Mitev v. I.N.S., No. 94-2746

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, ESCHBACH and COFFEY; COFFEY
Citation67 F.3d 1325
Docket NumberNo. 94-2746
Decision Date11 April 1995
PartiesNikola MITEV, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Page 1325

67 F.3d 1325
Nikola MITEV, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 94-2746.
United States Court of Appeals,
Seventh Circuit.
Submitted April 11, 1995. *
Decided Oct. 10, 1995.
Rehearing and Suggestion for
Rehearing En Banc Denied
Nov. 16, 1995.

Page 1327

David Rubman, Chicago, IL, for Petitioner.

Janet Reno, U.S. Atty. Gen., Office of the United States Attorney General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, James B. Burns, Office of the United States Attorney, Chicago, IL, William J. Howard, Robert Kendall, Jr., David M. McConnell, Karen Ann Hunold, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before CUDAHY, ESCHBACH and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Nikola Jordanov Mitev, a Bulgarian national, seeks review of a decision of the Board of Immigration Appeals ("BIA") denying his request for political asylum or in the alternative withholding of deportation. On September 15, 1992, the Immigration and Naturalization Service ("INS") commenced deportation proceedings against Mitev, who failed to leave the country upon expiration of his nonimmigrant visitor's visa on January 19, 1991. At a deportation hearing on November 17, 1992, Mitev admitted the allegations against him and conceded that he was deportable. With leave of the Immigration Judge ("IJ"), he applied for asylum and for withholding of deportation, pursuant to sections 208(a) and 243(h) of the Immigration and Nationality Act ("the Act"). 8 U.S.C. Secs. 1158(a), 1253(h). In his application for asylum, Mitev explained that he feared political persecution if he returned to Bulgaria. Mitev incorporated an alternative request for an order of voluntary departure. 8 U.S.C. Secs. 1252(b), 1254(e). 1 At a hearing on June 3, 1993, the IJ granted Mitev's request for voluntary departure but found that Mitev was ineligible for relief under either the asylum or withholding of deportation provisions of the Act. Mitev appealed. On May 27, 1994 the BIA affirmed the findings of the IJ and dismissed the appeal. We deny Mitev's petition for review and AFFIRM the decision of the BIA.

Page 1328

I. BACKGROUND

Mitev, a 48 year-old native and citizen of Bulgaria, entered this country in July 1990 on a non-immigrant visitor's visa that authorized him to remain in the United States until January 19, 1991. According to his application for asylum and his testimony before the IJ, Mitev left his country, family, and job because he "fear[ed] for [his] life." The communist party had just won a parliamentary majority in Bulgaria and Mitev, an anti-communist, believed that his past political activity placed him in peril.

Mitev was born in Plovdiv, Bulgaria in 1947. After completing primary school and vocational training in Plovdiv, he served two years of mandatory military service. He then studied radio electronics and computer technology for several years at the university level. From 1973 until his departure from Bulgaria in 1990, Mitev worked at a computer factory in his hometown. At the time of his departure, he was a skilled technician in the machine-tool division, making what he describes as an average salary for that type of work. Mitev and his wife, Natalia, were married in 1974 and had twin boys a year later. Mrs. Mitev is employed maintaining computer banking systems. At the time of his deportation hearing, Mitev was working for an American company and sending money to his family in Bulgaria.

Mitev's difficulties had their genesis in the collapse of communism in the Soviet Bloc during the late 1980's. After the overthrow of communist dictator Todor Zhivkov in 1989, but before Bulgaria's first democratic elections in 1990, Mitev became active in Podkrepa, a recently-formed anti-communist trade union. At that time, Podkrepa was a dissident organization challenging the hegemony of the single trade union officially recognized by the state. Membership in the state-sanctioned trade union was mandatory; union fees and dues were automatically deducted from workers' salaries. Although Mitev had been adequately educated and employed within the communist system, he disliked the regimentation and "military type of mentality" that prevailed in communist Bulgaria. He was eager to spread the word about the "shortcomings and evils of the existing social order," particularly limitations on travel, lack of religious and political freedom, and Bulgaria's mistreatment of ethnic minorities. After the formation of Podkrepa, Mitev volunteered to help the organization "propagate[ ] democratic ideas and carr[y] out preparation for the forthcoming elections." Only about 10-20 of the 3,000 workers at Mitev's factory participated in Podkrepa's activities. Although he was not a leader of the organization, Mitev did attend meetings, distribute literature, and post information as an unpaid volunteer.

These activities provoked a strong response from communist party members at the factory, who threatened "lots of trouble" if Mitev and his cohorts continued their activity. Mitev stated that on one occasion, when he was posting a newspaper clipping at work, the secretary of the communist party group at the factory shoved him and tore up the clipping, saying that if Mitev cared for his life he "had better leave the country."

During a "casual conversation" at the factory in Spring of 1990, an argument arose concerning recent press reports of "death camps" in Bulgaria. An individual named Bojon suggested that Podkrepa volunteers would be "the next victims" of mass killings at these camps if they persisted in advocating reform. Lastly, Mitev testified that his brother-in-law, the first secretary of the communist party of Ivailovgrad, threatened to have Mitev jailed because of his political activities.

At his deportation hearing, Mitev explained that these warnings seemed ominous at the time because it was uncertain whether democratization would move forward or whether hard-liners would regain control in the Soviet Bloc. Instability in the Soviet Union cast a long shadow over Bulgaria, often referred to as the Soviet Union's "sixteenth republic." Should the "hard-liners return to power in the Soviet Union," Mitev testified, "we knew that the same thing would happen in Bulgaria as well."

When the Bulgarian communists gained control of parliament in June of 1990, Mitev became concerned for his safety and felt that his anti-communist political activity made

Page 1329

him a likely target for government persecution. Mitev left Bulgaria for the United States in July of 1990, intending to remain here only until the political situation in his own country improved. In fact, the political situation in Bulgaria has changed several times during the past five years, with anti-communists and "former communists" battling for control within the framework of a parliamentary republic. 2

Despite the emergence of constitutional democracy in Bulgaria, Mitev remains convinced that the "true power" lies with the former communists and that it would be dangerous for him to return to his native country. At his deportation hearing, Mitev testified that he feared "interrogation and imprisonment on trumped up charges" should he return to Bulgaria.

Following the IJ's decision that Mitev was ineligible for asylum or withholding of deportation, the BIA conducted an independent review of the evidence, which included transcripts, briefs, statements, and exhibits. On the basis of this review, the BIA agreed with the immigration judge that "[Mitev] has not demonstrated his eligibility for asylum or withholding of deportation because the incidents he complains of do not rise to the level of past persecution." In light of changed circumstances within Bulgaria, including the growth of democracy and recognition of Podkrepa, the BIA also concluded that Mitev "has not established that a reasonable person in his circumstances would fear persecution upon return to Bulgaria."

II. DISCUSSION

As we have observed in similar cases in the past, "the Act provides two procedural paths by which deportable aliens may remain [in the United States] to avoid persecution in another country." Khano v. INS, 999 F.2d 1203, 1207 (7th Cir.1993) (citation omitted). Mitev has attempted to travel both paths by applying for asylum under section 208(a) and by requesting withholding of deportation under section 243(h). 8 U.S.C. Secs. 1158(a), 1253(h)(1). The findings of the IJ and the BIA have blocked Mitev's progress. He petitions for review.

A. Section 208(a): Asylum

Section 208(a) of the Act permits the Attorney General to grant asylum, in his or her discretion, to any alien who qualifies as a "refugee." 8 U.S.C. Sec. 1158(a). The Act defines a refugee as one who is unable or unwilling to return to his 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. Sec. 1101(a)(42). Two steps are required in order for a deportable alien to obtain relief under this section of the Act. First, the alien must establish that he is statutorily eligible for asylum (i.e., that he is a "refugee"). Milosevic v. INS, 18 F.3d 366, 370 (7th Cir.1994) (applicant bears burden of establishing eligibility). If eligibility is established, the Attorney General may either grant or withhold asylum in the exercise of discretion. 8 U.S.C. Sec. 1158(a); INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987) ("It is important to note that the Attorney General is not required to grant asylum...

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73 practice notes
  • Justice Department, Immigration and Naturalization Service,
    • United States
    • Federal Register August 26, 2002
    • August 26, 2002
    ...(6th Cir. 2001) (deference due even though Department of State report reproduced for the Service in support of litigation); Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995) (``we give [deference] to [Department of State] opinions on matters within its area of expertise''). The important, co......
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...beatings, [] torture," Toptchev, 295 F.3d at 720 (quoting Begzatowski v. INS, 278 F.3d 665, 669 (7th Cir.2002)) (quoting Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995)), behavior that threatens the same, Sayaxing, 179 F.3d at 519, and non-life-threatening behavior such as torture and econo......
  • Najjar v. Ashcroft, Nos. 99-14391
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 18, 2001
    ...112 S. Ct. 812 (1992) (establishing a deferential substantial evidence test for our review of the BIA's factual findings); Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995) (Because of the "'extremely fact-intensive nature of [deportation] inquiries' and the superior expertise of the agencie......
  • Valdiviezo-Galdamez v. Attorney Gen. of the United States, No. 08–4564.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • November 8, 2011
    ...U.S. 421, 430–31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The subjective prong requires a showing that the fear is genuine. Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir.1995). Determining whether the fear of persecution is objectively reasonable requires ascertaining whether a reasonable person......
  • Request a trial to view additional results
72 cases
  • Najjar v. Ashcroft, Nos. 99-14391
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • July 18, 2001
    ...112 S. Ct. 812 (1992) (establishing a deferential substantial evidence test for our review of the BIA's factual findings); Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995) (Because of the "'extremely fact-intensive nature of [deportation] inquiries' and the superior expertise of the agencie......
  • Valdiviezo-Galdamez v. Attorney Gen. of the United States, No. 08–4564.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • November 8, 2011
    ...U.S. 421, 430–31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The subjective prong requires a showing that the fear is genuine. Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir.1995). Determining whether the fear of persecution is objectively reasonable requires ascertaining whether a reasonable person......
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...beatings, [] torture," Toptchev, 295 F.3d at 720 (quoting Begzatowski v. INS, 278 F.3d 665, 669 (7th Cir.2002)) (quoting Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995)), behavior that threatens the same, Sayaxing, 179 F.3d at 519, and non-life-threatening behavior such as torture and econo......
  • Sevoian v. Ashcroft, No. 00-2369.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 8, 2002
    ...immigration courts are better suited than a reviewing court to make factual determinations regarding an alien's status."); Mitev v. INS, 67 F.3d 1325, 1331 (7th Cir.1995) (acknowledging the "superior expertise of the agencies that administer our immigration law"). The need for such deferenc......
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