Vladimirova v. Ashcroft

• Citation: 377 F.3d 690
• Decision Date: 26 July 2004
• Docket Number: No. 03-1852.,03-1852.
• Parties: Detelina VLADIMIROVA, Bisser Vladimirova and Monika Vladimirova, Petitioners, v. John D. ASHCROFT, Attorney General of the United States of America, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

377 F.3d 690

Detelina VLADIMIROVA, Bisser Vladimirova and Monika Vladimirova, Petitioners, v. John D. ASHCROFT, Attorney General of the United States of America, Respondent.

No. 03-1852.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 2004.

Decided July 26, 2004.

Petition for review from the Board of Immigration Appeals.

Richard H. Trais (argued), Chicago, IL, for Petitioners.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Richard M. Evans, Nancy E. Friedman (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before CUDAHY, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Petitioner Detelina Vladimirova, her husband, Bisser, and their daughter, Monika, seek review of a decision of the Board of Immigration Appeals (the "BIA") affirming the decision of the Immigration Judge (the "IJ") without opinion and denying their requests for asylum and withholding of removal. Ms. Vladimirova argues that "extraordinary circumstances" excused her failure to file an application for asylum within one year of her arrival in the United States. We lack jurisdiction to decide that question. We conclude, however, that the IJ failed to consider properly Ms. Vladimirova's request for withholding of removal. Accordingly, for the reasons set forth in the following opinion, we grant the Vladimirovas' petition for review, reverse the judgment of the BIA in part, and remand for further consideration.

I BACKGROUND

A. Facts

The Vladimirovas are natives and citizens of Bulgaria. Mr. Vladimirova arrived in the United States in April 1997; Ms. Vladimirova and their daughter followed in February 1998. The Vladimirovas allegedly fled Bulgaria to escape the persecution they experienced for practicing the Word of Life religion, a form of Protestantism. Ms. Vladimirova petitioned for asylum in April 1999, including both her husband and their daughter in her petition.

The following account is taken from Ms. Vladimirova's petition for asylum. Ms. Vladimirova and her husband were persecuted for practicing Word of Life from the time they joined the church in 1996. In Bulgaria, all religious groups must be registered with the government; Word of Life's registration had been denied in 1994. Therefore, at the time, practicing the religion was illegal. Ms. Vladimirova's Word of Life group — consisting of herself, her husband, two other individuals, and their pastor — met secretly either in their homes or in remote rural areas. See A.R. 279.

In July 1996, Ms. Vladimirova's Word of Life group was conducting services in a remote mountainous region when four police officers arrived. Ms. Vladimirova detailed that the officers confiscated the worshipers' bibles and Word of Life pamphlets and called the worshipers "filthy sectarians." A.R. 286. The officers then handcuffed all five individuals and took them to a police station, where Ms. Vladimirova and her husband were imprisoned for two nights. During the detention, Bulgarian authorities interrogated her and "physically assaulted" her before releasing her on the third day. A.R. 286. After this incident, the Word of Life group did not meet again until September.

In December 1996, Ms. Vladimirova's Word of Life group was meeting at another member's apartment when police officers arrived at the door. As Ms. Vladimirova described the situation in her application, the officers again seized the members' religious materials and searched the apartment for more evidence of the resident's affiliation with Word of Life. The policemen took Ms. Vladimirova and her husband to the police station. During her detention, the police officers slapped her face and called her "vile names," and one officer threatened to sexually assault her. A.R. 286. After two days, the officers released both her and her husband.

After the December 1996 incident, Ms. Vladimirova and her husband decided to leave the country. Mr. Vladimirova left alone in April 1997, while Ms. Vladimirova remained in Bulgaria because she and her daughter had not yet obtained visas. In her asylum application, Ms. Vladimirova stated that she experienced difficulty with the police again in May 1997. This time, she alleged, police officers arrived at her apartment; the officers slapped her and one of them, not realizing that she was pregnant, hit her in the abdomen with a club, causing a miscarriage. A.R. 287. The officers then left her apartment. As a result of the miscarriage, Ms. Vladimirova related in her petition, she "became very depressed" and at times "did not want to go on living." A.R. 287.

B. Administrative Proceedings

The Vladimirovas were placed in removal proceedings in August 1999. At the hearing before the IJ in March 2000, Ms. Vladimirova testified to the facts that we have set forth. She also testified about her fears of what would happen if she were forced to return to Bulgaria. Ms. Vladimirova stated that, although she had not maintained contact with the members of her Word of Life group, other individuals practiced Word of Life in similarly small groups throughout Bulgaria. Ms. Vladimirova explained that, if she returned to Bulgaria, she would attempt to locate a different group with whom she could continue to practice her faith. In response to questioning by the IJ, Ms. Vladimirova explained that, if she returned to Bulgaria, she could not avoid harassment simply by moving to a different area of the country because Bulgarians are required to register their address with the police within forty-eight hours of an address change.

At the hearing, the Government's attorney sought further information about Ms. Vladimirova's current religious practice. Ms. Vladimirova stated that, in the United States, she and her family attended the First Baptist Church. Ms. Vladimirova explained that she could not find a Word of Life church in Illinois and that the Baptist church was similar to the Word of Life church.

After hearing the testimony and reviewing the submitted documentation, the IJ concluded that Ms. Vladimirova had not shown extraordinary circumstances sufficient to excuse her failure to petition for asylum within one year of her arrival in the United States. Nevertheless, the IJ considered Ms. Vladimirova's asylum claim. The IJ did not credit explicitly Ms. Vladimirova's testimony about the harassment she experienced in Bulgaria, but he implicitly did so, stating that Ms. Vladimirova had been "mistreated" by the Bulgarian authorities but concluding that the harassment had not risen to the level of persecution required to be eligible for asylum under 8 U.S.C. § 1101(a)(42)(A). A.R. 86. The IJ reasoned that persecution is "generally considered to be a threat to the life or freedom of the victim," and that Ms. Vladimirova's "mistreatment" had not threatened her life or freedom. A.R. 85-86.

The IJ relied upon three cases to support his conclusion that the harassment Ms. Vladimirova suffered was insufficient to establish a claim of asylum. He relied upon our opinion in Zalega v. INS, 916 F.2d 1257 (7th Cir.1990), for the proposition that there is no persecution if a petitioner is "held only briefly and detained and then released, and never ... formally charged for any crime and not mistreated during his incarceration." A.R. 85-86. The IJ also referenced the BIA's opinion in Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989), contrasting the "prolonged mistreatment" the petitioner in that case suffered for his religious beliefs with the absence of any "severe" mistreatment in the present case. A.R. 86. Finally, the IJ discussed our opinion in Asani v. INS, 154 F.3d 719 (7th Cir.1998), and concluded that in Asani the petitioner had suffered a "higher" level of mistreatment than Ms. Vladimirova because he was "chained to a radiator and his teeth were knocked out." A.R. 86. The IJ characterized Asani as holding that the petitioner did not "experience[ ] past persecution, but that the mistreatment at least should have been considered in assessing whether there was any reasonable possibility of future mistreatment." A.R. 86. Since the petitioner in Asani had not suffered past persecution, the IJ concluded, neither had Ms. Vladimirova.

The IJ went on to decide that, even if Ms. Vladimirova had shown past persecution her asylum claim would still fail because she had no reason to fear further mistreatment upon returning to Bulgaria. After reviewing the 2000 Department of State Report on International Religious Freedom in Bulgaria, the IJ noted that the Bulgarian government supported the Eastern Orthodox Church but permitted many other groups, including Roman Catholics, Jews and Muslims, to practice freely their religion. The IJ stated that evangelical Protestants also were permitted to practice freely, although they were prohibited from proselytizing. The IJ noted that there was no mention of the Word of Life church in the report. The IJ relied on our opinion in Gramatikov v. INS, 128 F.3d 619 (7th Cir.1997), to support his decision to consider State Department reports as equivalent to an expert opinion entitled to "substantial weight" and to require that a petitioner contradict the information in a report with "highly credible and independent sources of expert knowledge." A.R. 87.

The IJ concluded that the State Department's "assessment of conditions in Bulgaria are not nearly as threatening" as Ms. Vladimirova suggested and that there was no reasonable possibility that Ms. Vladimirova would experience future persecution in Bulgaria:

If in fact the respondent's problem in Bulgaria in '86 [sic] and '97 was on account of police, particular police misbehavior, then I would think that she should move to another area. She has not adequately explained why she could not do so. Clearly, she has not shown that the religious practice of the Word of Life Church extends to other area [sic] of the country. In fact, she is a...