Mariya Georgieva v. Eric Holder, Jr. , 751 F.3d 514 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-1792
MARIYA BORISOVA GEORGIEVA and
LACHEZAR D. DIMITROV,
Petitioners,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
____________________
On Petition for Review of a Final Order of
the Board of Immigration Appeals.
____________________
ARGUED JANUARY 15, 2014 — DECIDED MAY 6, 2014
____________________
Before FLAUM, EASTERBROOK, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge. Mariya Borisova Georgieva and
Lachezar Dimitrov are Roma asylum-seekers. In 2002, the
couple left Bulgaria and entered the United States legally.
They say they were fleeing some of their non-Roma coun-
trymen who had threatened Georgieva after she resisted be-
ing forced into the sex trade and became active in pro-Roma
2 No. 13-1792
politics. Georgieva and Dimitrov also say they wanted to es-
cape the atmosphere of persecution that faces the Roma
people in Bulgaria. The immigration judge found
Georgieva’s testimony incredible and denied Georgieva and
Dimitrov asylum. The Board of Immigration Appeals af-
firmed the immigration judge’s decision. We deny the cou-
ple’s petition for review.
I. Background
Georgieva and Dimitrov were born in Bulgaria and are
Bulgarian citizens. They were admitted to the United States
on March 6, 2002.1 On March 5, 2003, Georgieva timely re-
quested asylum, withholding of removal, and protection
under the Convention Against Torture. On her application,
Georgieva listed her husband Dimitrov as a derivative bene-
ficiary. Georgieva filed her application with the Immigration
and Naturalization Service, which referred her case to the
Department of Justice’s immigration courts on April 9, be-
cause the immigration courts have exclusive jurisdiction
over Visa Waiver Program asylum applicants. 8 C.F.R.
1 Both were admitted under the Visa Waiver Program, which is a recip-
rocal waiver arrangement where the United States waives its visa re-
quirement and in exchange the visitor waives his or her right to contest
admissibility determinations on removal (except for asylum applications,
withholding of removal, and protection under the Convention Against
Torture). 8 U.S.C. § 1187(b)(2); Bao Tai Nian v. Holder, 683 F.3d 1227, 1228
(9th Cir. 2012). Visa Waiver Program entrants are entitled to something
of a “shortcut” in the asylum process, because they can proceed directly
to a hearing before an immigration judge, bypassing some preliminary
steps. See, e.g., Bayo v. Napolitano, 593 F.3d 495, 499 (7th Cir. 2010). The
program is available for citizens of thirty-eight different countries, but
Bulgaria is not among them. It is not clear from the record how
Georgieva and Dimitrov were admitted through the program.
No. 13-1792 3
§ 1208.2(c)(1)(iii). Proceedings commenced in August 2004,
but the case was continued several times. Georgieva and
Dimitrov did not appear before an immigration judge until
May 2011.
Georgieva’s credibility is the central issue in this case, be-
cause she provided most of the relevant facts and documen-
tary evidence is sparse. Georgieva included in her asylum
application a six-page statement describing her experiences
in Bulgaria. She also testified at her immigration hearing,
and discrepancies emerged between the statement and her
testimony. We note where the stories diverge as we go.
Georgieva grew up in Blagoevgrad, Bulgaria. As a Roma
child, she faced challenges. For example, she described one
incident in the sixth grade, where a few non-Roma boys fol-
lowed her into the bathroom at school. They pushed her
down, beat her, yelled at her and called her “a dirty gypsy,”
and urinated on her. She reported the incident to school offi-
cials. But instead of responding, the officials accused her of
lying and punished her. Georgieva says she received high
grades in school and applied to colleges, but that she was
not admitted because she was Roma.
In 2000, Georgieva began working either for a cleaning
company or as a street sweeper for Blagoevgrad County
(there is a discrepancy between her statement and hearing
testimony). In November 2000, Georgieva’s boss allegedly
called her into his office and offered her a higher-paying job
working in a meat factory in Naples, Italy; he claimed the
position was part of an exchange program. Georgieva ac-
cepted, and met her boss’s associates at the Blagoevgrad bus
station, where there were seven other Roma women who
had accepted the same “offer.” The bus was to travel
4 No. 13-1792
through Macedonia and other former Yugoslav Republics on
the way to Naples.
Shortly after the bus crossed into Macedonia, the group
stopped for lunch at a hotel. Armed men arrived and or-
dered the women into hotel rooms. The women were then
given clothing and makeup and returned to the hotel lobby
where they were displayed to “important” men who would
select them for sex. At this point Georgieva’s asylum appli-
cation begins to differ markedly from her hearing testimony.
In her application statement Georgieva wrote that she
“was forced to have sex with a strange man who paid for her
like she was meat.” She claimed that this happened multiple
times—enough that she lost track of the days—and that the
captors moved the women around to different places. Even-
tually, Georgieva escaped by hitting a man over the head
with a lamp as he was undressing. She ran away, and was
aided by Macedonian laborers working in a field. The labor-
ers gave her a change of clothes, and eventually a “nice old
man” drove her back to the Bulgarian border. Georgieva
said it took her three more days to get home from there.
Her hearing testimony differs in several particulars. Alt-
hough Georgieva still claimed that she was abducted and
that her captors tried to force her into the sex trade, she said
that she never had sex with anyone, because she cracked the
head of the very first man who selected her on the first day
in Macedonia. She said she walked all the way back to
Blagoevgrad after her escape, which took her two days in
total. Once home, she tried to report her story to the police,
the prime minister, and other officials within the Bulgarian
government, but to no avail.
No. 13-1792 5
Georgieva’s stories converge again here. In 2001, she be-
came involved with a group called Euroroma that advocated
for Roma rights in Europe. She volunteered there for the
next year. Dimitrov and his family were active in the organi-
zation, too. Through Georgieva’s work there, the couple met
and began to date.
At some point after she started working for Euroroma,
Georgieva says she received telephone threats from associ-
ates of her former boss. She also claims that in January of
2002, two men who worked in the sex-trafficking ring ab-
ducted her outside the Euroroma office. One of the men told
her that “gypsies like you don’t live long.” The men took
Georgieva to an abandoned building and beat her so severe-
ly that she passed out.
The accounts diverge again after the beating. In her ap-
plication, Georgieva claimed that she woke up a few days
later in the hospital; some kids had found her in the building
and the police had taken her to the hospital. At her hearing,
however, she testified that the beating put her into a coma
for twenty or twenty-one days and broke her jaw.
Georgieva’s jaw required surgery, but the hospital refused
service because Georgieva was Roma and she had no health
insurance. Instead, Dimitrov found a private dentist who did
a minimal amount of repair work for a small cost.
Shortly after the beating incident, the couple left for the
United States. Dimitrov testified that Georgieva suffered
from pain and constant headaches as a result of the beating
and that she has received additional medical care in Evans-
ton, Illinois. Both testified that they fear persecution if they
are returned to Bulgaria, especially because both of their
families have left the country and now reside in Italy and the
6 No. 13-1792
United Kingdom. Georgieva and Dimitrov have two Ameri-
can-born sons, aged six and ten, and the older son has been
diagnosed with autism.
At the outset of the hearing, the immigration judge found
Georgieva’s different accounts of her time in Macedonia
“very clear, detailed, and specific,” and impossible to recon-
cile. The immigration judge thought the discrepancies seri-
ous, and decided that Georgieva had not adequately ex-
plained them. Moreover, the immigration judge had brought
the discrepancies to Georgieva’s attention at the outset of the
hearing. Georgieva claimed that her asylum application was
inaccurate, but she made only small tweaks that did not ad-
dress the central inconsistencies and she did not explain why
she had not amended her application further. The immigra-
tion judge acknowledged that inaccuracies in initial asylum
applications are common, often because of faulty transla-
tions or the lack of counsel. But an attorney assisted
Georgieva in preparing her application and Georgieva did
not claim that the translation was faulty. The immigration
judge went on to find that Georgieva had not provided
enough documentary evidence to corroborate her story, and
so ordered Georgieva and Dimitrov removed to Bulgaria.
The couple appealed to the Board of Immigration Ap-
peals, and while the appeal was pending also filed a motion
to remand to the immigration judge. In their remand motion,
the couple argued that they had received ineffective assis-
tance both from their counsel before the immigration judge
and from the lawyer who had helped prepare Georgieva’s
initial application.
Before the Board, Georgieva and Dimitrov’s new attor-
neys argued that any discrepancies in Georgieva’s stories
No. 13-1792 7
were due to clerical or translation errors, and that Georgieva
had not had an opportunity to explain them. But the Board
found that the immigration judge’s credibility finding was
based on specific evidence and was adequately explained.
The Board also found that Georgieva had been given the op-
portunity to reconcile her stories, but had not done so. Final-
ly, the Board denied the request for a remand based on inad-
equate assistance, because it thought Georgieva and Dimi-
trov’s counsel in the immigration proceedings competent.
II. Discussion
In cases like this, where the Board of Immigration Ap-
peals’ order supplements the decision of the immigration
judge, we review the immigration judge’s opinion as sup-
plemented by the Board. Raghunathan v. Holder, 604 F.3d 371,
379 (7th Cir. 2010). We review factual findings only to ensure
that substantial evidence supports the immigration judge’s
or Board’s decision. See, e.g., Abdoulaye v. Holder, 721 F.3d
485, 490 (7th Cir. 2013).
Under the Immigration and Nationality Act, the Attorney
General or the Secretary of Homeland Security may grant
asylum to refugees. 8 U.S.C. § 1158(b). A refugee is “any per-
son who is outside any country of such person’s nationality
… who is unable or unwilling to return to … that country
because of persecution or a well-founded fear of persecution
on account of race, nationality, membership in a particular
social group, or political opinion … .” 8 U.S.C.
§ 1101(a)(42)(A). This means asylum applicants must show
either past persecution or a well-founded fear of future per-
secution because of membership in a protected class. See
Wang v. Gonzales, 445 F.3d 993, 997–98 (7th Cir. 2006). An
applicant’s proof of past persecution can come from multiple
8 No. 13-1792
sources, including a recitation of her experiences in her asy-
lum application, testimony at her immigration hearing, and
any supporting documentary evidence, if it exists. Capric v.
Ashcroft, 355 F.3d 1075, 1085 (7th Cir. 2004).
A. The immigration judge’s credibility finding
In asylum cases, traditional or objective means of authen-
ticating an applicant’s statements can be difficult or impos-
sible–applicants often hail from war-torn, impoverished, or
inhospitable parts of the world. Thus, the immigration judge
must often evaluate the credibility of the applicant claiming
persecution, which the immigration judge can do by consid-
ering the “internal consistency, detail, and plausibility” of
the applicant’s story. Capric, 355 F.3d at 1085 (citations omit-
ted). If the applicant’s testimony is credible, it can be suffi-
cient to satisfy her burden. But if the immigration judge
finds the applicant incredible due to inconsistencies, then the
applicant must explain the discrepancies and provide credi-
ble, extrinsic evidence in corroboration. Id. at 1086.
Georgieva applied for asylum before the enactment of
the Real ID Act, which limits judicial review of an immigra-
tion judge’s credibility finding. 8 U.S.C. § 1158(b)(1)(B)(iii).
The new standards apply only to asylum applications sub-
mitted after the enactment of the statute—May 11, 2005. Pub.
L. No. 109-13, § 101, 119 Stat. 231, 305 (2005); Mitondo v.
Mukasey, 523 F.3d 784, 787 (7th Cir. 2008). Thus, we review
Georgieva’s application under pre–Real ID Act law. We will
uphold the immigration judge’s credibility finding so long as
it is supported by “specific, cogent reasons [bearing] a legit-
imate nexus to the finding.” Capric, 355 F.3d at 1086 (cita-
tions and internal quotation marks omitted). Only those in-
consistencies that “go to the heart of” the applicant’s asylum
No. 13-1792 9
claim can support an incredibility finding; minor inconsist-
encies on peripheral matters cannot. Id. at 1090. 2
The immigration judge’s incredibility finding in this case
centered on Georgieva’s two retellings of her encounter with
the Macedonian sex trade. Simply put, Georgieva could not
have been forced to have sex with multiple individuals over
multiple nights but also have escaped on her first night in
Macedonia without having sex with anybody. She also could
not have been sheltered by Macedonian laborers and shut-
tled to the Bulgarian border by a kindly old man while also
walking all the way from Macedonia back to Blagoevgrad.
These discrepancies fairly “go to the heart of” Georgieva’s
claim. The incident in Macedonia was central to her claim of
past persecution.
We have warned of the problems that can sometimes
arise with statements that accompany initial asylum applica-
tions—i.e., poor translators, careless or unscrupulous pre-
parers, or the lack of legal counsel. See, e.g., Chen v. Gonzales,
420 F.3d 707, 710 (7th Cir. 2005). But the immigration judge
realized and discussed these problems and Georgieva did
not argue that there were translation problems. She also had
an attorney representing her when she filed her application. 3
2 Under the Real ID Act, by contrast, immigration judges can base an
adverse credibility finding on any inconsistency, whether it goes to the
heart of the applicant’s claim or not. 8 U.S.C. § 1158(b)(1)(B)(iii).
3 The immigration judge also noted the other, more minor inconsisten-
cies in Georgieva’s stories. The immigration judge took care to note that
these inconsistencies (relating to Georgieva’s former place of employ-
ment and the way Georgieva arrived at the hospital after being assault-
ed) would not have supported an incredibility finding on their own, but
further supported the incredibility finding.
10 No. 13-1792
The immigration judge also afforded Georgieva the
chance to cure the inconsistencies by amending her state-
ment. When she was asked specifically about the discrepan-
cies, Georgieva said that she had “clarified with her attorney
that her original statement was in error.” But she did not at-
tempt to explain how the error on the application occurred
in the first place or offer any further explanation. Her attor-
ney amended the application to correct a few clerical errors,
but left the heart of the story intact.
The immigration judge also properly gave Georgieva the
chance to corroborate her testimony and rehabilitate herself
with documentary evidence. See Uwase v. Ashcroft, 349 F.3d
1039, 1041 (7th Cir. 2003). Georgieva attempted to corrobo-
rate her story by introducing a copy of her passport pages
showing that she left Bulgaria for Macedonia and returned
one day later, her Euroroma membership card, and medical
records from when she was assaulted outside Euroroma. But
the immigration judge was unconvinced, because these doc-
uments did not cure the fundamental inconsistencies in her
testimony. The immigration judge also explained that
Georgieva could have reasonably provided additional cor-
roboration—perhaps via affidavits from family or friends—
of the beating she suffered as a child or the attempt to sell
her into the sex trade. If such evidence was unavailable, it
was Georgieva’s burden to explain why she had not pro-
duced it and why it was unreasonable for the immigration
judge to expect her to do so. See Hussain v. Gonzales, 424 F.3d
622, 629 (7th Cir. 2005) (noting that an immigration judge
must explain “why it is reasonable to expect additional cor-
roboration … [and] an account of why the petitioner’s ex-
planation for not producing that corroboration is inade-
quate.”). She did not explain either. Accordingly, it was rea-
No. 13-1792 11
sonable for the immigration judge to conclude that
Georgieva had not overcome the discrepancies in her stories
that led to the incredibility finding.
One feature that gives us pause is that Georgieva’s hear-
ing testimony, which she claims is the accurate telling, is ac-
tually the less severe of the two stories. An asylum applicant
would be more likely to embellish, not scale back, her story
at the hearing, in an effort to bolster her case. See, e.g., Xiao v.
Mukasey, 547 F.3d 712, 717 (7th Cir. 2008) (upholding ad-
verse credibility finding where an asylum-seeker initially
failed to disclose alleged forced abortion at the hands of
Chinese officials but then sought to include it in her applica-
tion and at her hearing). But this feature of Georgieva’s case
cannot rescue her from the immigration judge’s adverse
credibility finding. Our decision in Ahmad v. INS, 163 F.3d
457 (7th Cir. 1999), is instructive. The asylum applicant there
was an Ahmadi Muslim seeking to avoid removal to Paki-
stan. In his asylum application, he claimed that Sunni Mus-
lims in Pakistan had regularly tortured him and had threat-
ened him if he did not leave the country. But at his hearing,
the applicant walked back his accusations—he claimed that
while his tormenters tied him to a pole overnight, they had
harassed him only once and never tortured him. Id. at 459–
62. So while we also face testimony less horrific than the al-
legations contained in the initial application, we must affirm
the immigration judge’s finding, as we did in Ahmad.
Georgieva had a new lawyer before the Board of Immi-
gration Appeals and sought a remand to the immigration
court in part for ineffective assistance of counsel. She
claimed that the deficient performances of both the attorney
who helped prepare her initial application statement and the
12 No. 13-1792
attorneys who represented her in the immigration court led
to the adverse credibility finding. But the Board found the
performance of Georgieva’s former attorneys adequate, es-
pecially since her second crop of attorneys had the oppor-
tunity to—and did—amend her earlier statement.
On appeal, Georgieva does not argue ineffective assis-
tance of counsel directly, but she raises the same alleged
shortcomings by her attorneys to explain the inconsistencies
in her testimony. In short, she says that her asylum applica-
tion statement was inaccurately taken by her first lawyer,
and that the lawyers who represented her in the immigra-
tion court failed to amend the meat of her claim (though
they did change a few dates), despite telling her that they
would. The immigration judge asked Georgieva directly
about the inconsistencies in her story and she indicated that
her lawyer had fixed the errors in her application. But she
now says that this was a misunderstanding on her part.
What happened, she avers, is that the immigration judge and
the attorneys had an untranslated colloquy where the small
changes were actually made, and that she mistakenly
thought the lawyer had made the substantive changes she
requested. Thus, when the judge asked her about the incon-
sistencies between her application and hearing testimony,
she did not know what she was conceding.
Georgieva’s motion before the Board was brought pursu-
ant to Matter of Lozada, 19 I. & N. Dec. 637 (B.I.A. 1988),
which set forth procedures for pursuing an ineffective assis-
tance of counsel claim before the Board. Lozada requires that
the lawyer whose performance is being attacked be notified
and be given the opportunity to respond. Id. at 639.
Georgieva’s attorneys from the immigration court moved on
No. 13-1792 13
their own to supplement the record before the Board and de-
fend their performance—they said that Georgieva was con-
fused about what had happened and had difficulty keeping
her stories straight during hearing preparation, and that the
immigration judge gave her plenty of opportunities to
amend her application. Georgieva of course disputes this
claim. But whatever actually transpired during Georgieva’s
hearing preparation, she has nothing but her bare assertion
to suggest that she was unaware of the contents of her
statement or that the immigration judge did not give her a
genuine opportunity to make corrections. In the immigration
context, as in other areas, “[l]itigants are generally bound by
the conduct of their attorneys, absent egregious circum-
stances.” Id. The immigration judge was in the best position
to evaluate Georgieva’s credibility, and nothing about her
lawyer’s performance requires us to upset the immigration
judge’s finding of incredibility.
B. Past persecution
Though we affirm the immigration judge’s credibility de-
termination, Georgieva would still be entitled to relief if she
could demonstrate through independent evidence that she
was a victim of past persecution. But persecution is more
than harassment, and Georgieva cannot make the strong
showing required. See Ciorba v. Ashcroft, 323 F.3d 539, 545
(7th Cir. 2003). Persecution includes:
detention, arrest, interrogation, prosecution, impris-
onment, illegal searches, confiscation of property,
surveillance, beatings, torture, … behavior that
threatens the same … and non-life-threatening behav-
ior such as torture and economic deprivation if the re-
sulting conditions are sufficiently severe. … However,
14 No. 13-1792
generalized conditions of hardship which affect entire
populations do not rise to the level of persecution.
Capric, 355 F.3d at 1084 (internal citations and quotation
marks omitted).
Outside of her testimony, Georgieva lacks evidence to
show that she was persecuted because she is Roma. She has
no evidence corroborating the childhood incident that oc-
curred in the school restroom. She also has nothing to sup-
port her claim that she was targeted for the sex trade, nor
anything to connect her 2002 assault to her status as a Roma.
Although Georgieva did not contradict herself in the retell-
ing of some incidents, such as the beating she suffered as a
child, a “single discrepancy is enough to find petitioner’s en-
tire testimony not credible.” Xiao, 547 F.3d at 717.
The corroborating evidence—consisting of Dimitrov’s
testimony, a copy of a page from her passport, her Euroroma
membership card, and some dental records—merely shows
that Georgieva is Roma, that she was in Euroroma, that she
was in Macedonia for one day in 2000, and that she had den-
tal surgery after being assaulted in 2002. None of this evi-
dence shows that any of the harm she suffered was because
of her Roma heritage.
C. Well-founded fear of future persecution
Asylum applicants who have not been persecuted in the
past can still demonstrate eligibility for asylum by showing a
fear of future persecution that is subjectively genuine and
objectively reasonable. See, e.g., Li Ying Zheng v. Holder, 722
F.3d 986, 990 (7th Cir. 2013). The applicant’s subjective fear is
generally established through her testimony and depends on
the immigration judge’s evaluation of her credibility. Capric,
No. 13-1792 15
355 F.3d at 1085. The objective component requires the ap-
plicant to prove either (1) a reasonable probability she will
be singled out for persecution or (2) a pattern or practice of
persecution against a particular group, to which she belongs.
8 C.F.R. § 208.13(b)(2).
Georgieva introduced no evidence (except her testimony)
that she would be singled out for persecution upon return-
ing to Bulgaria. So she can prevail only if she can demon-
strate a pattern or practice of mistreatment of the Roma peo-
ple in Bulgaria. Pattern and practice requires a strong show-
ing, and persecution of an ethnic group must be “extreme”
to qualify. Mitreva v. Gonzales, 417 F.3d 761, 765 (7th Cir.
2005). As we have often indicated, “[t]here must be a sys-
tematic, pervasive, or organized effort to kill, imprison, or
severely injure members of the protected group, and this ef-
fort must be perpetrated or tolerated by state actors.” Id. (ci-
tations and internal quotation marks omitted).
In Mitreva, we were also faced with a Roma asylum-
seeker from Bulgaria. The conditions on the ground for the
Bulgarian Roma then were similar to what they are now.
There is no doubt that the Roma are victims of pervasive
discrimination in employment, education, health care, and
housing, and are occasionally the targets of violence. See U.S.
Dep’t of State, Country Reports on Human Rights Practices
for 2013, Bulgaria, at 24–26 (2013), available at
http://www.state.gov/documents/organization/220473.pdf.
But there is no indication that the Bulgarian government
sanctions this conduct. Id.; Mitreva, 417 F.3d at 766. If any-
thing, State Department reports indicate that anti-Roma vio-
lence has declined since Mitreva was decided in 2005, even as
discrimination remains widespread. See U.S. Dep’t of State,
16 No. 13-1792
2010 Country Reports on Human Rights Practices, Bulgaria,
at 23 (2010), available at
http://www.state.gov/documents/organization/160182.pdf.
In short, there is no reason for us to find a pattern of perse-
cution of the Roma in Bulgaria in 2014 where there was none
in 2005.
Georgieva also makes a claim for humanitarian asylum
based on the “other serious harm” her family will suffer if
removed, because of the ages of her children and her older
son’s autism. However, humanitarian asylum is only availa-
ble for those asylum-seekers who have demonstrated past
persecution. See, e.g., Matter of L-S, 25 I. & N. Dec. 705, 710
(B.I.A. 2008). Because Georgieva has not established past
persecution, she is ineligible for humanitarian asylum.
Finally, to be eligible for withholding of removal,
Georgieva must show a “clear probability” that she would
be persecuted. Toure v. Holder, 624 F.3d 422, 428 (7th Cir.
2010). Similarly, relief under the Convention Against Torture
only applies where it is “more likely than not” that the de-
portee will be tortured if returned to the country of removal.
Id. at 429. Thus, Georgieva’s other claims require a stronger
case than that needed for asylum, so they fail as well.
The petition for review is DENIED.