Bereza v. I.N.S., 96-3041

• Decision Date: 30 May 1997
• Docket Number: No. 96-3041,96-3041
• Citation: 115 F.3d 468
• Parties: Igor BEREZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 468

115 F.3d 468

Igor BEREZA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-3041.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 20, 1997.

Decided May 30, 1997.

Scott D. Pollock (argued), Winston T. Rego, Pollock & Associates, Chicago, IL, for Petitioner.

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Mark C. Walters (argued), David M. McConnell, Emily Radford, Stephen W. Funk, Department of Justice, Civil Division, Kristal A. Marlow, Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, Chief Judge, and ESCHBACH and MANION, Circuit Judges.

ESCHBACH, Circuit Judge.

Igor Bereza does not want to return to Ukraine, ¹ his home country. He concedes that he is deportable, he overstayed his visitor's visa, but seeks asylum in the United States on the grounds that he was persecuted when he lived in Ukraine and has a well-founded fear that he will be persecuted if he is forced to return. The immigration judge held that Bereza is not eligible for asylum and the Board of Immigration Appeals ("BIA") agreed. Bereza now appeals the BIA judgment. We have jurisdiction under 8 U.S.C. § 1105a(a). ² We affirm.

I. Background

Igor Bereza, a Ukrainian citizen, first came to the United States in 1989 on a visitor's visa. In 1990, he returned to Ukraine for a period of six to seven months to arrange for his parents to come to the United States. When he returned to the United States in December 1990, it was with permission to stay until June 1991. In February 1992, Bereza's parents were granted political asylum. Bereza states that his asylum request was originally to be considered with his parents' cases, but he was unable to be interviewed at the time because he was hospitalized with a heart condition. In April 1994, the Immigration and Naturalization Service ("INS") denied Bereza's request for asylum and instituted deportation proceedings. Bereza conceded deportability, but renewed his application for asylum and withholding of deportation.

Bereza's mother, Anna Bereza, was a political prisoner in a Soviet labor camp under Stalin during the 1940s. She married and had her son (Igor) after her release. Because of Mrs. Bereza's anti-Stalinist activities, her family was perpetually branded as an enemy of the state. As a result, Bereza suffered discrimination in schooling and at work. In ninth grade, Bereza was falsely accused of breaking rules during summer camp and was threatened with expulsion if he did not apologize. The chief counselor knew Bereza had done nothing wrong, but said that no one would believe him because of his mother's past imprisonment. Later, when Bereza was seventeen or eighteen years old, he was told that regardless of how well he did in school, he would not be rewarded and would not be able to go to a good school later on because of his mother's past. This prediction came true. Although Bereza wanted to study medicine or engineering, these options were closed to him. Instead, he went to a forestry college. When he graduated in 1978, Bereza was denied honors despite his good grades. The Communist party representative for Bereza's class informed him that he would never receive honors, regardless of his diligence, because his mother was a public enemy. After graduation, Bereza received what was considered a bad placement at a plywood manufacturing plant.

In 1987, when greater political freedom seemed possible under Gorbachev's policies of perestroika and glasnost, Bereza became politically active. Along with thousands of others, Bereza participated in demonstrations in support of greater political freedoms, in which he sometimes held signs and sometimes "spoke out." In all, Bereza took part in about fifteen demonstrations. The police ended some of these, it is unclear how many, by beating the protesters with clubs, then arresting and detaining them. Bereza was arrested twice after participating in demonstrations. The first time he was detained for only a few hours, the second time, overnight. When he was released the next morning, the personnel department at Bereza's workplace warned Bereza to stop participating in the demonstrations, or else. When Bereza continued to speak out, he was demoted from his position as a mechanical engineer, a desk job, to an outside job repairing equipment that involved heavy lifting. Bereza suffered a hernia, but was forced to continue strenuous work despite doctor's orders. The same person who had previously warned Bereza against participating in demonstrations, when presented with the doctor's orders, told Bereza he should have listened to her before. Bereza's medical difficulties continued when he began to have heart trouble. Adding to his medical problems, Bereza's finger was severed when a machine was turned on while he was repairing it. Although he has no proof, Bereza suspects that a coworker turned the machine on because of Bereza's political activities. When Bereza returned to work after this injury, again with doctor's orders against heavy lifting, he was still required to do the same heavy work. In September 1988, Bereza was fired without explanation.

Bereza claims he also was persecuted on account of his religion, Greek Catholic, inasmuch as that religion was outlawed for most of his life in Ukraine. Other than the inability to practice Greek Catholicism, Bereza did not describe any incidents of harassment or discrimination based on his religion. Bereza admitted that the church is free today, and expressed no fear of future persecution based on his religion.

Bereza testified that he is afraid to return despite the political changes in Ukraine and despite the fact that he did not have any problems when he was back in Ukraine in 1990. According to Bereza, the same people are in power, the only difference is that before the political changes "they called themselves communists and after ... they called themselves democrats." Bereza testified that he was afraid that if he went back he would be killed.

The government's evidence included both an advisory opinion and a report on Ukraine from the State Department. According to the State Department, Greek Catholicism has been legalized and is now one of the dominant religions in Ukraine. The advisory opinion indicated that although the Communist party is once again legal it was still a minority party as of 1994. ³ The report on Ukraine recognized that some of the security personnel remained the same, but indicated that because the security apparatus is now subordinate to the independent Ukrainian government, it was unlikely anyone would be persecuted for supporting Ukrainian independence.

The immigration judge ("IJ") denied Bereza's asylum claim and claim for withholding of deportation but granted him voluntary departure in lieu of deportation. On appeal to the BIA, the BIA held that Bereza did not qualify as a refugee (the prerequisite necessary to be eligible for asylum), because his experiences in Ukraine did not rise to the level of persecution and he had no reasonable fear of future persecution. The BIA also held that Bereza necessarily did not meet the stricter standard for withholding of deportation. Bereza now appeals the BIA's holding that he is not eligible for asylum.

II. Analysis

The Attorney General has discretion to grant asylum to applicants who qualify as refugees under 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(a); see also Borca v. INS, 77 F.3d 210, 214 (7th Cir.1996). The Immigration and Nationality Act defines a "refugee" as one who is unable or unwilling to return to his 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); see also Borca, 77 F.3d at 214. The Act does not define "persecution," but we have held that to be persecution, "the conduct in question need not necessarily threaten the petitioner's 'life or freedom,' [but] it must rise above the level of mere 'harassment.' " Borca, 77 F.3d at 214. To establish a well-founded fear of persecution, an applicant must show both that he genuinely fears being persecuted and that his fear is objectively reasonable. Id.; Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir.1995). Although a showing of past persecution ordinarily entails a presumption that the applicant has a well-founded fear of persecution, this is not so when conditions in the country from which he is fleeing have changed "to such an extent that the applicant no longer has a well-founded fear of being persecuted if he were to return." 8 C.F.R. § 208.13(b)(1)(i).

A person may qualify as a refugee, and thus be eligible for asylum, based on past persecution alone when it is sufficiently severe. This is because "[t]he experience of persecution may so sear a person with distressing associations with his native country that it would be inhumane to force him to return there, even though he is in no danger of further persecution." Skalak v. INS, 944 F.2d 364, 365 (7th Cir.1991). However, if there is no well-founded fear of future persecution, the past persecution must have been particularly severe to render the applicant eligible for asylum. As we explained in Skalak,

we must have regard for the function of the term ["persecution"] in a case such as this where the question is whether a person should be eligible for asylum, notwithstanding the absence of any danger of persecution, merely because she was persecuted in the past. The function is to identify persecution so severe that perhaps a person should not be forced to return to the country in which she underwent it even if the danger of recurrence is negligible.

Id. Federal regulations now make explicit that if a person does not have a well-founded fear of future persecution, the alien must have "compelling reasons for being unwilling to return" to his country of origin to...