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Date: 19.09.2017

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Reset A A Font size: Tatsiana Boika, a Belarusian citizen, entered the United States legally in May but overstayed her authorized stay. At her removal proceedings, she conceded removability but applied for asylum under 8 U.

Based on past persecution for her political involvement in Belarus, principally between and , Boika claimed that she could establish a well-founded fear of future persecution upon return to Belarus.

An immigration judge IJ denied her asylum application due in large part to an adverse credibility finding after two hearings in which Boika could not satisfactorily explain inconsistencies in her testimony and corroborating documents. Boika then moved to reopen based on materially changed country conditions. These abuses were serious enough that the United States and the European Union imposed new sanctions on the Belarusian government in February Boika also submitted new corroborating evidence that she has been active in the Belarusian opposition movement while she has been in the United States.

That evidence needs a fresh look. Motions to Reopen Motions to reopen removal proceedings must be filed within 90 days of the final order, subject to several exceptions. Boika filed her motion to reopen long after the 90鈥攄ay deadline expired. To excuse her delay, she relied on an exception based on changed country conditions that materially affect her eligibility for relief. Any motion to reopen, regardless of timing, can be denied properly if: Xiao Jun Liang, F.

To constitute a change in country conditions, the conditions must have done more than simply worsen cumulatively. That does not mean that the conditions before and after the motion to reopen will not be related or connected.

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Evaluating gradations of human misery can be a daunting task. Where significant human rights abuses previously existed, perhaps all changes could be understood as a cumulative worsening, but differences in degree matter. Some situations present conditions so grave that a new threshold has been met. Credible international sources reported that the election was not fair and that the results were not reliable. The violent crackdown on the political opposition after the presidential elections is the materially changed country condition that Boika relies upon to justify her motion to reopen.

PostElection Crackdown in Belarus, at 1, March , available at www. The violence and oppression were not limited to election night.

The Belarusian government continued rounding up and arresting opposition members at least six weeks after the elections.

Reports of this oppressive, anti-democratic behavior targeting opposition groups continued through June , when Boika filed her motion to reopen. The clearest indication that conditions materially worsened in Belarus after the election came in the form of the United States and European Union reactions to the events.

In February , the United States and the European Union imposed sanctions on President Lukashenko and other Belarusian politicians, prohibiting them from entering the United States or the European Union and freezing all assets belonging to them in the United States and the European Union.

Both the European Union and the United States had previously imposed some sanctions in , but the European Union had lifted them.

After the election, however, the European Union imposed sanctions on Belarus, while the United States greatly tightened the earlier sanctions. We have previously found that even more detailed Board decisions provided so little explanation that we could not properly exercise judicial review. The Board did not appropriately explain why it rejected her evidence of changed country conditions. But the Department of Justice cannot be permitted to defeat judicial review by refusing to staff the Immigration Court and the Board of Immigration Appeals with enough judicial officers to provide reasoned decisions.

A person has a well-founded fear of persecution if a reasonable person in the same position would fear persecution.

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To demonstrate her current membership in the political opposition group being persecuted in Belarus, Boika presented her own testimony and an affidavit signed by the president of the Belarusian鈥擜merican Association Inc. Boika testified to her regular involvement and presented pictures of her active participation in the group protests and other events in New York. While the government questions the authenticity of these documents in its brief and at oral argument, the Board did not opine on the issue and therefore we do not either.

Those are matters for a hearing on remand. On the basis of this evidence as well as the new crackdown in Belarus itself, Boika argued that she had a reasonable fear of future persecution. This statement was not complete or correct. Boika does not have to show that she has been or will be personally targeted upon removal. Boika offered evidence that she belonged to the opposition movement that has suffered severe human rights abuses since the election. Her application detailed three incidents in which she claimed she was arrested and beaten badly enough to require medical attention, all because of her political participation in the opposition movement in Belarus.

In light of the deferential review we give to cogent credibility findings, e. We are not suggesting that the Board was required to forget the prior credibility finding, but the Board needed to engage with the new evidence. Moreover, the difficulties that aliens seeking asylum often face in obtaining corroborating evidence can sometimes mean that an earlier adverse finding may have been reasonable on the available record but wrong in an objective sense.

This argument is not persuasive. The factual predicates are distinct here: Boika first claimed asylum based on her pre鈥 political activity in Belarus, which the IJ discredited.

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She now claims asylum based on her political activity in the United States鈥攁 claim that has not been and could not be discredited without an evidentiary hearing鈥攁s well as the crackdown in Belarus after the election. The same concerns apply with equal force here.

Such a conclusion would almost certainly be an abuse of discretion if the petitioner were not afforded an evidentiary hearing first. All websites cited in this opinion were last visited on August 16,