Bucur v. I.N.S.

Decision Date26 March 1997
Docket Number96-2043 and 96-2190,Nos. 96-2008,s. 96-2008
Citation109 F.3d 399
PartiesStefan BUCUR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Gabriela ROSUS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Gheorghe DRAGOS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Scott D. Pollock (argued), Pollock & Associates, Chicago, IL, for petitioner Stefan Bucur.

Carl H. McIntyre, Jr., Department of Justice, Office of Immigration Litigation, Washington, DC, for respondent in 96-2008.

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Richard M. Evans, Jeffrey J. Bernstein (argued), David M. McConnell, Stephen W. Funk, Marion E. Guyton, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for respondent in 96-2008 and 96-2043.

Y. Judd Azulay, Stephen D. Berman (argued), Azulay & Azulay, Chicago, IL, for petitioner Gabriela Rosus.

David Rubman (argued), Chicago, IL, for petitioner Gheorghe Dragos.

Janet Reno, U.S. Attorney General, Washington, DC, Jeffrey J. Bernstein (argued), Mark C. Walters, Christine Bither, Stephen W. Funk, Department of Justice, Civil Division, Immigration Litigation, for respondent in 96-2190.

Before POSNER, Chief Judge, and CUMMINGS and CUDAHY, Circuit Judges.

POSNER, Chief Judge.

We have consolidated for decision three petitions to review orders by the Board of Immigration Appeals denying asylum to Romanian citizens. All three petitions claim that the petitioner was persecuted by the communist regime--Bucur because he is of mixed Romanian-Hungarian ethnicity and was a political opponent of the communist regime, Rosus because she is of mixed Romanian-Ukrainian ethnicity, and Dragos because he is a Jehovah's Witness. Bucur and Rosus anticipate further persecution if they are forced to return to Romania, while Dragos claims that his persecution by the communist regime was sufficiently serious to warrant a grant of U.S. asylum even though he is unlikely to be persecuted by the current regime.

Bucur is from Transylvania, a part of Romania that used to be part of Hungary and that has a large population of ethnic Hungarians long discriminated against by the Romanian majority. The communist regime had a policy of forcing minorities to assimilate. The policy was dropped after the overthrow of the communist dictator, Ceausescu, in 1989, but ethnic unrest continues. Indeed, the fall of communism in Central and Eastern Europe seems rather to have fanned than to have cooled ethnic tensions in the region, and while there is no indication of lethal discrimination by Romania against its minorities--the sort of thing one finds in what was once Yugoslavia--there is evidence of greater discrimination against ethnic Hungarians than before the collapse of the communist regime, Hengan v. INS, 79 F.3d 60, 62-63 (7th Cir.1996), although the situation may be mending. See Treaty between the Republic of Hungary and Romania on Understanding, Cooperation and Good Neighbourhood, art. 15(1)(b) (Sept. 16, 1996).

Bucur came to the United States in 1990, on a nonimmigrant visa, and has remained. He is 43 years old, and had worked as an engineer in Romania before he left. He now claims to be half-Hungarian, though on his original application for asylum he claimed to be of Romanian ethnicity and to belong to the Eastern Orthodox church, whereas most ethnic Hungarians are either Catholic or Protestant. He claims to have suffered some discrimination in education and employment when he was in Romania because of his half-Hungarian ethnicity, but apparently it was not severe, for he got a good job after completing a five-year college program in engineering. The job involved working with foreign specialists. This was a task for which he was particularly well suited because he speaks German and (he claims) Hungarian as well as Romanian, but it brought him under surveillance by the secret police, which was suspicious of anyone who had contacts with foreigners. He once participated in a workers' demonstration against the Ceausescu regime and afterwards was questioned by the secret police. He was not imprisoned or beaten but during the questioning a police officer yelled at him, "What were you doing downtown [at the demonstration], you moron Hungarian?" On another occasion the officer told Bucur that he would be better off if he let Romanians do the talking about their country's problems.

All this is most unpleasant, but we think the Board of Immigration Appeals was well within its authority in concluding that Bucur was not a victim of ethnic persecution. The Attorney General is authorized to grant asylum to "refugees," defined as persons "unable or unwilling" to return to their 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), 1158(a). If Bucur is telling the truth about his Hungarian ethnicity and how it affected his life in Romania (as we shall assume, the Board not having made a clearcut finding on his credibility), he was the victim of discrimination on account of his nationality. But discrimination is not persecution. Sharif v. INS, 87 F.3d 932, 935 (7th Cir.1996); Bastanipour v. INS, 980 F.2d 1129, 1133 (7th Cir.1992); Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). Otherwise hundreds of millions of people would be eligible for asylum in the United States. Granted, this would not be the end of the world. The statute creates a right only to ask the government to exercise discretion to grant or deny asylum favorably to the applicant; it does not confer a right to asylum. 8 U.S.C. § 1158(a); INS v. Cardoza-Fonseca, 480 U.S. 421, 443-44, 107 S.Ct. 1207, 1219-20, 94 L.Ed.2d 434 (1987). So the Board could if it wanted turn down the vast majority of eligible applicants, cf. Hengan v. INS, supra, 79 F.3d at 62, and though in fact denials of asylum to persons found to be refugees have apparently been rare, 2 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 34.02[d], p. 34-56.1 (1995); Richard D. Steel, Steel on Immigration Law § 8.08, p. 8-31 (2d ed.1996), we shall see that refugees who do not face further persecution are unlikely to be granted asylum. What is more, there are now mandatory grounds for denial of asylum to some refugees. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, § 604, 110 Stat. 3009 (1996). Truncating the Board's discretion from the other side, the alien who can prove that he has a "clear probability" of losing his life or his freedom if he is deported to a particular country has a right not to be deported to that country, rather than merely a right to ask for mercy. 8 U.S.C. § 1253(h)(1); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 159-60, 113 S.Ct. 2549, 2552-54, 125 L.Ed.2d 128 (1993); INS v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498-99, 81 L.Ed.2d 321 (1984).

So the domain in which the Board exercises discretion may in practice be considerably narrower than we are suggesting--and anyway most of those hundreds of millions of victims of discrimination in foreign lands don't have the money to travel to the United States. Still, the statute was designed as a filter, and the mesh would be too broad if every foreign victim of discrimination in his homeland were eligible for asylum. There is discrimination even in the United States; many thousands of judicial and administrative claims are filed every year complaining of discrimination because of race, ethnicity, sex, or religion, and while many of the claims do not have merit many others do. There is much worse discrimination against minorities in many other countries.

The difference between persecution and discrimination is one of degree, which makes a hard and fast line difficult to draw. But we think it a reasonable generalization that the persecution of members of minority groups (such as ethnic Hungarians in Romania) differs from discrimination against them in being either official and severe, or nonofficial but lethal and condoned. Giving an official imprimatur to discrimination magnifies its gravity, as is implicit in the state action requirement of the Fourteenth Amendment. So a Romanian law requiring ethnic Hungarians to wear an armband identifying them as Hungarian, or forbidding them to attend college or to live in designated areas, would constitute persecution, even if it did not prevent them from earning a livelihood, cf. Borca v. INS, 77 F.3d 210, 215-17 (7th Cir.1996), while a wave of pogroms against Hungarians, or a campaign of expulsions from the country, would also constitute persecution even if the pogroms or the expulsions were merely condoned rather than orchestrated by the government. Hengan v. INS, supra, 79 F.3d at 61-63; Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir.1988). But a law merely reserving a certain percentage of college places well short of 100 percent for Romanians, or requiring Hungarians to learn Romanian, would not be persecution; nor a pattern of private discrimination or of low-level, ad hoc, official discrimination, such as the disparaging reference to Bucur's nationality in his interview with the secret police. There is, of course, no bright line between discrimination and persecution; policing the boundary is the responsibility of the Board of Immigration Appeals, not of us; it is reasonably clear that Bucur has not crossed it.

Rosus's case is similar but a little stronger. She is 29, and has been in the United States since 1991. She grew up in the region of Romania that bordered on the Ukraine. Her father is a member of Romania's Ukrainian minority. Her mother, an ethnic Romanian, was ostracized by her Romanian friends for marrying a Ukrainian. Her father was able to become a...

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