Vladimirova, Detelin v. Ashcroft, John D.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1852

DETELINA VLADIMIROVA, BISSER VLADIMIROVA

and MONIKA VLADIMIROVA,

Petitioners,

v.

JOHN D. ASHCROFT, Attorney General

of the United States of America,

Respondent.

____________

Petition for Review of Orders of the

Board of Immigration Appeals

Nos. A77-816-315, A77-816-316, A77-816-317

____________

ARGUED MAY 19, 2004—DECIDED JULY 26, 2004

____________

Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Petitioner Detelina Vladimirova, her

husband, Bisser, and their daughter, Monika, seek review of

a decision of the Board of Immigration Appeals (the “BIA”)

affirming the decision of the Immigration Judge (the “IJ”)

without opinion and denying their requests for asylum and

withholding of removal. Ms. Vladimirova argues that

“extraordinary circumstances” excused her failure to file an

2 No. 03-1852

application for asylum within one year of her arrival in the

United States. We lack jurisdiction to decide that question.

We conclude, however, that the IJ failed to consider prop-

erly Ms. Vladimirova’s request for withholding of removal.

Accordingly, for the reasons set forth in the following

opinion, we grant the Vladimirovas’ petition for review,

reverse the judgment of the BIA in part, and remand for

further consideration.

I

BACKGROUND

A. Facts

The Vladimirovas are natives and citizens of Bulgaria. Mr.

Vladimirova arrived in the United States in April 1997; Ms.

Vladimirova and their daughter followed in February 1998.

The Vladimirovas allegedly fled Bulgaria to escape the

persecution they experienced for practicing the Word of Life

religion, a form of Protestantism. Ms. Vladimirova peti-

tioned for asylum in April 1999, including both her husband

and their daughter in her petition.

The following account is taken from Ms. Vladimirova’s

petition for asylum. Ms. Vladimirova and her husband were

persecuted for practicing Word of Life from the time they

joined the church in 1996. In Bulgaria, all religious groups

must be registered with the government; Word of Life’s

registration had been denied in 1994. Therefore, at the time,

practicing the religion was illegal. Ms. Vladimirova’s Word

of Life group—consisting of herself, her husband, two other

individuals, and their pastor—met secretly either in their

homes or in remote rural areas. See A.R. 279.

In July 1996, Ms. Vladimirova’s Word of Life group was

conducting services in a remote mountainous region when

No. 03-1852 3

four police officers arrived. Ms. Vladimirova detailed that

the officers confiscated the worshipers’ bibles and Word of

Life pamphlets and called the worshipers “filthy sectarians.”

A.R. 286. The officers then handcuffed all five individuals

and took them to a police station, where Ms. Vladimirova

and her husband were imprisoned for two nights. During

the detention, Bulgarian authorities interrogated her and

“physically assaulted” her before releasing her on the third

day. A.R. 286. After this incident, the Word of Life group

did not meet again until September.

In December 1996, Ms. Vladimirova’s Word of Life group

was meeting at another member’s apartment when police

officers arrived at the door. As Ms. Vladimirova described

the situation in her application, the officers again seized the

members’ religious materials and searched the apartment

for more evidence of the resident’s affiliation with Word of

Life. The policemen took Ms. Vladimirova and her husband

to the police station. During her detention, the police

officers slapped her face and called her “vile names,” and

one officer threatened to sexually assault her. A.R. 286. After

two days, the officers released both her and her husband.

After the December 1996 incident, Ms. Vladimirova and

her husband decided to leave the country. Mr. Vladimirova

left alone in April 1997, while Ms. Vladimirova remained in

Bulgaria because she and her daughter had not yet obtained

visas. In her asylum application, Ms. Vladimirova stated

that she experienced difficulty with the police again in May

1997. This time, she alleged, police officers arrived at her

apartment; the officers slapped her and one of them, not

realizing that she was pregnant, hit her in the abdomen with

a club, causing a miscarriage. A.R. 287. The officers then left

her apartment. As a result of the miscarriage, Ms.

Vladimirova related in her petition, she “became very de-

pressed” and at times “did not want to go on living.”

A.R. 287.

4 No. 03-1852

B. Administrative Proceedings

The Vladimirovas were placed in removal proceedings in

August 1999. At the hearing before the IJ in March 2000, Ms.

Vladimirova testified to the facts that we have set forth. She

also testified about her fears of what would happen if she

were forced to return to Bulgaria. Ms. Vladimirova stated

that, although she had not maintained contact with the

members of her Word of Life group, other individuals

practiced Word of Life in similarly small groups throughout

Bulgaria. Ms. Vladimirova explained that, if she returned to

Bulgaria, she would attempt to locate a different group with

whom she could continue to practice her faith. In response

to questioning by the IJ, Ms. Vladimirova explained that, if

she returned to Bulgaria, she could not avoid harassment

simply by moving to a different area of the country because

Bulgarians are required to register their address with the

police within forty-eight hours of an address change.

At the hearing, the Government’s attorney sought further

information about Ms. Vladimirova’s current religious

practice. Ms. Vladimirova stated that, in the United States,

she and her family attended the First Baptist Church. Ms.

Vladimirova explained that she could not find a Word of

Life church in Illinois and that the Baptist church was

similar to the Word of Life church.

After hearing the testimony and reviewing the submitted

documentation, the IJ concluded that Ms. Vladimirova had

not shown extraordinary circumstances sufficient to excuse

her failure to petition for asylum within one year of her ar-

rival in the United States. Nevertheless, the IJ considered

Ms. Vladimirova’s asylum claim. The IJ did not credit

explicitly Ms. Vladimirova’s testimony about the harass-

ment she experienced in Bulgaria, but he implicitly did so,

stating that Ms. Vladimirova had been “mistreated” by the

Bulgarian authorities but concluding that the harassment

No. 03-1852 5

had not risen to the level of persecution required to be

eligible for asylum under 8 U.S.C. § 1101(a)(42)(A). A.R. 86.

The IJ reasoned that persecution is “generally considered to

be a threat to the life or freedom of the victim,” and that Ms.

Vladimirova’s “mistreatment” had not threatened her life or

freedom. A.R. 85-86.

The IJ relied upon three cases to support his conclusion

that the harassment Ms. Vladimirova suffered was insuffi-

cient to establish a claim of asylum. He relied upon our

opinion in Zalega v. INS, 916 F.2d 1257 (7th Cir. 1990), for

the proposition that there is no persecution if a petitioner is

“held only briefly and detained and then released, and

never . . . formally charged for any crime and not mistreated

during his incarceration.” A.R. 85-86. The IJ also referenced

the BIA’s opinion in Matter of Chen, 20 I. & N. Dec. 16 (BIA

1989), contrasting the “prolonged mistreatment” the

petitioner in that case suffered for his religious beliefs with

the absence of any “severe” mistreatment in the present case.

A.R. 86. Finally, the IJ discussed our opinion in Asani v. INS,

154 F.3d 719 (7th Cir. 1998), and concluded that in Asani the

petitioner had suffered a “higher” level of mistreatment than

Ms. Vladimirova because he was “chained to a radiator and

his teeth were knocked out.” A.R. 86. The IJ characterized

Asani as holding that the petitioner did not “experience[ ]

past persecution, but that the mistreatment at least should

have been considered in assessing whether there was any

reasonable possibility of future mistreatment.” A.R. 86. Since

the petitioner in Asani had not suffered past persecution, the

IJ concluded, neither had Ms. Vladimirova.

The IJ went on to decide that, even if Ms. Vladimirova had

shown past persecution, her asylum claim would still fail

because she had no reason to fear further mistreatment upon

returning to Bulgaria. After reviewing the 2000 Department

of State Report on International Religious Freedom in

6 No. 03-1852

Bulgaria, the IJ noted that the Bulgarian government

supported the Eastern Orthodox Church but permitted

many other groups, including Roman Catholics, Jews and

Muslims, to practice freely their religion. The IJ stated that

evangelical Protestants also were permitted to practice

freely, although they were prohibited from proselytizing.

The IJ noted that there was no mention of the Word of Life

church in the report. The IJ relied on our opinion in

Gramatikov v. INS, 128 F.3d 619 (7th Cir. 1997), to support his

decision to consider State Department reports as equivalent

to an expert opinion entitled to “substantial weight” and to

require that a petitioner contradict the information in a

report with “highly credible and independent sources of

expert knowledge.” A.R. 87.

The IJ concluded that the State Department’s “assessment

of conditions in Bulgaria are not nearly as threatening” as

Ms. Vladimirova suggested and that there was no reason-

able possibility that Ms. Vladimirova would experience fu-

ture persecution in Bulgaria:

If in fact the respondent’s problem in Bulgaria in ‘86

[sic] and ‘97 was on account of police, particular police

misbehavior, then I would think that she should move

to another area. She has not adequately explained why

she could not do so. Clearly, she has not shown that the

religious practice of the Word of Life Church extends to

other area [sic] of the country. In fact, she is a member

of a congregation in the United States which is not of

that Protestant group.

No. 03-1852 7

A.R. 87-88. Further, the IJ reasoned, because there was “no

clear probability of persecution,” the Vladimirovas were not

1

entitled to withholding of removal. A.R. 88.

The BIA summarily affirmed the IJ’s decision, stating:

“The Board affirms, without opinion, the results of the

decision below. The decision below is, therefore, the final

agency determination. See 8 C.F.R. § 3.1(a)(7).” A.R. 3. Ms.

Vladimirova filed a timely petition for review in this court.

II

ANALYSIS

A. Standard of Review

Under the Immigration and Nationality Act, an alien can

remain in the United States if she fears persecution in her

native country either by petitioning for asylum or by ap-

plying for withholding of removal. To be eligible for asy-

lum, however, an alien must file her petition within one year

of her arrival in the United States. 8 U.S.C. § 1158(a)(2)(B). An

alien’s failure to file a timely application for asylum will be

excused only if the applicant can show “either the existence

of changed circumstances which materially affect the appli-

cant’s eligibility for asylum or extraordinary circumstances

relating to the delay in filing.” Id. § 1158(a)(2)(D). An alien

who did not file in a timely manner and who has shown

neither “changed circumstances” nor “extraordinary circum-

1

The IJ also denied Ms. Vladimirova’s request for relief under

the Convention Against Torture, 8 C.F.R. §§ 208.16(c) and

208.18(b)(2), but Ms. Vladimirova does not raise that issue in this

review. See Robin v. Espo Eng’g Corp., 200 F.3d 1081, 1088 (7th Cir.

2000) (claims not raised on appeal are abandoned).

8 No. 03-1852

stances,” however, still may be eligible for withholding of

removal. See 8 C.F.R. § 208.3(b).

To obtain asylum, an alien must show that she cannot re-

turn to her native 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.” 8 U.S.C. § 1101(a)(42)(A). If the alien can

establish that she suffered past persecution, then she is

entitled to a “rebuttable presumption” that she has a “well-

founded fear of future persecution” and so should be

granted asylum. Yadegar-Sargis v. INS, 297 F.3d 596, 601 (7th

Cir. 2002); see 8 C.F.R. § 208.13(b)(1). The Government can

rebut that presumption by showing either that there has

been a “fundamental change in circumstances such that the

applicant no longer has a well-founded fear of persecution”

in her native country or that the alien “could avoid future

persecution by relocating to another part” of the country. 8

C.F.R. § 208.13(b)(1)(i)(A) & (B).

To be eligible for withholding of removal, an alien must

establish that “it is more likely than not” that she again will

be persecuted if forced to return to her native country. INS

v. Stevic, 467 U.S. 407, 429-30 (1984); see 8 U.S.C. § 1231(b)(3);

Ahmad v. INS, 163 F.3d 457, 460 (7th Cir. 1999). If she can

establish that she suffered past persecution, she is entitled

to a presumption that her “life or freedom would be threat-

ened in the future” in her native country. 8 C.F.R.

§ 208.16(b)(1)(i). The Government can rebut that presump-

tion by showing either that there has been a “fundamental

change in circumstances such that the applicant’s life or

freedom would not be threatened” upon return or that the

alien “could avoid a future threat to his or her life or free-

dom” by relocating to another part of the country. Id.

§ 208.16(b)(1)(i)(A) & (B). An applicant who cannot meet the

burden of showing a well-founded fear of persecution to

No. 03-1852 9

prove eligibility for asylum necessarily fails to meet the

higher burden of showing the probability of persecution

required to qualify for withholding of removal. See Ahmad,

163 F.3d at 463.

Where, as here, the BIA summarily affirms without opin-

ion, we review the decision of the IJ. See Ememe v. Ashcroft,

358 F.3d 446, 450 (7th Cir. 2004). We shall affirm the IJ’s

decision if it is supported by substantial evidence. See INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Ememe, 358 F.3d at

451.

B. Asylum

Ms. Vladimirova asks us to review the IJ’s conclusion that

she did not show “extraordinary circumstances” sufficient

to excuse her failure to file a timely petition for asylum. 8

U.S.C. § 1158(a)(2)(D). The Government argues, however,

that this court lacks jurisdiction to review the denial of her

petition for asylum, and, at oral argument, Ms. Vladimirova

agreed. In a companion case also decided today, we join our

sister circuits in concluding that the plain language of

§ 1158(a)(3)—“[n]o court shall have jurisdiction to review

any determination of the Attorney General under paragraph

[(a)(2)]”—bars judicial review of the BIA’s denial of asylum

under § 1158(a)(2)(D). See Zaidi v. Ashcroft, No. 03-3062, slip

op. at 4-5 (7th Cir. July 26, 2004); see also Haoud v. Ashcroft,

350 F.3d 201, 205 (1st Cir. 2003); Castellano-Chacon v. INS,

341 F.3d 533, 544 (6th Cir. 2003); Tarrawally v. Ashcroft, 338

F.3d 180, 185 (3d Cir. 2003); Tsevegmid v. Ashcroft, 336 F.3d

1231, 1235 (10th Cir. 2003); Fahim v. United States Attorney

Gen., 278 F.3d 1216, 1218 (11th Cir. 2002); Hakeem v. INS, 273

F.3d 812, 815 (9th Cir. 2001); Ismailov v. Reno, 263 F.3d 851,

855 (8th Cir. 2001).

10 No. 03-1852

C. Withholding of Removal

Ms. Vladimirova also argues that she is entitled to with-

holding of removal. Section 1158(a)(3) does not bar our

review of the IJ’s denial of that relief. See Tarrawally, 338

F.3d at 185-86. The IJ assessed only Ms. Vladimirova’s claim

for asylum, however, and concluded that she did not qualify

for withholding of removal because she had not met the

lesser burden of proving her eligibility for asylum.

Ms. Vladimirova submits that the IJ did not evaluate her

eligibility for asylum under the proper standard and that,

accordingly, we should grant her petition for review to al-

low the IJ to reconsider her eligibility for withholding of

removal. Ms. Vladimirova contends that in her testimony

she demonstrated that she had experienced persecution in

Bulgaria when she was beaten so severely as to cause a

miscarriage. Because the IJ did not discredit that testimony,

she argues, she should have been afforded the benefit of the

rebuttable presumption of a future threat, as directed by 8

C.F.R. § 208.16(b)(1)(i). Ms. Vladimirova submits that the

Government did not present evidence sufficient to rebut

that presumption. She also challenges the IJ’s conclusions

that Protestants can now practice freely in Bulgaria and that,

even if some persecution remains, she could avoid it by

returning to a different area of Bulgaria. Ms. Vladimirova

points out that the same government remains in power and

that religious intolerance continues unabated. Finally, she

points out that the State Department’s failure to mention

Word of Life in the 2000 Report on International Religious

Freedom in Bulgaria is likely because the church is so small,

not because church members are no longer persecuted.

We agree that the IJ failed to analyze properly whether

Ms. Vladimirova suffered past persecution and thus failed

to afford her the benefit of the shifting burden of proof. The

IJ’s statement that conduct must involve a “threat to the life

No. 03-1852 11

or freedom of the victim,” A.R. 85, is simply wrong. Indeed,

we recently emphasized in Dandan v. Ashcroft, 339 F.3d 567

(7th Cir. 2003), that acts of persecution must “ ‘rise above the

level of mere harassment’ ” but need not be so severe as to

constitute “ ‘threats to life or freedom.’ ” Id. at 573 (quoting

Ambati v. Reno, 233 F.3d 1054, 1060 (7th Cir. 2000)). The

physical violence suffered by the petitioner—a beating so

severe that it caused a miscarriage—certainly rises above

the level of mere harassment and qualifies as proof of past

persecution. See, e.g., Kossov v. INS, 132 F.3d 405, 409 (7th

Cir. 1998) (Rovner, J., concurring) (opining that beating

resulting in miscarriage could justify finding of past perse-

cution). Compare Asani v. INS, 154 F.3d 719, 723 (7th Cir.

1998) (remanding to BIA to reconsider whether a detention

involving the deprivation of sufficient food and water and

a beating resulting in the loss of two teeth constituted past

persecution), and Vaduva v. INS, 131 F.3d 689, 690 (7th Cir.

1997) (determining that a beating in which petitioner was

punched and had his face bruised and his finger broken

constituted past persecution), with Dandan, 339 F.3d at 573-

74 (concluding that petitioner’s three-day detention and

beating resulting in a “swollen” face did not constitute past

persecution where petitioner did not provide specific details

to indicate the severity of the beating), and Skalak v. INS, 944

F.2d 364, 365 (7th Cir. 1991) (determining that two three-day

detentions involving interrogation but no injury did not

constitute past persecution).

Moreover, the cases upon which the IJ relied in concluding

that Ms. Vladimirova did not suffer persecution in Bulgaria

are inapposite. The first case upon which the IJ relied, Zalega

v. INS, 916 F.2d 1257 (7th Cir. 1990), has no bearing on Ms.

Vladimirova’s petition. In Zalega, we approved the BIA’s

denial of asylum because the petitioner, although incarcer-

ated, experienced no mistreatment, see 916 F.2d at 1260; Ms.

Vladimirova was beaten so severely as to cause a miscar-

12 No. 03-1852

riage. The IJ relied on Matter of Chen, 20 I. & N. Dec. 16 (BIA

1989), but that case involved a different standard than the

one relevant to a petition for asylum. In Chen, the BIA

expressly granted Chen’s petition on “humanitarian”

grounds after finding that he had not proven his status as a

refugee but statutorily was eligible for asylum “in the

exercise of discretion.” Id. at 20-21. Finally, the IJ compared

the persecution of Ms. Vladimirova to that of the petitioner

in Asani. In Asani, however, we reversed the BIA’s denial of

asylum because the BIA had applied an incorrect standard.

See Asani, 154 F.3d at 723. Moreover, in doing so, we ques-

tioned “the BIA’s conclusion that the harm Asani suffered

did not cause ‘serious injuries,’ ” when he was deprived of

sufficient food and water and had his teeth knocked out

during a beating. Id. Thus, the IJ critically mis-stepped and

mis-stated this court’s decision when he suggested that the

“higher” level of mistreatment in Asani did not constitute

persecution. As a result, the IJ’s analysis of Ms. Vladimirova’s

claim was fatally flawed. In sum, because the IJ credited Ms.

Vladimirova’s testimony but failed to recognize that she had

suffered persecution, Ms. Vladimirova never received the

benefit of the presumption of a future threat that the

Government bears the burden of rebutting. See 8 C.F.R.

§ 208.16(b)(1)(i).

Further, the IJ did not believe Ms. Vladimirova’s state-

ment that she could not avoid persecution in Bulgaria by

relocating to another part of the country, but the 2000

Department of State Report on International Religious

Freedom in Bulgaria (the “2000 Report”) makes clear that

harassment of those practicing unsanctioned religions is

spread throughout the country. In any event, the 2000

Report—which states in part that the Government restricts

the practice of some religions that are not registered—

hardly demonstrates that individuals of Ms. Vladimirova’s

religious beliefs are free from persecution. The fact that

No. 03-1852 13

Word of Life was not mentioned in the report and that Ms.

Vladimirova worshiped with only a small group does not

imply that the religion does not exist or is not persecuted;

the report discusses only the experiences of Muslims, Jews,

Roman Catholics, Jehovah’s Witnesses and Mormons. There

is no evidence in the 2000 Report that Word of Life has been

registered with the Bulgarian Government and that its

adherents may practice freely. Ms. Vladimirova’s decision

to worship with a “mainline” denomination in this country

is equally irrelevant; her reasons for not worshiping with

other Word of Life members reflect a practical adjustment,

given her inability to locate a Word of Life group where she

lives in this country.

Conclusion

We lack jurisdiction to review the IJ’s denial of the

Vladimirovas’ petition for asylum. When the IJ assessed Ms.

Vladimirova’s claims, however, he failed to recognize that

Ms. Vladimirova suffered past persecution. Accordingly, he

did not grant her the benefit of the presumption that she

would be subject to a future threat. We remand to the

Department of Homeland Security to reconsider the

Vladimirovas’ requests for withholding of removal. Ms.

Vladimirova may recover her costs in this court.

PETITION DISMISSED IN PART

AND GRANTED IN PART; REMANDED

14 No. 03-1852

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—7-26-04