                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 12-2320

V ICTOR S IRBU AND IULIA P RODAN,
                                                     Petitioners,
                              v.

E RIC H. H OLDER, JR., Attorney General
of the United States,
                                                     Respondent.


                  Petition for Review of an Order
              of the Board of Immigration Appeals.
              Nos. A088-390-329 & A088-390-330.



     A RGUED JANUARY 29, 2013—D ECIDED M AY 20, 2013




 Before B AUER, W ILLIAMS, and H AMILTON, Circuit Judges.
  H AMILTON, Circuit Judge. Moldovan citizens Victor Sirbu
and his wife Iulia Prodan applied for asylum in the
United States, as well as for withholding of removal
and protection under the Convention Against Torture.
Sirbu fears persecution by the Moldovan government
based on his active and vocal opposition to the Com-
munist Party. (Although the evidence indicates mistreat-
2                                            No. 12-2320

ment of both Mr. Sirbu and Ms. Prodan for their anti-
Communist political activities, Mr. Sirbu’s application
is the lead one; Ms. Prodan’s application is derivative
of his.) An immigration judge denied relief, finding
that Sirbu’s evidence did not “compel a finding” of
past persecution that could support asylum. The Board
of Immigration Appeals affirmed the denial. Sirbu
and Prodan have petitioned for review. Because the im-
migration judge and then the Board applied the wrong
legal standard in deciding whether Sirbu had shown
past persecution for his political activities, we grant
the petition for review and remand the case for further
proceedings.


I. Factual and Procedural Background
  Sirbu and Prodan entered the United States as non-
immigrant tourists in 2009 and overstayed their visas.
They then filed a timely application for asylum, with-
holding of removal, and relief under the Convention
Against Torture. The government responded by charging
Sirbu and Prodan as removable for overstaying their
visas. See 8 U.S.C. § 1227(a)(1)(B). The couple admitted
removability before an immigration judge in February
2010, and Sirbu renewed their application for asylum
and related relief.
  Sirbu’s persecution claim is based on politically moti-
vated mistreatment that occurred in Moldova between
2000 and 2009. In 2001, the Moldovan Communist
Party won the presidency and more than two-thirds of
the seats in parliament. Moldovan security forces began
No. 12-2320                                               3

to harass, detain, and beat members of opposition par-
ties. See U.S. Department of State, 2008 Country Reports
on Human Rights Practices: Moldova (Feb. 25, 2009).
  Sirbu was an active opponent of the Communist Party
and was a victim of this political harassment and
violence on several occasions, three of them in 2003. In
January 2003, Sirbu participated in a large protest urging
that Moldova join NATO and the European Union. He
was arrested and detained for five hours. The next
two encounters were violent. In February 2003, Sirbu
participated in another anti-Communist protest. Two
policemen hit him on the legs so sharply that he fell to
the ground. He was then detained for about 40 hours
without food or water. And in November 2003, police
caught Sirbu participating in an anti-Communist Party
meeting, struck him in the back, knocked him to the
ground, and then detained and interrogated him
overnight.1
  In the following years, Sirbu experienced further
political harassment and mistreatment, including the
loss of his job, but was not deterred from political activ-
ity. For our purposes, we focus on the most serious inci-
dent, which finally led Sirbu and Prodan to leave
Moldova and later to seek asylum in the United States.
Moldova held parliamentary elections on April 5, 2009.
Both Sirbu and Prodan ran as candidates for parliament


1
   Since the immigration judge made no adverse credibility
finding, our account of the facts specific to Sirbu is based
largely on his written and oral testimony.
4                                                                               No. 12-2320

in opposition to Communist Party candidates. The Com-
munist Party claimed victory, but on April 7, Sirbu
and Prodan joined a large protest in the nation’s
capital accusing the Communist Party of voter fraud. The
protestors began to riot and the police arrested 300
people. See Protests in Moldova Explode, With Help of
Twitter, NY Times (Apr. 7, 2009), http://www.nytimes.com/
2009/04/08/world/europe/08moldova.html?pagewanted=
all. Both Sirbu and Prodan were arrested and taken to a
police station. While in police custody Sirbu was hit
frequently on the head until he lost consciousness.
Several other detainees died in custody after the protest
and arrests. The police transferred Sirbu and Prodan to
a police station in their hometown, and Sirbu was
treated at a medical clinic for a concussion. They left for
the United States later in April 2009.
  After their departure from Moldova, Sirbu said, the
police went to his parents’ home and told them he was
on a “black list.” At the removal hearing Sirbu testified
that he still feared returning to Moldova because many
Communists still held positions of power even though
opposition parties had won a narrow victory in new
elections in July 2009 prompted by the April protests.2



2
  See Communists Lose in Moldova Vote, NY Times (July 30,
2009), http://www.nytimes.com/2009/07/31/world/europe/
31moldova.html?scp=16&sq=&st=nyt. Four opposition parties
formed a new majority coalition that continues to govern
Moldova. See CIA World Factbook, available at https://
w w w . c i a .g o v /l i b r a r y / p u b l i c a t i o n s / t h e - w o r l d - f a c t b o o k /
geos/md.html (last visited May 16, 2013).
No. 12-2320                                              5

  The immigration judge denied Sirbu’s application
for asylum. The judge explained: “After careful consider-
ation of the record in its entirety, and considering all
the incidents in the aggregate, [Sirbu’s] facts do not
compel a finding that he suffered past persecution.” App. 9
(emphasis added). According to the immigration judge,
Sirbu’s detentions were brief, he reported a physical
injury resulting from only one of them (when he
was beaten unconscious in April 2009), and after
each incident he was able to pursue his anti-Communist
political activities. Nor did Sirbu show a well-founded
fear of future persecution, the judge concluded, because
he did not corroborate his assertion about being on a
police black list, the July 2009 elections had unseated
the Communist Party president, and opposition parties
had formed a strong coalition. Because Sirbu was
ineligible for asylum, the judge concluded, he also
failed to meet the higher standards for withholding of
removal or Convention Against Torture protection.
  The Board agreed with the immigration judge that
Sirbu had “not met his burden of proof to establish that
he suffered past persecution” and dismissed Sirbu’s
appeal. In reaching this conclusion, the Board cited our
decision in Stanojkova v. Holder, 645 F.3d 943, 948
(7th Cir. 2011), for the proposition that persecution in-
volves “the use of significant physical force against a
person’s body, or the infliction of comparable physical
harm without direct application of force . . . or non-
physical harm of equal gravity.” The Board acknowledged
that Sirbu had been beaten but noted he had sought
medical treatment only once. In an important passage,
6                                             No. 12-2320

the Board acknowledged that an applicant for asylum
need not prove “serious injuries,” citing Asani v. INS,
154 F.3d 719, 722-24 (7th Cir. 1998), but found that
Sirbu’s abuse did not rise to the level suffered in Asani.
The Board found, instead, that the abuse of Sirbu was
more comparable to the abuse in Dandan v. Ashcroft,
339 F.3d 567, 573-74 (7th Cir. 2003), which the Board
described as having upheld a finding of no past persecu-
tion where the applicant had been detained for three
days without food or water and had been beaten.
The Board did not address the issue of fear of future
persecution, including whether, if past persecution
had been shown, the government had shown political
changes in Moldova sufficient to rebut the inference
of reasonable fear of future persecution.


II. Discussion
   In his petition for judicial review, Sirbu argues that
the Board erred in concluding that he failed to estab-
lish that he suffered past persecution. He believes
that his testimony and the documentary evidence show
that he was persecuted for being politically active and
for expressing his anti-Communist opinions and that
he reasonably fears persecution if he were returned
to Moldova.
   Where the Board has agreed with the immigration
judge’s decision and supplemented that opinion with
its own observations, as it did here, we review both
decisions. See Sarhan v. Holder, 658 F.3d 649, 653 (7th
No. 12-2320                                           7

Cir. 2011). We have reviewed both decisions and
Sirbu’s evidence.
  The immigration judge made a clear legal error by
concluding that the “facts do not compel a finding
that he suffered past persecution.” As the government
acknowledged in the oral argument, whether the facts
compel a finding of past persecution is the standard
for judicial review, not for the immigration judge in
the first instance. We expect the immigration judge and
the Board to exercise their independent judgment
and expertise in deciding whether the abuse of an appli-
cant for asylum rose to the level of persecution.
  The Board appears to have repeated the immigra-
tion judge’s legal error. Though the Board did not say
explicitly that the facts would not compel a finding of
past persecution, the Board distinguished on factual
grounds a case in which we had reversed a finding of
no past persecution and held that the facts were indeed
so powerful as to “compel” a finding of past persecu-
tion. App. 24, citing Asani, 154 F.3d at 722-24. The
Board then found guidance from our decision in
Dandan in which we held that the abuse of the petitioner
in police custody was not so severe as to “compel” a
finding of past persecution. App. 24, citing Dandan, 339
F.3d at 573-74. The Board also did not acknowledge
the immigration judge’s legal error. The combination of
the immigration judge’s application of the wrong
standard, the Board’s failure to note the error, and the
Board’s citations to Asani and Dandan persuades us
that the Board applied the wrong legal standard.
8                                              No. 12-2320

   The proper issue for the immigration judge and the
Board is whether the applicant has actually shown past
persecution, not whether the evidence compels a finding
of past persecution. The difference may seem subtle, but
it is actually vital in administering the law of asylum.
Whether the facts compel a particular finding is a matter
for appellate courts to determine in our deferential
review of the Board’s decisions. See INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992); Bueso-Avila v. Holder, 663 F.3d
934, 937 (7th Cir. 2011); Matter of E-R-M-F- & A-S-M-, 25
I. & N. Dec. 580, 587 n.8 (BIA 2011). Our standard of
review for factual questions is substantial evidence:
“the agency’s determination will stand if it is supported
by reasonable, substantial, and probative evidence on
the record considered as a whole.” Vahora v. Holder,
626 F.3d 907, 912 (7th Cir. 2010); see Elias-Zacarias, 502
U.S. at 481.
  We defer to the immigration judges and the Board
because we expect them to exercise their expertise and
judgment in the difficult cases. In cases like this one,
though, where the Board and the immigration judge
misread our decisions denying review because the evi-
dence did not compel a finding of persecution as
holding that the evidence either did not or could not
support a finding of persecution, the proper roles of
agency and reviewing court have been reversed.
  That has happened too often. As we explained in
Stanojkova v. Holder, the Board’s regulations and deci-
sions do not provide a useful definition of persecution,
and the Board seems to have abandoned this difficult
No. 12-2320                                                     9

responsibility to the courts. 645 F.3d 943, 948-49 (7th
Cir. 2011), citing Sahi v. Gonzales, 416 F.3d 587, 588-89
(7th Cir. 2005), and Gomes v. Gonzales, 473 F.3d 746, 753-
54 (7th Cir. 2007).
  Our cases reviewing denials of asylum can read like
grim exercises in measuring the precise extent of
human cruelty and misery. We try to distinguish
between harassment and persecution, “between the
nasty and the barbaric.” Stanojkova, 645 F.3d at 948.
How many times was the victim beaten? How severe
were the beatings? Were bones broken? Did the victim
lose consciousness? How many teeth were knocked
out? Were there permanent injuries or scarring? How
serious were the threats, and how cruelly were they
communicated? That grim accounting cannot be
avoided. Because of the deferential standard of review,
our job in these cases is ordinarily to decide whether
the evidence would compel any reasonable trier of
fact to find that prior abuse of the petitioners amounted
to persecution within the meaning of the law.3


3
  Our cases illustrate this fine parsing of misery and cruelty.
For cases reversing findings of no past persecution, see, e.g.,
Stanojkova, 645 F.3d at 947-48 (paramilitary police invaded
home, beat applicant and held gun to his head, sexually
fondled his wife, and robbed the couple); Vladimirova v. Ash-
croft, 377 F.3d 690, 692 (7th Cir. 2004) (one beating caused mis-
carriage, and applicant suffered two other physical assaults and
detentions and was threatened with sexual assault); Bace v.
Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003) (applicant was
                                                    (continued...)
10                                                  No. 12-2320




3
   (...continued)
beaten on four occasions, his face was cut with a razor, and
he was forced to watch his wife being raped); Begzatowski v.
INS, 278 F.3d 665, 670 (7th Cir. 2002) (ethnic Albanian soldiers
in Serbian army were forced into battle as human shields
without ammunition and tools needed for survival); Asani,
154 F.3d at 721 (applicant was detained in cell for two weeks
with only enough room to stand handcuffed to radiator,
was given one slice of bread and one glass of water a day, lost
his job, and was later detained again and beaten, losing
two teeth). Compare those to the following cases affirming
findings of no past persecution: Nzeve v. Holder, 582 F.3d 678,
683-84 (7th Cir. 2009) (applicant suffered blisters and bruises
and was threatened with death); Mema v. Gonzales, 474 F.3d
412, 416-18 (7th Cir. 2007) (applicant was beaten unconscious
while in detention, but denial of asylum was reversed for
failure to address fear of future persecution); Bejko v. Gonzales,
468 F.3d 482, 485 (7th Cir. 2006) (applicant was detained
twice, once for two weeks in primitive conditions without
enough food and water, but without need for medical treat-
ment, and applicant was threatened that house would be
blown up); Zhu v. Gonzales, 465 F.3d 316, 319 (7th Cir. 2006)
(one beating with head injury requiring stitches); Prela v.
Ashcroft, 394 F.3d 515, 518 (7th Cir. 2005) (applicant was inter-
rogated, searched, and detained for 24 hours, arrested, and
threatened with unspecified injury); Dandan, 339 F.3d at 573-74
(applicant was detained for three days without food, interro-
gated, and beaten resulting in a swollen face); Yadegar-Sargis
v. INS, 297 F.3d 596, 602 (7th Cir. 2002) (harassment and hard-
ship did not show persecution; applicant had not been
detained or physically assaulted); Skalak v. INS, 944 F.2d 364,
                                                    (continued...)
No. 12-2320                                                11

  In the close cases, where a reasonable trier of fact
could make a decision either way, we should be able to
defer to the judgment of the immigration judges and
the Board. But the immigration judges and the Board
turn the system upside down if they use our defer-
ential decisions as setting new, lower floors for
human cruelty than our immigration law says must be
tolerated without granting asylum. That is what has
happened in this case. It was a reversible error of law
and the case must be remanded.
  We express no opinion at this time on whether the
incidents Sirbu described are severe enough to compel a
finding of past persecution. On remand, though, the
Board will need to consider all the evidence of persecu-
tion and in particular will need to address the sig-
nificance of Sirbu’s testimony that he was beaten to
the point of losing consciousness and suffering a con-
cussion while in police custody. We are confident that
this evidence is more than sufficient to support a finding
of past persecution. See Stanojkova, 645 F.3d at 948 (use
of significant physical force against a person’s body is
persecution); Bevc v. INS, 47 F.3d 907, 910 (7th Cir. 1995)
(applicant for asylum must show “specific, detailed facts
supporting the reasonableness of her fear that she will
be singled out for persecution”).


3
  (...continued)
365 (7th Cir. 1991) (applicant was jailed twice for three days
and interrogated about political activity); Zalega v. INS, 916
F.2d 1257, 1260 (7th Cir. 1990) (applicant was detained and
interrogated several times and suffered economic losses but
was not physically abused).
12                                           No. 12-2320

  If the Board concludes that Sirbu has demonstrated
past persecution, the burden will shift to the govern-
ment to prove that changed circumstances mean that
Sirbu’s fear of persecution in Moldova is no longer well-
founded. See 8 C.F.R. § 208.13(b)(1)(ii). The Board did
not address that issue, and we also do not address it
at this stage. We G RANT the petition for review and
R EMAND the case for further proceedings consistent
with this opinion.




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