Iliev v. I.N.S.

• Citation: 127 F.3d 638
• Decision Date: 22 October 1997
• Docket Number: No. 96-3964,96-3964
• Parties: Anguel ILIEV and Elena Iliev, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 638

127 F.3d 638

Anguel ILIEV and Elena Iliev, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-3964.

United States Court of Appeals Seventh Circuit.

Argued Sept. 9, 1997.

Decided Oct. 22, 1997.

Raymond J. Sanders (argued), Alexander Tsesis, Chicago, IL, for Petitioners.

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, David M. McConnell, Kristal A. Marlow, Michelle Gluck, Laura M. Friedman (argued), Brenda E. Ellison, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before CUDAHY, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

Anguel and Elena Iliev, citizens of Bulgaria, seek review of an order of deportation issued by the Immigration and Naturalization Service. The Board of Immigration Appeals dismissed their appeal from the order of the Immigration Judge that had denied their application for asylum and for the withholding of deportation. For the reasons set forth in the following opinion, we affirm the decision of the Board and deny the petition for review.

I BACKGROUND

A. Facts

Anguel and Elena Iliev, husband and wife, entered the United States in January, 1991, as "nonimmigrant visitors for pleasure." They were authorized to remain in the Country until July, 1991, but stayed beyond that time. The Immigration and Naturalization Service ("INS") issued Orders to Show Cause against petitioners, charging them with deportability due to overstay on their visas. At a hearing before an Immigration Judge, deportability was conceded, and Mr. and Mrs. Iliev applied for asylum and withholding of deportation. The Immigration Judge denied these applications; that decision was affirmed by the Board of Immigration Appeals.

Mr. Iliev claims to have suffered past persecution in Bulgaria for his political beliefs and further states that he has a well-founded fear of future persecution if he returns to that country. In the proceedings before immigration authorities, he asserted that, in Bulgaria, he had been a proponent of democracy, an ardent supporter of the Union of Democratic Forces ("UDF"), and an anticommunist activist. He claims that his opposition to the communist regime began in 1979 when he and his father participated, by circulating petitions and organizing meetings, in efforts to save his home from demolition as part of an urban renewal project. As a result of this activity, he maintains, he was fired from his job. In addition, Mr. Iliev claims that his father was arrested and beaten for participating in the campaign. This beating caused an artery in his brain to rupture, which ultimately led to his death a few years later.

The next events cited to support the claim of past persecution occurred in 1986 when Mr. Iliev was employed by a construction company as a truck driver. In October, 1986, while he was delivering building materials, part of his cargo fell out of his truck. The police arrested him for his part in the accident and proceeded to interrogate him. Mr. Iliev's written explanations were not considered adequate by the police; they continued to rip up his statements and required him to write new ones. Growing tired of this treatment, he became angry and called the police fascists. They beat him severely, causing him to lose his upper teeth. Mr. Iliev then was placed in a cell overnight which was too small to allow him to sit down. Upon his release, he was required to return several times to a police station to respond to further inquiries. Mr. Iliev claims he was questioned about his political activities and beliefs and about family members who had emigrated to the United States. Mr. Iliev's counsel asserts that, in light of this incident and the political nature of the subsequent interrogation, it is likely that the Bulgarian government has a file on Mr. Iliev and his family.

Mr. Iliev further claims that, after his 1986 arrest, he began to receive phone threats that continued until he left for the United States. Mr. Iliev states that he was fired from his job in early 1987 due to the continued police inquiries into his political background. Thereafter, he took another job delivering packages. Mr. Iliev was arrested again in 1988, apparently for a traffic violation. While under arrest, he was interrogated again about his relatives in America.

In 1989, Mr. Iliev continues, he became more formally involved in the political process. He associated himself with the UDF, attending "95%" of their activities, and he began spreading pro-democracy propaganda. Mr. Iliev also hung a Bulgarian national flag outside his apartment, which apparently announced his pro-democracy stance. The apartment building was inhabited primarily by government workers who, he claims, did not react kindly to his flag or to his beliefs. His garden was vandalized after he hung the flag.

Mr. Iliev had a confrontation with one resident of the apartment building; he is particularly fearful that this individual would persecute him and his wife if they return to Bulgaria. According to Mr. Iliev, Ivan Donchev, one of his neighbors, is a member of the Bulgarian secret service and is connected with the mafia and with recently deposed communist leaders. Donchev and Mr. Iliev had a dispute over whether a certain janitor should continue to work in their apartment building, and this disagreement led to threats from Mr. Donchev to harm Mr. Iliev and his family.

Since Mr. and Mrs. Iliev left Bulgaria, the UDF has garnered a 22% representation in the government. However, Mr. Iliev believes that Mr. Donchev and other communists still retain power and would persecute him and his wife if they should return. In support, Mr. Iliev cites letters received from family members warning him that Bulgarian police are still asking after him. He also points to the harassment of his daughter who remained in Bulgaria until 1995.

B. The Board of Immigration Appeals

Reviewing the record of the proceedings before the Immigration Judge, the Board of Immigration Appeals ("Board") held that Mr. Iliev had been afforded a full and fair hearing before the Immigration Judge, and that, accordingly, there was no due process violation. Reviewing the evidence of record, the Board then held that the Immigration Judge properly had determined that the facts did not establish either past persecution or a well-founded fear of future persecution. Because it found that Mr. and Mrs. Iliev failed to meet the burden of proof required for asylum, the Board concluded that they also could not meet the higher burden for withholding of deportation. Consequently, the Board dismissed the appeal.

II DISCUSSION

A. Past and Future Persecution

We turn first to the contention that the Board's decision that the Ilievs failed to demonstrate past persecution or a well-founded fear of future persecution is not based on substantial evidence.

Mr. and Mrs. Iliev maintain that the Board improperly determined that they were not refugees entitled to asylum. In their view, the Board failed to consider the totality of the circumstances surrounding the Ilievs' lives in Bulgaria, and instead focused on particular events and, viewing each in isolation, determined that each did not establish persecution. With respect to past persecution, Mr. Iliev claims that, as part of a family advocating anticommunist ideals, he was persecuted due to his membership in a "particular social group" and due to his political opinion. To support this contention, Mr. Iliev indicates that he was repeatedly fired from jobs on the basis of his beliefs. He was arrested, interrogated, beaten and jailed due to his democratic convictions and activities and his associations with family members of similar beliefs. Threats to his and his family's safety were made as a result of his political affiliations. An overall assessment of his encounters with government authorities indicates, he claims, that the government had a file on him and monitored his activity. Mr. Iliev was threatened by a member of the Bulgarian secret service, and so he finally decided to take his wife and leave the country.

Mr. Iliev also argues that the record establishes that he has a well-founded fear of future persecution. He submits that, aside from the anonymous phone threats and the direct threats from Donchev, the secret service agent who allegedly remains in a position of power, other evidence was not considered. The Board focused on the fact that the UDF has achieved some recognition in the government, and therefore concluded that the threat to the Ilievs is gone. However, letters from family members and reports from their daughter indicate that it is not safe to return. Mr. Iliev maintains that the Board failed to consider these aspects of his case in its review; therefore, its decision was not based on substantial evidence.

In assessing these contentions, we begin by noting that our review of the decision of the Board of Immigration Appeals is a deferential one. We must determine whether the decision of the Board is supported by substantial evidence. In order to obtain a reversal of the Board's decision, the Ilievs must show the evidence was such that " 'no reasonable fact-finder could fail to find the requisite fear of persecution.' " Marquez v. INS, 105 F.3d 374, 378 (7th Cir.1997) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992)). The Attorney General of the United States has the authority to grant asylum to persons who, in her discretion, meet the statutory definition of "refugee." See 8 U.S.C. § 1158(b)(1). The law, in pertinent part, defines a refugee as "any person who is outside any country of such person's nationality ... who is unable or unwilling to return to ... that 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). Asylum,...