Vladimirova, Detelin v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-1852
DETELINA VLADIMIROVA, BISSER VLADIMIROVA
and MONIKA VLADIMIROVA,
Petitioners,
v.
JOHN D. ASHCROFT, Attorney General
of the United States of America,
Respondent.
____________
Petition for Review of Orders of the
Board of Immigration Appeals
Nos. A77-816-315, A77-816-316, A77-816-317
____________
ARGUED MAY 19, 2004—DECIDED JULY 26, 2004
____________
Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner Detelina Vladimirova, her
husband, Bisser, and their daughter, Monika, seek review of
a decision of the Board of Immigration Appeals (the “BIA”)
affirming the decision of the Immigration Judge (the “IJ”)
without opinion and denying their requests for asylum and
withholding of removal. Ms. Vladimirova argues that
“extraordinary circumstances” excused her failure to file an
2 No. 03-1852
application for asylum within one year of her arrival in the
United States. We lack jurisdiction to decide that question.
We conclude, however, that the IJ failed to consider prop-
erly Ms. Vladimirova’s request for withholding of removal.
Accordingly, for the reasons set forth in the following
opinion, we grant the Vladimirovas’ petition for review,
reverse the judgment of the BIA in part, and remand for
further consideration.
I
BACKGROUND
A. Facts
The Vladimirovas are natives and citizens of Bulgaria. Mr.
Vladimirova arrived in the United States in April 1997; Ms.
Vladimirova and their daughter followed in February 1998.
The Vladimirovas allegedly fled Bulgaria to escape the
persecution they experienced for practicing the Word of Life
religion, a form of Protestantism. Ms. Vladimirova peti-
tioned for asylum in April 1999, including both her husband
and their daughter in her petition.
The following account is taken from Ms. Vladimirova’s
petition for asylum. Ms. Vladimirova and her husband were
persecuted for practicing Word of Life from the time they
joined the church in 1996. In Bulgaria, all religious groups
must be registered with the government; Word of Life’s
registration had been denied in 1994. Therefore, at the time,
practicing the religion was illegal. Ms. Vladimirova’s Word
of Life group—consisting of herself, her husband, two other
individuals, and their pastor—met secretly either in their
homes or in remote rural areas. See A.R. 279.
In July 1996, Ms. Vladimirova’s Word of Life group was
conducting services in a remote mountainous region when
No. 03-1852 3
four police officers arrived. Ms. Vladimirova detailed that
the officers confiscated the worshipers’ bibles and Word of
Life pamphlets and called the worshipers “filthy sectarians.”
A.R. 286. The officers then handcuffed all five individuals
and took them to a police station, where Ms. Vladimirova
and her husband were imprisoned for two nights. During
the detention, Bulgarian authorities interrogated her and
“physically assaulted” her before releasing her on the third
day. A.R. 286. After this incident, the Word of Life group
did not meet again until September.
In December 1996, Ms. Vladimirova’s Word of Life group
was meeting at another member’s apartment when police
officers arrived at the door. As Ms. Vladimirova described
the situation in her application, the officers again seized the
members’ religious materials and searched the apartment
for more evidence of the resident’s affiliation with Word of
Life. The policemen took Ms. Vladimirova and her husband
to the police station. During her detention, the police
officers slapped her face and called her “vile names,” and
one officer threatened to sexually assault her. A.R. 286. After
two days, the officers released both her and her husband.
After the December 1996 incident, Ms. Vladimirova and
her husband decided to leave the country. Mr. Vladimirova
left alone in April 1997, while Ms. Vladimirova remained in
Bulgaria because she and her daughter had not yet obtained
visas. In her asylum application, Ms. Vladimirova stated
that she experienced difficulty with the police again in May
1997. This time, she alleged, police officers arrived at her
apartment; the officers slapped her and one of them, not
realizing that she was pregnant, hit her in the abdomen with
a club, causing a miscarriage. A.R. 287. The officers then left
her apartment. As a result of the miscarriage, Ms.
Vladimirova related in her petition, she “became very de-
pressed” and at times “did not want to go on living.”
A.R. 287.
4 No. 03-1852
B. Administrative Proceedings
The Vladimirovas were placed in removal proceedings in
August 1999. At the hearing before the IJ in March 2000, Ms.
Vladimirova testified to the facts that we have set forth. She
also testified about her fears of what would happen if she
were forced to return to Bulgaria. Ms. Vladimirova stated
that, although she had not maintained contact with the
members of her Word of Life group, other individuals
practiced Word of Life in similarly small groups throughout
Bulgaria. Ms. Vladimirova explained that, if she returned to
Bulgaria, she would attempt to locate a different group with
whom she could continue to practice her faith. In response
to questioning by the IJ, Ms. Vladimirova explained that, if
she returned to Bulgaria, she could not avoid harassment
simply by moving to a different area of the country because
Bulgarians are required to register their address with the
police within forty-eight hours of an address change.
At the hearing, the Government’s attorney sought further
information about Ms. Vladimirova’s current religious
practice. Ms. Vladimirova stated that, in the United States,
she and her family attended the First Baptist Church. Ms.
Vladimirova explained that she could not find a Word of
Life church in Illinois and that the Baptist church was
similar to the Word of Life church.
After hearing the testimony and reviewing the submitted
documentation, the IJ concluded that Ms. Vladimirova had
not shown extraordinary circumstances sufficient to excuse
her failure to petition for asylum within one year of her ar-
rival in the United States. Nevertheless, the IJ considered
Ms. Vladimirova’s asylum claim. The IJ did not credit
explicitly Ms. Vladimirova’s testimony about the harass-
ment she experienced in Bulgaria, but he implicitly did so,
stating that Ms. Vladimirova had been “mistreated” by the
Bulgarian authorities but concluding that the harassment
No. 03-1852 5
had not risen to the level of persecution required to be
eligible for asylum under 8 U.S.C. § 1101(a)(42)(A). A.R. 86.
The IJ reasoned that persecution is “generally considered to
be a threat to the life or freedom of the victim,” and that Ms.
Vladimirova’s “mistreatment” had not threatened her life or
freedom. A.R. 85-86.
The IJ relied upon three cases to support his conclusion
that the harassment Ms. Vladimirova suffered was insuffi-
cient to establish a claim of asylum. He relied upon our
opinion in Zalega v. INS, 916 F.2d 1257 (7th Cir. 1990), for
the proposition that there is no persecution if a petitioner is
“held only briefly and detained and then released, and
never . . . formally charged for any crime and not mistreated
during his incarceration.” A.R. 85-86. The IJ also referenced
the BIA’s opinion in Matter of Chen, 20 I. & N. Dec. 16 (BIA
1989), contrasting the “prolonged mistreatment” the
petitioner in that case suffered for his religious beliefs with
the absence of any “severe” mistreatment in the present case.
A.R. 86. Finally, the IJ discussed our opinion in Asani v. INS,
154 F.3d 719 (7th Cir. 1998), and concluded that in Asani the
petitioner had suffered a “higher” level of mistreatment than
Ms. Vladimirova because he was “chained to a radiator and
his teeth were knocked out.” A.R. 86. The IJ characterized
Asani as holding that the petitioner did not “experience[ ]
past persecution, but that the mistreatment at least should
have been considered in assessing whether there was any
reasonable possibility of future mistreatment.” A.R. 86. Since
the petitioner in Asani had not suffered past persecution, the
IJ concluded, neither had Ms. Vladimirova.
The IJ went on to decide that, even if Ms. Vladimirova had
shown past persecution, her asylum claim would still fail
because she had no reason to fear further mistreatment upon
returning to Bulgaria. After reviewing the 2000 Department
of State Report on International Religious Freedom in
6 No. 03-1852
Bulgaria, the IJ noted that the Bulgarian government
supported the Eastern Orthodox Church but permitted
many other groups, including Roman Catholics, Jews and
Muslims, to practice freely their religion. The IJ stated that
evangelical Protestants also were permitted to practice
freely, although they were prohibited from proselytizing.
The IJ noted that there was no mention of the Word of Life
church in the report. The IJ relied on our opinion in
Gramatikov v. INS, 128 F.3d 619 (7th Cir. 1997), to support his
decision to consider State Department reports as equivalent
to an expert opinion entitled to “substantial weight” and to
require that a petitioner contradict the information in a
report with “highly credible and independent sources of
expert knowledge.” A.R. 87.
The IJ concluded that the State Department’s “assessment
of conditions in Bulgaria are not nearly as threatening” as
Ms. Vladimirova suggested and that there was no reason-
able possibility that Ms. Vladimirova would experience fu-
ture persecution in Bulgaria:
If in fact the respondent’s problem in Bulgaria in ‘86
[sic] and ‘97 was on account of police, particular police
misbehavior, then I would think that she should move
to another area. She has not adequately explained why
she could not do so. Clearly, she has not shown that the
religious practice of the Word of Life Church extends to
other area [sic] of the country. In fact, she is a member
of a congregation in the United States which is not of
that Protestant group.
No. 03-1852 7
A. 87-88. Further, the IJ reasoned, because there was “no
clear probability of persecution,” the Vladimirovas were not
1
entitled to withholding of removal. A.R. 88.
The BIA summarily affirmed the IJ’s decision, stating:
“The Board affirms, without opinion, the results of the
decision below. The decision below is, therefore, the final
agency determination. See 8 C.F.R. § 3.1(a)(7).” A.R. 3. Ms.
Vladimirova filed a timely petition for review in this court.
II
ANALYSIS
A. Standard of Review
Under the Immigration and Nationality Act, an alien can
remain in the United States if she fears persecution in her
native country either by petitioning for asylum or by ap-
plying for withholding of removal. To be eligible for asy-
lum, however, an alien must file her petition within one year
of her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). An
alien’s failure to file a timely application for asylum will be
excused only if the applicant can show “either the existence
of changed circumstances which materially affect the appli-
cant’s eligibility for asylum or extraordinary circumstances
relating to the delay in filing.” Id. § 1158(a)(2)(D). An alien
who did not file in a timely manner and who has shown
neither “changed circumstances” nor “extraordinary circum-
1
The IJ also denied Ms. Vladimirova’s request for relief under
the Convention Against Torture, 8 C.F.R. §§ 208.16(c) and
208.18(b)(2), but Ms. Vladimirova does not raise that issue in this
review. See Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir.
2000) (claims not raised on appeal are abandoned).
8 No. 03-1852
stances,” however, still may be eligible for withholding of
removal. See 8 C.F.R. § 208.3(b).
To obtain asylum, an alien must show that she cannot re-
turn to her native 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.” 8 U.S.C. § 1101(a)(42)(A). If the alien can
establish that she suffered past persecution, then she is
entitled to a “rebuttable presumption” that she has a “well-
founded fear of future persecution” and so should be
granted asylum. Yadegar-Sargis v. INS, 297 F.3d 596, 601 (7th
Cir. 2002); see 8 C.F.R. § 208.13(b)(1). The Government can
rebut that presumption by showing either that there has
been a “fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution”
in her native country or that the alien “could avoid future
persecution by relocating to another part” of the country. 8
C.F.R. § 208.13(b)(1)(i)(A) & (B).
To be eligible for withholding of removal, an alien must
establish that “it is more likely than not” that she again will
be persecuted if forced to return to her native country. INS
v. Stevic, 467 U.S. 407, 429-30 (1984); see 8 U.S.C. § 1231(b)(3);
Ahmad v. INS, 163 F.3d 457, 460 (7th Cir. 1999). If she can
establish that she suffered past persecution, she is entitled
to a presumption that her “life or freedom would be threat-
ened in the future” in her native country. 8 C.F.R.
§ 208.16(b)(1)(i). The Government can rebut that presump-
tion by showing either that there has been a “fundamental
change in circumstances such that the applicant’s life or
freedom would not be threatened” upon return or that the
alien “could avoid a future threat to his or her life or free-
dom” by relocating to another part of the country. Id.
§ 208.16(b)(1)(i)(A) & (B). An applicant who cannot meet the
burden of showing a well-founded fear of persecution to
No. 03-1852 9
prove eligibility for asylum necessarily fails to meet the
higher burden of showing the probability of persecution
required to qualify for withholding of removal. See Ahmad,
163 F.3d at 463.
Where, as here, the BIA summarily affirms without opin-
ion, we review the decision of the IJ. See Ememe v. Ashcroft,
358 F.3d 446, 450 (7th Cir. 2004). We shall affirm the IJ’s
decision if it is supported by substantial evidence. See INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Ememe, 358 F.3d at
451.
B. Asylum
Ms. Vladimirova asks us to review the IJ’s conclusion that
she did not show “extraordinary circumstances” sufficient
to excuse her failure to file a timely petition for asylum. 8
U.S.C. § 1158(a)(2)(D). The Government argues, however,
that this court lacks jurisdiction to review the denial of her
petition for asylum, and, at oral argument, Ms. Vladimirova
agreed. In a companion case also decided today, we join our
sister circuits in concluding that the plain language of
§ 1158(a)(3)—“[n]o court shall have jurisdiction to review
any determination of the Attorney General under paragraph
[(a)(2)]”—bars judicial review of the BIA’s denial of asylum
under § 1158(a)(2)(D). See Zaidi v. Ashcroft, No. 03-3062, slip
op. at 4-5 (7th Cir. July 26, 2004); see also Haoud v. Ashcroft,
350 F.3d 201, 205 (1st Cir. 2003); Castellano-Chacon v. INS,
341 F.3d 533, 544 (6th Cir. 2003); Tarrawally v. Ashcroft, 338
F.3d 180, 185 (3d Cir. 2003); Tsevegmid v. Ashcroft, 336 F.3d
1231, 1235 (10th Cir. 2003); Fahim v. United States Attorney
Gen., 278 F.3d 1216, 1218 (11th Cir. 2002); Hakeem v. INS, 273
F.3d 812, 815 (9th Cir. 2001); Ismailov v. Reno, 263 F.3d 851,
855 (8th Cir. 2001).
10 No. 03-1852
C. Withholding of Removal
Ms. Vladimirova also argues that she is entitled to with-
holding of removal. Section 1158(a)(3) does not bar our
review of the IJ’s denial of that relief. See Tarrawally, 338
F.3d at 185-86. The IJ assessed only Ms. Vladimirova’s claim
for asylum, however, and concluded that she did not qualify
for withholding of removal because she had not met the
lesser burden of proving her eligibility for asylum.
Ms. Vladimirova submits that the IJ did not evaluate her
eligibility for asylum under the proper standard and that,
accordingly, we should grant her petition for review to al-
low the IJ to reconsider her eligibility for withholding of
removal. Ms. Vladimirova contends that in her testimony
she demonstrated that she had experienced persecution in
Bulgaria when she was beaten so severely as to cause a
miscarriage. Because the IJ did not discredit that testimony,
she argues, she should have been afforded the benefit of the
rebuttable presumption of a future threat, as directed by 8
C.F.R. § 208.16(b)(1)(i). Ms. Vladimirova submits that the
Government did not present evidence sufficient to rebut
that presumption. She also challenges the IJ’s conclusions
that Protestants can now practice freely in Bulgaria and that,
even if some persecution remains, she could avoid it by
returning to a different area of Bulgaria. Ms. Vladimirova
points out that the same government remains in power and
that religious intolerance continues unabated. Finally, she
points out that the State Department’s failure to mention
Word of Life in the 2000 Report on International Religious
Freedom in Bulgaria is likely because the church is so small,
not because church members are no longer persecuted.
We agree that the IJ failed to analyze properly whether
Ms. Vladimirova suffered past persecution and thus failed
to afford her the benefit of the shifting burden of proof. The
IJ’s statement that conduct must involve a “threat to the life
No. 03-1852 11
or freedom of the victim,” A.R. 85, is simply wrong. Indeed,
we recently emphasized in Dandan v. Ashcroft, 339 F.3d 567
(7th Cir. 2003), that acts of persecution must “ ‘rise above the
level of mere harassment’ ” but need not be so severe as to
constitute “ ‘threats to life or freedom.’ ” Id. at 573 (quoting
Ambati v. Reno, 233 F.3d 1054, 1060 (7th Cir. 2000)). The
physical violence suffered by the petitioner—a beating so
severe that it caused a miscarriage—certainly rises above
the level of mere harassment and qualifies as proof of past
persecution. See, e.g., Kossov v. INS, 132 F.3d 405, 409 (7th
Cir. 1998) (Rovner, J., concurring) (opining that beating
resulting in miscarriage could justify finding of past perse-
cution). Compare Asani v. INS, 154 F.3d 719, 723 (7th Cir.
1998) (remanding to BIA to reconsider whether a detention
involving the deprivation of sufficient food and water and
a beating resulting in the loss of two teeth constituted past
persecution), and Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.
1997) (determining that a beating in which petitioner was
punched and had his face bruised and his finger broken
constituted past persecution), with Dandan, 339 F.3d at 573-
74 (concluding that petitioner’s three-day detention and
beating resulting in a “swollen” face did not constitute past
persecution where petitioner did not provide specific details
to indicate the severity of the beating), and Skalak v. INS, 944
F.2d 364, 365 (7th Cir. 1991) (determining that two three-day
detentions involving interrogation but no injury did not
constitute past persecution).
Moreover, the cases upon which the IJ relied in concluding
that Ms. Vladimirova did not suffer persecution in Bulgaria
are inapposite. The first case upon which the IJ relied, Zalega
v. INS, 916 F.2d 1257 (7th Cir. 1990), has no bearing on Ms.
Vladimirova’s petition. In Zalega, we approved the BIA’s
denial of asylum because the petitioner, although incarcer-
ated, experienced no mistreatment, see 916 F.2d at 1260; Ms.
Vladimirova was beaten so severely as to cause a miscar-
12 No. 03-1852
riage. The IJ relied on Matter of Chen, 20 I. & N. Dec. 16 (BIA
1989), but that case involved a different standard than the
one relevant to a petition for asylum. In Chen, the BIA
expressly granted Chen’s petition on “humanitarian”
grounds after finding that he had not proven his status as a
refugee but statutorily was eligible for asylum “in the
exercise of discretion.” Id. at 20-21. Finally, the IJ compared
the persecution of Ms. Vladimirova to that of the petitioner
in Asani. In Asani, however, we reversed the BIA’s denial of
asylum because the BIA had applied an incorrect standard.
See Asani, 154 F.3d at 723. Moreover, in doing so, we ques-
tioned “the BIA’s conclusion that the harm Asani suffered
did not cause ‘serious injuries,’ ” when he was deprived of
sufficient food and water and had his teeth knocked out
during a beating. Id. Thus, the IJ critically mis-stepped and
mis-stated this court’s decision when he suggested that the
“higher” level of mistreatment in Asani did not constitute
persecution. As a result, the IJ’s analysis of Ms. Vladimirova’s
claim was fatally flawed. In sum, because the IJ credited Ms.
Vladimirova’s testimony but failed to recognize that she had
suffered persecution, Ms. Vladimirova never received the
benefit of the presumption of a future threat that the
Government bears the burden of rebutting. See 8 C.F.R.
§ 208.16(b)(1)(i).
Further, the IJ did not believe Ms. Vladimirova’s state-
ment that she could not avoid persecution in Bulgaria by
relocating to another part of the country, but the 2000
Department of State Report on International Religious
Freedom in Bulgaria (the “2000 Report”) makes clear that
harassment of those practicing unsanctioned religions is
spread throughout the country. In any event, the 2000
Report—which states in part that the Government restricts
the practice of some religions that are not registered—
hardly demonstrates that individuals of Ms. Vladimirova’s
religious beliefs are free from persecution. The fact that
No. 03-1852 13
Word of Life was not mentioned in the report and that Ms.
Vladimirova worshiped with only a small group does not
imply that the religion does not exist or is not persecuted;
the report discusses only the experiences of Muslims, Jews,
Roman Catholics, Jehovah’s Witnesses and Mormons. There
is no evidence in the 2000 Report that Word of Life has been
registered with the Bulgarian Government and that its
adherents may practice freely. Ms. Vladimirova’s decision
to worship with a “mainline” denomination in this country
is equally irrelevant; her reasons for not worshiping with
other Word of Life members reflect a practical adjustment,
given her inability to locate a Word of Life group where she
lives in this country.
Conclusion
We lack jurisdiction to review the IJ’s denial of the
Vladimirovas’ petition for asylum. When the IJ assessed Ms.
Vladimirova’s claims, however, he failed to recognize that
Ms. Vladimirova suffered past persecution. Accordingly, he
did not grant her the benefit of the presumption that she
would be subject to a future threat. We remand to the
Department of Homeland Security to reconsider the
Vladimirovas’ requests for withholding of removal. Ms.
Vladimirova may recover her costs in this court.
PETITION DISMISSED IN PART
AND GRANTED IN PART; REMANDED
14 No. 03-1852
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-26-04