, in the absence of such evid-
ence, that it is more likely than not that he would face
future persecution in the country to which he would be
returned. Binrashed, 502 F.3d at 670-71; Tariq, 505 F.3d at
656-57. If the applicant demonstrates past persecution,
No. 07-2406 5
the burden shifts to the government to rebut the presump-
tion that the applicant would endure future persecution
if removed. Binrashed, 502 F.3d at 670-71.
Here, the IJ applied an incorrect legal standard in
determining that Irasoc did not suffer past persecution
from the genital beatings. In particular, the IJ found that
Irasoc had failed to establish that he was “seriously
harmed.” Yet we have reversed the BIA for requiring
that a petitioner suffer “serious injuries” as a prerequisite
to a finding of past persecution. Asani, 154 F.3d at 722-24.
We have, instead, held that past persecution is defined
only as “punishment” or “the infliction of harm” adminis-
tered on account of nationality, religion, race, group
membership, or political opinion. Id. at 723, 724. And
we have, on multiple occasions, determined that past
persecution “need not necessarily threaten the peti-
tioner’s life or freedom.” Id. at 723; see Tarraf v. Gonzales,
495 F.3d 525, 534-35 (7th Cir. 2007) (“Physical abuse
causing serious injuries is not the sine qua non of perse-
cution.”).
In determining whether an incident constitutes past
persecution, we do not simply evaluate the applicant’s
claim “against a generic checklist.” Tarraf, 495 F.3d at
535. While the frequency and intensity of the episode(s)
are variables in the analysis, even a single incident can
reflect past persecution as long as the specifics reveal the
severity of the particular situation. Id.; Zhu v. Gonzales,
465 F.3d 316, 319 (7th Cir. 2006) (injury must be con-
sidered alongside specific details of incident); Dandan,
339 F.3d at 573 (number of times applicant subjected to
detention or abuse, and details of abuse, is relevant to
analysis of claim). In Asani, we held that the BIA wrongly
concluded that a single day of police beatings, leading
6 No. 07-2406
to two lost teeth and preceded by an earlier two-week
detention, was not past persecution. Asani, 154 F.3d at 723-
25. Five years later in Dandan, though, we determined
that a three-day detention involving unspecified beatings
that produced a swollen face did not amount to past
persecution. Dandan, 339 F.3d at 573-75. We grounded
that decision on the applicant’s inability to describe the
specific facts of his detention. Id. at 574. Finally, in Zhu,
we held that an incident involving a cut requiring
seven stitches, unaccompanied by detention or any other
exacerbating factor, did not constitute past persecution.
Zhu, 465 F.3d at 319-20.
The beatings inflicted upon Irasoc by the police while
he was cuffed in a jail cell over two days, rendering him
unconscious from the pain to his groin, most closely
resemble Asani, where the applicant lost two teeth during
a one-day beating that had followed an earlier, two-
week detention. Cf. Asani, 154 F.3d at 723-25. And
in contrast with the petitioner in Dandan, Irasoc has
attested to detailed facts of his beatings, the veracity of
which is not questioned, revealing the severity of the
July 2002 incident. Cf. Dandan, 339 F.3d at 575. Also,
unlike the applicant in Zhu, Irasoc endured multiple
beatings and was in fact jailed. Cf. Zhu, 465 F.3d at 319-20.
While it is true that Irasoc did not suffer permanent
injuries, as in Asani the IJ here employed an incorrect legal
standard precisely because he required a showing of
“serious injuries.” Accordingly, Irasoc has established
past persecution, and his petition for review, to that
extent, is granted.
Finally, we note that on remand the government will
have the opportunity to rebut the presumption that Irasoc
will endure future persecution if returned to Romania. See
No. 07-2406 7
Binrashed, 502 F.3d at 670-71. A 2004 State Department
Report on Human Rights Practices in Romania, for in-
stance, states that although some harassment remains at the
local level, religious freedom in Romania has been improv-
ing. Recent opinions by this court have also recognized the
improving conditions in post-communist Romania. See, e.g.,
Simtion v. Ashcroft, 393 F.3d 733 (7th Cir. 2004). It may
therefore be possible on remand for the government to
rebut a presumption of future persecution. But the issue
has not yet been fully litigated and therefore a remand is
appropriate.
Accordingly, we GRANT the petition for review and
REMAND for further proceedings consistent with this
opinion.
USCA-02-C-0072—4-3-08