Donchev v. Mukasey

• Decision Date: 16 January 2009
• Docket Number: No. 05-74709.,05-74709.
• Citation: 553 F.3d 1206
• Parties: Petar Georgiev DONCHEV; Avgustina Tsvetanova Zhivkova, Petitioners, v. Michael B. MUKASEY,<SMALL><SUP>*</SUP></SMALL> Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

553 F.3d 1206

Petar Georgiev DONCHEV; Avgustina Tsvetanova Zhivkova, Petitioners, v. Michael B. MUKASEY,^* Attorney General, Respondent.

No. 05-74709.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 24, 2007.

Filed January 16, 2009.

Nicholas W. Marchi, Carney & Marchi, P.S., Seattle, WA, for the petitioners.

Andrew S. Biviano (argued) and Frank A. Wilson (briefed), Assistant U.S. Attorneys, Spokane, WA, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency Nos. A95-562-817, A95-562-816.

Before: B. FLETCHER, ANDREW J. KLEINFELD, and RONALD M. GOULD, Circuit Judges.

Opinion by Judge Kleinfeld; Dissent by Judge BETTY B. FLETCHER.

KLEINFELD, Circuit Judge:

Petar Georgiev Donchev (Donchev) seeks asylum, withholding of removal, and relief under the Convention Against Torture as a member of a particular social group, friends of the Roma.¹

FACTS

Donchev entered the United States on March 1, 2003 at age 26 on a false Belgian passport that he bought. He is Bulgarian, not Belgian. His mother lives in Bulgaria, his sister in the United States, where she has become a citizen. Donchev was apprehended when special agents from the Bureau of Immigration and Customs Enforcement (ICE) executed a search warrant on his sister's residence, where Donchev lived. The search turned up numerous fraudulent immigration documents and about $40,000 cash.

The Department of Homeland Security initiated removal proceedings against Donchev. Donchev then applied for asylum, withholding of removal, and relief under the Convention Against Torture. His application says that his nationality is Bulgarian and that he seeks asylum or withholding of removal based on membership in a "particular social group." He claims:

I have been held at police stations and have been mistreated and harmed because of my participation in the organizations for the rights of the gypsies. Some incidents consisted of being beaten and raped. I was harmed by people who are against gypsies and authority. All the mistreatments occurred several times in the past few years. I believe that happened because I am a part of a certain social group and participated there.

In the application he also says "I participated as a member of organizations that fights for rights of the gypsies." At the hearing Donchev testified that he has been a member of the "Roma organization" since 2000. He submitted a document that purports to be a membership card for the organization, Future for the Roma. Donchev testified at the hearing that he himself is not Roma. Nowhere in the application does Donchev claim to be Roma himself, just friends with Roma individuals and a friend of the Roma people.

Donchev repeats his claim of rape in his application when describing what he fears "will happen again" if he returns to Bulgaria. He never mentions the claim of rape in his testimony. Regarding his fears of future torture, he says "I am afraid and do fear if I return to my country those incidents will happen again. Torture that I fear is [b]eating, stalked, raped. I fear that if I return to my country I could be killed." Donchev also says in his application that his mother is dead. At the hearing he testified that his mother is alive, continues to live in Bulgaria, and obtained for him the forged immigration documents found during the search. Donchev also answered "No" on his application to the question of whether he had ever been "accused, charged, arrested, detained, interrogated, convicted and sentenced, or imprisoned in any country other than the United States." When later testifying, Donchev described two detentions by the police in conjunction with his work between 1998 and 2001. He also testified to an arrest and two other detentions in 2001, as well as to police abuse in 2002. He also claimed police abuse connected with these events. When asked to explain the discrepancy between the answer in his application and his testimony at the hearing, Donchev said that he had not understood the question. His application also indicates that his attorney prepared the application. At the hearing, Donchev testified that it was his sister who helped him, with his attorney only helping to mail it.

Donchev's testimony described a series of contacts with the fellow soldiers, police, and hoodlums before he left Bulgaria in February 2003. When Donchev served in the military in the early 1990s, he "was ordered to ... mistreat[his Roma friends] and make them do things that were unpleasant by two senior lieutenants." Most of the time he refused to obey these orders, so he was arrested and put in military confinement. Donchev claimed that other soldiers in military confinement were ordered to beat him up and torture him. He testified that he was beaten up and got bruises, and that these beatings occurred frequently during his first six months in the military. He does not claim to have been tortured.

Donchev also testified to two contacts with the police in the late 1990s regarding a shop where he worked. Donchev was a salesperson at the shop, and the police questioned him about whether the shop was selling stolen merchandise. Donchev testified that the police confiscated "some clocks or watches," because they "had the notion that the merchandise was stolen because we were having trade relationships with gypsies ... who were taking merchandise through the border from Turkey through the city of Dimitrovgrad." Donchev was not beaten, but he was "threatened a lot; and I was psychologically harmed." The police threatened to confiscate the inventory that they believed was stolen.

On another occasion the shop windows were broken, and swastikas and other graffiti painted on the walls. The investigating officers suggested that the shop owner and Donchev had done it themselves to get insurance. Donchev went down to the police station, where they did not beat or otherwise harm him, nor did they charge him with any crime.

Donchev's first incident with the police involving violence, not just insulting remarks, came a few years later, in 2001. Donchev was riding in a car with Roma friends when the police stopped them for a "routine checkup." The police then took them to the police station, supposedly to check for alcohol consumption. They were not charged with any crime and were released after two hours. During the detention, one of Donchev's friends told the police that they had no right to detain them, after which the friend got his arm broken and Donchev was hit in the head. Donchev did not seek medical attention or claim that he needed it.

Donchev's next police contact was at a New Year's Eve party on December 31, 2001. He and his friends, most of whom were Roma, were drinking "very little, only some bubbly." He testified that the police "came [up to] my house and ... they said there was a complaint that the celebration was too noisy. ... They started using offending words towards us. And they said the 14th of January was the Roma New Year's Eve and that's when we were supposed to celebrate." After Donchev and his friends were taken to the local police department, Donchev testified that "[w]e were kicked. We were beaten with sticks — they used swear words against us." Asked whether he had any lasting injuries, he said, "No, I was psychologically hurt." They were released the "next day." Donchev was not charged with any offense.

Donchev's first claim of injury for which he sought medical attention arose when he and his friend were leaving church in June 2002. Two policemen started laughing and asked "what are the gypsies doing in a church." One of the policemen started hitting Donchev's friend with a baton. Donchev testified that when he tried to stop the policeman, the other policeman "hit me. The second one hit me in the back. I fell on the ground and I remember that I was kicked and I was hit with the baton." Donchev was not detained by the police or taken down to the police station. To prove his injuries he did submit a letter in Bulgarian from a doctor he saw two days later. The letter says that Donchev had cuts, a scrape, and bruises that caused significant pain and suffering, but were a temporary and non-life-threatening health disturbance.

Donchev also testified to two incidents with "skinheads." In January 2003 he was at a meeting of a pro-Roma organization, Future for the Roma. To prove his affiliation with Future for the Roma, Donchev submitted as an exhibit a membership card issued in 2000 by "Future for the [R]oma." When Donchev left the meeting, some skinheads beat him up. Nobody called the police "because everybody kn[ew] that the skinheads were the, the body that acts for — in the favor of the police." To prove his injuries, Donchev submitted a second doctor's letter. The letter stated that Donchev told the doctor that he had been assaulted, beaten, and robbed of his watch. The doctor observed swelling and bruising on his face and elsewhere, causing "temporary and non-life-threatening health disturbance. The injuries were accompanied by significant pain and suffering. They will heal in a relatively short time period without health consequences to the victim." Donchev and his friends also had incidents with the skinheads at soccer games.

Donchev did not testify that any particular incident, with the police or the skinheads, caused him to undertake his attempts to move to the United States. Donchev's mother remains in Bulgaria, as does his wife's sister. The Roma have long been their "neighbors, our friends" and have "supported my mother and myself." There is no evidence that his mother had been arrested, harmed or even threatened, despite these friendships and sympathy for the Roma. Both his mother and sister-in-law continue to live among the Roma, and Donchev has never claimed that either fear for their lives or intend to leave Bulgaria.

According to the report in the record by the United States Department of State titled ...