Draganova v. I.N.S., 95-2634

Decision Date26 April 1996
Docket NumberNo. 95-2634,95-2634
Citation82 F.3d 716
PartiesTatiana DRAGANOVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Petition for Review of an Order of the Board of Immigration Appeals. A70-421-788.

Donald B. Kempster, Martina M. Keller (argued), Kempster & Lenz-Calvo, Chicago, IL, for petitioner.

Joan E. Smiley, Janet Reno, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, James B. Burns, Office of the U.S. Atty., Chicago, IL, William J. Howard, David M. McConnell, Washington, DC, Marion E. Guyton, Susie Cho (argued), Dept. of Justice, Civil Div., Immigration Litigation, Washington, DC, for respondent I.N.S.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Tatiana Draganova petitions for review of an order by the Board of Immigration Appeals (BIA), which dismissed her appeal of a decision denying asylum and withholding of deportation. Draganova is a Bulgarian citizen who entered the United States in 1989 as a nonimmigrant visitor for pleasure, authorized to remain until March 2, 1990. The INS issued an order to show cause on April 28, 1993, placing Draganova under deportation proceedings on the ground that she had stayed beyond the time permitted by her visa. At a deportation hearing, Draganova, through counsel, conceded deportability. Because Draganova's counsel declined to designate a country of deportation, the Immigration Judge (IJ) designated Bulgaria. Draganova submitted an application for asylum, with supporting documents and an affidavit. The asylum hearing was held on August 25, 1994. In a decision the same day, the IJ rejected Draganova's claims of past persecution and a well-founded fear of future persecution, denied asylum and withholding of deportation, and granted voluntary departure. The BIA in an order issued on June 12, 1995, affirmed the decision of the IJ. Draganova timely petitioned for review by our court. We vacate the BIA's order and remand for further proceedings.

I. Background
A. Facts Found by the Immigration Judge and the Board of Immigration Appeals

For purposes of this order, we believe it is necessary only to set out the facts as they were found by the IJ and the BIA, 1 although Draganova did present further evidence in her application and testimony. 2 Draganova, a 29 year-old woman, is a native and citizen of Bulgaria. According to her application, her grandfather had been a wealthy land-owner, but following the takeover by the Communists after World War II, he encountered problems with the government's efforts at collectivization of private lands. He was later found dead under mysterious circumstances, and when Draganova's father expressed disapproval with the investigation report, he was warned to refrain from criticism. Accordingly, Draganova's father moved to Sofia. He was subsequently expelled without cause from the University, and obtained employment as a bus driver.

Draganova testified that in 1965, her father was taken for interrogation as to his political activities, and held for approximately one year, during which time Draganova was born. After his release, he continued to be called in for questioning on a regular basis.

In 1973, Draganova's aunt, her father's sister, fled Bulgaria to Vienna, where she was issued a refugee visa to enter the United States. In October of that same year, Draganova's father was again taken from the home for questioning about his sister. Later that month, he was rearrested, then exiled to a labor camp in his birthplace, the small village of Selanovzy. Draganova stated that her family did not hear from her father for approximately one year, and that they were denied legal permission to join him. Thereafter, they were allowed to visit him five to six times a year, and he was only given special permission to visit them in Sofia three or four times annually.

Draganova stated that in the summer of 1978, her father informed her that he would be rejoining them soon. However, shortly thereafter, the family received a telegram from a friend (Rusin) stating that Draganova's father had been killed. When her mother inquired into the circumstances surrounding his death, she was told that it had been caused by his negligence in a work-related accident. However, Rusin told Draganova's mother that the circumstances were more ominous, in that her father had been assigned to transport large stones to a flooded river area (which was beyond his normal work experience and capacities). Draganova and her family thus believed that his death was not accidental. Further attempts by Draganova's mother to delve into these circumstances by obtaining a lawyer, however, were fruitless.

Draganova stated that in 1980, she enrolled in high school. She stated that on one occasion, she was removed from class and taken to the police station, for interrogation about her family, including her aunt. She also stated that she was warned to be careful in the future. Draganova testified that these interrogations were conducted annually, and that they caused her to be somewhat ostracized by her teachers and classmates.

According to Draganova's application, she graduated high school in 1983, but was unable to gain admission to the University, which she believes was due to her family's background. Thereafter, she went to work at an electronics factory in Sofia.

In 1986, Draganova's brother was severely injured. Draganova testified that one night the family received a telephone call from the hospital, informing them that Draganova's brother had been beaten into unconsciousness. They subsequently learned from witnesses that after leaving a bar, he had been involved in a fight with three men who carried police night sticks. Draganova's mother was again discouraged from making further inquiries, which again aroused their suspicions. Draganova also testified that her brother, who as a result of his beating is presently disabled, was denied disability payments, because his injuries were alleged to have been his fault.

In 1988, Draganova was approached on several occasions by her supervisor at the factory, and asked to join the Communist party. Draganova also testified that her supervisor made sexual advances at her, but that she nonetheless eventually refused to join the Communist party. Consequently, Draganova was denied raises and promotions. Thus, in 1989 she obtained a passport and visa to visit the United States.

Although Draganova concedes that Bulgaria has undergone some political changes, she believes that these changes are essentially cosmetic, that the Communist party still exerts predominant authority, and that her family background, and her own prior experiences, place her at risk if she were to return. She also stated that in 1994, her mother received two summonses requiring Draganova's attendance at the police station.

B. Decisions of the Immigration Judge and the Board of Immigration Appeals

In his decision, the IJ first concluded that Draganova had not shown past persecution. The IJ began by stating that generally harsh conditions shared by many other persons did not amount to persecution. The IJ found that Draganova herself was never arrested or convicted, or subject to mistreatment on account of one or more of the statutorily enumerated grounds. The IJ also noted that, despite her family's past experiences and averred reputation, Draganova was asked to join the Communist party. According to the IJ, Draganova did not appear to suffer markedly unusual consequences from her refusal to join the party. Finally, the IJ pointed out that Draganova was issued a passport in July 1989, even before the end of Todor Zhivkov's Communist dictatorship.

The IJ then concluded that Draganova had not established a well-founded fear of persecution, for four reasons. Two of the reasons relate to her lack of evidence regarding current country conditions and regarding the motivation for the recent summonses allegedly issued to her by the Bulgarian police. The other two reasons are worth quoting:

Although the circumstances surrounding her father's purportedly accidental death in 1978 contained inferences of more sinister causes, there is insufficient evidence to conclusively determine that it was attributable to government inspired actions against him. [Emphasis added.]

Similarly, while the Respondent's brother's beating in 1986 may have been caused by his having become embroiled in a dispute with a policeman, perhaps over politics, there is insufficient evidence to conclusively determine that it was brought about for any reason that was, or could be, connected to the Respondent [Draganova]. [Emphasis added.]

The IJ denied both asylum and withholding of deportation. Citing the humanitarian considerations indicated by the report of an American psychologist who met with Draganova several times, the IJ granted voluntary departure.

The BIA dismissed Draganova's appeal of the IJ's decision. The BIA stated its agreement with the IJ that Draganova had not established past persecution or a well-founded fear of persecution on account of the five grounds enumerated in 8 U.S.C. § 1101(a)(42), and "adopt[ed] the [IJ's] analysis and conclusions." According to the BIA:

The respondent claims that she will be persecuted and harmed by the Bulgarian government and she cites the mistreatment of her father and her brother whom she asserts the government physically abused. It is well-established however that the testimony of the respondent must be believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for her fear in order to establish a well-founded fear of persecution or a claim of past persecution. [Citation omitted.] As the [IJ] properly found, the respondent has not provided a sufficiently detailed account of the events concerning her father and brother...

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