Popova v. Immigration & Naturalization Serv.

• Decision Date: 28 November 2001
• Docket Number: No. 00-70429,00-70429
• Citation: 273 F.3d 1251
• Parties: (9th Cir. 2001) ROSSITZA KOLEVA POPOVA AND NADEJDA PETROVA, PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1251

273 F.3d 1251 (9th Cir. 2001)

ROSSITZA KOLEVA POPOVA AND NADEJDA PETROVA, PETITIONERS, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 00-70429

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted October 11, 2001

Filed November 28, 2001

[Copyrighted Material Omitted]

Thipphavone P. Ark, Ark & Wiley, San Francisco, California, and Virender Kumar Goswami, San Francisco, California, attorneys for the petitioners.

Stephen J. Flynn, Department of Justice, Washington, D.C., and Anthony W. Norwood, Department of Justice, Washington, D.C., attorneys for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals INS Nos. A72-009-719, A72-009-720

Before: Pregerson and Rawlinson, Circuit Judges, and Weiner, District Judge.^*

Pregerson, Circuit Judge:

Rossitza Koleva Popova ("Popova"), a Bulgarian native and citizen, petitioned for review of the Board of Immigration Appeals' ("BIA's") decision to deny her request for asylum and withholding of deportation. The BIA recognized that Popova suffered "reprehensible" treatment in Bulgaria, but denied Popova's petition because she failed to establish that this treatment was "on account of" her political opinion or membership in a particular social group. The BIA additionally dismissed her motion to remand her asylum petition to the Immigration Judge ("IJ") so that she could pursue relief pursuant to section 20 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"). For the following reasons, we grant Popova's petition, vacate the BIA order, and remand for further proceedings.

I.

Rossitza Koleva Popova ("Popova") is a 43-year-old citizen of Bulgaria. Her daughter, Nadejda Petrova, is sixteen years old.¹ Popova was born in Stara Zagora, a small town in Bulgaria. Popova comes from a religious family, as her last name reflects: "Popova" is Bulgarian for priest, and signifies that a family member -in this case, Popova's grandfather --was a priest.

Popova's parents and grandparents were persecuted because of their religious and anti-communist beliefs and connections. Popova's grandfather was repeatedly beaten because of his religious activities. When she was nine years old, Popova witnessed her grandfather get beaten at her family's home until he was covered in blood. In 1971, Popova's family's home was confiscated and razed so that another building could be constructed in its place. As a result, Popova and her parents were forced to stay with her mother's family from 1971 to 1973, where nine people shared three bedrooms. A few months after her family's home was confiscated, Popova's father was sent to an area of Russia contaminated by radiation, where he was ordered to cut trees for twelve hours a day in snow as high as his chest. As a result of this hard labor, Popova's father became ill.

Popova was trained as a pediatrician. She was sent by government officials to the Soviet Union for her medical education, where she was additionally required to take classes in atheism and communism. Popova believes the government sent her to Russia for her medical education so that she could be re-educated regarding communist ideals. After completing her studies, Popova returned to Bulgaria and was employed as a pediatrician at a state-run hospital. At the hospital, she was harassed by other staff members because of her religious surname and her perceived anti-Communism. Staff joked that she should perform liturgies for children who were about to die because her grandfather had been a priest. Two or three times, policemen harassed Popova at the hospital. These officers told Popova that if she did not change her last name, she would be fired from the hospital. When Popova refused to change her last name, she was, indeed, fired.

Popova then began working in an out-patient clinic in Stara Zagora. Her supervisors at the clinic persecuted and harassed her. She was, for example, ordered to prepare material against God and to share it with her colleagues at the clinic. When she refused to prepare these materials, her pay was cut.

In 1989, Popova became a member and the local chapter secretary of an anti-communist group in Bulgaria called "Podcrepa," or "Union of Democratic Party." As the local chapter secretary of Podcrepa, Popova organized meetings and demonstrations against the government. Government officials repeatedly interrogated, harassed, and threatened Popova because of her participation in Podcrepa.

After participating in a demonstration in opposition to the house arrest of Dr. Konstantin Trenchev, the founder of the local chapter of Podcrepa, Popova was assaulted and arrested by the police and held overnight at the police station. During her detention, the police questioned Popova about her political activities. During this interrogation, a police officer held a gun to Popova's head and said: "Why do you want to die when you are so young? You think about your family better, than think about politics." On another occasion, police officers came to Popova's work and told her that if she did not stop her political activities, she would be imprisoned. During that same time, Popova began receiving anonymous phone calls, in which several different male callers threatened Popova by telling her to curtail her political activities if she and her family wanted to live and "see freedom. " She continued to receive threatening telephone calls until she fled to the United States.

Popova testified that the harassment she suffered based upon her religion and political associations took a physical toll. Popova developed insomnia, a heart murmur, and suffered depression.

On September 27, 1990, Popova's husband fled from Bulgaria to the United States. After his departure, the harassment and persecution of Popova escalated. The police repeatedly interrogated her about her husband's location and activities. In the first such interrogation, Popova was detained at the police station for four hours. Subsequently, the police came to Popova's house twice, and interrogated her there. After her husband's departure, Popova's telephone was disconnected for two months, and was repeatedly disconnected thereafter, until she fled to the United States. Each time her telephone was reconnected, Popova's telephone number was changed without her knowledge, and she would be unable to determine her telephone number until someone mistakenly called her and she could learn what number they had dialed. Popova believes that her telephone was disconnected to undermine her political activities, many of which were conducted over the telephone.

Two months after her husband's departure, in November 1990, Popova returned from work to find that the door of her fifth-floor apartment had been set on fire, and she smelled gasoline in the air. Popova's was the only apartment in her apartment complex that was burned. Popova called the police, but they never came to investigate this crime.

That same month, Popova went to Turkey for two days, with an organized tour group, in search of a way to get to the United States. Popova returned to Turkey in May 1991, with another tour group, still seeking a way to get to the United States. In the spring of 1991, Popova was able to get two tourist visas, for herself and her daughter, to go to the United States. Popova and her daughter arrived in the United States on August 8, 1991.

Documents submitted at Popova's deportation hearing reflect that police officers have been looking for Popova since her departure. In May 1993, Popova's mother wrote her that "someone from the police came to ask us if you are in America, when you are returning, are you going to work, and, in general, where are you." Svoboda Nedeva Ianakieva ("Ianakieva"), a journalist for Bulgarian radio and television and a founder of Podcrepa, testified that members of the government "scare me all the time . . . . they scare me to kill me, and they scare me to . . . send me to prison." Ianakieva additionally testified that two of her associates, with whom she worked against the communist leader of the radio, were killed in a staged automobile accident.

Popova filed applications for asylum and withholding of deportation to Bulgaria pursuant to former INA §§ 208(a) [8 U.S.C. §§ 1158(a)] and INA §§ 243(h)[8 U.S.C. §§ 1253(h)]. On October 16, 1992, the Immigration and Naturalization Service ("INS") denied Popova's applications and placed her in deportation proceedings by filing an Order to Show Cause charging Popova and her daughter with being deportable for remaining in the country longer than authorized, pursuant to INA §§ 241(a)(1)(B). Popova and her daughter appeared before an Immigration Judge ("IJ") on December 9, 1992, and admitted their deportability, but renewed their requests for asylum and withholding of deportation to Bulgaria. In the alternative, Popova and her daughter sought voluntary departure. At the conclusion of a hearing on September 16, 1993, the IJ denied Popova's application for asylum and withholding of deportation, and granted her request for voluntary departure.²

Popova appealed the IJ's decision to the BIA. While the appeal was pending, Popova filed a Motion to Remand so that she could pursue relief pursuant to section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), Title II of Pub. L. No. 105-100, 111 Stat. 2193 (1997) amended by Pub. L. No. 105-139, 111 Stat. 2644 (1997). On March 16, 2000, the BIA dismissed the appeal and denied the Motion to Remand. After reviewing the record and the IJ's Order, the BIA concluded that the IJ demonstrated "a reasonable exercise of discretion based upon the record." The BIA concluded, in relevant part:

While we agree with the Immigration Judge that the treatment that [Popova] described is reprehensible, we further agree with the Immigration Judge's conclusion that the evidence presented by the respondent does not support her claim that the harm was...