Skalak v. I.N.S., 90-2015
| Citation | 944 F.2d 364 |
| Decision Date | 23 September 1991 |
| Docket Number | No. 90-2015,90-2015 |
| Parties | Barbara SKALAK, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Y. Judd Azulay, Roderick F. Mollison, Azulay & Azulay, Chicago, Ill., for petitioner.
Ira H. Raphaelson, Asst. U.S. Atty., Office of the U.S. Atty., Crim. Div., Chicago, Ill., Norah Ascoli Schwarz, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Richard L. Thornburgh, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, D.C., Michael L. Harper, I.N.S., Chicago, Ill., for respondent.
Before CUMMINGS, POSNER and MANION, Circuit Judges.
Barbara Skalak, a Polish national who has been ordered deported to Poland for having overstayed her visitor's visa on which she came to this country in 1986, asks us to set aside the decision by the Board of Immigration Appeals denying her applications for asylum and for withholding of deportation. 8 U.S.C. §§ 1158(a), 1253(h). For about a year before she left Poland she was active in the Solidarity movement. Her activities resulted in her being jailed twice for interrogation, each time for three days; also, officials at the school where she taught harassed her for her refusal to join the Communist Party.
If as she claims she has a "well-founded fear of persecution" if returned to Poland, then she is entitled to withholding of deportation. But since the Communist government has been overthrown and the leader of the Solidarity movement is now Poland's president, the Board committed no error in concluding that her fear of being persecuted is not well founded. Kaczmarczyk v. INS, 933 F.2d 588, 594 (7th Cir.1991); Kubon v. INS, 913 F.2d 386, 388 (7th Cir.1990).
More interesting is the question whether the treatment meted out to her by the Communist authorities was persecution, for if it was she is eligible for asylum even if the probability of recurrence is nil. Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988). Eligibility is not entitlement. Past persecution creates a presumption in favor of granting asylum, but the presumption is rebuttable; among other factors admissible in rebuttal is a demonstration that, as in this case, the alien is not in danger of being persecuted again. In re Chen, No. A-26219652 (available on WESTLAW, FIM-BIA database, BIA Interim Decision # 3104), 1989 BIA LEXIS 10. If, as this possibility for rebuttal suggests, the ultimate issue is what will happen to the alien when he is deported, one may wonder why past persecution figures at all in the decisional process. Why isn't the orientation of the inquiry entirely forward-looking? The answer is twofold. The past is sufficiently...
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