Mitreva, Valentina K v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1707
VALENTINA MITREVA, et al.,
Petitioners,
v.
ALBERTO GONZALES,
Respondent.
____________
On Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A79 562 008, 009, 010, & 011
____________
ARGUED MAY 31, 2005—DECIDED AUGUST 8, 2005
____________
Before EASTERBROOK, ROVNER, and WOOD, Circuit Judges.
ROVNER, Circuit Judge. Valentina Mitreva, a Bulgarian
and ethnic Rom (gypsy), applied for asylum on account of
her nationality based on her participation in a rally for
Romani equality that led to a confrontation with the police.
The Immigration Judge (IJ) denied the application, which
Mitreva’s family joined, and the Board of Immigration
Appeals (BIA) affirmed. The Board found that Mitreva
failed to establish a nexus between the harm she suffered
and a protected ground, and that she did not have a well-
founded fear of future persecution because she could not
2 No. 04-1707
prove that Bulgarian Roma are the victims of a pattern and
practice of persecution. Mitreva petitions for review of the
Board’s order. We deny the petition and affirm the Board’s
judgment.
Mitreva’s petition includes claims of persecution based on
employment discrimination, as well as several incidents of
harassment during her childhood, but her most serious
charges stem from a police interrogation. In November 1999
Mitreva participated with her parents and sister in a rally
for Romani equality at the city hall in the town of Kresna.
Between 30 and 50 other Roma attended. The next day
Mitreva received a subpoena to appear at the Kresna police
station. She reported as requested, and was accused by
investigators of burglary. The investigators called her a
“black gypsy” and a “dirty bitch,” and aggressively pressed
her to sign a confession. When she refused, an officer
grabbed her by the hair and slammed her face on the edge
of a table, drawing blood. The interrogation ended, and
Mitreva was taken to a hospital where she was treated for
a 1.5-centimeter cut on her forehead.
For the next two or three months, Mitreva received “a
series of telephone calls” threatening that if she revealed
“what happened in the police station,” she would be killed.
Then, in June 2000, she was “attacked by two people with
masks” while walking home from an aunt’s house. One
assailant struck her on her head and the other pinned her
arms behind her back, yelling, “Don’t try to run you dirty
gypsy. Now you will pay for everything!” Mitreva recognized
the man’s voice as the same she had heard in the telephone
threats, and she screamed loudly. This attracted the
attention of nearby residents, who turned on the lights of
their house, scaring the attackers away. Rattled by the
incident, Mitreva moved in with her mother-in-law in a
nearby village and left for America in August. There she
learned by letter from her sister that the threatening phone
calls continued back in Bulgaria. Her sister also wrote that
No. 04-1707 3
in an apparently unrelated incident, her grandmother had
died several weeks after being shoved by two men who
brusquely passed her in the road, saying, “get [out] from our
way, uh, old gypsy.”
The IJ denied the asylum application, finding Mitreva’s
narrative credible but ruling that she had not demonstrated
that her Romani ethnicity was related to the mistreatment
she had suffered or the persecution she feared if returned.
The BIA affirmed in a separate opinion. The Board agreed
that Mitreva had failed to establish a nexus tying her mis-
fortunes to her ethnicity, stating that the violent interro-
gation, subsequent phone calls, and attack appeared to be
based on a criminal investigation and an effort to cover up
the abusive officer’s behavior. The Board also sua sponte
raised and rejected the possibility that Mitreva might
demonstrate a well-founded fear of future persecution by
showing that Roma face a pattern and practice of persecu-
tion in Bulgaria, see 8 C.F.R. § 208.13(b)(2)(iii), noting that
anti-Roma discrimination is largely practiced by private
actors. To support this point, the Board observed that the
Bulgarian government has launched several initiatives to
combat anti-Roma discrimination.
In this petition Mitreva first challenges the Board’s de-
termination that she failed to demonstrate that the harm
she suffered was “on account of” her Romani ethnicity.1 She
contends that she proved her interrogators’ anti-Roma
motives by showing that she was issued a subpoena im-
mediately after the Romani rights protest, and that she and
another Romani demonstrator were singled out as leaders
1
Mitreva had earlier argued that she and her husband were also
persecuted because of his political opinion—he is a member of a
Macedonian rights organization called UMO-Ilinden. However,
she abandons this argument on appeal and focuses solely on her
Romani ethnicity.
4 No. 04-1707
because they were the only protesters who were educated
and held posters. Mitreva also argues that her interroga-
tors’ and attackers’ use of anti-Roma ethnic slurs proves
that they mistreated her because of her ethnicity.
It is true that the issuance of the subpoena so soon after
the Romani protest could support the inference that the
interrogation was prompted by Mitreva’s ethnicity, and not
an alleged burglary. But this is not the only conclusion the
Board was entitled to reach, and under the deferential
substantial evidence test, reversal is warranted only if the
evidence compels a different outcome. Ciorba v. Ashcroft,
323 F.3d 539, 544 (7th Cir. 2003); Petrovic v. INS, 198 F.3d
1034, 1037 (7th Cir. 2000). Mitreva’s parents and sister
attended the rally as well, and they were not summoned.
Mitreva’s explanation that she was singled out because of
her poster and her university education only goes so far: her
affidavit discloses that she and her parents together held
the poster, so that would not have distinguished her or
suggested that she was a leader. Thus the only explanation
for summoning Mitreva and not her family is that she had
a better education; this point is not so convincing as to meet
her high burden of providing evidence that would convince
any reasonable factfinder that the policemen were moti-
vated by her ethnicity.
Similarly, although the use of ethnic slurs by the inter-
rogators and Mitreva’s assailant could support a finding
that she was mistreated because of her ethnicity, the record
does not compel that conclusion. When a persecutor utters
an ethnic slur during an encounter that appears to be
motivated by other factors, the slur does not necessarily
prove a nexus to a protected ground. See Lie v. Ashcroft, 396
F.3d 530, 535-36 (3d Cir. 2005). Here, the BIA was permit-
ted to conclude that because the officers appeared to be
investigating a burglary, their use of an epithet does not
prove that they were harassing Mitreva because she was a
Rom. And the Board reasonably found that her attacker,
No. 04-1707 5
who called Mitreva a “dirty gypsy,” was in league with the
police officers in an effort to cover up the malfeasance
during the interrogation, not to attack Roma. Again,
although we might reach a contrary conclusion on this
evidence, a reasonable factfinder could disagree.
Mitreva next argues that the Board erred by finding that
the anti-Roma discrimination she suffered as a child does
not amount to persecution. We agree with the Board’s con-
clusion. The incidents from Mitreva’s childhood—a child’s
toy set on fire in her family’s backyard when she was eight
years old and several incidents in which street toughs threw
rocks through her family’s windows—are better character-
ized as harassment and discrimination than persecution.
Neither she nor her family suffered any harm, Nagoulko v.
INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003), and threats
amount to persecution only in the most extreme circum-
stances, Mousa v. INS, 223 F.3d 425, 430 (7th Cir. 2000).
Moreover, there is no evidence that the government either
participated in or condoned these acts of private discrimina-
tion. See Hor v. Gonzales, 400 F.3d 482, 485-86 (7th Cir.
2005).
Mitreva also contends that the Board underestimated the
severity of the race-tinged economic discrimination she
suffered: she was dismissed from her first job on accusa-
tions of theft and had a difficult time finding a new job.
Again, if there is an anti-Roma undercurrent to this, no evi-
dence suggests that the discrimination was perpetrated or
tolerated by state actors. Moreover, we agree with the
Board that the acts themselves are not severe enough to
constitute persecution. An individual who earns a degree
and finds work has no claim of economic persecution, Bucur
v. INS, 109 F.3d 399, 402 (7th Cir. 1997), nor does one who
fails to find a job unless she can prove that the hardship
was deliberately imposed, Boykov v. INS, 109 F.3d 413, 417
(7th Cir. 1997). Mitreva found a job soon after earning her
degree, and although she believes she was later fired
6 No. 04-1707
because a bigoted co-worker framed her, no evidence sup-
ports this contention. Moreover, she found a replacement
position less than two years later.
Unable to show past persecution, Mitreva faces a high
burden in demonstrating that she has a well-founded fear
of future persecution if returned to Bulgaria. See 8 C.F.R.
§ 208.13(b)(1). She failed to point to facts that she person-
ally will be singled out for persecution, so she contends,
under § 208.13(b)(2)(iii), that there is a pattern and practice
in Bulgaria of persecuting Roma. For support, she points to
human rights reports in the record by the State Depart-
ment, Human Rights Watch, and Amnesty International
discussing anti-Roma discrimination and abuse committed
by both private actors and the Bulgarian security services.
Although § 208.13(b)(2)(iii) does not specify the circum-
stances under which country conditions become so severe as
to create a pattern and practice of persecution, we have
stated that persecution of a protected group must be “ex-
treme” before it reaches this level. Capric v. Ashcroft, 355
F.3d 1075, 1095 (7th Cir. 2004); see also Hoxha v. Ashcroft,
319 F.3d 1179, 1183 n.6 (9th Cir. 2003). There must be a
“systematic, pervasive, or organized” effort to kill, imprison,
or severely injure members of the protected group, and this
effort must be perpetrated or tolerated by state actors. See
Lie, 396 F.3d at 537; Ngure v. Ashcroft, 367 F.3d 975, 991
(8th Cir. 2004). Thus, we have rejected claims of a pattern
and practice of persecution of ethnic Albanians in
Montenegro during the Balkan wars in the 1990s, see
Pelinkovic v. Ashcroft, 366 F.3d 532, 539-40 (7th Cir. 2004)
(Montenegrans faced less severe harm than Kosovar
Albanians); Capric, 355 F.3d at 1094-95 (same), and of
Ahmadi Muslims in Pakistan, Ahmad v. INS, 163 F.3d 457,
463 (7th Cir. 1999). Other circuits have found persecution
per se only where there was widespread violence toward the
group in question, such as Afghanistan’s policy of executing
apostates, Ahmadshah v. Ashcroft, 396 F.3d 917, 921 (8th
No. 04-1707 7
Cir. 2005), and the Indonesian government’s failure to
prevent scores of attacks on Christian churches, which led
to thousands of deaths and displacements, Eduard v.
Ashcroft, 379 F.3d 182, 192 (5th Cir. 2004). Cf. Pieterson v.
Ashcroft, 364 F.3d 38, 44 (1st Cir. 2004) (mere discrimina-
tion and harassment of Sierra Leone’s Creoles insufficient
to show a pattern and practice of persecution); Woldemeskel
v. INS, 257 F.3d 1185, 1191 (10th Cir. 2001) (imprisonment,
harassment, and employment discrimination against
Ethiopia’s Ahmara not severe enough to show a pattern and
practice). The rationale behind this standard is simple.
Since every member of a group that faces per se persecution
is a refugee eligible for a discretionary grant of asylum,
courts have interpreted the regulation to apply only in rare
circumstances, to prevent an avalanche of asylum-seekers.
Substantial evidence supports the Board’s conclusion that
Bulgarian Roma do not suffer persecution per se. It is
beyond question that their lot is unpleasant: the human
rights reports in the record show that Roma are attacked by
private citizens, arrested arbitrarily and beaten by police
officers, and discriminated against by employers. But the
State Department’s most recent country report indicates
that although acts of discrimination in employment and
daily life are still a problem in Bulgaria, anti-Roma violence
is declining. “There were no reports of lethal police assaults
on Roma” in 2003, and although there were several inci-
dents of police harassment of Romani detainees, these
appear to have been isolated. The most serious assaults
were committed by private individuals.
This leads to another point supporting the Board’s deci-
sion: given the Bulgarian government’s serious efforts at
reform, the Board was entitled to conclude that the pers-
ecution Roma face is not perpetrated or tolerated by state
actors. See Kotasz v. INS, 31 F.3d 847, 854 & n.12 (9th Cir.
1994) (rejecting claim of persecution per se of Hungarian
Roma where government was attempting to remedy hostil-
8 No. 04-1707
ity). The government has created a number of initiatives to
ease the plight of the Roma population, including a “Pro-
gram for Social Integration of Roma,” an affirmative action
policy, an “Ethnic Integration and Conflict Resolution”
project, and a program to provide housing for displaced
Roma. Several of these programs have borne fruit, and a
new anti-discrimination statute was successfully invoked in
five out of six cases brought by Roma in 2003. These efforts,
coupled with the reduced level of anti-Roma violence in
Bulgaria, provide substantial evidence for the Board’s
decision.
Finally, Mitreva challenges the Board’s denial of her
claims for withholding of removal and relief under the
Convention Against Torture. The latter she has waived by
failing to seek that relief before the Board, and the former
entails a higher showing than a successful claim of asylum,
and therefore also fails. The petition for review is DENIED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-8-05