Petre Kratchmarov v. INS , 172 F.3d 551 ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1958
___________
Petre I. Kratchmarov, *
*
Petitioner, *
*
* On Petition for Review of
v. * an Order of the Immigration
* and Naturalization Service.
Michael Heston, District Director *
of the United States Immigration *
and Naturalization Service; Janet Reno, *
Attorney General of the United States, *
*
Respondents. *
___________
Submitted: December 14, 1998
Filed: March 30, 1999
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Before BEAM and LOKEN, Circuit Judges, and BOGUE,1 District Judge.
___________
BEAM, Circuit Judge.
Petre I. Kratchmarov, a citizen of Bulgaria, petitions for review of a decision
of the Board of Immigration Appeals (BIA) denying his application for asylum under
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
8 U.S.C. § 1158(a) and refusing to withhold deportation under 8 U.S.C. § 1253(h).
For the reasons discussed below, we affirm the decision of the BIA.2
I. BACKGROUND
Kratchmarov entered the United States on June 20, 1991, on a non-immigrant
visa. On July 8, 1994, the Immigration and Naturalization Service (INS) ordered
Kratchmarov to show cause why he should not be deported due to his failure to leave
the United States after his period of authorized stay had expired. At the initial
hearing, Kratchmarov conceded deportability but requested an opportunity to apply
for political asylum and a withholding of deportation. Following a hearing on the
merits, an immigration judge denied Kratchmarov's application. On March 12, 1998,
the BIA upheld the immigration judge's order, and set a voluntary departure date
thirty days from the date of its decision. This appeal followed.
Kratchmarov's basic claim is that he was subject to past persecution in Bulgaria
because of his political opinions and his status as a former police officer who refused
to obey orders, and that he has a well-founded fear of future persecution if he returns.
The record, including Kratchmarov's testimony at his deportation hearing, provides
the following facts. Kratchmarov underwent three years of training at a police
2
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), amended by Act of
Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656, repealed 8 U.S.C. § 1105a and
replaced it with a new judicial review provision. See IIRIRA § 306. The new
provision governs removal proceedings commenced after April 1, 1997. See IIRIRA
§ 309(a). Where, as here, deportation proceedings are commenced before IIRIRA's
general effective date of April 1, 1997, and the final order of deportation or exclusion
is entered more than thirty days after IIRIRA's September 30, 1996, date of
enactment, 8 U.S.C. § 1105a, along with the addition of some transitional changes,
continues to govern our consideration of this petition. See IIRIRA § 309(c)(1) & (4).
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academy in Bulgaria, after which he was employed as a police officer. While serving
as a police officer, he repeatedly refused to follow the orders of his superiors to beat
and strike members of the Turkish minority demonstrating against the communist
government. He believed that such actions were a violation of human rights. His
opposition to the government's policy of mistreating minority groups led him to
resign from the police force in February 1990. He had served as a police officer for
about seven or eight months at the time of his resignation. After he left the police
force, he was deprived of job opportunities, placed under virtual house arrest in his
home city of Hissar, issued traffic citations for no reason, had his hair forcibly cut,
and was detained and beaten for leaving the city to participate in anti-government
demonstrations, and for attempting to vote against the communist party.
Kratchmarov obtained a passport and a visa to come to the United States in 1991 as
an exchange visitor, but asserts that his real reason for leaving was to escape
persecution for his political opinions and activities. His mother, with whom he
regularly keeps in touch, has informed him that since his departure from Bulgaria,
he has repeatedly been issued military summons to report to the military office in
Hissar as well as court summons to appear in regional court.
II. DISCUSSION
Under the Immigration and Nationality Act, the Attorney General has the
discretion to grant asylum to a "refugee." See 8 U.S.C. § 1158(b)(1). A refugee is
a person who is unable or unwilling to return home "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). In most
cases, the critical inquiry is whether the applicant has a well-founded fear of future
persecution upon return to his or her country. See Cigaran v. Heston, 159 F.3d 355,
357 (8th Cir. 1998).
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To establish such a fear, an applicant must demonstrate a fear that is both
subjectively genuine and objectively reasonable. See id. The applicant is entitled to
a presumption of a well-founded fear of future persecution if past persecution is
established, and the burden then shifts to the INS to show by a preponderance of the
evidence that "conditions in the applicant's country . . . have changed to such an
extent that the applicant no longer has a well-founded fear of being persecuted if he
or she were to return." Id. (internal quotation and citation omitted).
Here, the BIA found that, even assuming Kratchmarov had endured past
persecution, the INS had successfully rebutted the presumption of future persecution
by proving that conditions in Bulgaria had changed.3 While acknowledging that
communists still enjoyed positions of substantial power in Bulgaria, the BIA noted
that the United States Department of State Profile of Asylum Claims and Country
Conditions for Bulgaria for 1994 (hereinafter Country Report) found that anti-
communists returning to Bulgaria faced no general risk of persecution by the
government. The BIA further noted that the efforts of Bulgarian authorities to
compel Kratchmarov's appearance in court and to conscript him into military service
were perfectly legitimate in light of the fact that Kratchmarov had not fulfilled the
requisite amount of police service in repayment for his extensive police training.
We review the BIA's factual findings underlying its refusal to grant asylum,
under the substantial evidence standard. See Hajiani-Niroumand v. INS, 26 F.3d
832, 838 (8th Cir.1994). Under this standard, this court must determine whether,
based on the record considered as a whole, the BIA's decision was supported by
3
Because we find that there was substantial evidence to support the BIA's
decision that Kratchmarov lacked a well-founded fear of future persecution, we
decline to discuss the government's other arguments that: (1) Kratchmarov failed to
establish persecution on account of political opinion or on account of membership in
a social group; and (2) that his past mistreatment did not rise to the level of
persecution.
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reasonable, substantial, and probative evidence. See id. Reversal of the BIA's
decision is warranted only if the petitioner shows that the evidence was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution. See
id.
After carefully reviewing the evidence,4 we believe that a reasonable factfinder
could conclude that Kratchmarov's fear of future persecution was not objectively
reasonable. Kratchmarov presented evidence in the form of newspaper articles and
reports of human rights violations to support his claim that ex-communists in
Bulgaria still wield substantial power in the government and that police violence
against minorities such as the Romas and Macedonians continues. However, there
was also substantial evidence from which a reasonable factfinder could conclude that
the political situation in Bulgaria had changed in ways that rendered Kratchmarov's
fear of future persecution based on his past activities unreasonable. The Country
Report stated that country conditions had changed to the extent that they no longer
supported the presumption that past mistreatment under the communist regime would
lead to future mistreatment. It further noted that even serious dissidents had visited
or relocated to Bulgaria without any problem. Furthermore, the Country Report
specifically rejected assertions that former communists who now hold power under
the label of the Bulgarian Socialist Party would seek retribution against politically
uncongenial elements.
Kratchmarov, nevertheless, argues that the military and court summons he has
been issued since his departure from Bulgaria indicate that Bulgarian authorities
remain intent on persecuting him upon his return. We agree with the BIA's
4
In assessing the country conditions in Bulgaria, we are limited to the evidence
presented in the materials contained in the administrative record before us on appeal.
See 8 U.S.C § 1105a(a)(4); see also Pub. L. No. 104-208, 110 Stat. 3009-627, §
309(c)(4)(B).
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conclusion that these actions evidence only an attempt by the Bulgarian government
to recoup the cost of Kratchmarov's police training. In his affidavit, Kratchmarov
states that the court clerk in Bulgaria told his mother that the reason for the court
summons was that Kratchmarov owed the government money for his police education
because he did not serve long enough in the police force. Furthermore, the evidence
shows that in March 1990, prior to Kratchmarov' s departure from Bulgaria, he had
received a notice from the Department of Finance in Sofia indicating that he owed
money for his police academy training. The letter even indicated that the amount due
would be discounted by the period of time Kratchmarov had served in the police
force, approximately eight months. Finally, despite this outstanding debt,
Kratchmarov seems to have had little difficulty in obtaining both a passport and a visa
to leave the country the following year. All these facts belie Kratchmarov's claim that
the military and court summons show that the government is awaiting his return in
order to persecute him.
Finally, at oral argument, Kratchmarov argued that the evidence indicates that
upon his return to Bulgaria, he will: (1) be conscripted into the military; (2) once
again be asked to carry out human rights abuses against other minority groups; and
(3) once again be subject to persecution if he refuses. In essence, Kratchmarov
argues that he will be put in the very same predicament he found himself in before
he left Bulgaria. Although there is evidence suggesting that Kratchmarov may be
conscripted upon his return, we think that the remaining chain of events he presents
are simply too speculative to support a claim of persecution. To prove the objective
reasonableness of a fear of persecution, a petitioner must show, based upon credible,
direct, and specific evidence, that a reasonable person in the petitioner's
circumstances would fear persecution if returned to the petitioner's native country.
See Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993). "The fear must have a
basis in reality and must be neither irrational nor so speculative or general as to lack
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credibility." Miranda v. United States INS, 139 F.3d 624, 627 (8th Cir. 1998). We
do not think that that standard has been met.5
The standard for withholding of deportation requires applicants to show a
"clear probability" that they will face persecution in the country to which they will
be deported. See Behzadpour v. United States, 946 F.2d 1351, 1354 (8th Cir. 1991).
This standard is more difficult to meet than the "well-founded fear" standard for
asylum. See id. Because substantial evidence supports the denial of asylum, we also
affirm the BIA's denial of withholding of deportation. See id.
III. CONCLUSION
For the foregoing reasons, the decision of the Board of Immigration Appeals
is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
5
Kratchmarov also argues that he should be granted "humanitarian asylum" on
the basis of past persecution alone. Because the BIA was skeptical that the incidents
alleged by Kratchmarov even constituted persecution, it did not address the question
of humanitarian asylum. Humanitarian asylum is reserved for those cases in which
the past persecution suffered has been particularly atrocious. See Cigaran, 159 F.3d
at 357. Even if we were to assume that the actions taken against Kratchmarov
amounted to persecution, an issue which we decline to analyze, we find that the
incidents that Kratchmarov cites do not rise to the requisite level of atrocity for a
grant of humanitarian asylum.
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