Damko v. I.N.S.

• Decision Date: 30 November 2005
• Docket Number: Docket No. 02-4830.
• Citation: 430 F.3d 626
• Parties: Ida DAMKO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

430 F.3d 626

Ida DAMKO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Docket No. 02-4830.

United States Court of Appeals, Second Circuit.

Argued: April 5, 2005.

Decided: November 30, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel A. Eigerman, Roger J. Bernstein, New York, NY, for Petitioner.

Sarah Y. Lai, Assistant United States Attorney (Kathy S. Marks, Assistant United States Attorney, of counsel; David N. Kelley, United States Attorney, on the brief), United States Attorney's Office for the Southern District of New York, New York, NY, for Respondent.

Before: WINTER, CABRANES, and POOLER, Circuit Judges.

Judge POOLER concurs in a separate opinion.

JOSÉ A. CABRANES, Circuit Judge.

Petitioner Ida Damko, a native and citizen of Albania, seeks review of an October 29, 2002 order of the Board of Immigration Appeals ("BIA") affirming an April 2, 2001 oral decision by an immigration judge ("IJ") that denied petitioner's application for asylum and withholding of removal. Where, as here, the BIA affirmed the IJ's decision summarily, we review the IJ's decision rather than the BIA's order. See, e.g., Yu Sheng Zhang v. DOJ, 362 F.3d 155, 158-59 (2d Cir.2004).

Petitioner's claim for asylum rests principally on the fact that, after a 1973 encounter with the security services of Albania's Communist regime, she was summarily dismissed from her engineering studies at a university. For the following twenty years, she was confined to an industrial job, which she eventually lost, allegedly for political reasons. The IJ concluded (1) that economic deprivations petitioner had suffered in Albania did not rise to the level of persecution, and, in the alternative, (2) that Albania had undergone a significant change in circumstances such that petitioner no longer had a well-founded fear of persecution. With respect to the IJ's first conclusion, we hold that, under the Immigration and Nationality Act of 1952, 8 U.S.C. § 1101 et seq. ("INA"), economic deprivations may rise to the level of persecution if they are "so severe that they constitute a threat to an individual's life or freedom," Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985). We review the IJ's determination that petitioner's economic deprivations did not threaten her life or freedom under the "substantial evidence" standard and, under that standard, we hold that the IJ correctly found petitioner ineligible for asylum. We therefore deny her petition without reviewing the alternative rationale for the IJ's decision.

BACKGROUND

On January 15, 1999, petitioner entered the United States on a tourist visa. Her visa expired six months later, but she remained in this country.

In January 2000, petitioner submitted to the Immigration and Naturalization Service ("INS")¹ an application for asylum and for withholding of removal. The account below is drawn largely from petitioner's submissions. Petitioner alleged that in 1973, when she was a university student in Communist Albania, she acted as an interpreter for visiting relatives from the United States, and for that reason was detained and interrogated by security agents. Although petitioner reports that she was released after the interrogation, she allegedly experienced "a hostile attitude" upon returning to her university and was dismissed from the university before she was able to complete her engineering degree. Petitioner subsequently began working at a plant, where she remained employed as a supervisor for approximately twenty years. At one point during those twenty years, petitioner was allegedly "accused of sabotage" and "once again interrogated," but she was neither fired nor imprisoned in connection with that incident. Petitioner asserted that she was ultimately fired from the plant on May 24, 1994 because she "was not a member of the Socialist Party that [was in] charge of the state."

On March 15, 2000, the INS served petitioner with a Notice to Appear, charging that she was subject to removal from the United States, pursuant to 8 U.S.C. § 1227(a)(1)(B),² as a nonimmigrant who remained in the United States for a longer period than permitted. At a hearing before the IJ, petitioner conceded, through counsel, that she is removable, but sought relief in the form of asylum and withholding of removal. Having requested time to supplement her asylum application, petitioner submitted a second application on July 12, 2000. The facts asserted in petitioner's second application were substantially similar to those asserted in her original application, but certain additional details were supplied. For example, petitioner offered an account of the psychological distress, culminating in a suicide attempt, that she experienced upon being suddenly dismissed from the university.

Additional information was also provided regarding petitioner's employment at the plant. Unlike petitioner's original asylum application, which described petitioner's job as supervisory, her second application asserted that she had been a "laborer."³ Petitioner stated that the plant initially offered her no "credit for the years of university, but because [she] was very knowledgeable because of [her] college years, they assigned an operator position in one of the most difficult process[es] of the plant." Petitioner further asserted that "[d]uring 20 years work in that plant, [she] was punished with hard labor without pay several times for the most absurd reasons." Furthermore, "[a]fter a general strike that was all over Albania" in 1991, petitioner was allegedly fired, but was later rehired by the same plant.⁴ Her husband lost his job in 1992. On May 24, 1993 (one year earlier than indicated in the original asylum application), petitioner was "fired again," this time permanently. She was then allegedly "forced to try and make a living by sewing clothes for very little money." Petitioner submitted various documentary evidence in support of the allegations made in her application.⁵

Petitioner's removal proceedings resumed on February 1, 2001, when petitioner testified before the IJ to facts along the lines of those asserted in her asylum applications. In particular, petitioner testified that she could not trace her dismissal from the university to any academic shortcomings on her part and therefore attributed the dismissal to her 1973 encounter with the Albanian security services. Petitioner further testified that her subsequent twenty years of work at a plant exposed her to strenuous and potentially dangerous working conditions—conditions that, according to petitioner, "not too many females" were generally forced to endure. At one point, petitioner stated that "because [she] finished the [engineering] faculty," she was able to operate much of the plant's equipment. A lengthy exchange between the IJ and petitioner ensued, in which the IJ sought to determine whether petitioner completed her engineering degree or, as petitioner's asylum applications had asserted, the university dismissed her without a diploma.

On cross-examination by the Government, petitioner admitted that she was fired from her plant job in 1993 amidst a "destroyed" Albanian economy, where layoffs were not uncommon. Moreover, according to petitioner, she was fired (allegedly for not being a member of the Socialist Party) at a time when the Democratic Party, which she apparently supported was in power. Petitioner insisted, however, that the plant supervisor who fired her was, unlike the officials then ruling Albania, a member of the Socialist Party. Petitioner also confirmed that, at the time she left Albania, she "was a tailor—[a] private tailor working in [her] house." Petitioner's husband, who remains in Albania, had been unable to find steady employment and had relied on finding odd jobs. Petitioner was the only witness to testify at her removal proceedings.

On April 2, 2001, the IJ found petitioner removable and denied her application for relief in the form of asylum and withholding of removal. The IJ's oral decision highlighted three aspects of petitioner's testimony that were found inconsistent or otherwise not credible: (1) ambiguity as to why petitioner's relatives, at least one of whom appeared to speak Albanian, required petitioner to serve as a translator during their 1973 visit to Albania; (2) petitioner's contradictory statements with respect to the extent of university-level engineering education she was able to complete in Albania; and (3) petitioner's inconsistent descriptions of her plant job as supervisory and nonsupervisory. The IJ did not, however, make a general adverse credibility finding.⁶

The IJ then concluded that—for two independent reasons—the credible portions of petitioner's testimony did not demonstrate that she is eligible for asylum or withholding of removal. First, the IJ ruled that petitioner failed to establish that she suffered persecution, because "persecution," as defined by statutory and case law, "generally requires a level of mistreatment rising well above the level described by" petitioner.⁷ Second, the IJ made a finding of significantly changed circumstances in Albania, such that petitioner—assuming arguendo she had suffered persecution by Albania's Communist regime, which collapsed in 1992—would no longer have a well-founded fear of persecution.

Petitioner appealed the IJ's decision to the BIA. On October 29, 2005, the BIA summarily affirmed.

Petitioner filed a timely petition for review to this Court.

DISCUSSION

For the reasons set forth below, we hold that the IJ properly determined that economic deprivations petitioner had suffered did not rise to the level of persecution. We need not, therefore, review the IJ's alternative finding of changed circumstances in Albania.⁸

I. Standard for "Economic" Persecution Under the INA

We begin by identifying the standard that a petitioner must meet under the INA to demonstrate that she has suffered "persecution" by means of economic deprivation. When confronted with ...