Borca v. I.N.S.
| Decision Date | 29 February 1996 |
| Docket Number | No. 95-2206,95-2206 |
| Citation | 77 F.3d 210 |
| Parties | Jenica BORCA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Y. Judd Azulay, Stephen D. Berman (argued), Azulay & Azulay, Chicago, IL, for Petitioner.
Janet Reno, Office of the United States Attorney General, Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, James B. Burns, Office of the United States Attorney, Chicago, IL, William J. Howard, David M. McConnell, Marion E. Guyton, Theresa Wallbam (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.
Before CUMMINGS, WOOD, Jr., and EASTERBROOK, Circuit Judges.
Jenica Borca, a citizen of Romania, appeals the decision of the Board of Immigration Appeals ("BIA") which affirmed the Immigration Judge's finding of deportability. Borca, who legally entered the United States with a visitor's visa, had filed an administrative application for asylum and withholding of deportation. The BIA rejected Borca's petition after concluding that Borca had failed to establish either past persecution or a well-founded fear of persecution. For the reasons given below, we affirm in part and reverse and remand in part.
Borca legally entered the United States on December 6, 1991, with a visitor's visa which was valid until June 6, 1992. On April 27, 1993, the Immigration and Naturalization Service ("INS") initiated deportation proceedings against Borca in light of her failure to leave the United States after the expiration of her visa. Prior to the expiration of her visa, Borca had filed an administrative application for asylum and withholding of deportation in which she claimed that she would likely be persecuted for her political opinion if she returned to Romania. A hearing was held before an Immigration Judge on January 4, 1994, during which Borca conceded her deportability. A second hearing was scheduled for May 27, 1994, to address the merits of Borca's application. In the interim, Borca filed a second, more detailed application for asylum and withholding of deportation.
At the May 27th hearing, Borca presented the following testimony, which the Immigration Judge found to be credible and uncontradicted: Borca claims that her troubles began when an uncle sought her aid in locating his two adult children, who were last seen on December 16, 1989. The request was made on December 25, 1989, in the midst of the upheaval surrounding the end of Romania's totalitarian era. Borca's uncle enlisted her aid because she worked as a radiologist at the municipal hospital in Timisoara, and it was possible that her cousins were among the many victims of the uprising being treated there. 1
When Borca checked the hospital's main registration records for evidence of her uncle's children, she discovered that all of the records for the relevant dates--December 16-18, 1989--had been removed. Borca then checked the registration records of the radiology department, which was apparently serving as a backup emergency room at the time. The registration records of the radiology department for the dates in question had also been removed. Borca then searched the files of the hospital's x-ray library and here she was more successful. The hospital retained all patients' x-ray files for a period of six months and the files of the patients admitted on these dates were still intact. By this time, Borca was convinced that she had unearthed an effort by officials of the hospital to obscure the fate of certain individuals injured or killed during the overthrow of the Ceausescu regime. According to Borca, many individuals in the Timisoara area suffered the same mysterious fate as Borca's uncle's children.
Consequently, Borca retrieved all of the files for one day--December 17, 1989--that involved firearm wounds. 2 Borca photocopied a portion of each of the resulting thirty-three files and hid the copies at an aunt's house. Borca did not, however, attempt to conceal her photocopying activities and her involvement in the matter became generally known. Moreover, Borca discussed the issue of the missing records with her colleagues and several of them agreed to help her systematically search the hospital's library. This comprehensive search allegedly revealed further evidence that a purge of the hospital's records had taken place.
Borca claims that she also attempted to meet with the hospital's director, but that the director told her to mind her own business. The director was replaced shortly thereafter with a new appointee. Since Borca did not feel that she could trust the new director--his name, as the treating physician, allegedly appeared on some of the files she had copied--she provided an account of the incident to the local newspaper. Borca informed the newspaper of her theory that the missing records evidenced the efforts of Romania's transitional government to cover-up the tumultuous beginnings of its rule. The newspaper did not, however, publish Borca's story.
Shortly after Borca went to the newspaper, she was subjected to a lengthy interrogation by the Romanian secret police during which time she was asked about the photocopies she had made. Borca claims that she lied to her interrogators by telling them that she had removed the copied files from the country. Afterwards, Borca discovered that her room had been searched. Borca then began to receive threatening calls at the hospital, in which the anonymous callers demanded that she destroy the photocopies. Borca requested, and was granted, a transfer to another hospital in a nearby town, Otelul Rosu. A month or two after her transfer, Borca was subjected to another interrogation and her dwelling was searched again.
Thereafter, Borca did not experience any serious trouble until November, 1991, when she helped to organize a demonstration against the health minister and the Romanian government. Borca prepared posters for the demonstration. She also gave a speech in which she addressed the issue of the missing records. When Borca returned to work after the demonstration, she was informed by the hospital director that her employment was being terminated due to her oppositional activities. In addition, Borca was told that she was barred from assuming any other form of government employment, except perhaps for a farm laborer position.
Borca's mother later informed her that the secret police had been looking for her again. Borca went into hiding and then left Romania for the United States, accompanied by her mother, a short while later. Borca states that she has telephoned some of her old neighbors since her arrival in the United States and that they reported that the Romanian secret police are still asking about her.
The Immigration Judge denied asylum after concluding that, although the events Borca complained of did constitute harassment and intimidation, Borca had failed to establish that she had been persecuted or that she possessed a well-founded fear of persecution. The Immigration Judge further concluded that Borca had necessarily failed to meet the stricter standard required to secure withholding of deportation. Borca then appealed to the BIA. The BIA adopted the reasoning and decision of the Immigration Judge and this appeal followed.
Our review of the BIA's interpretation of the Immigration Act is de novo. Zalega v. INS, 916 F.2d 1257, 1259 (7th Cir.1990) (citations omitted). We will, however, defer to the BIA's interpretation of the Act if the intent of Congress with respect to the matter at issue is not clear and if the interpretation offered by the BIA is reasonable. Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984). We review the BIA's factual findings that Borca failed to establish past persecution or a well-founded fear of future persecution under the "substantial evidence" standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Milosevic v. INS, 18 F.3d 366, 370 (7th Cir.1994). Under this standard, we must uphold the BIA's findings if they are "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4). We may only arrive at a factual conclusion different from that reached by the BIA if "the evidence not only supports that conclusion, but compels it." Elias-Zacarias, 502 U.S. at 481 n. 1, 112 S.Ct. at 815 n. 1.
We note first that Borca has applied both for asylum under § 208(a) of the Immigration Act, 8 U.S.C. § 1158(a), and withholding of deportation under § 243(h) of the Immigration Act, 8 U.S.C. § 1253(h). The standards facing a petitioner are different in these two contexts. Accordingly, we must examine each in turn.
Section 208(a) authorizes the Attorney General to grant asylum to an applicant who qualifies as a "refugee" under 8 U.S.C. § 1101(a)(42)(A). The definition of a refugee provided by that section requires Borca to show that she is unwilling to return to Romania "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).
In order to demonstrate a well-founded fear of persecution, "an alien must not only show that h[er] fear is genuine, but that it is a reasonable fear." Milosevic, 18 F.3d at 370 (citation omitted). The reasonableness component of this equation requires a petitioner to establish "that a reasonable person in the asylum applicant's circumstances would fear persecution if she were returned to her native country." Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991) (citations omitted). Towards this end, " 'a petitioner must present specific, detailed facts showing a good reason to fear...
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