Krastev v. I.N.S., 01-9522.

• Decision Date: 17 June 2002
• Docket Number: No. 01-9522.,01-9522.
• Citation: 292 F.3d 1268
• Parties: Emil Avgoustov KRASTEV; Neli Pecheva Krasteva, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Tenth Circuit

292 F.3d 1268

Emil Avgoustov KRASTEV; Neli Pecheva Krasteva, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 01-9522.

United States Court of Appeals, Tenth Circuit.

June 17, 2002.

COPYRIGHT MATERIAL OMITTED

Peter Popov, Beverly Hills, California, for the petitioners.

David V. Bernal, Assistant Director (Emily Anne Radford, Assistant Director, and Brian G. Slocum, Attorney, on the brief), Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

Before EBEL, McKAY and BRISCOE, Circuit Judges.

BRISCOE, Circuit Judge.

Petitioners Emil Avgoustov Krastev and Neli Pecheva Krasteva, unrelated natives and citizens of Bulgaria, petition for review of a decision of the Board of Immigration Appeals (BIA) dismissing their appeal from the denial of their application for asylum and withholding of deportation. We have jurisdiction over this appeal pursuant to Section 106(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105a(a), as amended by Section 309 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which applies to judicial review regarding aliens placed in immigration proceedings prior to April 1, 1997. We conclude that the Board erred in determining that the evidence of changed conditions was sufficient to rebut a presumption of a well-founded fear of future persecution, reverse in part, affirm in part, and remand for further proceedings.

I.

Petitioners entered the United States on or about June 20, 1994, as non-immigrant visitors. On March 23, 1995, the Immigration and Naturalization Service (INS) issued an order to show cause to each petitioner, alleging deportability under INA § 241(a)(1)(B) for having remained in the United States longer than permitted. Both petitioners admitted the allegations, conceded deportability, and requested relief in the form of asylum and withholding of deportation.

Asylum and withholding of deportation

A request for asylum involves a two-step process. First, the applicant has the burden to prove his or her statutory eligibility for asylum by establishing that he or she is a "refugee." Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir.2001). A refugee is defined as any person who is outside the country of that person's nationality "who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, 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).

There are essentially three methods by which an applicant can establish his or her status as a refugee. One way is by showing he or she has a "well-founded fear of [future] persecution." 8 C.F.R. § 208.13(b)(2) (2001). A second way is by establishing that he or she has suffered past persecution, which gives rise to a presumption that he or she has a well-founded fear of future persecution unless the INS rebuts the presumption by a pre-ponderance of the evidence. Prior to January 5, 2001, the INS could rebut the presumption by establishing that "since the time the persecution occurred conditions in the applicant's country ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." 8 C.F.R. § 208.13(b)(1)(i) (1997-2000). Effective January 5, 2001, the regulation was amended to allow the INS to rebut the presumption by establishing either that "[t]here has been a fundamental change in circumstances such that the applicant no longer has a well-founded fear of persecution in the applicant's country of nationality," or by establishing that "[t]he applicant could avoid future persecution by relocating to another part of the applicant's country of nationality ... and under all the circumstances, it would be reasonable to expect the applicant to do so." 8 C.F.R. § 208.13(b)(1)(i) (2001). A third way to establish refugee status is by establishing past persecution so severe as to demonstrate "compelling reasons for being unwilling or unable to return." 8 C.F.R. § 208.13(b)(1)(ii) (1997-2000); 8 C.F.R. § 208.13(b)(1)(iii)(A). This third approach is sometimes referred to as establishing eligibility for a "humanitarian" grant of asylum, and the applicant may establish such eligibility even when no future danger of persecution exists. Woldemeskel, 257 F.3d at 1189; Baka v. INS, 963 F.2d 1376, 1379 (10th Cir.1992). The amended regulations effective January 5, 2001, also allow an applicant to qualify for humanitarian asylum by showing "there is a reasonable possibility that he or she may suffer other serious harm upon removal to that country." 8 C.F.R. § 208.13(b)(1)(iii)(B) (2001). This "other serious harm" is defined as "harm that is not inflicted on account of race, religion, nationality, membership in a particular social group, or political opinion, but is so serious that it equals the severity of persecution." 65 Fed.Reg. 76121, 76127 (2000).

Once an applicant has established his or her "refugee" status and thus eligibility for asylum, the Attorney General exercises discretionary judgment in either granting or denying asylum. Woldemeskel, 257 F.3d at 1189; Kapcia v. INS, 944 F.2d 702, 708 (10th Cir.1991). The present appeal does not concern this discretionary grant of asylum because that question was not reached in either case. Both the Immigration Judge and the BIA found that petitioners had failed to show they were eligible for asylum.

A request for asylum in deportation proceedings commenced prior to April 1, 1997, is automatically considered to include a request for withholding of deportation. 8 C.F.R. § 208.3(b). A withholding of deportation must be granted if the Attorney General determines that the applicant's life or freedom would be threatened "on account of race, religion, nationality, membership in a particular social group, or political opinion" by deportation. Woldemeskel, 257 F.3d at 1193. The applicant must establish a clear probability of persecution on one of the specified grounds to qualify for withholding of deportation, which is a higher standard than is applicable to a request for asylum. Id.

Testimony of Emil Krastev

Emil testified that his family had a history of confrontation with the Bulgarian government. In 1947, the government labeled his paternal grandfather an enemy of the country because he resisted the government's take-over of his mill. As a result, Emil's father was denied admittance to University. Emil's maternal grandfather was also arrested by the Communist government and imprisoned for eleven months.

Emil stated that, because of his family's history, he was not allowed to attend University and he entered the military's Institute of Railway Construction. He began working for the railroad in 1985. In 1988, he organized a strike to protest the Communist government's movement to expel ethnic Turks from Bulgaria. As a result, he was arrested and questioned for four days and then allowed to return to work.

In 1989, he joined the Independence Organization for Defense of Human Rights, which led to his being fired from his railroad job because he refused to renounce the group's views or to join the Communist Party. The group changed its name to the Union of Democratic Forces (UDF) in 1990. On January 14, 1990, he and his then five-month pregnant wife organized and attended a UDF meeting in Pleven. A military group with Communist views broke up the meeting and severely beat Emil and his wife, which resulted in his wife suffering a miscarriage. He recognized an army officer, Major Taskov, as one of the persons involved in the beatings. Emil received a series of threatening telephone calls warning him to stop his activities on behalf of the UDF.

Emil's wife and young child obtained visas to go to Italy but Emil had to stay behind because he could not get a visa. After the election of June 18, 1990, the door to Emil's residence was set afire. He received a threatening telephone call saying "[w]e know where your family is." App. at 153. Emil and his wife divorced in order to protect the family.

In 1991, Emil started a business buying and selling citrus fruit to local stores in Pleven. He also used his business to advertise the UDF by distributing leaflets and stickers to his customers. As a result of these activities, the garage where he stored his produce and the UDF materials was set afire. Although Emil contacted the police, they did not come to investigate. The next day Emil went to the police station to file a report and he was assigned to talk to the same officer who had arrested him following the 1988 railroad strike. The officer told him he should stop his UDF activities because they were the cause of his trouble. In February 1992, members of the military accosted Emil's mother, who was also active in UDF, and threatened to rape her. That same year, one of his acquaintances who was active in the UDF was killed and his home was burned to the ground.

Emil had met Neli Krasteva, who had also been persecuted for her participation in the UDF, prior to the summer of 1992. They decided to move to Germany and stayed with Neli's sister in Germany for two months. However, after receiving telephone calls threatening Neli's daughters, who had stayed in Bulgaria with Neli's mother, they returned to Bulgaria. Emil testified that when he returned to Bulgaria, the local police confiscated his passport. Emil stated that, through his work with the UDF, he had obtained information concerning persons murdered by Communist officials that could cause problems if it was revealed. He believed the authorities especially did not want Neli to leave because of information she had relating to the killing of her former husband.

On February 11, 1994, Emil and Neli attended a human rights rally in Pleven. After the rally, they were...