Mihaylov v. John Ashcroft , 379 F.3d 15 ( 2004 )

United States Court of Appeals
For the First Circuit
No. 03-1575
STEFAN ANTONOV MIHAYLOV; and LUDMILA GEORGEVA NAYDENOVA,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Lynch, and Lipez, Circuit Judges.
Peter Darvin for appellant.
Hillel R. Smith, Attorney, Office of Immigration Litigation,
with whom Peter D. Keisler, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, were on brief, for appellee.
August 17, 2004
LIPEZ, Circuit Judge. Petitioner Stefan Antonov
Mihaylov, a native and citizen of Bulgaria, seeks review of the
decision of the Board of Immigration Appeals (BIA) denying his
application for asylum. Petitioner Ludmila Georgeva Naydenova is
a derivative asylum applicant.1 Mihaylov argues that the evidence
presented below compels a conclusion that he was persecuted in the
past on account of his political opinion and is therefore entitled
to a statutory presumption of a well-founded fear of future
persecution. He further claims that the evidence of changed
circumstances offered by the government is insufficient to overcome
that presumption and that he is therefore eligible for asylum.
Ordinarily, we review the BIA's decision under our
deferential "substantial evidence" standard, upholding that
decision if it is "supported by reasonable, substantial, and
probative evidence on the record considered as a whole." INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). In this case, however,
we are unable to conduct a proper substantial evidence review of
the BIA's decision because neither the BIA nor the Immigration
Judge explained with adequate clarity and particularity the grounds
1
Naydenova, Mihaylov's wife, is included in the asylum
petition based on Mihaylov's experiences. While this opinion
refers primarily to petitioner Mihaylov, the decision rendered
applies to both petitioners. See 8 U.S.C. § 1158(b)(3)(A).
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for rejecting Mihaylov's past persecution claim. In light of this
legally insufficient explanation, see Gailius v. INS, 147 F.3d 34,
44 (1st Cir. 1998), we vacate the BIA's order and remand the case
for further proceedings consistent with this opinion.
I.
In July 1992, petitioners Stefan Antonov Mihaylov and
Ludmila Georgeva Naydenova entered the United States without
inspection. The petitioners applied for asylum and withholding of
removal on May 7, 1993. The Immigration and Nationality Service
hearing officer determined that they were ineligible for asylum and
withholding, and referred their case to the Immigration Judge.
Approximately five years later, on January 27, 1999, the INS issued
Mihaylov and Naydenova notices to appear, charging them with
unlawful presence in the United States in violation of section
212(a)(6)(A)(i) of the Immigration and Nationality Act (INA). The
petitioners conceded the charge but renewed their request for
asylum and withholding of removal. They also submitted a petition
for relief under the Convention Against Torture (CAT), and
requested voluntary departure in the event that removal was
necessary.2 On August 4, 2000, after hearing testimony on the
merits of the petitioners' claims, the Immigration Judge denied
their applications and entered an order of removal to Bulgaria.
2
Mihaylov does not appeal the IJ's decision regarding his
claims for withholding of removal, relief under the CAT, and
voluntary departure.
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The BIA issued a summary affirmance without opinion on March 28,
2003.3 See 8 C.F.R. § 1003.1(a)(7). This petition followed.
II.
We summarize the evidence that Mihaylov presented to the
IJ and then discuss the IJ's evaluation of that evidence. Stefan
Mihaylov was born in 1962 in Sofia, Bulgaria. Mihaylov's father
was a member of the communist party, but his maternal grandfather,
Stefan Todorov Georgiev, was an outspoken critic of Bulgaria's
communist regime. In 1954, the government arrested Georgiev on
fabricated murder charges in retaliation for his political
activities, and sentenced him to twelve years in prison. As a
result of Georgiev's conviction and sentence, Mihaylov and the
other members of his family were stigmatized as anti-communist
dissidents and enemies of the Bulgarian government.
By the time that he was thirteen years old, Mihaylov
began to have trouble with the communist authorities. In his last
year of elementary school, he spoke out against the Communist Youth
League (DKMS), which all secondary school students were expected to
join. Because of his opposition to the DKMS, Mihaylov received low
conduct grades, which precluded him from attending his choice of
secondary school. In 1977, the district superintendent of schools
ordered Mihaylov to meet with him throughout the year for political
3
Where, as here, the BIA summarily affirms the decision of
the IJ, we review the decision of the IJ. Quevedo v. Ashcroft, 336
F.3d 39, 43 (1st Cir. 2003).
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education lessons. During those sessions, the school official
frequently struck Mihaylov and threatened to send him to reform
school if he did not cooperate.
On April 17, 1978, when Mihaylov was fifteen years old, a
uniformed policeman appeared at the door of his family's apartment
and demanded that Mihaylov accompany him to the police station.
Without notifying Mihaylov's parents, the policeman took Mihaylov
to an unfamiliar detention facility where he was locked up in a
small, windowless cell. The cell contained only a bed, a bucket
for a toilet, and a lightbulb which stayed on 24 hours a day. On
the day of his detention, Mihaylov suffered a loss of consciousness
and subsequently lost control of his bodily functions. The prison
guard refused to allow him to bathe or clean his soiled clothes and
denied his request to see a doctor. Mihaylov was later
interrogated by two officials who riduculed him for smelling badly,
humiliated him, and compared him to his grandfather. They asked
Mihaylov where he had been on certain dates, whether he knew
certain people, and whether he was a member of a political group.
When his answers did not satisfy them, the officials struck
Mihaylov with clubs or their fists on his legs, back, arms, and
face.
Mihaylov was detained for six or seven days. During that
time, he was interrogated and beaten frequently and was not allowed
to wash or change his clothes. On two occasions, he was denied
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access to a toilet. Mihaylov again requested to see a doctor, and
again that request was refused. On April 24, Mihaylov was ordered
to sign a document stating that he had not been harmed, beaten, or
subjected to force in any way while in custody, and that he had
been held only for interrogation. He was then taken by van to a
local Sofia police station and was released.
In the weeks following his detention, Mihaylov's physical
condition deteriorated. He began to lose sensitivity through the
lower part of his body and eventually was unable to walk. He was
diagnosed with acute inflammation of the nerves of his spinal cord
and spent a month in the hospital and three more months in a
rehabilitation center. He eventually regained his ability to walk
with a cane, but remained permanently disabled.
In the years following his arrest, Mihaylov was
frequently harassed by government officials He was arrested more
than ten times for minor "offenses" such as wearing long hair, blue
jeans, and a crucifix; ordered to pay fines because of his
appearance; and forced to sign an agreement to stay away from
downtown Sofia. On one occasion, Mihaylov was arrested and
detained on suspicion of dealing in foreign currency.
In 1989, Mihaylov was detained by a government security
agent, Hristo Rachev, who questioned him about his visits to the
United States Embassy and referred to Mihaylov's prior detentions.
Rachev threatened to have Mihaylov imprisoned on false charges if
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he did not agree to become a government informant. Mihaylov
reluctantly agreed, and he met with Rachev about 30 times over the
next year. During those meetings Rachev asked Mihaylov to identify
pictures of individuals and to provide information about political
activities and specific people. Mihaylov grew increasingly afraid
for his safety. On January 30, 1990, he fled Bulgaria with
Naydenova, who was by then his wife, and traveled to Canada. He
applied for asylum, but that application was denied. Mihaylov and
Naydenova then entered the United States on July 12, 1992.
In her supporting testimony, Naydenova stated that after
she began to live with Mihaylov, she was repeatedly warned by
security officials and threatened with the loss of her job at the
Ministry of Culture if she continued to associate with him because
he was from a "bad family." She explained that both her family and
Mihaylov's were anti-communist and were mistreated by the communist
party, and noted that being anti-communist was like a "sticker" on
one's back that follows you for the rest of your life. She
described an unsettling phone call to her home in which a man
demanded to know where Mihaylov was and ordered her to tell him
that "his friend Hristo Rachev called." When Naydenova gave her
husband the message, he began shaking uncontrollably. Later that
year, Mihaylov and Naydenova were rounded up as part of a mass
detention in a particular section of town. Naydenova explained
that she and her husband were pulled out of a group at the police
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station and ushered into an office, where she was introduced to
Rachev, whose name and voice she recognized. Mihaylov and Rachev
engaged in a furtive conversation, and the couple was subsequently
released.
Mihaylov also submitted numerous documentary sources in
support of his past persecution claim. Those sources included the
State Department's 1989 Country Report on Human Rights Practices
for Bulgaria, which described the harsh repression and widespread
human rights abuses of Bulgaria's communist regime prior to its
collapse in November 1989, including arbitrary arrest and
detention, cruel and unusual treatment and punishment of prisoners,
and "prison deaths caused by torture and beatings." Bulgarian laws
"provide[d] severe punishment for the voicing of any belief or
conviction which [was] contrary to official policy or critical of
the State," and "Bulgarians were detained, tried, imprisoned, and
exiled for criticism and actions that were political in nature."
The report described "the internal security forces which monitored
the 'ideological' activities of citizens" and "directed an
elaborate system of informers in virtually all workplaces,
residential areas, and social organizations to monitor the daily
lives of Bulgarians for signs of dissent." Besides the State
Department report, the record contains at least sixteen additional
documents including a Radio Free Europe report on Bulgaria,
scholarly works, and newspaper articles – all of which discuss the
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Bulgarian Communist regime's persecution of political dissidents.
Mihaylov also submitted an affidavit from his mother, and the jail
and character records of his grandfather, which described his
grandfather's problems with the communist government and his
family's reputation as enemies of the regime.
In a written opinion that included an extensive, twenty-
page summary of the applicable record evidence but only two pages
of legal analysis, the IJ denied Mihaylov's request for asylum and
withholding of removal, concluding that he had failed to establish
past persecution or a well-founded fear of future persecution on
account of his political opinion or membership in a social group.4
She explained that Mihaylov "did not establish that the cause of
his mistreatment by the former Bulgarian authorities was his or his
family's political opinion" or his membership in a social group.
With respect to his fear of future persecution, the IJ noted that
the communist regime in Bulgaria collapsed in 1989, citing the
State Department country reports for Bulgaria for 1997 and 1999.
She stated that Mihaylov "failed to offer any evidence that any
government agent or other militia member still has any inclination
to punish him for his political belief." The IJ further found that
Mihaylov "failed to meet his burden in establishing a well-founded
fear of future persecution on account of his social group
persecution as a family member." (emphasis in the original).
4
Mihaylov does not argue on appeal that he was persecuted on
account of his membership in a social group.
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Although the IJ accepted Mihaylov's account of past
events, she stated, without elaboration, that "the Court [found]
his reasons for the occurrence of th[o]se events not to be
credible." She was also troubled by Mihaylov's testimony
concerning his use of alcohol, referring to it throughout her
opinion and explaining that
[Mihaylov] presented testimony that must be viewed
through the veil of alcoholism, use of other drugs such
as Valium, and major depression with anxiety attacks. He
repeatedly minimized his use of Valium before this Court
when compared with information he gave to Doctor Rines
and the female respondent's observations. Further, the
amount of alcohol he reported he consumed daily varied
widely in amount in his testimony to the Court and in his
report to his doctors. The male and female respondents'
testimonies concerning the male respondent's drinking
were also at variance. The Court notes the oft quoted
aphorism that alcoholism is "a disease of denial." The
Court, nonetheless, must take his less than forthright
report to this Court concerning his addiction to inform
his testimony overall.
The IJ also denied Mihaylov's requests for protection under the CAT
and for voluntary departure. Mihaylov appealed the IJ's decision
to the BIA, which summarily affirmed without opinion.
III.
We have emphasized the need for clear administrative
findings in reviewing the decision of the IJ or BIA. Gailius, 147
F.3d at 46-47. "A reviewing court should judge the action of [the
BIA] based only on reasoning provided by the agency, not based on
grounds constructed by the reviewing court," Yatskin v. INS, 255
F.3d 5, 9 (1st Cir. 2001), and "that basis must be set forth with
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such clarity as to be understandable," Gailius, 147 F.3d at 46-47.
Likewise, "in the case of an adverse credibility determination, the
IJ must offer a specific, cogent reason for [her] disbelief." Qin
v. Ashcroft, 360 F.3d 302, 306 (1st Cir. 2004) (citation and
internal quotations omitted). Thus, we will remand if the agency
fails to state "with sufficient particularity and clarity the
reasons for denial of asylum" or otherwise to "offer legally
sufficient reasons for its decision." Gailius, 147 F.3d at 46-47.
An asylum applicant bears the burden of establishing that
he or she meets the statutory definition of a refugee and is
therefore eligible for asylum. 8 C.F.R. § 208.13(a). Applicants
may meet this burden in one of two ways. First, an applicant
qualifies as a refugee if he or she demonstrates a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8
C.F.R. § 208.13(b); El Moraghy v. Ashcroft, 331 F.3d 195, 202-03
(1st Cir. 2003). Alternatively, the applicant is entitled to a
presumption of a well-founded fear of persecution if he or she
establishes past persecution on account of one of the five
statutory grounds. 8 C.F.R. § 208.13(b)(1); Yatskin, 255 F.3d at
9.
In the present case, the IJ did not reject Mihaylov's
claim that he was persecuted. Rather, she concluded that he failed
to demonstrate that the persecution was on account of his political
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opinion. She offered only one specific reason in support of this
ruling, stating that Mihaylov admitted that he may have been
detained in 1972 for an ordinary crime rather than for his
political opinion:
[A]lthough the male respondent claims he was initially
detained because he was targeted for his political
opinion, he later admitted that the police searched the
family's home and that there may have been a criminal
matter involved. In such a case, the police would have
been within their authority to detain a suspect . . . .
We do not agree that Mihaylov "later admit[ted]" in the
course of his testimony that he may have been detained on suspicion
of having committed a non-political crime. Rather, his testimony
consistently conveyed his belief that he was detained because of
his political opinion. During cross examination, the INS attorney
questioned Mihaylov about a potential discrepancy between his
testimony and what he told the asylum officer during his initial
interview in 1998 about whether he was arrested for a crime or for
his political opinion. Although Mihaylov acknowledged that he had
told the asylum officer that he was detained because he was
suspected of criminal activities, he explained that "in Bulgaria
both the political and criminal activities are being called
criminal activities."5 Hence, the IJ's finding that Mihaylov
5
Mihaylov's explanation was supported by the State
Department's 1989 Country Report on Human Rights Practices for
Bulgaria, which Mihaylov submitted in support of his asylum
application. That report stated that many forms of political
dissent were then characterized as crimes under the Bulgarian Penal
Code, which prohibited "crimes against the People's Republic, anti-
state agitation and propaganda, slander against the State,
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admitted that he may have been detained for a crime relies on a
mischaracterization of the evidence and does not provide a
legitimate basis for her rejection of his claim of past
persecution.
Aside from this unsupportable finding of a discrepancy in
Mihaylov's testimony as to the motivation for his detention, the IJ
offered no specific reasoning in support of her conclusion that
Mihaylov failed to prove that his persecution was on account of his
political opinion. That void is particularly troubling in light of
the considerable evidence of political persecution that we have
summarized above. Although the IJ described Mihaylov's testimonial
evidence at some length at the beginning of her opinion, she failed
to relate that evidence to her rejection of Mihaylov's past
persecution claim. Mihaylov's documentary evidence received even
less consideration; while the IJ briefly noted that "[t]he Court
received the Amended I-589 and Supporting Documents into evidence,"
her opinion did not discuss any of the documents submitted with
Mihaylov's asylum application, many of which related to the
connection between his past persecution and political opinion.
Although an IJ need not discuss every piece of evidence produced by
an asylum applicant, she must give reasoned consideration to the
petition and may not ignore substantial testimonial and documentary
spreading untrue allegations about the Government, and committing
acts that create distrust toward the Government." (internal
quotations omitted).
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evidence. See Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000).
Mihaylov's evidence of past persecution was substantial and
important, and the IJ's silence about it does little to assure us
that it was considered. If Mihaylov's testimony and supporting
documentary evidence are true, he may well have suffered
persecution in the past on account of his political opinion.
The IJ also made an odd credibility finding.
Specifically, the IJ found that while Mihaylov "provided a
consistent, basic skeletal outline of events, including his
detention at age 15, and other encounters, the Court finds his
reasons for the occurrence of these events not to be credible."
(emphasis added). This finding seems to rest on the premise that
Mihaylov's assertion that he was persecuted because of his
political opinion is itself an evidentiary fact to be credited or
discredited. Yet Mihaylov does not claim to have personal
knowledge of his persecutors' motives, nor does his theory about
those motives constitute a fact from which the IJ could infer that
Mihaylov was persecuted because of his political opinion. Hence,
the relevant question is not whether Mihaylov's proffered reasons
for his persecution are credible but whether he has provided "some
evidence . . . , direct or circumstantial" that his persecutors
were motivated, at least in part, by his political opinion.6
6
Here, as is usual in asylum cases, there is no direct
evidence as to why Mihaylov was detained, beaten, harassed, and
forcibly recruited as an informer. Therefore, the IJ should have
considered whether the objective facts in the record created a
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Elias-Zacarias, 502 U.S. at 483 (emphasis in the original).
Therefore, the IJ's adverse credibility finding was misplaced.
Finally, and relatedly, the IJ's opinion is suffused with
suggestions that Mihaylov's present use of alcohol and
inconsistencies in his testimony concerning that use undermined his
credibility as a general matter. Yet, there is no evidence in the
record, expert or otherwise, that Mihaylov was an alcoholic, nor
did the IJ explain what bearing Mihaylov's alcohol use could have
had on the legal issues. Some of the IJ's observations appear to
relate to Mihaylov's competence to testify rather than his
credibility, notwithstanding that she expressly found that he was
a competent witness.7 Other statements note discrepancies between
Mihaylov's testimony concerning his daily alcohol consumption and
the testimony of his wife and doctors, without explaining how those
discrepancies bear any legitimate relationship to Mihaylov's asylum
claim. See Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.
1999) (explaining that an adverse credibility determination "must
be based on discrepancies that involved the heart of the asylum
claim") (citation and internal quotations omitted). Ultimately,
it is impossible to avoid the conclusion that the IJ's legal
reasonable inference that Mihaylov was persecuted because of his
political opinion.
7
A "competent witness" is "a witness who is legally qualified
to testify" whereas a "credible witness" is "a witness whose
testimony is believable." Black's Law Dictionary 1596 (7th ed.
1999).
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conclusions were colored by her assumptions and personal views
about individuals who abuse drugs and alcohol. This suggestion of
a lack of impartiality further undermines our confidence in the
reasons given by the IJ in support of her finding that Mihaylov
failed to establish past persecution. See Cordero-Trejo v. INS, 40
F.3d 482, 487 (1st Cir. 1994) ("[D]eference is not due where
findings and conclusions are based on inferences or presumptions
that are not reasonably grounded in the record, viewed as a whole,
or are merely personal views of the immigration judge.").
Where, as here, the IJ's reasoning is inadequate to
support a finding of past persecution, we generally must remand to
the BIA. This is so because if Mihaylov did in fact establish past
persecution, he was entitled to a regulatory presumption of a well-
founded fear of future persecution. El Moraghy, 331 F.3d at 204-05
(citing 8 C.F.R. § 208.13(b)(1)). In that case, the burden should
have shifted to the government to refute that presumption by
establishing a fundamental change of circumstances such that
Mihaylov no longer has a well-founded fear of persecution. 8
C.F.R. § 208.13(b)(1)(i)(A). Here, the government never had to
face that burden.
The government suggests, however, that it met that burden
in any event by showing evidence of changed country conditions in
Bulgaria, namely that the former communist regime is no longer in
power. See Yatskin, 255 F.3d at 9-11 (excusing as harmless error
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the BIA's failure to provide a reasoned basis for rejecting
petitioner's past persecution claim where uncontested evidence of
changed country conditions overcame any presumption of a well-
founded fear). We do not agree that the record compels a
conclusion that changed country conditions obviated any presumptive
well-founded fear in Mihaylov's case. A regime change does not
necessarily eliminate the objective basis for an applicant's fear
of persecution at the hands of his former oppressors, even if those
individuals were part of the old regime. As the Seventh Circuit
recently explained, citing much of the same documentary evidence
provided by Mihaylov, "there is evidence that Bulgaria's former
communist bigwigs, quickly recycled as socialists and now busy
cosying up to the United States, retain significant power in
Bulgaria, especially and quite relevantly over the security
service, and continue to pursue the old vendettas against
anticommunists." Niam v. Ashcroft, 354 F.3d 652, 657 (7th Cir.
2004) (holding that regime change in Bulgaria did not establish
that asylum applicant who had been persecuted for his anti-
communist beliefs no longer had a well-founded fear of
persecution).
Thus, the IJ's failure to provide adequate reasons for
her rejection of Mihaylov's past persecution claim leaves us
without a sufficient basis to affirm the BIA's decision. Under
these circumstances, we remand to the BIA to determine whether
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Mihaylov's testimony and supporting evidence establishes past
persecution and hence a well-founded fear of future persecution on
account of his political opinion. See Gailius, 147 F.3d at 47(noting that remand is appropriate in the asylum context "when a
reviewing court cannot sustain the agency's decision because it has
failed to offer legally sufficient reasons for its decision").
IV.
The order of the BIA is vacated, and the case is remanded
to the BIA for further proceedings consistent with this opinion.
So ordered.
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