Sofinet v. INS, PETITIONER-APPELLANT

• Decision Date: 02 November 1999
• Docket Number: PETITIONER-APPELLANT,No. 98-2853,RESPONDENT-APPELLEE,98-2853
• Citation: 196 F.3d 742
• Parties: (7th Cir. 1999) IOAN SOFINET,, v. IMMIGRATION AND NATURALIZATION SERVICE,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 742

196 F.3d 742 (7th Cir. 1999)

IOAN SOFINET, PETITIONER-APPELLANT, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT-APPELLEE.

No. 98-2853

U.S. Court of Appeals, Seventh Circuit

Argued October 6, 1999

Decided November 2, 1999

Petition for Review of an Order of the Board of Immigration Appeals No. A 75 252 600

Before Eschbach, Flaum, and Kanne, Circuit Judges.

Flaum, Circuit Judge.

Ioan Sofinet, a native and citizen of Romania, seeks review of the decision of the Board of Immigration Appeals ("BIA"), which dismissed his appeal and issued a final order of deportation. Sofinet contends that the BIA failed to properly credit evidence that he suffered persecution because of his religion (Seventh Day Adventist) and that he has a well-founded fear of future persecution from Romanian government authorities. We deny Sofinet's petition for review and affirm the decision of the BIA.

I.

Ioan Sofinet, a 34-year-old married male, is a native and citizen of Romania. Prior to his arrival in the United States Sofinet lived with his family in the Romanian town of Sighetul, located near the border between Romania and the Ukraine. He and his wife are practicing Seventh Day Adventists. His wife resides in the United States with him and his seven-year-old daughter resides in Romania with his in-laws.

In 1990, after graduating from military school, Sofinet began a nine-year commitment of service to the Romanian military in exchange for the military's financing of his education. While working as a police officer, he attended law school at the police academy and completed his law degree in 1994. Approximately one year after he began his police officer's job, on May 5, 1991, he was baptized as a Seventh Day Adventist. A week later, he married his wife in the Seventh Day Adventist church.

Sofinet testified that when he notified his supervisors on the police force about his religious conversion, they "responded to it in a negative way." His religious conversion created problems for him with the police force, principally because his job repeatedly required him to work on Saturdays--the Sabbath day for Seventh Day Adventists. However, he concedes that he was never suspended or fired for his refusal to work on the Sabbath. Sofinet explained that he had been arrested and imprisoned five times because he refused to work on Saturdays. For instance, he testified that he was punished by being arrested and imprisoned for three days when he refused to attend a June 1995 Saturday shooting practice.¹ According to Sofinet, the police force typically handled such job infractions by issuing a warning to the employee. Sofinet also testified that he was reprimanded by his supervisors for three other infractions: 1) when he refused an order to "collect information"² on the Hungarians and Ukrainians in Romania; 2) when he was falsely accused in June 1995 of not properly carrying out his duties regarding the processing of an unidentified corpse discovered in the Tisa River; 3) when he refused to attend an official ceremony in 1992 at which only Catholic and "Orthodox" clergy would be present and where he would be required to kneel before a statue and lay a wreath. Despite these reprimands, Sofinet was promoted from the rank of police lieutenant to captain in October 1995.

Sofinet resigned from the police force ten days after his visa to the United States was granted in April 1996. In his resignation letter, he explained not only that his religious beliefs prevented him from working on Saturdays, but also that it was increasingly difficult for him to perform his job because of his refusal to work on Saturdays. Sofinet testified that he would be unable to find work as a police officer or as an attorney in Romania because his employment records listed his disciplinary problems with the police department. He further stated that he had not attempted to find employment in Romania outside of the fields of law or law enforcement.

Sofinet departed to the United States from Budapest, Hungary in May 1996, thirty-eight days after he resigned. He testified that he did not intend to return to Romania when his visa expired. He entered the United States on May 28, 1996, on a non-immigrant visitor visa which authorized him to stay in the United States until November 27, 1996. Sofinet overstayed his visa and has remained here ever since. He stated in his asylum application that he "will never" return to Romania. He claims that if he were to return, Romanian government authorities would detain and interrogate him and he would not be able to obtain employment. The Romanian police continue to send to Sofinet, at his home in Romania, citations threatening him with fines. According to Sofinet, his family members have been fined for his failure to respond to these citations and the "home telephone was put under permanent surveillance [by the State Security Police]."

At his February 1997 deportation hearing, Sofinet conceded deportability and requested an opportunity to apply for asylum. In his asylum application, he alleged that he had suffered persecution because he belonged to the Seventh Day Adventist religion. Sofinet did not include his wife in his asylum application.

In March 1997, an immigration Judge ("IJ") conducted a hearing to address the merits of Sofinet's application. Prior to the hearing, the INS submitted a United States Department of State report on human rights practices in Romania in 1996. Sofinet was the only one to testify at his hearing. In addition to Sofinet's testimony, the IJ also reviewed and considered Sofinet's INS application and his submissions supplementing it; five written communications from Romanian government authorities who were investigating, reprimanding or punishing Sofinet for infractions;³ six published articles from six different sources-- all regarding work, political, and life conditions in Romania;⁴ Sofinet's letter of resignation; and a letter from his wife and daughter.

In her oral decision, the IJ concluded that Sofinet had not established that he had been harassed or that "any persecution whatsoever had occurred." Accordingly, she denied him both asylum and withholding of deportation and ordered him deported to Romania. The IJ determined that since Sofinet had been promoted in his job and not fired from it, he had failed to establish that he was denied the right to practice his religion in Romania. To support this determination, the IJ also noted that Sofinet's wife had left her job voluntarily and was not "forced" from it. Further, the IJ found that Sofinet's evidence was inconsistent and lacked specificity. She observed that, beyond his assertions that he suffered discrimination, Sofinet failed to mention any incident "that would have even a remote nexus to any form of persecution." Finally, "as a matter of discretion" and because she concluded that his claim was "frivolous," she denied him voluntary departure.

On appeal, the BIA ultimately concluded that Sofinet failed to show that he had been persecuted because of his faith. First, the BIA determined that Sofinet had not established past persecution because the "individual and cumulative effect of the economic and other restrictions faced by [Sofinet] does not constitute persecution." Next, the BIA determined that Sofinet had not established a well-founded fear of future persecution. It explained that his assertions about what would happen to him if he returned to Romania were "conclusory," "largely unsubstantiated," and "not supported by the record." Because it concluded that Sofinet failed to establish that he qualified for asylum, the BIA decided that Sofinet did not qualify for withholding of deportation. Further, the BIA determined that Sofinet was ineligible for voluntary departure because the record contained "no evidence . . . that [Sofinet] testified that he is willing and has the immediate means with which to depart the United States, if granted voluntary departure." On the basis of these determinations, the BIA dismissed Sofinet's appeal.

II.

Sofinet contends that the BIA erroneously concluded that his experiences in Romania from 1991 to 1996 did not amount to persecution. First, he argues that he qualifies as a refugee for asylum purposes because not only has he suffered past persecution, but he also possesses a well-founded fear of future persecution. Second, he challenges the BIA's determination that he was ineligible for voluntary departure.

We use the substantial evidence standard to review the BIA's factual findings and a de novo standard to review the BIA's legal Conclusions. Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir. 1997). This court will reverse a decision of the BIA only if the record lacks substantial evidence to support the BIA's factual Conclusions. Sayaxing v. INS, 179 F.3d 515, 519 (7th Cir. 1999).

In order to be considered for asylum in the United States, Sofinet must demonstrate that he is a refugee. According to 8 U.S.C. sec. 1101(a)(42)(A) (1999), a refugee is any person outside his native country who is "unable or unwilling" to return to that 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. . . ." Although there is no statutory definition of "persecution," this court has described it as "punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate." Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995); see also Draganova v. INS, 82 F.3d 716, 720 (7th Cir. 1996). The conduct in question need not necessarily threaten the petitioner's "life or freedom"; however, it must rise above the level of mere "harassment" to constitute persecution. Borca v. INS, 77 F.3d 210, 214 (7th Cir. 1996).

Sofinet attempts to demonstrate a well-founded fear of future persecution based on two factors: 1) Romanian government authorities...