*1 DONCHEV; Gеorgiev Avgustina Petar Petitioners, Zhivkova,
Tsvetanova MUKASEY,* Attorney Michael B. General, Respondent.
No. 05-74709.
Appeals,
United States Court of
Ninth Circuit.
24,
Argued
Sept.
and Submitted
Filed Jan.
105(a)
60(b),
bankruptcy
under section
of the
that it could be set aside under Rule
is
Bennett,
1069;
consequence.
code. See In re
of no
A
creditor is not free to
Bank, N.A.,
discharge injunction
Fargo
violate the
because it
Walls Wells
276 F.3d
has
(9th Cir.2002)
validity
discharge.
(holding
doubts as to the
If
that civil
discharge
the creditor believes the
is defec-
contempt
appropriate remedy
an
for a
tive, may petition
bankruptcy
it
court to
discharge
willful violation of section 524's
reopen
judgment
Bennett,
and set aside the
under Rule
injunction).
In
we noted that the
60(b),
may
but it
not commence collection
party seeking contempt sanctions has the
proceedings
grants
and until the
unless
court
proving, by
convincing
burden of
clear and
bankruptcy
such relief. If the
court finds that
evidence,
justified.
that the sanctions are
willfully
injunc-
the creditor here
violated the
approval
We cited with
the standard
tion,
shall,
least,
very
impose
it
at the
sanc-
adopted by the Eleventh Circuit for viola-
necessary
Espino-
tions to the extent
to make
discharge injunction:
tion of the
"[T]he
Bankruptcy
sa whole. See Collier
Manual
(1)
prove
movant
must
creditor
rev.,
¶
(3d
ed.)
("In
524.02[2][c]
cases in
discharge injunction
applica-
knew the
was
discharge injunction
which
was violated
(2)
ble and
intended the actions which vio-
willfully, courts have awarded debtors actual
injunction.”
lated the
damages, punitive damages
attorney's
(citing
Before: KLEINFELD, M. and RONALD GOULD, Judges. Circuit Kleinfeld; by Judge Dissent Opinion BETTY B. Judge FLETCHER. KLEINFELD, Judge: Circuit (Donchev) Georgiev Donchev Petar removal, asylum, withholding of seeks Against Tor- relief under Convention a particular ture as a member of
friends of the Roma.1 group,
FACTS entered the United States on Donchev age Belgian 2003 at 26 on a false March Bulgar- passport bought. that he He is ian, Belgian. His mother lives in Bul- States, garia, his in the sister United she become a citizen. Donchev where has agents apprehended special when Immigration from the Bureau of and Cus- (ICE) toms Enforcement executed residence, search warrant on his sister’s where lived. turned Donchev The search up immigration numerous fraudulent doc- $40,000 uments and cash. about Security Department Homeland proceedings against Don- initiated removal applied asylum, chev. Donchev then for removal, withholding of and relief under Against ap- the Convention Torture. His plication says nationality that his is Bul- Marchi, Marchi, Carney Nicholas & W. garian asylum and that he seeks or with- P.S., Seattle, WA, petitioners. for the holding of removal based on group.” in a He claims: “particular social (argued) Andrew S. Biviano and Frank (briefed), police A. Attor- I held at stations and Wilson Assistant U.S. have been WA, neys, Spokane, respondent. have been mistreated and harmed be- wife, Avgustina application 1. The IJ stands or falls with Don- found va's (Zhivkova) Tsvetanova Zhivkova does not chev's. asylum an independent have claim. Zhivko- my participation in organi- cаuse of and two other detentions in as well rights gypsies. zations for the as to abuse in 2002. He also being Some incidents consisted of beaten police, claimed abuse connected with these I raped. by people was harmed events. When explain asked to the dis- against gypsies authority. who are crepancy between the answer in appli- All the mistreatments occurred several cation testimony and his at the hearing, past years. times in the few I believe Donchev said that he had not understood I am happened part of a question. application His also indi- group participated certain social attorney cates that his prepared appli- there. cation. At the hearing, Donchev testified *4 In application says the he also “I partici- that it was his him, sister who helped with pated as a member of organizations that attorney only helping to mail it. fights rights of the gypsies.” At the Donchev’s testimony described a series hearing Donchev testified he has been soldiers, of contacts with the fellow police, a member of the “Roma organization” and hoodlums before he Bulgaria left in since 2000. He submitted a document February 2003. When Donchev in served purports be a card for military 1990s, the in early the he “was organization, the Future for the Roma. ordered ... mistreat[his Roma friends] Donchev testified at hearing the that he them things make do that were un- himself is not Roma. in ap- Nowhere the pleasant by two senior lieutenants.” Most plication does Donchev claim to be Roma himself, just of the time obey friends with Roma he refused to individuals these or- ders, people. and friend of the Roma so he put was arrested mili- tary confinement. Donchev claimed that repeats rape Donchev his claim of in his other military soldiers in confinement application were describing when he fears what if ordered to beat him happen again” up “will he returns to Bul- and torture him. garia. He never mentions the claim of He testified that he up got was beaten rape testimony. in his Regarding his fears bruises, and that beatings these occurred torture, says of future he “I am afraid and frequently during his first six months in if I my country fear return to those do. military. the He does not claim to have happen agаin. incidents will Torture tortured. been stalked, I fear [bleating, I raped.. fear Donchev also testified to two contacts my that if I return to country I could be police with the in the regarding late 1990s lolled.” says Donchev also applica- a shop where he worked. Donchev was a tion that his mother is dead. At the hear- salesperson at shop, police the and the ing alive, he testified that his mother is questioned him about shop whether the continues to live in Bulgaria, and obtained was selling stolen merchandise. Donchev for him forged immigration documents police testified that the confiscated “some during found the search. Donchev also watches,” clocks or they “had the answered “No” on his application to the notion that the merchandise was stolen question of whether he had ever been “ac- because we having were trade relation- cused, arrested, detained, charged, interro- ships gypsies with ... taking who were gated, sentenced, convicted and impris- through merchandise Tur- border from any oned in country other than the United key through city Dimitrovgrad.” States.” When later testifying, Donchev beaten, Donchev was not but he was described two police detentions conjunction lot; “threatened a I psychological- with his work between and was and 2001. He also testified' to an ly police arrest harmed.” The threatened to con- charged was not they day.” believed the “next Donchev inventory that
fiscate the any with offense. was stolen. shop windows another occasion injury
On Donchev’s first claim of for which broken, and swastikas and other were medical attention arose when he sought he The investi- graffiti painted on the walls. leaving friend were church June and his shop suggested gating officers policemen laughing 2002. Two started had done it them- owner and Donchev doing in a gypsies asked “what are the Donchev went get insurance. selves policemen started church.” One station, where did police down to friend with a baton. hitting Donchev’s him, harm nor did not beat or otherwise testified that when he tried to Donchev any they charge him with crime. stop policeman the other policeman, “hit one hit me in the me. second police Donchev’s first incident with the I ground back. I fell on thе and remem- violence, just insulting re- involving I hit ber that I was kicked and was later, marks, years in 2001. came few the baton.” Donchev was not detained in a car with Roma riding Donchev was police police or taken down to the stopped them for a friends when the *5 injuries prove station. To his he did sub- checkup.” police then took “routine Bulgarian mit a letter in from a doctor he station, police supposedly them to the to days says two later. The letter that saw consumption. They were check for alcohol cuts, scrape, Donchev had and bruises charged any not with crime and were re- significant pain suffering, that caused and During the deten- leased after two hours. temporary but were a and non-life-threat- tion, one of Donchev’s friends told the ening health disturbance. police they right that had no to detain them, got after the friend his arm which Donchev also incidents testified two hit in broken and Donchev was the head. January with “skinheads.” In 2003 he was Donchev did not seek medical attention or meeting pro-Roma organization, at a of a claim that he needed it. prove the Roma. To affilia- Future for his Roma,
Donchev’s next contact at a tion with Future for the police was Donchev on December submitted as an exhibit a card party New Year’s Eve friends, 2001. He and his most of whom issued in 2000 “Future for the [R]oma.” Roma, little, drinking “very meeting, were were When Donchev left some only bubbly.” up. Nobody some He testified that the skinheads beat him called the my ... [up police everybody “came house and “because that the to] kn[ew] the, they complaint body that that said there was skinheads were acts noisy.... They police.” prove celebration was too started for—in the favor of the To injuries, using offending words towards us. And Donchev submitted a second they January said the 14th of was the doctor’s letter. The letter stated that Roma New Year’s Eve and that’s when we Donchev told the doctor that had he been assaulted, beaten, supposed were to celebrate.” After Don- and robbed of his watch. swelling bruising chev and his friends were taken to the The doctor observed and elsewhere, police department, causing “tempo- local Donchev testified on his face and rary non-life-threatening were kicked. We were beaten and health dis- “[w]e injuries accompanied with used swear words turbance. The were sticks— against any by They significant pain suffering. us.” Asked whether he had and said, “No, injuries, I lasting psy- relatively period he will heal in a short time chologically They hurt.” were released health to the consequences without vie- It Bulgaria. Mends also had was sent to the State De- and his tim.” Donchev 30, 2000, partment evidently skinheads at soccer on with the December incidents assisting games. asy- with evaluation of political lum claims. It notes that “[t]he any testify particu- Donchev did and human rights Bulgaria climate has incident, police or the skin- lar with the improved dramatically since the 1997 as- heads, his at- him to undertake caused of a democratic govern- cension reform to the United States. tempts move rights ment. Human violations been have Bulgaria, remains in Donchev’s mother considerably frequency reduced both The Roma have does his wife’s sister. level, pre-1997 and seriousness from the “neighbors, their our Mends” long been certainly pre-1989 from the level. my- “supported my mother and and have The individual instances of anti-Roma dis- moth- There is no evidence self.” crimination which still occur should not arrested, harmed or even er had been systematic equated per- be wholesale threatened, Mendships these despite contemplated by asylum secution as law.” for the Roma. Both his mother sympathy by explaining It continues situ- “[t]he among continue to live and sister-in-law in Bulgaria ation for the Roma is a com- Roma, has never claimed and Donchev plex one. There are several distinct sub- fear for their lives or intend to that either populations of Bulgarian Roma. While Bulgaria. leave many privation, suffer economic others According report in the record well-educated, relatively wealthy are Department of State the United States participate prominently in Bulgarian Bulgaria: Asylum Claims titled Profile of society. objective asy- No basis exists for *6 Conditions, Country Bulgaria and has a Bulgarian lum to be awarded to Roma crime, great corruption, deal of and bad simply ethnicity. of Although because third economy. report “[a] *7 (when taining peace partying he was with Bulgarian gоvernment connected with the friends).” The IJ found “no indication” anyone or government who the would or that the investigations into the stolen mer- could not control. damage chandise or to the store “were The IJ thus denied applica- anything more than a normal inves- removal, asylum, withholding tion for of tigation.” Regarding the detention to in- and Against relief under the Convention vestigate suspected driving, drunk the IJ Torture. Immigration The Board of Ap- found it nothing had to do with a protected (BIA) peals affirmed without opinion. We “[tjhere ground: young people were six deny peti- Donchev’s and thus Zhivkova’s riding car, possibly drinking, around a tions for review. and challenging authority police. of the This repeats scenario regularly itself STANDARD OF REVIEW young men, even in country this —and Where, here, there BIA race, is no affirms apparent connection to religion, the decision of the nationality, political opinion opinion, or IJ without we membership in a social review the group just agency hot- IJ’s decision as the final — young headed men cops.” and hot-headed decision.2 The IJ’s factual determination Gonzales, 972, (9th Cir.2007). 2. Morales v. 977
1213 a panel might Even if the reach conclusion eligibility alien has not established that an is withholding by IJ, of removal asylum and different from .reached we for evidence under the substantial reviewed “may reverse unless we determine that not agency’s must affirm the We standard.3 any reasonable factfinder would have been “supported findings if are factual reach that compelled to conclusion.”10 substantial, evi reasonable, probative as a record considered ANALYSIS on the
dence is ex “The standard of review whole.”4 relief, eligible asylum To for be ‘administrative find tremely deferential: required “refugee” Donchev is to establish any rea unless of fact are conclusive ings status, i.e., unwilling that he is an alien or compelled to adjudicator would be sonable perse to return home of unable “because ”5 contrary.’ to the conclude persecu fear of cution or well-founded race, determina agency review of nationali religion, Our tion on account of withholding of removal asylum tions of ty, membership deferential.6 highly is also constrained group, political opinion.”11 A clear free7 to look anew at the are not We required withholding is probability and then measure the soundness testimony relief, type For either removal.12 we would agency’s decision what by government offi persecution must be compel Nor does evidence found.8 have government cials or individuals that the it just conclusion opposite unwilling unable or to control.13 “Perse support a different result. would also concept” cution is an extreme that means something considerably more than discrim reversal, Donchev
To obtain
Only subjectively
or harassment.14
ination
heavy
to “show that
burden
bears
objectively
reasonable fears of
genuine
compelling
was so
presented
evidence he
eligible
are
for relief.15 The
persecution
fail to
reasonable factfinder could
that no
presumption
alien creates
rebuttable
requisite
persecution.”9
fear of
find the
483-84,
Elias-Zacarias,
478, 481,
Elias-Zacarias,
112
502 U.S.
502 U.S.
INS v.
812;
Gonzales,
(1992).
Lolong
F.3d
S.Ct.
484
S.Ct.
future that he has arrest occurred when the demanded byor past persecution, providing suffered walking Mihalev’s documents as he on was direct, that specific credibly sup- evidence night a street at did not have Mihalev ports a reasonable fear.16 them. Mihalev was arrested a third time “periodic police at his check-in” at argues first that the
Donehev IJ should station. We held substantial evidence second, persecution, past have found support finding did the IJ’s that the sec- persecution shоuld been have in ond and third arrests were not “on account “membership found to be on account of group,”17 a friends of the protected ground, being of’ a and that a in in part Roma. He relies on our decision “played in Gypsy police no role mis- Ashcroft,18 Mihalev v. holding analogous treatment.” This finding the IJ’s the case at bar —that Mihalev Ashcroft. a being Gypsies played friend of no role in help Mihalev is of no to Donehev. Donchev’s arrests. The IJ found that (Bul- nationality Aside from their common police Donehev encountered when garian), striking what is is how different investigating were crimes or maintaining petitioners these two are. Mihalev was peace. Substantial supports evidence Roma, Donehev is not. Mihalev was finding any the IJ’s during escalation jailed, beaten, and otherwise abused for these by encounters were caused Don- (for days ten after noisy his first arrest chev’s friends challenging police authority. party), two weeks after his second arrest In Mihalev we also held that the record (for walking around without his identifica- “compels the conclusion that the first ar- (until tion papers), days аnd five he es- rest was ‘on account of [Mihalev’s Roma] caped being sexually after assaulted ethnicity.”21 Specifically, police “[t]he of- prison guard) after the third arrest. Don- contemporaneous ficers’ declarations that jailed day chev was for less than one Gypsies did not deserve to live and that only detained once for two hours. Our Petitioner being held because he had holding in ques- Mihalev there is “no organizing Gypsy been gatherings”22 com- Gypsies tion that are an identifiable ethnic pelled a conclusion that Gypsy Mihalev’s group and that being Gypsy protect- is a ethnicity played some role. There were no ed ground” (ethnicity) help is of no Donehev, analogous, contemporary because he is not a declarations Gypsy. police or the skinheads Mihalev claimed that he suffered well- police jailed case. The never arrested or persecution founded fear of based on three Donehev on charges organizing Gypsy Bulgarian police.19 arrests gatherings, although Donehev organized time, jailed police charges first Mihalev оn participated his New Year’s Eve of instigating gatherings Roma ar- after party, and participated pro-Roma dem- resting birthday him at a Roma party (which arrest). onstrations did not result in where the beat the other Roma names, assaulted, beat, guests, Although called them the skinheads “Gyp- and said sies did not deserve to live.” The second and robbed Donehev after he left a *9 (2007); § Ghaly, 16. 8 C.F.R. (emphasis original). 208.13 58 F.3d 20. Id. at 727 at 1431. 21. Id. 1101(a)(42)(A). § 17. 8 U.S.C. (9th Cir.2004). 22. Id.
18.
bership.”
attempt
general
This
def-
instructive,
“particular
group.”
constitute a
The
very
inition is
but
abstract.
BIA focused on the characteristics of indi-
talking
When we are
about
claiming membership
group,
viduals
in the
clan,
something other than
tribe or
this
recognizing
particular
while
whether
very helpful
deciding
definition is not
to
group
qualify
kind of
characteristic would
cases because the abstractness allows most
case-by-
“remains to be determined on a
way.
disputes to be decided either
What
BIA explained:
case basis.”38 The
person
is “fundamental” or “innate” to one
The shared characteristic
be an
might
may
passing fancy
be a
to another.
sex, color,
innate one
kinship
such as
or
statute,
In interpreting the
we
ties,
might
some circumstances it
procedure
follow the
set forth in Chevr
past experience
be a shared
such as
apply
on.30
first
the normal rules of
We
military leadership
former
or land own-
statutory
required,
construction. We are
ership.
group
kind of
ambiguous statutory
when faced with an
qualify
characteristic that will
under this
term, to
given
defer
the construction
it
construction remains to be determined
agency charged
statute’s
case-by-case
However,
on a
basis.
administration, provided
interpretation
whatever the common characteristic that
permissible
is a
construction of the statu
group,
defines the
it must
one that
be
te.31
agency’s
To determine whether an
group
the members of the
either cannot
permissible,
construction is
we look to the
change, or
required
should
be
text
being
and structure of the statute
change
it
is
fundamental
construed.32
their individual identities or consciences.
We look to the BIA’s decisional law to
Only when this
case does the mere
inquiry.33
assist us
this
Under INS v.
fact of group membership become some-
Aguirre-Aguirre,34
give
we must
defer-
thing comparable to the other
four
ence,
have,35
our
sister circuits
to BIA
grounds
Act,
of persecution under the
defining “particular
group.”36
law
namely, something
beyond
that either is
944-45).
(citing Arteaga,
(B.I.A.
Toboso-Alfonso,
29.
Id.
47. Id. at 195. (B.I.A.1990). 53. 20 I. & N. Dec. 819 (B.I.A.1996). 48. 21 I. & N. Dec. 54. Id. at 823. 49. Id. at 365-66. 55. Id. at 821. H-, 337, 340, In re 21 I. & N. Dec. 342-43 (B.I.A.1996). Id. Id. at 340. importance of The BIA has of Don- stressed treatment comparison
A
defining
factor in
visibility as a
social
during
Roma
the treatment
chev to
It has found that
group.
ally
was an
II,
Bulgaria
when
World War
group” exists for
“particular
no
indi-
the difference.57
Germany, underscores
merely claiming to be “affluent
viduals
de-
war,
passed laws
Bulgaria
During the
former noncriminal infor-
*13
Guatemalans,”59
parts of
to central
Roma access
the
nying
working against
drug
and
mants
cartel,60
trans-
Sofía,
public
their use of
forbidding
rejected
youths
gang
had
Salvadoran
who
food
them smaller
giving
and
portation,
recruitment efforts.61
In some
Bulgarians.
than other
rations
Gonzales, consistent
in
v.
We said Ochoa
to
the Roma
forced
government
places,
construction,
that
the BIA’s
with
mar-
outlawed
Christianity and
to
convert
“[k]ey
establishing
‘particular
to
social
and Roma.
Bulgarians
riages between
group
is
group’
ensuring
is
nar-
that
any restrictions
not claimed
Donchev has
in
rowly defined.”62
held Ochoa that
We
work,
or to
marry,
to
to
on his freedom
rejected the
persons” who
de-
“business
of
of
membеrs
experience
The
other
eat.
were “too broad
mands of narco-traffickers
that friends
family shows
own
qualify
particularized
to
as a
social
in a
or treated
are not viewed
of Roma
principled
There is no
distinc-
group.”63
government
way by
Bulgarian
uniform
rejection
refugee
of
tion that allows
status
not
society.
Roma were
Bulgarian
persons who
persecuted
for
business
re-
Donchev,
but also of
of
only neighbors
grants
but
it to
sisted narco-traffickers
that the Roma
Donchev testified
mother.
Roma individuals or
persecuted friends of
after Donchev’s
mother’s friends
were his
the Roma people.64
the Roma
away,
passed
father
INS,
we
Sanchez-Trujillo
In
held
family. Yet Donchev’s
their
supported
had not
young
urban males who
Bulgaria,
and Donchev
remains
mother
“type
military
were not
served
that she was
or testified
claimed
never
cohesive,
em
homogeneous group”
harassed, although she
or even
statutory
“particular
term
arrested
braced
friendships with
visible
held
Santos-Le
also has
social
We
group.”65
applied
which
Ochoa
mus v. Mukasey,66
Roma.58
Info,
1166,
Gonzales, 406 F.3d
on
62. Ochoa v.
&
Ctr. for Documentation
57. See
(9th Cir.2005).
Europe,
Europe
Minorities
—Southeast
Bulgaria 5.
Roma of
63.
Id. at 1171.
1389,
(9th
INS,
Aruta v.
58. Cf.
Cir.1996)
“family evi-
(approving the use of
suggested that
are
the dissent
64. Nor has
drawn from it”
and the inferences
dence
Instead,
simply
the dissent
distinguishable.
decision);
agency's
support the
Chavez
ethnic,
any "supporters” of an
assumes that
Cir.1984)
(9th
(noting
religious group are themselves
political, or
country
family had remained in the
assumption is
"particular
group.” This
social
harassed).
not been
and Ochoa.
unwarranted under Santos-Lemus
J-G-U-, 24 & N. Dec.
showing
I.
re A-M-E
the same
&
Supporters must make
In
(B.I.A.2007).
part
claiming
75-76
to be
other individuals
group.”
"particular C-A-,
& Dec.
957-58
re
23 I. N.
In
(B.I.A.2006).
1986).
(9th Cir.
65. 801 F.2d
S-E-G-,
(B.I.A.
24 I. & N. Dec. 579
re
In
Cir.2008).
2008).
66.
ty, cohesiveness, homogeneity, and visibili-
PETITION DENIED.
ty,
contexts,
helpful
are
in various
they
but
are not exhaustive. The traditional com-
FLETCHER,
BETTY B.
Judge,
Circuit
mon
approach, looking
law
at hypothetical
dissenting:
cases and commonalities in
go
cases that
respectfully
I
dissent from the denial of
other,
way
one
prudent.
or the
is more
asylum.
Donchev’s claim of
His credible
When
Hutus
Rwanda murdered as
testimony
corroborating
evidence com-
many
could,
they
Tutsis as
persecution
pel
finding
past persecution
of
Bulgar-
“race,
was not on account of
religion, na-
ia. This shifts
govern-
the burden to the
...,
tionality,
political
opinion.”68 But
ment to rebut
presumption
of a well-
ethnicity, being Tutsi, fits well into the
founded fear of
persecution by
future
“particular
group”
category. Like-
preponderance of the evidence.
I would
wise,
persecution
of the Roma in Bul-
therefore remand this case to the agency
garia during World
II
“par-
War was of a
an
for
analysis
individualized
of how cur-
ticular social group.”
country
rent
conditions affect the reason-
Persons who
join
have declined to
ableness of Donchev’s fear of persecution
gangs,
have
who
not served in military,
if he is
Bulgaria.
returned to
and who have
pay money
declined to
drug dealers differ in
ways
obvious
from
I. Past Persecution
Rwanda,
the Tutsis in
most obviously in
The Immigration Judge found that Don-
they
have chosen a course of conduct
credibly
chev
testified that
experienced
he
them,
that led others to harm
whereas the
severe
Bulgaria.
mistreatment
Tutsis
did not.
claim
IJ
Donchеv’s
arises out
repeatedly
also
credited
choices he made in
Donchev’s testi-
his friends. We
mony
say
cannot
that he
“any
adjudica-
targeted
because of
reasonable
tor
Roma,
would be
association
compelled to
with the
stating,
conclude”69that
for ex-
friendship
“It
ample,
Roma individu-
was obvious that there was no
als and the Roma people made him part reason for
police]
[the
to fine [Donchev
a “particular
group.”
them,
and his Roma
or detain
friends]
but
Id. at 745-46.
1252(b)(4)(B) (2006);
§
69.8 U.S.C.
see Zeha-
Gonzales,
tye
(9th
453 F.3d
1101(a)(42)(A).
Cir.2006).
§
68. See 8 U.S.C.
physical
It Roma soldiers. Such
abuse can-
searching for reasons.”
kept
police
legitimate punishment
not be considered
not be said
substantial
therefore
can
orders,
failing
particularly
the IJ’s
for
to follow
supports
in the record
evidence
where,
here,
given
those orders were
persecut-
that Donchev was
conclusion
for the
order to effectuate the officers’ discrimina-
support
of’ his
“on account
ed
minority.
an
Ashcroft,
against
Taga-
388 F.3d
tion
ethnic
Mihalev v.
Roma. See
Cf.
(9th
Cir.2004).
INS,
ga v.
228 F.3d
Cir.
722, 727
2000) (finding
persecution
asy-
when
past
A. Persecutiоn
lum seeker had been court martialed for
refusing to follow orders to arrest and
that Donchev suffered over
The abuse
Indo-Fijians); Barraza Rivera
detain
clearly rose to the
course of a decade
(9th Cir.1990)
v. Ash
See Baballah
persecution.
level of
(holding
punishment
“refusing
(9th Cir.2004)
1067, 1076
croft, 367 F.3d
...
comply with orders
vio-
(“[T]he
compounded
severity of harm is
decency”
late standards of human
can it-
oc
persecution
have
when incidents
amount to persecution).
self
occasion, particu
than one
curred on more
applicant
an
is victimized
larly where
Donchev also testified to four run-ins
years.”).
period
over a
different times
military.
after he left the
with the
*15
“consistently
persecution
found
have
We
cases,
de
In all of these
Donchev was
physically
petitioner
...
the
was
where
tained;
most,
he was beaten. He was
protected ground.
of’ a
harmed because
never, however, charged
any
crime.
Mihalev,
(quoting Duarte
1. Because Donchev filed his asylum provisions the of the REAL slurs petitioner’s assailants made ethnic the apply her, Act do not to his case. ID of 2005 they attacked the evidence did when Therefore, prove required to Donchev is not ethnicity was a compel a conclusion that her ground central protected the was “one attack). motivating reason” "central Parussimova, persecution. reason” for his Cf. In addition to sponse this conduct the Bul a complaint, to noise proceeded garian police military, Donchev also to make offensive comments about Roma persecuted by testified that he was skin attendees, and beat the and detained the heads. The skinheads him threatened petitioners without charge. Significantly, work and he often had to clean swastikas this Court remanded Mihalev’s case based They off the wall. would also come after arrest, single on that whereas Donchev attempts police stop unsuccessful persecuted multiple on occasions. In pro-Roma up demonstration and beat sense, actually case is participants. incident, In the most serious stronger Mihalev, than despite that of shortly Bulgaria, before he left Donchev fact that Donchev is not Roma. up strangled by people was beaten dressed like skinheads when he was leav B. “On Account of’ ing meeting the annual of the Future for organization. the Roma Although Don asylum An applicant must demonstrate testify chev did not they anything said persecution he suffered is “on being about him support Roma or Roma race, account of’ a protected ground: reli attack, er during that timing and loca gion, nationality, membership in a particu tion of strong the action is circumstantial lar social group, political opinion. 8 evidence that targeted him because of 1158(b)(1)(B)(I). § U.S.C. The record membership organization. Ac compels the conclusion that Donchev was cording to Donchev’s testimony, credible persecuted on account of were not contacted after this in particular social group. attack everybody knew that police and the frequently skinheads together.
worked In the face of type this Particular Group Social *16 governmental acquiescence, harassment asylum On his application, Donchev indi- by and private violence actors constitutes cated that persecuted he was on account of persecution, even if the victim does not in a particular report police. it to the Ornelas-Chavez v. group supporters of the Roma. We have — Gonzales, (9th 1052, 458 F.3d 1057-58 Cir. “particular defined social group” to mean a 2006) (holding that victim of private perse 1) group by “united a voluntary association cution report need not that persecution to imparts which some common characteristic the futile, authorities if doing so would be that is fundamental to the members’ iden- as when the authorities themselves are 2) tities, or an innate characteristic which responsible for similar persecution). is so fundamental to the identities or con- Particularly relevant in evaluating Don- sciences of its members that they either chev’s claim is Ashcroft, Mihalev v. 388 cannot or required should not be change F.3d Although majority the is cor- it.” Santos-Lemus v. Mukasey, 542 F.3d rect petitioner that the in Mihalev was of (9th 738, Cir.2008) 744 (quoting Arteaga v. ethnicity Roma not, and Dоnchev is the (9th Mukasey, 940, 511 F.3d 944 Cir. petitioners’ ethnicity is a distinction with- 2007)). See J-G-U-, also In re A-M-E & out a difference because Mihalev informs 69, (BIA 2007) 24 I. & N. Dec. 73 (citing analysis our of whether per- Donchev was Acosta, Matter 19 I. & N. Dec. secuted, 233- not the reason for that persecu- (BIA 1985)). Here, 34 tion. Ethnicity aside, Donchev’s “charac- the facts of these two with, cases are teristic” is his strikingly friendships support, similar. In both cases, the up broke an exclusively-or defense of the Roma. This characteris- primarily-Roma party, allegedly in re- tic is fundamental to his identity individual
1223 superiors military. in the be re- do so he should not and conscience This individualized evidence is discred- change it. quired to by telegram Embassy from the U.S. ited was beat- military, Donchev in the While human stating although rights dis- carry out he refused en because improved, “individual instanc- situation has civilian, he was orders. As criminating es of anti-Roma discrimination which still po- and beaten repeatedly detained equated should not be with whole- occur These deten- prosecuted. lice but never systematic persecution.” sale See Cheb- partially at least motivated tions were (9th INS, сhoub v. 257 F.3d Roma, and with the Donchev’s affiliation Cir.2001) (stating rely that the BIA could support on account of his therefore were Mihalev, See, country report appli- F.3d to refute the on e.g., the Roma. for incident, one respect generalized cant’s statements coun- at 727. With about legitimate no that there was conditions, IJ concluded try specific but “not to discredit case, detention; in another for the reason experi- individual testimony regarding his that Don- suggested police explicitly Guinac, ence”); Duarte de for a theft because responsible chev purpose country that the (stating in a gypsies”; are friends who “he has evidence is to enable the factfin- condition case, said police specifically third “intelligently petition- evaluate the der to church,” in a gypsies doing “what are credibility”). telegram This was not er’s and his to beat Donchev they began before It response petition. to Donchev’s sent feet, friend, only their hands and using not 30, 2000, is dated December almost three Ashcroft, Kebede v. also batons. but Cf. asylum, years applied before he (9th Cir.2004) (holding 366 F.3d only general stаtements about the contains compelled a by attackers that statements Bulgaria. Importantly, Don- Roma requirement was finding that the nexus testimony inconsistent with chev’s is not met); 1175- Maini v. simply states that telegram, which Cir.2000) (same). Finally, he for- seekers were Bulgarian asylum some pro-Roma with a mally associated himself general per- asylum based on awarded in their demon- participated organization, persecuted despite ception that Roma are result, meetings, and as strations failed to applicants fact that those by skinheads. a brutal attack suffered any themselves present evidence *17 compels a conclusion This evidence contrast, In Don- persecuted. had been was on account of persecution testimony establishes chev’s credible in membership particular his of his as- persecution because he suffered people. of the Roma group supporters Duarte de the Roma. See sociation with Guinac, (reversing at 1162-63 179 F.3d Embassy Telegram 2. Relevance of Department re- BIA conclusion that State above, the thoroughly As demonstrated in- against ports regarding discrimination evidence that Don- replete record is failed to people Guatemala digenous himself, chev, on account persecuted for Duarte de adequate support provide membership in the of his claim because the re- persecution Guinac’s He was tar- supporters. of Roma group testimony re- his port did not contradict with, because of his association geted him). There- garding happened what for, Roma, minority. an ethnic support majority that fore, agree I with the cannot character- voluntary was a association This that Don- single document establishes this pro-Roma ized his of his persecuted Roma, chev was Future for organization, light the Roma association with Roma when ordered refusal to mistreat compelling direct evidence that he was tar- III. Withholding of Removal geted because of that association. petitioner Once a past perse- establishes
cution, he is entitled to a presumption of II. Fear of Future Persecution withholding Mihalev, of removal. I Because believe that the The Immigration Judge denied Don compels record the conclusion that Don- asylum chev’s claim because he failed to persecuted chev was past,2 I would establish a per well-founded fear of future remand the case so that the BIA consider However, secution. because the record withholding or, of removal claim if compels the conclusion that Donchev suf appropriate, remand to the IJ to do so. persecution fered in the past, the burden was on government pre rebut the
sumption of future persecution. 8 C.F.R. 1208.13(b)(1).
§ In this, order to do government must a prepon establish
derance of the evidence that there has been a change in fundamental circum
stances in the country origin such that asylum longer seeker no has a well- Mushegh MINASYAN, Petitioner, founded fear of persecution. 8 C.F.R. 1208.13(b)(1)(i). § government’s evi dence must allow BIA to make “an MUKASEY, Michael B. Attorney analysis
individualized of how changed con General, Respondent. ditions will affect [Donchev’s] situation.” No. 06-73192. Lopez v. Ashcroft, 799, 366 F.3d Cir.2004) (citation omitted). Generalized United States Court of Appeals, country information from the State De Ninth Circuit. partment is not itself sufficient to rebut the presumption. Molina-Estrada Argued 6, Aug. Submitted (9th Cir.2002). 1089, Filed Jan. Immigration Because the Judge failed to properly shift the burden to govern
ment and failed to consider the issue of
changed country conditions, I would re Ventura, mand. See INS v. 537 U.S. (2002) 123 S.Ct. L.Ed.2d 272 *18 curiam) (per (holding that Ap Courts of peals cannot decide the issue of changed
country instance). conditions in the first I note that Country no Report on Human
Rights Practices for Bulgaria is contained in the Administrative Record. dissent, My contrary Judge Kleinfeld's compels concludes that the record reversal assertion, unfair independently does (last line), and remand. See Dissent weigh Rather, the evidence. rigorously ap- it (last I.B.l). Dissent at 1221 line Part plies the substantial evidence standard and The notes wide-spread discrimination of varying de- themselves population po- of the consider exists, systematic grees still there is no emigrants.” The Roma “encounter tential government-sponsored persecution of episodic discrimination —and prejudice and any group, ethnic Roma included. The both authorities and the violence—from made Bulgaria] GOB of has [Government in general population, particularly rural great years strides in recent to reduce report by areas.” Another the Center for the climate of excessive force and human Documentation and Information on Minori- rights among violations that once existed Europe, Roma Europe ties in —Southeast police Bulgarian forces under earlier Bulgaria, age-old describes the abuse of regimes.” Bulgaria dating the Roma in back to the they days Empire, of the Ottoman where report Department A from the follow-up society “at with little were the bottom investigation of Donchev and his of Justice mobility.” report social This also finds (Mila- sister states that Yovka Miladinova Bulgaria that Roma in “face discrimination dinova), sister, guilty pled spheres “biggest all of social life.” The fine pay was sentenced to the maximum factor” that determines the Roma’s rela- 1325(a)(3) § for violations under 8 U.S.C. Bulgarian government tionship with aiding abetting § 18 U.S.C. general population, Country Re- entry by unlawful false document. This port says, high among is the crime rate out of the execution of the conviction arose Roma population. March on the home 2003 search warrant Miladinova, and his wife where Donchev telegram The record also includes Sofia, up Don- Embassy living. were This search turned from the United States passports up chev’s false and identification As for the skinheads who beat Donchev documents. leaving and stole his watch when he was meeting, the Future for the Roma the IJ (IJ) Immigration Judge The found that was not satisfied that the assault and rob- “generally Donchev and his wife were bery had anything to do with Donchev’s testimony. truthful” in their nev- IJ membership particular group. ertheless denied relief. This denial was grounds. based on several The IJ found above, As stated despite the favorable the incidents described Donchev to lack credibility finding, the IJ nevertheless de- “apparent protected an connection” to a nied relief. The IJ concluded that Don- Regarding ground. Donchev’s belief chev failed perse- to establish he was he was ordered to mistreat Roma soldiers cuted or had a well-founded fear of future superiors his him to because knew be persecution based on his in a Roma, Mends with the and then abused particular group, sup- friends and so, him because he refused to do the IJ porters rejected of the Roma. The IJ Don- found Donchev’s claims about other’s mo- past persecution chev’s claim of on account tives the mistreatment he suffered to arrests, time he “[e]ach was merely speculative. be The IJ concluded arrested he questioned specific was about leap relating that Donchev “has made a criminal conduct.” The IJ found that the friendship his soldiers to evidence did not show that Donchev would his refusal to follow orders.” The found IJ persecuted upon be based a protected just it likely that Donchev punished ground, or that it likely was “more than orders, disobeyed because he as because of subject not” that Donchev would be friendships with the Roma. persecution if Bulgaria he returned to The IJ also found that Donchev had based upon protected ground. As to his police, numerous encounters with the dur- request for relief under the Convention ing they some of which bruised and Torture, Against the IJ found that there him, scraped appears but he encoun- “[i]t probability” was no “clear that Donchev or tered either because were tortured, his wife would -be on account of (at work) investigating crimes or main- protected ground, by anyone the claimed