Kratchmarov v. Heston, 98-1958

• Decision Date: 30 March 1999
• Docket Number: No. 98-1958,98-1958
• Citation: 172 F.3d 551
• Parties: Petre I. KRATCHMAROV, Petitioner, v. Michael HESTON, District Director of the United States Immigration and Naturalization Service; Janet Reno, Attorney General of the United States, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 551

172 F.3d 551

Petre I. KRATCHMAROV, Petitioner, v. Michael HESTON, District Director of the United States

Immigration and Naturalization Service; Janet

Reno, Attorney General of the United

States, Respondents.

No. 98-1958.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 14, 1998.

Decided March 30, 1999.

Dorothy J. Harper, St. Louis, Missouri, argued (John W. Thompson, on the brief), for Petitioner.

James A. Hunolt, Washington, DC, argued (Frank W. Hunger and David M. McConnell, on the brief), for Respondent.

Before BEAM and LOKEN, Circuit Judges, and BOGUE, ¹ District Judge.

BEAM, Circuit Judge.

Petre I. Kratchmarov, a citizen of Bulgaria, petitions for review of a decision of the Board of Immigration Appeals (BIA) denying his application for asylum under 8 U.S.C. § 1158(a) and refusing to withhold deportation under 8 U.S.C. § 1253(h). For the reasons discussed below, we affirm the decision of the BIA. ²

I. BACKGROUND

Kratchmarov entered the United States on June 20, 1991, on a non-immigrant visa. On July 8, 1994, the Immigration and Naturalization Service (INS) ordered Kratchmarov to show cause why he should not be deported due to his failure to leave the United States after his period of authorized stay had expired. At the initial hearing, Kratchmarov conceded deportability but requested an opportunity to apply for political asylum and a withholding of deportation. Following a hearing on the merits, an immigration judge denied Kratchmarov's application. On March 12, 1998, the BIA upheld the immigration judge's order, and set a voluntary departure date thirty days from the date of its decision. This appeal followed.

Kratchmarov's basic claim is that he was subject to past persecution in Bulgaria because of his political opinions and his status as a former police officer who refused to obey orders, and that he has a well-founded fear of future persecution if he returns. The record, including Kratchmarov's testimony at his deportation hearing, provides the following facts. Kratchmarov underwent three years of training at a police academy in Bulgaria, after which he was employed as a police officer. While serving as a police officer, he repeatedly refused to follow the orders of his superiors to beat and strike members of the Turkish minority demonstrating against the communist government. He believed that such actions were a violation of human rights. His opposition to the government's policy of mistreating minority groups led him to resign from the police force in February 1990. He had served as a police officer for about seven or eight months at the time of his resignation. After he left the police force, he was deprived of job opportunities, placed under virtual house arrest in his home city of Hissar, issued traffic citations for no reason, had his hair forcibly cut, and was detained and beaten for leaving the city to participate in anti-government demonstrations, and for attempting to vote against the communist party. Kratchmarov obtained a passport and a visa to come to the United States in 1991 as an exchange visitor, but asserts that his real reason for leaving was to escape persecution for his political opinions and activities. His mother, with whom he regularly keeps in touch, has informed him that since his departure from Bulgaria, he has repeatedly been issued military summons to report to the military office in Hissar as well as court summons to appear in regional court.

II. DISCUSSION

Under the Immigration and Nationality Act, the Attorney General has the discretion to grant asylum to a "refugee." See 8 U.S.C. § 1158(b)(1). A refugee is a person who is unable or unwilling to return home "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). In most cases, the critical inquiry is whether the applicant has a well-founded fear of future persecution upon return to his or her country. See Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998).

To establish such a fear, an applicant must demonstrate a fear that is both subjectively genuine and objectively reasonable. See id. The applicant is entitled to a presumption of a well-founded fear of future persecution if past persecution is established, and the burden then shifts to the INS to show by a preponderance of the evidence that "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." Id. (internal quotation and citation omitted).

Here, the BIA found that, even assuming Kratchmarov had endured past persecution, the INS had successfully rebutted the presumption of future persecution by proving that conditions in Bulgaria had changed. ³ While acknowledging that communists still enjoyed positions of substantial power in Bulgaria, the BIA noted that the United States Department of State Profile of Asylum Claims and Country Conditions for Bulgaria for 1994 (hereinafter Country Report) found that anti-communists returning to Bulgaria faced no general risk of persecution by the government. The BIA further noted that the efforts of Bulgarian authorities to compel Kratchmarov's appearance in court and to conscript him into military service were perfectly legitimate in light of the fact that Kratchmarov had not fulfilled the requisite amount of police service in repayment for his extensive police training.

We review the BIA's factual findings underlying its refusal to grant asylum, under the substantial evidence standard. See Hajiani-Niroumand v. INS, 26 F.3d 832, 838 (8th Cir.1994). Under this standard, this court must determine whether, based on the record considered as a whole, the BIA's decision was supported by reasonable, substantial, and probative evidence. See id. Reversal of the BIA's decision is warranted only if the petitioner shows that the evidence was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. See id.

After carefully reviewing the evidence, ⁴ we believe that a reasonable factfinder could conclude that Kratchmarov's fear of future persecution was not objectively reasonable. Kratchmarov presented evidence in the form of newspaper articles and reports of human rights violations to support his claim that ex-communists in Bulgaria still wield substantial power in the government and that police violence against minorities such as the Romas and Macedonians continues. However, there was also substantial evidence from which a reasonable factfinder could conclude that the political situation in Bulgaria had changed in ways that rendered Kratchmarov's fear of future persecution based on his past activities unreasonable. The Country Report stated that country conditions had changed to the extent that they no longer supported the presumption that past mistreatment under the communist regime would lead to future mistreatment. It further noted that even serious dissidents had visited or relocated to Bulgaria without any problem. Furthermore, the Country Report specifically rejected assertions that former communists who now hold power under the label of the Bulgarian Socialist Party would seek retribution against politically uncongenial elements.

Kratchmarov, nevertheless, argues that the military and court summons he has been issued since his departure from Bulgaria indicate that Bulgarian authorities remain intent on persecuting him...