Donchev v. Mukasey ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETAR GEORGIEV DONCHEV; 
AVGUSTINA TSVETANOVA ZHIVKOVA, No. 05-74709
Petitioners, Agency Nos.
v.  A95-562-817
MICHAEL B. MUKASEY,* Attorney A95-562-816
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 24, 2007—Seattle, Washington
Filed January 16, 2009
Before: Betty B. Fletcher, Andrew J. Kleinfeld, and
Ronald M.Gould, Circuit Judges.
Opinion by Judge Kleinfeld;
Dissent by Judge B. Fletcher
*Michael B. Mukasey is substituted for his predecessor, Alberto R.
Gonzales, as Attorney General of the United States, pursuant to Federal
Rule of Appellate Procedure 43(c)(2).
649
652 DONCHEV v. MUKASEY
COUNSEL
Nicholas W. Marchi, Carney & Marchi, P.S., Seattle, Wash-
ington for the petitioners.
Andrew S. Biviano (argued) and Frank A. Wilson (briefed),
Assistant U.S. Attorneys, Spokane, Washington for the
respondent.
OPINION
KLEINFELD, Circuit Judge:
Petar Georgiev Donchev (Donchev ) seeks asylum, with-
holding of removal, and relief under the Convention Against
Torture as a member of a particular social group, friends of
the Roma.1
FACTS
Donchev entered the United States on March 1, 2003 at age
26 on a false Belgian passport that he bought. He is Bulgar-
ian, not Belgian. His mother lives in Bulgaria, his sister in the
United States, where she has become a citizen. Donchev was
apprehended when special agents from the Bureau of Immi-
gration and Customs Enforcement (ICE) executed a search
warrant on his sister’s residence, where Donchev lived. The
search turned up numerous fraudulent immigration documents
and about $40,000 cash.
1
The IJ found that Donchev’s wife, Avgustina Tsvetanova Zhivkova
(Zhivkova) does not have an independent asylum claim. Zhivkova’s appli-
cation stands or falls with Donchev’s.
DONCHEV v. MUKASEY 653
The Department of Homeland Security initiated removal
proceedings against Donchev. Donchev then applied for asy-
lum, withholding of removal, and relief under the Convention
Against Torture. His application says that his nationality is
Bulgarian and that he seeks asylum or withholding of removal
based on membership in a “particular social group.” He
claims:
I have been held at police stations and have been
mistreated and harmed because of my participation
in the organizations for the rights of the gypsies.
Some incidents consisted of being beaten and raped.
I was harmed by people who are against gypsies and
authority. All the mistreatments occurred several
times in the past few years. I believe that happened
because I am a part of a certain social group and par-
ticipated there.
In the application he also says “I participated as a member of
organizations that fights for rights of the gypsies.” At the
hearing Donchev testified that he has been a member of the
“Roma organization” since 2000. He submitted a document
that purports to be a membership card for the organization,
Future for the Roma. Donchev testified at the hearing that he
himself is not Roma. Nowhere in the application does Don-
chev claim to be Roma himself, just friends with Roma indi-
viduals and a friend of the Roma people.
Donchev repeats his claim of rape in his application when
describing what he fears “will happen again” if he returns to
Bulgaria. He never mentions the claim of rape in his testi-
mony. Regarding his fears of future torture, he says “I am
afraid and do fear if I return to my country those incidents
will happen again. Torture that I fear is [b]eating, stalked,
raped. I fear that if I return to my country I could be killed.”
Donchev also says in his application that his mother is dead.
At the hearing he testified that his mother is alive, continues
to live in Bulgaria, and obtained for him the forged immigra-
654 DONCHEV v. MUKASEY
tion documents found during the search. Donchev also
answered “No” on his application to the question of whether
he had ever been “accused, charged, arrested, detained, inter-
rogated, convicted and sentenced, or imprisoned in any coun-
try other than the United States.” When later testifying,
Donchev described two detentions by the police in conjunc-
tion with his work between 1998 and 2001. He also testified
to an arrest and two other detentions in 2001, as well as to
police abuse in 2002. He also claimed police abuse connected
with these events. When asked to explain the discrepancy
between the answer in his application and his testimony at the
hearing, Donchev said that he had not understood the ques-
tion. His application also indicates that his attorney prepared
the application. At the hearing, Donchev testified that it was
his sister who helped him, with his attorney only helping to
mail it.
Donchev’s testimony described a series of contacts with the
fellow soldiers, police, and hoodlums before he left Bulgaria
in February 2003. When Donchev served in the military in the
early 1990s, he “was ordered to . . . mistreat [his Roma
friends] and make them do things that were unpleasant by two
senior lieutenants.” Most of the time he refused to obey these
orders, so he was arrested and put in military confinement.
Donchev claimed that other soldiers in military confinement
were ordered to beat him up and torture him. He testified that
he was beaten up and got bruises, and that these beatings
occurred frequently during his first six months in the military.
He does not claim to have been tortured.
Donchev also testified to two contacts with the police in the
late 1990s regarding a shop where he worked. Donchev was
a salesperson at the shop, and the police questioned him about
whether the shop was selling stolen merchandise. Donchev
testified that the police confiscated “some clocks or watches,”
because they “had the notion that the merchandise was stolen
because we were having trade relationships with gypsies . . .
who were taking merchandise through the border from Turkey
DONCHEV v. MUKASEY 655
through the city of Dimitrovgrad.” Donchev was not beaten,
but he was “threatened a lot; and I was psychologically
harmed.” The police threatened to confiscate the inventory
that they believed was stolen.
On another occasion the shop windows were broken, and
swastikas and other graffiti painted on the walls. The investi-
gating officers suggested that the shop owner and Donchev
had done it themselves to get insurance. Donchev went down
to the police station, where they did not beat or otherwise
harm him, nor did they charge him with any crime.
Donchev’s first incident with the police involving violence,
not just insulting remarks, came a few years later, in 2001.
Donchev was riding in a car with Roma friends when the
police stopped them for a “routine checkup.” The police then
took them to the police station, supposedly to check for alco-
hol consumption. They were not charged with any crime and
were released after two hours. During the detention, one of
Donchev’s friends told the police that they had no right to
detain them, after which the friend got his arm broken and
Donchev was hit in the head. Donchev did not seek medical
attention or claim that he needed it.
Donchev’s next police contact was at a New Year’s Eve
party on December 31, 2001. He and his friends, most of
whom were Roma, were drinking “very little, only some bub-
bly.” He testified that the police “came [up to] my house and
. . . they said there was a complaint that the celebration was
too noisy. . . . They started using offending words towards us.
And they said the 14th of January was the Roma New Year’s
Eve and that’s when we were supposed to celebrate.” After
Donchev and his friends were taken to the local police depart-
ment, Donchev testified that “[w]e were kicked. We were
beaten with sticks — they used swear words against us.”
Asked whether he had any lasting injuries, he said, “No, I was
psychologically hurt.” They were released the “next day.”
Donchev was not charged with any offense.
656 DONCHEV v. MUKASEY
Donchev’s first claim of injury for which he sought medi-
cal attention arose when he and his friend were leaving church
in June 2002. Two policemen started laughing and asked
“what are the gypsies doing in a church.” One of the police-
men started hitting Donchev’s friend with a baton. Donchev
testified that when he tried to stop the policeman, the other
policeman “hit me. The second one hit me in the back. I fell
on the ground and I remember that I was kicked and I was hit
with the baton.” Donchev was not detained by the police or
taken down to the police station. To prove his injuries he did
submit a letter in Bulgarian from a doctor he saw two days
later. The letter says that Donchev had cuts, a scrape, and
bruises that caused significant pain and suffering, but were a
temporary and non-life-threatening health disturbance.
Donchev also testified to two incidents with “skinheads.”
In January 2003 he was at a meeting of a pro-Roma organiza-
tion, Future for the Roma. To prove his affiliation with Future
for the Roma, Donchev submitted as an exhibit a membership
card issued in 2000 by “Future for the [R]oma.” When Don-
chev left the meeting, some skinheads beat him up. Nobody
called the police “because everybody kn[ew] that the skin-
heads were the, the body that acts for — in the favor of the
police.” To prove his injuries, Donchev submitted a second
doctor’s letter. The letter stated that Donchev told the doctor
that he had been assaulted, beaten, and robbed of his watch.
The doctor observed swelling and bruising on his face and
elsewhere, causing “temporary and non-life-threatening health
disturbance. The injuries were accompanied by significant
pain and suffering. They will heal in a relatively short time
period without health consequences to the victim.” Donchev
and his friends also had incidents with the skinheads at soccer
games.
Donchev did not testify that any particular incident, with
the police or the skinheads, caused him to undertake his
attempts to move to the United States. Donchev’s mother
remains in Bulgaria, as does his wife’s sister. The Roma have
DONCHEV v. MUKASEY 657
long been their “neighbors, our friends” and have “supported
my mother and myself.” There is no evidence that his mother
had been arrested, harmed or even threatened, despite these
friendships and sympathy for the Roma. Both his mother and
sister-in-law continue to live among the Roma, and Donchev
has never claimed that either fear for their lives or intend to
leave Bulgaria.
According to the report in the record by the United States
Department of State titled Bulgaria: Profile of Asylum Claims
and Country Conditions, Bulgaria has a great deal of crime,
corruption, and a bad economy. The report notes that “[a]
third of the population consider themselves potential emi-
grants.” The Roma “encounter prejudice and discrimination
— and episodic violence — from both authorities and the
general population, particularly in rural areas.” Another report
by the Center for Documentation and Information on Minori-
ties in Europe — Southeast Europe, Roma of Bulgaria,
describes the age-old abuse of the Roma in Bulgaria dating
back to the days of the Ottoman Empire, where they were “at
the bottom of society with little social mobility.” This report
also finds that Roma in Bulgaria “face discrimination in all
spheres of social life.” The “biggest factor” that determines
the Roma’s relationship with the Bulgarian government and
general population, the Country Report says, is the high crime
rate among the Roma population.
The record also includes a telegram from the United States
Embassy in Sofia, Bulgaria. It was sent to the State Depart-
ment on December 30, 2000, evidently for assisting with the
evaluation of asylum claims. It notes that “[t]he political and
human rights climate in Bulgaria has improved dramatically
since the 1997 ascension of a democratic reform government.
Human rights violations have been considerably reduced in
both frequency and seriousness from the pre-1997 level, and
certainly from the pre-1989 level. The individual instances of
anti-Roma discrimination which still occur should not be
equated with wholesale systematic persecution as contem-
658 DONCHEV v. MUKASEY
plated by asylum law.” It continues by explaining that “[t]he
situation for the Roma in Bulgaria is a complex one. There are
several distinct sub-populations of Bulgarian Roma. While
many suffer economic privation, others are relatively wealthy
and well-educated, and participate prominently in Bulgarian
society. No objective basis exists for asylum to be awarded to
Bulgarian Roma simply because of ethnicity. Although wide-
spread discrimination of varying degrees still exists, there is
no systematic or government-sponsored persecution of any
ethnic group, Roma included. The GOB [Government of Bul-
garia] has made great strides in recent years to reduce the cli-
mate of excessive force and human rights violations that once
existed among the police forces under earlier Bulgarian
regimes.”
A follow-up report from the Department of Justice investi-
gation of Donchev and his sister states that Yovka Miladinova
(Miladinova), Donchev’s sister, pled guilty and was sentenced
to pay the maximum fine for violations under 8 U.S.C.
§ 1325(a)(3) and 8 U.S.C. § 2 of aiding and abetting unlawful
entry by false document. This conviction arose out of the exe-
cution of the March 2003 search warrant on the home where
Miladinova, Donchev and his wife were living. This search
turned up Donchev’s false passports and identification docu-
ments.
The Immigration Judge (IJ) found that Donchev and his
wife were “generally truthful” in their testimony. The IJ nev-
ertheless denied relief. This denial was based on several
grounds. The IJ found the incidents described by Donchev to
lack an “apparent connection” to a protected ground. Regard-
ing Donchev’s belief that he was ordered to mistreat Roma
soldiers because his superiors knew him to be friends with the
Roma, and then abused him because he refused to do so, the
IJ found Donchev’s claims about other’s motives for the mis-
treatment he suffered to be merely speculative. The IJ con-
cluded that Donchev “has made a leap in relating his
friendship with particular soldiers to his refusal to follow
DONCHEV v. MUKASEY 659
orders.” The IJ found it just as likely that Donchev was pun-
ished because he disobeyed orders, as because of his friend-
ships with the Roma.
The IJ also found that Donchev had numerous encounters
with the police, during some of which they bruised and
scraped him, but “[i]t appears he encountered the police either
because they were investigating crimes (at his work) or main-
taining peace (when he was partying with friends).” The IJ
found “no indication” that the investigations into the stolen
merchandise or damage to the store “were anything more than
a normal police investigation.” Regarding the detention to
investigate suspected drunk driving, the IJ found it had noth-
ing to do with a protected ground: “[t]here were six young
people riding around in a car, possibly drinking, and challeng-
ing the authority of the police. This scenario repeats itself reg-
ularly with young men, even in this country — and there is
no apparent connection to race, religion, nationality, political
opinion or membership in a social group — just hot-headed
young men and hot-headed cops.” As for the skinheads who
beat Donchev up and stole his watch when he was leaving the
Future for the Roma meeting, the IJ was not satisfied that the
assault and robbery had anything to do with Donchev’s mem-
bership in a particular social group.
As stated above, despite the favorable credibility finding,
the IJ nevertheless denied relief. The IJ concluded that Don-
chev failed to establish that he was persecuted or had a well-
founded fear of future persecution based on his membership
in a particular social group, friends and supporters of the
Roma. The IJ rejected Donchev’s claim of past persecution on
account of the arrests, because “[e]ach time he was arrested
he was questioned about specific criminal conduct.” The IJ
found that the evidence did not show that Donchev would be
persecuted based upon a protected ground, or that it was
“more likely than not” that Donchev would be subject to per-
secution if he returned to Bulgaria based upon a protected
ground. As to his request for relief under the Convention
660 DONCHEV v. MUKASEY
Against Torture, the IJ found that there was no “clear proba-
bility” that Donchev or his wife would be tortured, on account
of the claimed protected ground, by anyone connected with
the Bulgarian government or anyone who the government
would or could not control.
The IJ thus denied Donchev’s application for asylum, with-
holding of removal, and relief under the Convention Against
Torture. The Board of Immigration Appeals (BIA) affirmed
without opinion. We deny Donchev’s and thus Zhivkova’s
petitions for review.
STANDARD OF REVIEW
Where, as here, the BIA affirms the decision of the IJ with-
out opinion, we review the IJ’s decision as the final agency
decision.2 The IJ’s factual determination that an alien has not
established eligibility for asylum and withholding of removal
is reviewed under the substantial evidence standard.3 We must
affirm the agency’s factual findings if they are “supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.”4 “The standard of review is extremely
deferential: ‘administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to con-
clude to the contrary.’ ”5
Our review of agency determinations of asylum and with-
holding of removal is also constrained and highly deferential.6
2
Morales v. Gonzales, 478 F.3d 972, 977 (9th Cir. 2007).
3
INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).
4
Id.5
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (citing 8
U.S.C. § 1252(b)(4)); see also Gu v. Gonzales, 454 F.3d 1014, 1020-21
(9th Cir. 2006) (analyzing whether the evidence compels a contrary
result).
6
Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir. 2006).
DONCHEV v. MUKASEY 661
We are not free7 to look anew at the testimony and then mea-
sure the soundness of the agency’s decision by what we
would have found.8 Nor does evidence compel the opposite
conclusion just because it would also support a different
result.
To obtain reversal, Donchev bears the heavy burden to
“show that the evidence he presented was so compelling that
no reasonable factfinder could fail to find the requisite fear of
persecution.”9 Even if the panel might reach a conclusion dif-
ferent from that reached by the IJ, we “may not reverse unless
we determine that any reasonable factfinder would have been
compelled to reach that conclusion.”10
ANALYSIS
To be eligible for asylum relief, Donchev is required to
establish “refugee” status, i.e., that he is an alien unwilling or
unable 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 politi-
cal opinion.”11 A clear probability is required for withholding
of removal.12 For either type of relief, the persecution must be
by government officials or by individuals that the government
7
The dissent quotes extensively from the IJ’s “summary of testimony,”
and draws its own conclusions, rather than focusing on whether there is
substantial evidence to support the IJ’s resolution of conflicting evidence
in the “analysis of fact and law” section. This independent weighing of the
testimony is what we are not permitted to do. Gu, 454 F.3d at 1018-19.
8
Id. at 1018.
9
Elias-Zacarias, 502 U.S. at 483-84; Lolong v. Gonzales, 484 F.3d
1173, 1178 (9th Cir. 2007) (en banc) (concluding that this court must
uphold the IJ’s determination unless “the evidence not only supports, but
compels the conclusion that the asylum decision was incorrect.” (alteration
in original)
10
Lolong, 484 F.3d at 1178.
11
8 U.S.C. § 1101(a)(42)(A); see also id.12
8 U.S.C. § 1231(b)(3).
662 DONCHEV v. MUKASEY
is unable or unwilling to control.13 “Persecution is an extreme
concept” that means something considerably more than dis-
crimination or harassment.14 Only subjectively genuine and
objectively reasonable fears of persecution are eligible for
relief.15 The alien creates a rebuttable presumption of future
persecution by showing that he has suffered past persecution,
or by providing direct, specific evidence that credibly sup-
ports a reasonable fear.16
Donchev argues first that the IJ should have found past per-
secution, and second, that the persecution should have been
found to be on account of “membership in a particular social
group,”17 friends of the Roma. He relies in part on our deci-
sion in Mihalev v. Ashcroft.18
I. Mihalev v. Ashcroft.
[1] Mihalev is of no help to Donchev. Aside from their
common nationality (Bulgarian), what is striking is how dif-
ferent these two petitioners are. Mihalev was Roma, Donchev
is not. Mihalev was jailed, beaten, and otherwise abused for
ten days after his first arrest (for a noisy party), two weeks
after his second arrest (for walking around without his identi-
fication papers), and five days (until he escaped after being
sexually assaulted by a prison guard) after the third arrest.
Donchev was jailed for less than one day and detained only
once for two hours. Our holding in Mihalev that there is “no
question that Gypsies are an identifiable ethnic group and that
being a Gypsy is a protected ground” (ethnicity) is of no help
to Donchev, because he is not a Gypsy.
13
Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008).
14
Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995); see also Al-Saher
v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001).
15
Lolong, 484 F.3d at 1178.
16
8 C.F.R. § 208.13 (2007); Ghaly, 58 F.3d at 1431.
17
8 U.S.C. § 1101(a)(42)(A).
18
388 F.3d 722 (9th Cir. 2004).
DONCHEV v. MUKASEY 663
[2] Mihalev claimed that he suffered a well-founded fear of
persecution based on three arrests by the Bulgarian police.19
The first time, police jailed Mihalev on charges of instigating
Roma gatherings after arresting him at a Roma birthday party
where the police beat the other Roma guests, called them
names, and said “Gypsies did not deserve to live.” The second
arrest occurred when the police demanded Mihalev’s docu-
ments as he was walking on a street at night and Mihalev did
not have them. Mihalev was arrested a third time at his “peri-
odic check-in” at the police station. We held that substantial
evidence did support the IJ’s finding that the second and third
arrests were not “on account of” a protected ground, and that
being a Gypsy “played no role in the police mistreatment.”20
This holding is analogous to the IJ’s finding in the case at bar
— that being a friend of Gypsies played no role in Donchev’s
arrests. The IJ found that Donchev encountered police when
they were investigating crimes or maintaining the peace. Sub-
stantial evidence supports the IJ’s finding that any escalation
during these encounters were caused by Donchev’s friends
challenging police authority.
[3] In Mihalev we also held that the record “compels the
conclusion that the first arrest was ‘on account of’ [Mihalev’s
Roma] ethnicity.”21 Specifically, “[t]he police officers’ con-
temporaneous declarations that Gypsies did not deserve to
live and that Petitioner was being held because he had been
organizing Gypsy gatherings”22 compelled a conclusion that
Mihalev’s Gypsy ethnicity played some role. There were no
analogous, contemporary declarations by the police or the
skinheads in Donchev’s case. The police never arrested or
jailed Donchev on charges of organizing Gypsy gatherings,
although Donchev organized and participated in his New
19
Id. at 725-26.
20
Id. at 727 (emphasis in original).
21
Id.22
Id.664 DONCHEV v. MUKASEY
Year’s Eve party, and participated in pro-Roma demonstra-
tions (which did not result in arrest). Although the skinheads
assaulted, beat, and robbed Donchev after he left a Friends of
the Roma meeting, the IJ found that there was no evidence
that it was “on account of” his friendships with the Roma or
membership in Friends of the Roma. The skinheads who took
Donchev’s watch and money were not policemen. These facts
support the IJ’s finding that this was crime, not persecution.
The location (outside the Roma organization’s meeting) and
timing alone do not compel the conclusion that Donchev was
attacked because of a protected ground.23
2. Particular Social Group.
In Mihalev, it was undisputed that the petitioner was part
of an “identifiable ethnic group” that qualified as a protected
ground.24 The same is not true of Donchev.25 Donchev does
not claim that he was persecuted because of Roma ethnicity
(his ethnicity is not Roma, but Bulgarian). Nor does he claim
that he was persecuted on account of political opinion. Rather,
Donchev claims that he was persecuted because he was in the
23
In concluding that Donchev’s arrests and mistreatment “were at least
partially motivated by Donchev’s affiliation with the Roma,” the dissent
fails to give proper deference to the IJ. See Dissent at 678. The question
is not whether the evidence would allow us to reach a different conclusion,
but whether the evidence compels us to. Lolong, 484 F.3d at 1178.
24
Mihalev, 388 F.3d at 726.
25
The IJ decided this case on the ground that Donchev had not proved
persecution “on account of” his membership in a particular social group.
The dissent focuses on whether Donchev was persecuted, a different ques-
tion from why he was persecuted. Assuming without deciding that he was
persecuted, that would still not entitle him to asylum under the statute
unless his persecution was “on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A). The argument in the dissent that the evidence would
support a conclusion that Donchev was persecuted because of his friend-
ship with the Roma does not compel that conclusion, nor does it compel
the conclusion that friends of the Roma are a “particular social group”
within the meaning of the statute.
DONCHEV v. MUKASEY 665
“particular social group” of friends of Roma individuals, or
friends of the Roma people.
[4] To determine whether Donchev has a cognizable claim,
we must determine what it means to be a “refugee.” We begin
by looking at the text of the statute. The statutory phrase is
“well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or politi-
cal opinion.”26 Although the other four protected grounds are
denoted with a fair degree of clarity, except perhaps around
the edges, “particular social group” needs interpretation to be
understood. On its face, the term “particular social group” is
ambiguous.27
We have previously defined “particular social group” to
mean a group “united by 1) a voluntary association which
imparts some common characteristic that is fundamental to
the members’ identities, or 2) an innate characteristic which
is so fundamental to the identities or consciences of its mem-
bers that they either cannot or should not be required to
change it.”28 To determine whether a claimed group is a “par-
ticular social group,” we consider “whether a group’s shared
characteristics gives members social visibility and whether
the group can be defined with sufficient particularity to
delimit its membership.”29 This attempt at a general definition
is instructive, but very abstract. When we are talking about
membership in something other than a tribe or clan, this defi-
nition is not very helpful to deciding cases because the
abstractness allows most disputes to be decided either way.
26
8 U.S.C. § 1101(a)(42)(A).
27
See Elien v. Ashcroft, 364 F.3d 392, 396 (1st Cir. 2004) (noting that
the term “particular social group” is not free from ambiguity); Lwin v. INS
144 F.3d 505, 510 (7th Cir. 1998) (describing the meaning of “social
group” as remaining “elusive”).
28
Santos-Lemus v. Mukasey, 542 F.3d 738, 744 (9th Cir. 2008) (quoting
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)).
29
Id. (citing Arteaga, 511 F.3d at 944-45).
666 DONCHEV v. MUKASEY
What is “fundamental” or “innate” to one person may be a
passing fancy to another.
In interpreting the statute, we follow the procedure set forth
in Chevron.30 We first apply the normal rules of statutory con-
struction. We are required, when faced with an ambiguous
statutory term, to defer to the construction given it by the
agency charged with the statute’s administration, provided the
interpretation is a permissible construction of the statute.31 To
determine whether an agency’s construction is permissible,
we look to the text and structure of the statute being construed.32
We look to the BIA’s decisional law to assist us in this inqui-
ry.33 Under INS v. Aguirre-Aguirre,34 we must give deference,
as our sister circuits have,35 to BIA law defining “particular
social group.”36
In re Acosta37 was the BIA’s first effort to develop the char-
acteristics for what may constitute a “particular social group.”
The BIA focused on the characteristics of individuals claim-
30
Chevron, U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837,
842-45 (1984); see also Chowdhury v. INS, 249 F.3d 970, 972 (9th Cir.
2001).
31
See INS v. Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999).
32
INS v. Cardoza-Fonseca, 480 U.S. 421, 448-49 (1987).
33
See, e.g., In re S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008); In re A-M-
E & J-G-U-, 24 I. & N. Dec. 69 (B.I.A. 2007); In re C-A-, 23 I. & N. Dec.
951 (B.I.A. 2006); In re V-T-S-, 21 I. & N. Dec. 792 (B.I.A. 1997); In re
Kasinga, 21 I. & N. Dec. 357 (B.I.A. 1996) (en banc); In re Toboso-
Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990); In re Fuentes, 19 I. & N. Dec.
658 (B.I.A. 1988); In re Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985).
34
526 U.S. at 424.
35
See, e.g., Ucelo-Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007);
Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190 (11th Cir. 2006); Niang
v. Gonzales, 422 F.3d 1187 (10th Cir. 2005); Elien, 364 F.3d at 392; Luk-
wago v. Ashcroft, 329 F.3d 157 (3d Cir. 2003); Lwin, 144 F.3d 505.
36
Aguirre-Aguirre, 526 U.S. at 424.
37
19 I. & N. Dec. 211 (B.I.A. 1985).
DONCHEV v. MUKASEY 667
ing membership in the group, while recognizing that whether
a particular kind of group characteristic would qualify “re-
mains to be determined on a case-by-case basis.”38 The BIA
explained:
The shared characteristic might be an innate one
such as sex, color, or kinship ties, or in some circum-
stances it might be a shared past experience such as
former military leadership or land ownership. The
particular kind of group characteristic that will qual-
ify under this construction remains to be determined
on a case-by-case basis. However, whatever the
common characteristic that defines the group, it must
be one that the members of the group either cannot
change, or should not be required to change because
it is fundamental to their individual identities or con-
sciences. Only when this is the case does the mere
fact of group membership become something com-
parable to the other four grounds of persecution
under the Act, namely, something that either is
beyond the power of an individual to change or that
is so fundamental to his identity or conscience that
it ought not be required to be changed.39
The BIA has stated that the “essence” of the particularity
requirement “is whether the proposed group can accurately be
described in a manner sufficiently distinct that the group
would be recognized, in the society in question, as a discrete
class of persons. While the size of the proposed group may be
an important factor in determining whether the group can be
so recognized, the key question is whether the proposed
description is sufficiently ‘particular,’ or is ‘too amorphous
. . . to create a benchmark for determining group membership.”40
38
Id. at 233.
39
Id. at 233-34.
40
In re S-E-G-, 24 I. & N. Dec. 579, 584 (B.I.A. 2008).
668 DONCHEV v. MUKASEY
[5] The BIA has subsequently reaffirmed that “members of
a ‘particular social group’ must share a common, immutable
characteristic,” one that the person “cannot change, or should
not be required to change.”41 The immutable characteristic is
a sine qua non for status as a member of a “particular social
group,” though it is not by itself sufficient.
As the BIA itself has recognized,42 the immutability
requirement may be inapplicable in some circumstances.
Wealth, even a trivial amount of it, targeted many “kulaks”
and “landlords” for persecution in the Soviet Union and Com-
munist China. According to the State Department’s Profile on
Bulgaria and other evidence in the record, people in Bulgaria
who have Roma friends are not targeted for persecution as the
kulaks and landlords were.
The record does not suggest that Donchev, or friends of
Roma individuals generally, are analogous to white freedom
riders during the sixties, who were targeted because of their
political activity on behalf of blacks. Donchev’s police con-
tacts did not arise out of any pro-Roma activities and several
preceded his membership in Future for the Roma. Overexpan-
sion of refugee status to include amorphous social groups is
unfair to other immigrants, because asylum jumps people to
the head of the line of those seeking permission to live in the
United States.
[6] Just as we refuse to infer persecution on account of a
political opinion “merely from acts of random violence by
members of a village or political subdivision against their
neighbors who may or may not have divergent . . . political
views,”43 we do not infer that people who are associated with
a protected group automatically comprise a “particular social
41
In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 73-74 (B.I.A. 2007) (citing
Acosta, 19 I. & N. Dec. at 233).
42
Acosta, 19 I. & N. Dec. at 233-34.
43
Ochave v. INS, 254 F.3d 859, 865 (9th Cir. 2001).
DONCHEV v. MUKASEY 669
group” for the purposes of asylum. The BIA applies “particu-
lar social group” to groups of people who are “unable by their
own actions” to avoid persecution.44
[7] Some “particular social groups” recognized as such by
the BIA include traditional clans or tribes. The BIA held in In
re V-T-S- that persecution on account of a particular social
group “refers to persecution that is directed toward an individ-
ual who is a member of a group that share common immuta-
ble characteristics . . . characteristics that members of the
group either cannot change, or should not be required to
change, because such characteristics are fundamental to their
individual identities.”45 For example, the “characteristics of
being a Filipino of mixed Filipino-Chinese ancestry cannot be
changed and are therefore immutable.”46 The BIA relied upon
the State Department’s Country Profile, which reported that
1.5 percent of the Philippine population had “identifiable Chi-
nese background” and reports that the Philippine government
also recognized these individuals as a group. The Country
Profile also stated that the police and government officials
were colluding to make wealthy businessmen of Chinese eth-
nicity a target of extortion schemes and kidnappings-for-
ransom.47
Similarly, in In re Kasinga the BIA held that young women
of the Tchamba-Kunsuntu tribe of Northern Togo who do not
undergo and oppose their tribe’s practice of female genital
mutilation were a particular social group.48 The BIA explained
that being a member of the Tchamba-Kunsuntu Tribe “cannot
be changed,” and the “characteristic of having intact genitalia
44
Acosta, 19 I. & N. Dec. at 935.
45
21 I. & N. Dec. 792, 798 (B.I.A. 1997).
46
Id.47
Id. at 795.
48
21 I. & N. Dec. 357, 365 (B.I.A. 1996).
670 DONCHEV v. MUKASEY
is one that is so fundamental to the individual identity of a
young woman that she should not be required to change it.”49
The BIA held in In re H- that members of the Marehan sub-
clan of Somalia was a particular social group, because it was
“an entity which is identifiable by kinship ties and vocal
inflection or accent.”50 The Marehan subclan was also eco-
nomically identifiable as the ruling class in Somalia (the place
of persecution), and as a minority “constitut[ing] less than 1
percent of the population of Somalia.”51 Relying on Country
Reports for Somalia, the BIA held that in Somalia “clan mem-
bership is a highly recognizable, immutable characteristic that
is acquired at birth and is inextricably linked to family ties”
and that it was possible to discern “distinct and recognizable
clans and subclans in Somalia.”52
In In re Toboso-Alfonso the BIA held that persons identi-
fied as homosexuals by the Cuban government were a particu-
lar social group.53 “[B]ecause of [Toboso-Alfonso’s] status as
a homosexual he was advised by his government to leave the
country or face incarceration for a period of 4 years.”54 He
was required to register with the Cuban government as a
homosexual, and the Cuban government was known to detain,
jail, and beat Cuban homosexuals.55 Noting that the govern-
ment’s penalty for failure to leave Cuba was imprisonment,
the BIA explained that Toboso-Alfonso’s plight was “not sim-
ply a case involving the enforcement of laws against particu-
49
Id. at 365-66.
50
In re H-, 21 I. & N. Dec. 337, 340, 342-43 (B.I.A. 1996).
51
Id. at 340.
52
Id. at 342-43.
53
20 I. & N. Dec. 819 (B.I.A. 1990).
54
Id. at 823.
55
Id. at 821.
DONCHEV v. MUKASEY 671
lar homosexual acts, nor is this simply a case of assertion of
‘gay rights.’ ”56
[8] Friends of Roma individuals or of the Roma people do
not resemble those groups. Donchev was not born a friend of
the Roma, like members of the Marehan subclan in In re H-
, Filipinos of Chinese ancestry in In re V-T-S-, or the young
women of the Tchamba-Kunsunti tribe in In re Kasinga. Nor
is he a member of a highly recognizable economic or social
minority. As a Bulgarian Christian, he is most identifiable
with the ethnic, religious, and cultural majority in his country.
A comparison of the treatment of Donchev to the treatment
of Roma during World War II, when Bulgaria was an ally of
Germany, underscores the difference.57 During the war, Bul-
garia passed laws denying the Roma access to central parts of
Sofia, forbidding their use of public transportation, and giving
them smaller food rations than other Bulgarians. In some
places, the government forced the Roma to convert to Chris-
tianity and outlawed marriages between Bulgarians and
Roma. Donchev has not claimed any restrictions on his free-
dom to work, to marry, or to eat. The experience of other
members of Donchev’s own family shows that friends of
Roma are not viewed or treated in a uniform way by the Bul-
garian government or Bulgarian society. The Roma were not
only neighbors of Donchev, but also of his mother. Donchev
testified that the Roma were his mother’s friends after Don-
chev’s father passed away, and that the Roma supported their
family. Yet Donchev’s mother remains in Bulgaria, and Don-
chev never claimed or testified that she was arrested or even
harassed, although she also has visible friendships with the
Roma.58
56
Id.57
See Ctr. for Documentation & Info. on Minorities in Europe — South-
east Europe, Roma of Bulgaria 5.
58
Cf. Aruta v. INS, 80 F.3d 1389, 1395 (9th Cir. 1996) (approving the
use of “family evidence and the inferences drawn from it” to support the
agency’s decision); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir. 1984)
(noting that the family had remained in the country and not been
harassed).
672 DONCHEV v. MUKASEY
The BIA has stressed the importance of social visibility as
a factor in defining a particular social group. It has found that
no “particular social group” exists for individuals merely
claiming to be “affluent Guatemalans,”59 former noncriminal
informants working against a drug cartel,60 and Salvadoran
youths who had rejected gang recruitment efforts.61
We said in Ochoa v. Gonzales, consistent with the BIA’s
construction, that the “[k]ey to establishing a ‘particular social
group’ is ensuring that the group is narrowly defined.”62 We
held in Ochoa that “business persons” who rejected the
demands of narco-traffickers were “too broad to qualify as a
particularized social group.”63 There is no principled distinc-
tion that allows rejection of refugee status for persecuted busi-
ness persons who resisted narco-traffickers but grants it to
persecuted friends of Roma individuals or the Roma people.64
In Sanchez-Trujillo v. INS, we held that young urban males
who had not served in the military were not the “type of cohe-
sive, homogeneous group” embraced by the statutory term
“particular social group.”65 We held in Santos-Lemos v.
Mukasey,66 which applied Ochoa and Sanchez-Trujillo, that
the group of young Salvadorans who had refused to accede to
gang recruitment was “too broad and diverse” and lacked the
59
In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 75-76 (B.I.A. 2007).
60
In re C-A-, 23 I. & N. Dec. 951, 957-58 (B.I.A. 2006).
61
In re S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008).
62
Ochoa v. Gonzales, 406 F.3d 1166, 1170 (9th Cir. 2005).
63
Id. at 1171.
64
Nor has the dissent suggested that they are distinguishable. Instead,
the dissent simply assumes that any “supporters” of an ethnic, political, or
religious group are themselves a “particular social group.” This assump-
tion is unwarranted under Santos-Lemos and Ochoa. Supporters must
make the same showing as other individuals claiming to be part of a “par-
ticular social group.”
65
801 F.2d 1571, 1577 (9th Cir. 1986).
66
542 F.3d 738 (9th Cir. 2008).
DONCHEV v. MUKASEY 673
requisite “social visibility” to qualify as a “particular social
group.”67
It is impossible to define “particular social group” with pre-
cision for all contexts, and dangerous to those who may be
persecuted for group membership that we cannot anticipate,
because the potential range of persecution of some people by
others cannot be fully embraced by the imagination. Various
factors, such as immutability, cohesiveness, homogeneity, and
visibility, are helpful in various contexts, but they are not
exhaustive. The traditional common law approach, looking at
hypothetical cases and commonalities in cases that go one
way or the other, is more prudent. When the Hutus in Rwanda
murdered as many Tutsis as they could, the persecution was
not on account of “race, religion, nationality, . . . , or political
opinion.”68 But ethnicity, being Tutsi, fits well into the “par-
ticular social group” category. Likewise, the persecution of
the Roma in Bulgaria during World War II was of a “particu-
lar social group.”
[9] Persons who have declined to join gangs, who have not
served in the military, and who have declined to pay money
to drug dealers differ in obvious ways from the Tutsis in
Rwanda, most obviously in that they have chosen a course of
conduct that led others to harm them, whereas the Tutsis did
not. Donchev’s claim arises out of the choices he made in his
friends. We cannot say that “any reasonable adjudicator
would be compelled to conclude”69 that Donchev’s friendship
with Roma individuals and the Roma people made him part
of a “particular social group.”
[10] Because a reasonable adjudicator would not be com-
pelled to conclude that friends of Roma individuals or of the
67
Id. at 745-46.
68
See 8 U.S.C. § 1101(a)(42)(A).
69
8 U.S.C. § 1252(b)(4)(B) (2006); see Zehatye v. Gonzales, 453 F.3d
1182, 1185 (9th Cir. 2006).
674 DONCHEV v. MUKASEY
Roma generally are a “particular social group,” the remaining
issues raised in this case do not require adjudication. Accord-
ingly, we need not decide whether what happened to Donchev
was “past persecution,” or whether his friendship with the
Roma caused the mistreatment he suffered. We thus do not
reach the question of whether the government overcame the
presumption of a well-founded fear that would arise from past
persecution.
PETITION DENIED.
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from the denial of Donchev’s claim of
asylum. His credible testimony and corroborating evidence
compel a finding of past persecution in Bulgaria. This shifts
the burden to the government to rebut the presumption of a
well-founded fear of future persecution by a preponderance of
the evidence. I would therefore remand this case to the agency
for an individualized analysis of how current country condi-
tions affect the reasonableness of Donchev’s fear of persecu-
tion if he is returned to Bulgaria.
I. Past Persecution
The Immigration Judge found that Donchev credibly testi-
fied that he experienced severe mistreatment in Bulgaria. The
IJ also repeatedly credited Donchev’s testimony that he was
targeted because of his association with the Roma, stating, for
example, “It was obvious that there was no reason for [the
police] to fine [Donchev and his Roma friends] or detain
them, but the police kept searching for reasons.” It can there-
fore not be said that substantial evidence in the record sup-
ports the IJ’s conclusion that Donchev was not persecuted “on
account of” his support for the Roma. See Mihalev v. Ash-
croft, 388 F.3d 722, 727 (9th Cir. 2004).
DONCHEV v. MUKASEY 675
A. Persecution
The abuse that Donchev suffered over the course of a
decade clearly rose to the level of persecution. See Baballah
v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir. 2004) (“[T]he
severity of harm is compounded when incidents of persecu-
tion have occurred on more than one occasion, particularly
where an applicant is victimized at different times over a
period of years.”). We have “consistently found persecution
where . . . the petitioner was physically harmed because of”
a protected ground. Mihalev, 388 F.3d at 729 (quoting Duarte
de Guinac v. INS, 179 F.3d 1156, 1161 (9th Cir. 1999)).
Although a “single four-to-six-hour detention, in which Peti-
tioner was hit on his stomach and kicked from behind,” may
be insufficient to compel a finding of past persecution, see
Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995), such a find-
ing is compelled in this case because of the repeated and
severe nature of the abuse, see Mihalev, 388 F.3d at 729(“The operative question is whether, looking at the cumula-
tive effect of all the incidents that a Petitioner has suffered,
the treatment he received rises to the level of persecution.”)
(quoting Gormley v. Ashcroft, 364 F.3d 1172, 1176 (9th Cir.
2004)).
During his time in the military, Donchev was beaten almost
every day, sometimes twice a day, because he refused to mis-
treat Roma soldiers. Such physical abuse cannot be consid-
ered legitimate punishment for failing to follow orders,
particularly where, as here, those orders were given in order
to effectuate the officers’ discrimination against an ethnic
minority. Cf. Tagaga v. INS, 228 F.3d 1030, 1034 (9th Cir.
2000) (finding past persecution when asylum seeker had been
court martialed for refusing to follow orders to arrest and
detain Indo-Fijians); Barraza Rivera v. INS, 913 F.2d 1443,
1451 (9th Cir. 1990) (holding that punishment for “refusing
to comply with orders . . . because they violate standards of
human decency” can itself amount to persecution).
676 DONCHEV v. MUKASEY
Donchev also testified to four run-ins with the police after
he left the military. In all of these cases, Donchev was
detained; in most, he was beaten. He was never, however,
charged with any crime. We have repeatedly held that deten-
tion and mistreatment partially motivated by a protected
ground and not accompanied by formal prosecution is perse-
cution that provides a proper basis for asylum even if there
also is a legitimate reason for the detention. See, e.g.,
Mihalev, 388 F.3d at 727; Ndom v. Ashcroft, 384 F.3d 743,
755 (9th Cir. 2004), superseded by statute as stated in Parus-
simova v. Mukasey, 533 F.3d 1128, 1133 (9th Cir. 2008); Rat-
nam v. INS, 154 F.3d 990, 996 (9th Cir. 1998); Singh v.
Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1990), superseded by
statute as stated in Parussimova, 533 F.3d at 1133; Ramirez
Rivas v. INS, 899 F.2d 864, 867-68 (9th Cir. 1990); Blanco-
Lopez v. INS, 858 F.2d 531, 534 (9th Cir. 1988), superseded
by statute as stated in Parussimova, 533 F.3d at 1133.1
In addition to this conduct by the Bulgarian police and mili-
tary, Donchev also testified that he was persecuted by skin-
heads. The skinheads threatened him at work and he often had
to clean swastikas off the wall. They would also come after
unsuccessful attempts by the police to stop a pro-Roma dem-
onstration and beat up the participants. In the most serious
incident, shortly before he left Bulgaria, Donchev was beaten
up and strangled by people dressed like skinheads when he
was leaving the annual meeting of the Future for the Roma
organization. Although Donchev did not testify that they said
anything about him being a Roma or Roma supporter during
that attack, the timing and location of the action is strong cir-
cumstantial evidence that they targeted him because of his
1
Because Donchev filed his application for asylum in 2003, the provi-
sions of the REAL ID Act of 2005 do not apply to his case. Therefore,
Donchev is not required to prove that the protected ground was “one cen-
tral reason” for his persecution. Cf. Parussimova, 533 F.3d at 1135-36(holding that although the petitioner’s assailants made ethnic slurs when
they attacked her, the evidence did not compel a conclusion that her eth-
nicity was a “central motivating reason” for the attack).
DONCHEV v. MUKASEY 677
membership in the organization. According to Donchev’s
credible testimony, the police were not contacted after this
attack because everybody knew that the police and the skin-
heads frequently worked together. In the face of this type of
governmental acquiescence, harassment and violence by pri-
vate actors constitutes persecution, even if the victim does not
report it to the police. Ornelas-Chavez v. Gonzales, 458 F.3d
1052, 1057-58 (9th Cir. 2006) (holding that victim of private
persecution need not report that persecution to the authorities
if doing so would be futile, as when the authorities themselves
are responsible for similar persecution).
Particularly relevant in evaluating Donchev’s claim is
Mihalev v. Ashcroft, 388 F.3d 722. Although the majority is
correct that the petitioner in Mihalev was of Roma ethnicity
and Donchev is not, the petitioners’ ethnicity is a distinction
without a difference because Mihalev informs our analysis of
whether Donchev was persecuted, not the reason for that per-
secution. Ethnicity aside, the facts of these two cases are strik-
ingly similar. In both cases, the police broke up an
exclusively- or primarily-Roma party, allegedly in response to
a noise complaint, and proceeded to make offensive com-
ments about Roma and beat the attendees, and detained the
petitioners without charge. Significantly, this Court remanded
Mihalev’s case based on that single arrest, whereas Donchev
was persecuted on multiple occasions. In that sense, Don-
chev’s case is actually stronger than that of Mihalev, despite
the fact that Donchev is not a Roma.
B. “On Account of”
An asylum applicant must demonstrate that the persecution
he suffered is “on account of” a protected ground: race, reli-
gion, nationality, membership in a particular social group, or
political opinion. 8 U.S.C. § 1158(b)(1)(B)(I). The record
compels the conclusion that Donchev was persecuted on
account of his membership in a particular social group.
678 DONCHEV v. MUKASEY
1. Particular Social Group
On his asylum application, Donchev indicated that he was
persecuted on account of his membership in a particular social
group—supporters of the Roma. We have defined “particular
social group” to mean a group “united by 1) a voluntary asso-
ciation which imparts some common characteristic that is fun-
damental to the members’ identities, or 2) an innate
characteristic which is so fundamental to the identities or con-
sciences of its members that they either cannot or should not
be required to change it.” Santos-Lemus v. Mukasey, 542 F.3d
738, 744 (9th Cir. 2008) (quoting Arteaga v. Mukasey, 511
F.3d 940, 944 (9th Cir. 2007)). See also In re A-M-E- & J-G-
U-, 24 I. & N. Dec. 69, 73 (BIA 2007) (citing Matter of
Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985)). Here, Don-
chev’s “characteristic” is his friendships with, support, and
defense of the Roma. This characteristic is fundamental to his
individual identity and conscience and he should not be
required to change it.
While in the military, Donchev was beaten because he
refused to carry out discriminating orders. As a civilian, he
was repeatedly detained and beaten by the police but never
prosecuted. These detentions were at least partially motivated
by Donchev’s affiliation with the Roma, and were therefore
on account of his support for the Roma. See, e.g., Mihalev,
388 F.3d at 727. With respect to one incident, the IJ con-
cluded that there was no legitimate reason for the detention;
in another case, the police explicitly suggested that Donchev
was responsible for a theft because “he has friends who are
gypsies”; in a third case, the police specifically said “what are
the gypsies doing in a church,” before they began to beat
Donchev and his friend, using not only their hands and feet,
but also batons. Cf. Kebede v. Ashcroft, 366 F.3d 808, 812
(9th Cir. 2004) (holding that statements by attackers com-
pelled a finding that the nexus requirement was met); Maini
v. INS, 212 F.3d 1167, 1175-76 (9th Cir. 2000) (same).
Finally, he formally associated himself with a pro-Roma orga-
DONCHEV v. MUKASEY 679
nization, participated in their demonstrations and meetings,
and as a result, suffered a brutal attack by skinheads. This evi-
dence compels a conclusion that Donchev’s persecution was
on account of his membership in the particular social group
of supporters of the Roma people.
2. Relevance of Embassy Telegram
As thoroughly demonstrated above, the record is replete
with evidence that Donchev, himself, was persecuted on
account of his membership in the particular social group of
Roma supporters. He was targeted because of his association
with, and support for, the Roma, an ethnic minority. This was
a voluntary association characterized by his membership in
the pro-Roma organization, Future for Roma, and his refusal
to mistreat Roma when ordered to do so by his superiors in
the military. This individualized evidence is not discredited
by a telegram from the U.S. Embassy stating that although the
human rights situation has improved, “individual instances of
anti-Roma discrimination which still occur should not be
equated with wholesale systematic persecution.” See Cheb-
choub v. INS, 257 F.3d 1038, 1044 (9th Cir. 2001) (stating
that the BIA could rely on a country report to refute the appli-
cant’s generalized statements about country conditions, but
“not to discredit specific testimony regarding his individual
experience”); Duarte de Guinac, 179 F.3d at 1162 (stating
that the purpose of country condition evidence is to enable the
factfinder to “intelligently evaluate the petitioner’s credibili-
ty”). This telegram was not sent in response to Donchev’s
petition. It is dated December 30, 2000, almost three years
before he applied for asylum, and contains only general state-
ments about the Roma in Bulgaria. Importantly, Donchev’s
testimony is not inconsistent with the telegram, which simply
states that some Bulgarian asylum seekers were awarded asy-
lum based on the general perception that Roma are persecuted
despite the fact that those applicants failed to present any evi-
dence that they themselves had been persecuted. In contrast,
Donchev’s credible testimony establishes that he suffered per-
680 DONCHEV v. MUKASEY
secution because of his association with the Roma. See
Duarte de Guinac, 179 F.3d at 1162-63 (reversing BIA con-
clusion that State Department reports regarding discrimination
against indigenous people in Guatemala failed to provide ade-
quate support for Duarte de Guinac’s persecution claim
because the report did not contradict his testimony regarding
what happened to him). Therefore, I cannot agree with the
majority that this single document establishes that Donchev
was not persecuted because of his association with the Roma
in light of the compelling direct evidence that he was targeted
because of that association.
II. Fear of Future Persecution
The Immigration Judge denied Donchev’s asylum claim
because he failed to establish a well-founded fear of future
persecution. However, because the record compels the con-
clusion that Donchev suffered persecution in the past, the bur-
den was on the government to rebut the presumption of future
persecution. 8 C.F.R. § 1208.13(b)(1). In order to do this, the
government must establish by a preponderance of the evi-
dence that there has been a fundamental change in circum-
stances in the country of origin such that the asylum seeker
no longer has a well-founded fear of persecution. 8 C.F.R.
§ 1208.13(b)(1)(i). The government’s evidence must allow
the BIA to make “an individualized analysis of how changed
conditions will affect [Donchev’s] situation.” Lopez v. Ash-
croft, 366 F.3d 799, 805 (9th Cir. 2004) (citation omitted).
Generalized country information from the State Department is
not by itself sufficient to rebut the presumption. Molina-
Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Because
the Immigration Judge failed to properly shift the burden to
the government and failed to consider the issue of changed
country conditions, I would remand. See INS v. Ventura, 537
U.S. 12, 16 (2002) (per curiam) (holding that Courts of
Appeals cannot decide the issue of changed country condi-
tions in the first instance). I note that no Country Report on
DONCHEV v. MUKASEY 681
Human Rights Practices for Bulgaria is contained in the
Administrative Record.
III. Withholding of Removal
Once a petitioner establishes past persecution, he is entitled
to a presumption of withholding of removal. Mihalev, 388
F.3d at 731. Because I believe that the record compels the
conclusion that Donchev was persecuted in the past,2 I would
remand the case so that the BIA consider his withholding of
removal claim or, if appropriate, remand to the IJ to do so.
2
My dissent, contrary to Judge Kleinfeld’s unfair assertion, does not
independently weigh the evidence. Rather, it rigorously applies the sub-
stantial evidence standard and concludes that the record compels reversal
and remand. See Dissent at 674 (last line), Dissent at 679 (last line of Part
I.B.1).