Pop, Rodica v. INS

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1369

RODICA POP,

Petitioner,

v.

IMMIGRATION and NATURALIZATION SERVICE,

Respondent.

On Petition for Review

From the Board of Immigration Appeals

No. A72 670 847

Argued September 25, 2001--Decided November 2, 2001

Before ROVNER, DIANE P. WOOD, and EVANS,

Circuit Judges.

EVANS, Circuit Judge. Rodica Pop, a

Jehovah’s Witness since birth, left her

native Romania with her mother in 1993 at

the age of 15. She arrived in the United

States and was granted permission to stay

here for a few months as a "nonimmigrant

visitor." She stayed longer than that.

After the INS initiated deportation

procedures, the underlying facts of which

Pop conceded, she filed for asylum (and

withholding of deportation) in September

of 1994. An immigration judge (Fujimoto)

denied Pop’s request and the Board of

Immigration Appeals adopted the IJ’s

reasoning and affirmed. Pop’s petition

seeks a review of that decision./1

The starting point and ground rules in

a case like this have been stated many

times, so we’ll note only a few of them

here. The Attorney General, in his

discretion, may grant asylum to an alien

who is a "refugee." 8 U.S.C. sec.

1158(b). A refugee is defined as one who

is unable or unwilling to return to her

home country "because of persecution or a

well-founded fear of persecution on

account of race, religion, nationality,

membership in a particular social group,

or political opinion."/2 8 U.S.C. sec.

1101(a)(42)(A). If past persecution is

demonstrated, a presumption arises that

the applicant has a well-founded fear of

future persecution. 8 C.F.R. sec.

208.13(b)(1)(i). The presumption is

rebuttable if conditions in the country

from which the applicant fled have

changed "to such an extent that the

applicant no longer has a well-founded

fear of being persecuted if he or she

were to return." Id. Even if the

presumption is rebutted, an applicant may

still qualify as a refugee based on past

persecution alone if she "demonstrates

compelling reasons for being unwilling to

return to . . . her country of

nationality . . . arising out of the

severity of the past persecution."/3 8

C.F.R. sec. 208.13(b)(1)(ii); Bucur v.

INS, 109 F.3d 399, 404-05 (7th Cir.

1997).

The BIA’s determination that Pop was not

eligible for asylum must be upheld if it

is "supported by reasonable, substantial,

and probative evidence on the record

considered as a whole." INS v. Elias-

Zacarias, 502 U.S. 478, 481 (1992). We

reverse only if the evidence is such that

a reasonable fact finder would be

compelled to reach an opposite

conclusion. Id. Where the BIA adopts the

reasoning of the IJ, as it did here, we

review the IJ’s analysis. Dobrican v.

INS, 77 F.3d 164, 167 (7th Cir. 1996).

With these principles in mind, we turn

to Pop’s case. Pop testified to a number

of incidents underlying her claim of

persecution. She said that her grade

school teachers intentionally lowered her

grades so she could not advance within

the Romanian school system. In the fourth

grade, Pop said a teacher beat her until

she passed out because she refused to bow

in front of the Romanian flag during a

patriotic ceremony. In the fifth grade, a

teacher beat her for refusing to join the

Young Communist Union because she was a

Jehovah’s Witness. Other teachers beat

her and, Pop said, she was laughed at

when she attempted to answer questions in

class. Pop testified that she was beaten

for carrying the Bible to religious

gatherings. She also testified that the

police raided her house more than five

times, that she was stopped on the

street, and that the police kept

Jehovah’s Witnesses under surveillance.

We understand Pop to be making two main

claims. First, she claims that her grade-

school teachers intentionally lowered her

grades because she was a Jehovah’s

Witness. As a result, Pop says she was

unable to pursue her education beyond the

eighth grade. She claims that if sent

back to Romania, her low grades will

foreclose access to further education

and, therefore, dim her economic

prospects. This is an argument about the

future effects of past persecution. Pop

is not arguing that those who would deny

her access to educational opportunities

in Romania will be persecuting her

because of her religion./4 Rather, she

is arguing that the effects of past

persecution--i.e., her artificially low

grades--will be visited on her in the

future because they will foreclose

advancement in the Romanian educational

system. How that will all play out, for

Pop is now at least 23 years old, is

unclear. Nevertheless, the question

toaddress is whether this claim of past

persecution, assuming it occurred, is

severe enough to qualify Pop for asylum.

8 C.F.R. sec. 208.13(b)(1)(ii); Bucur,

109 F.3d at 404-05.

Pop also alludes to the beatings she

suffered in school and the harassment, by

police and villagers, against her because

she is a Jehovah’s Witness. This

potentially gives rise to a second claim

that she will be subjected to persecution

anew if she returns to Romania. If Pop

could establish past persecution on this

basis, it would give rise to the

presumption of a well-founded fear of

future persecution, but the government

argues that this presumption is rebutted

by the changed conditions in Romania

since the fall of Ceausescu, the infamous

Communist dictator, in 1989.

We need not travel very far down the

road suggested by either claim, however,

because Judge Fujimoto found that Pop did

not meet her burden of establishing past

persecution (at all) because her claim

was not credible./5 An applicant has

the burden of proving that she meets the

definition of a refugee. 8 C.F.R. sec.

208.13(a). "The testimony of the

applicant, if credible, may be sufficient

to sustain the burden of proof without

corroboration." Id. We give Judge

Fujimoto’s credibility determination

substantial deference. Ahmad v. INS, 163

F.3d 457, 461 (7th Cir. 1999).

Credibility determinations are questions

of fact and "should only be overturned

under extraordinary circumstances,"

although they must be supported by

"specific, cogent reasons" that "bear a

legitimate nexus to the finding." Id.

(citations omitted).

Judge Fujimoto noted three bases for

questioning Pop’s credibility. First, Pop

testified that she graduated from the

eighth grade in 1989 (before the

Communist government fell). Her

transcript reveals, however, that she

graduated 2 years later, in 1991. Second,

Pop testified that she received low

conduct grades and that her rejection

from further education was based, in

part, on these grades. But her transcript

reveals that she received high conduct

marks throughout grade school. Third, Pop

testified that the police raided her

family’s home to find Bibles, that she

was beaten on her way to religious

gatherings, and that the police kept

Jehovah’s Witnesses under surveillance.

Strangely, she did not mention these

incidents in her asylum applications or

during her interview with the INS./6

Judge Fujimoto’s first two bases for his

credibility determination concern Pop’s

first claim that she was persecuted when

her teachers lowered her grades. The

inconsistencies between Pop’s testimony

and her transcript go to the heart of

this claim, and the transcript shows she

received her lowest grades a year and a

half after the fall of Ceausescu./7 She

also testified that her low conduct

grades affected her application for

further schooling. Yet her conduct grades

were perfect except for in the fifth

grade. The written transcript clearly

reveals inconsistencies in Pop’s

testimony.

Further evidence in the record supports

Judge Fujimoto’s determination. Pop’s

grades were not consistently poor even

though she was a Jehovah’s Witness

throughout her grade school education.

Her grades did not drop precipitously un

til fifth grade. Even then, the only

academic term in which she received

mainly failing grades in her academic

subjects was 1990-91, after the

revolution. Yet, even at that point, her

grades were as high as they had ever been

in music, physical education,

agriculture, and conduct. We can find no

"extraordinary circumstances" to warrant

upsetting the judge’s credibility

determination based on the

inconsistencies in Pop’s testimony

regarding her academic record.

The judge also questioned Pop’s

credibility concerning her second claim,

that she suffered past persecution

because she was beaten outside of school,

her home was raided, and Jehovah’s

Witnesses were kept under police surveil

lance. We hesitate to find that one

seeking asylum must state in his or her

application every incident of persecution

lest the applicant have his or her

credibility questioned if the incident is

later elicited in direct testimony. See

Aguilera-Cota v. INS, 914 F.2d 1375, 1382

(9th Cir. 1990) ("Aguilera’s failure to

file an application form that was as

complete as might be desired cannot,

without more, properly serve as the basis

for a finding of a lack of

credibility."). Asylum forms are

frequently completed without the advice

of counsel by poor, illiterate people who

do not speak English. Id. Pop testified

that her uncle and aunt filled out her

first asylum application because she did

not understand it.

That said, Pop did not mention the

incidents in either of two asylum

applications. The application form in the

record specifically asked whether Pop had

been "mistreated" by government

authorities and requested detailed

information about the mistreatment.

Moreover, Pop did not mention the

incidents in an interview with an INS

official. It is important to note also

that Pop’s present application focuses on

the limited educational and economic

opportunities available to her in

Romania. Without denying the gravity of

these concerns, it seems apparent that

when asked to list specific incidents of

mistreatment, a person might be inclined

to list the most invasive events, such as

government raids and surveillance. Judge

Fujimoto apparently interpreted the

omission as bearing on whether these

incidents actually happened. Moreover,

Judge Fujimoto was considering these

omissions in the context of a record that

contained other inconsistencies in

testimony, which he, unlike us, heard

firsthand. We do not believe that

"extraordinary circumstances" exist in

the record to warrant overturning the

adverse credibility finding that doomed

Pop’s claim.

The order under review is Affirmed.

FOOTNOTES

/1 Because Pop entered deportation proceedings prior

to April 1, 1997, we apply statutory immigration

law as it stood prior to passage of the Illegal

Immigration Reform and Immigrant Responsibility

Act of 1996. See Bradvica v. INS, 128 F.3d 1009,

1011 n.1 (7th Cir. 1997).

/2 The standard for withholding deportation is more

strict, requiring a "clear probability" that

persecution will occur upon the applicant’s

return. 8 U.S.C. sec. 1253(h)(1). Accordingly, if

Pop cannot meet the asylum standard, she cannot

meet the standard for withholding deportation.

Iliev v. INS, 127 F.3d 638, 641 (7th Cir. 1997).

/3 Bucur applied the (double) standard found in 8

C.F.R. sec. 208.13(b)(1)(ii), which states that

an applicant who cannot rely on a fear of future

persecution must show a severe form of past

persecution to qualify as a refugee. The appli-

cant in Bucur did not challenge the regulation

itself, 109 F.3d at 405, nor does Pop.

/4 See br. of pet’r at 28 ("Rodica’s claim is not

that she is prevented from practicing her reli-

gion, but that she faces continuous punishment

for her past disobedience due to her religious

beliefs . . . ."); id. at 35 ("Even if Rodica is

free to practice her religion, she is not free

from the past persecution she suffered as a child

because of it.").

/5 Even if the claim had been credible, Judge Fuji-

moto also found that it did not rise to the level

of persecution. Because we affirm on other

grounds, we need not consider whether the acts

alleged constitute persecution.

/6 The applications include the present one and one

that Pop previously had completed. The present

application is included in the record but the

latter one is not. Nonetheless, Pop admitted that

she did not list these incidents in the latter

application.

/7 Pop claims that Judge Fujimoto overemphasized the

importance of this inconsistency because he had

an overly rosy view of change in the years

immediately following the revolution. She claims

that he erred by relying on the State Depart-

ment’s optimistic report on Romania. It is un-

clear whether Judge Fujimoto relied on thisreport

specifically when weighing this inconsistency.

His determination was based, at least in part, on

the simple fact that Pop testified incorrectly as

to when she graduated from eighth grade. To the

extent that Judge Fujimoto did rely on the re-

port, he was entitled to do so. Kaczmarczyk v.

INS, 933 F.2d 588, 594 (7th Cir. 1991) (holding

that it was not error for the BIA to take notice

of changed conditions in a country and to base

its findings on State Department advisory opin-

ions, to which "we give considerable weight").