Mihalev v. Ashcroft

• Decision Date: 09 November 2004
• Docket Number: No. 02-73434.,02-73434.
• Citation: 388 F.3d 722
• Parties: Dinko Ivanov MIHALEV, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

388 F.3d 722

Dinko Ivanov MIHALEV, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73434.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2004.

Filed November 9, 2004.

COPYRIGHT MATERIAL OMITTED

Nicolette Glazer, Law Offices of Larry R. Glazer, Century City, CA, for the petitioner.

Jennifer A. Parker, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A77-584-418.

Before: D.W. NELSON, KOZINSKI, and GRABER, Circuit Judges.

GRABER, Circuit Judge.

Petitioner Dinko Ivanov Mihalev petitions for review of the Board of Immigration Appeals' ("BIA") order affirming without opinion the decision of an immigration judge ("IJ"). The IJ rejected Petitioner's claims for asylum, withholding of deportation, and relief under the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment ("the CAT") and ordered Petitioner removed. Petitioner argues that the IJ's determination that he did not suffer past persecution is not supported by the record.¹ We agree, grant the petition in part, and remand the matter to the BIA.

JURISDICTION

Because Petitioner was placed in deportation proceedings after April 1, 1997, the permanent rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 govern this case. Lopez-Molina v. Ashcroft, 368 F.3d 1206, 1208 (9th Cir. 2004). Section 242(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1252(a)(1), gives us jurisdiction to consider the petition for review.

STANDARDS OF REVIEW

We review for substantial evidence the agency's factual findings. Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.), amended by 339 F.3d 1012 (9th Cir.2003). We must uphold those findings unless the evidence in the record compels a contrary result. Id.

Because the BIA affirmed without opinion, the IJ's order constitutes the final agency determination that we review. Knezevic v. Ashcroft, 367 F.3d 1206, 1210 (9th Cir.2004). We accept Petitioner's testimony as true when, as here, the IJ found him to be credible. Halaim v. INS, 358 F.3d 1128, 1131 (9th Cir.2004).

FACTS AND PROCEDURAL HISTORY

Petitioner is a native and citizen of Bulgaria. He is of Roma, commonly known as Gypsy, descent. In May 1999, he applied for admission to the United States from Mexico without possessing valid entry documents. In August 1999, the Immigration and Naturalization Service² ("INS") issued a Notice to Appear, charging Petitioner under 8 U.S.C. § 1182(a)(7)(A)(i)(I) with being an immigrant who at the time of his application for admission was not in possession of a valid entry document. Petitioner admitted the allegations and conceded removability, but applied for asylum, withholding of removal, and relief under the CAT. Petitioner based his application on the circumstances related to three arrests and detentions he endured in Bourgas, Bulgaria.

Petitioner testified at his removal hearing, and the IJ admitted into the record the transcript of Petitioner's "credible fear" interview. During the hearing, Petitioner swore to the truth of the information included in his asylum application.³ Following the hearing, the IJ found Petitioner to be credible. We therefore recount the events as Petitioner described them.

The first arrest occurred on December 28, 1998. Petitioner was hosting a birthday party in his apartment and playing music at a volume that was not loud. His guests were also Roma. At about 12:30 a.m., three police officers forcibly entered the apartment and announced that they were responding to a noise complaint from some neighbors. The police then began beating the people in the apartment, while calling them names and saying that Gypsies did not deserve to live. The officers also accused those in attendance of taking drugs; they conducted a search that turned up nothing.

The police took Petitioner to the police station and jailed him for 10 days, telling him that he had been arrested for instigating Gypsy gatherings. Petitioner was beaten every day of his detention with bags of sand. The police avoided hitting Petitioner in the face, and he suffered no significant injury. Petitioner was also taken to a construction site and forced to do heavy work. The police told Petitioner that they would not release him unless he signed a document avowing that he had not been harmed while in custody; Petitioner signed the paper and was released. Petitioner was never charged with a crime arising out of this incident.

Petitioner's second arrest occurred on February 11, 1999. Petitioner was walking home at about midnight when a police car pulled up next to him, and an officer demanded Petitioner's identification documents. Petitioner did not have the documents with him. The police handcuffed him and took him to the station. After checking their records and learning that Petitioner had been arrested previously, the police accused Petitioner of committing a robbery in the neighborhood in which he had been picked up. The police detained Petitioner for two weeks, again beating him with bags of sand and forcing him to work on a construction site. Petitioner again was not charged with any crime. After Petitioner signed another form stating that he had not been harmed, the police released him but advised him that he had to report to the police station at frequent intervals.

Petitioner's third arrest occurred on April 4, 1999, when Petitioner arrived for his periodic check-in at the police station. When he inquired as to why he was being arrested, the police began beating Petitioner and told him that they would be the ones asking the questions. Petitioner was again forced to engage in construction work. One of the officers guarding the construction site sexually assaulted Petitioner. Petitioner escaped on the fifth day of his detention and fled to Hungary, making his way later to Mexico and eventually to the United States.

The IJ issued an oral decision. He held that Petitioner had failed to establish that he had suffered past persecution on account of his Gypsy ethnicity. The IJ noted that the State Department Country Report for Bulgaria states that "criminal suspects in police custody run a significant risk of being mistreated." The Report did not limit its observation to particular ethnic groups, but instead suggested that all jailed suspects were at risk of being abused. The IJ stated that he did not find "that [Petitioner's] problems recited above have been shown to be `on account of' [Petitioner's] ethnicity." The IJ also held that, in view of the fact that Petitioner was not injured and did not ever require any medical attention as a result of the mistreatment, Petitioner had not suffered past persecution. The IJ therefore denied Petitioner's application for asylum.

In the oral decision, the IJ did not separately analyze or discuss Petitioner's claim for relief under the CAT. The IJ's written order checked a box next to a blank space that the IJ filled in to read "Convention Against Torture Denied." The written order also stated, however, that it was provided solely for the convenience of the parties and that, on appeal, the oral decision is the official opinion in the case.

The BIA affirmed without opinion, pursuant to 8 C.F.R. § 3.1(a)(7) (2002).⁴ Petitioner timely sought review in this court.

DISCUSSION

I. The IJ's holding that Petitioner failed to establish eligibility for asylum is not supported by substantial evidence in the record.

We have recently explained what an alien must prove in order to establish eligibility for asylum:

Section 208(a) of the Immigration and Nationality Act ("INA") gives the Attorney General discretion to grant political asylum to any alien deemed to be a "refugee" within the meaning of § 101(a)(42)(A) of the INA, 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). "A refugee is defined as an alien unwilling to return to his or her country of origin `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.'" Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc) (quoting 8 U.S.C. § 1101(a)(42)(A)). Thus, to be eligible for asylum, an applicant must establish "either past persecution or a well-founded fear of present persecution on account of [a protected ground]." Mejia-Paiz v. INS, 111 F.3d 720, 723(9th Cir.1997) (internal quotation marks omitted).

Singh v. Ashcroft, 362 F.3d 1164, 1170 (9th Cir.2004).

The IJ held that Petitioner had failed to establish his eligibility for asylum for two independently sufficient reasons: (1) he had not shown that any persecution he suffered was "on account of" his Gypsy ethnicity, and (2) the abuses he suffered at the hands of Bulgarian police did not amount to past persecution.

There is no question that Gypsies are an identifiable ethnic group and that being a Gypsy is a protected ground under § 208 of the INA. There also is no question that Bulgarian Gypsies as a group suffer from widespread discrimination. The 1999 State Department Country Report for Bulgaria reported that, "[a]s individuals and as an ethnic group, Roma faced high levels of discrimination." The issues before us are whether Petitioner established a nexus between his ethnicity and his mistreatment and whether the mistreatment rose to the level of persecution.

A. "On Account of"

The IJ observed that, according to the State Department Country Report, all suspects in the custody of Bulgarian police forces run a significant risk of being abused. From that premise, the IJ reasoned that the record contained "no evidence... that the police took the actions that they did simply because [Petitioner] is a gypsy."

If the IJ meant that there is no evidence that the police mistreated Petitioner solely because of his ethnicity, his statement mischaracterizes the law. In order to establish...