Bucur v. Immigration & Naturalization Service

109 F.3d 399
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 26, 1997
DocketNos. 96-2008, 96-2043 and 96-2190
StatusPublished
Cited by1 cases

This text of 109 F.3d 399 (Bucur v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bucur v. Immigration & Naturalization Service, 109 F.3d 399 (7th Cir. 1997).

Opinion

POSNER, Chief Judge.

We have consolidated for decision three petitions to review orders by the Board of Immigration Appeals denying asylum to Romanian citizens. All three petitions claim that the petitioner was persecuted by the communist regime — Bucur because he is of mixed Romanian-Hungarian ethnicity and was a political opponent of the communist regime, Rosus because she is of mixed Romanian-Ukrainian ethnicity, and Dragos because he is a Jehovah’s Witness. Bucur and Rosus anticipate further persecution if they are forced to return to Romania, while Dragos claims that his persecution by the communist regime was sufficiently serious to warrant a grant of U.S. asylum even though he is unlikely to be persecuted by the current regime.

Bucur is from Transylvania, a part of Romania that used to be part of Hungary and that has a large population of ethnic Hungarians long discriminated against by the Romanian majority. The communist regime had a [402]*402policy of forcing minorities to assimilate. The policy was dropped after the overthrow of the communist dictator, Ceausescu, in 1989, but ethnic unrest continues. Indeed, the fall of communism in Central and Eastern Europe seems rather to have fanned than to have cooled ethnic tensions in the region, and while there is no indication of lethal discrimination by Romania against its minorities — the sort of thing one finds in what was once Yugoslavia — there is evidence of greater discrimination against ethnic Hungarians than before the collapse of the communist regime, Hengan v. INS, 79 F.3d 60, 62-63 (7th Cir.1996), although the situation may be mending. See Treaty between the Republic of Hungary and Romania on Understanding, Cooperation and Good Neighbourhood, art. 15(l)(b) (Sept. 16,1996).

Bucur came to the United States in 1990, on a nonimmigrant visa, and has remained. He is 43 years old, and had worked as an engineer in Romania before he left. He now claims to be half-Hungarian, though on his original application for asylum he claimed to be of Romanian ethnicity and to belong to the Eastern Orthodox church, whereas most ethnic Hungarians are either Catholic or Protestant. He claims to have suffered some discrimination in education and employment when he was in Romania because of his half-Hungarian ethnicity, but apparently it was not severe, for he got a good job after completing a five-year college program in engineering. The job involved working with foreign specialists. This was a task for which he was particularly well suited because he speaks German and (he claims) Hungarian as well as Romanian, but it brought him under surveillance by the secret police, which was suspicious of anyone who had contacts with foreigners. He once participated in a workers’ demonstration against the Ceausescu regime and afterwards was questioned by the secret police. He was not imprisoned or beaten but during the questioning a police officer yelled at him, “What were you doing downtown [at the demonstration], you moron Hungarian?” On another occasion the officer told Bucur that he would be better off if he let Romanians do the talking about their country’s problems.

All this is most unpleasant, but we think the Board of Immigration Appeals was well within its authority in concluding that Bucur was not a victim of ethnic persecution. The Attorney General is authorized to grant asylum to “refugees,” defined as persons “unable or unwilling” to return to their 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. §§ 1101(a)(42)(A), 1158(a). If Bucur is telling the truth about his Hungarian ethnicity and how it affected his life in Romania (as we shall assume, the Board not having made a clearcut finding on his credibility), he was the victim of discrimination on account of his nationality. But discrimination is not persecution. Sharif v. INS, 87 F.3d 932, 935 (7th Cir.1996); Bastanipour v. INS, 980 F.2d 1129, 1133 (7th Cir.1992); Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995). Otherwise hundreds of millions of people would be eligible for asylum in the United States. Granted, this would not be the end of the world. The statute creates a right only to ask the government to exercise discretion to grant or deny asylum favorably to the applicant; it does not confer a right to asylum. 8 U.S.C. § 1158(a); INS v. Cardoza-Fonseca, 480 U.S. 421, 443-44, 107 S.Ct. 1207, 1219-20, 94 L.Ed.2d 434 (1987). So the Board could if it wanted turn down the vast majority of eligible applicants, cf. Hengan v. INS, supra, 79 F.3d at 62, and though in fact denials of asylum to persons found to be refugees have apparently been rare, 2 Charles Gordon, Stanley Mailman & Stephen Yale-Loehr, Immigration Law and Procedure § 34.02[10][d], p. 34-56.1 (1995); Richard D. Steel, Steel on Immigration Law § 8.08, p. 8-31 (2d ed.1996), we shall see that refugees who do not face further persecution are unlikely to be granted asylum. What is more, there are now mandatory grounds for denial of asylum to some refugees. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 10A-208, § 604, 110 Stat. 3009 (1996). Truncating the Board’s discretion from the other side, the alien who can prove that he has a “clear probability” of losing his life or his freedom if he is deported to a particular country has a [403]*403right not to be deported to that country, rather than merely a right to ask for mercy. 8 U.S.C. § 1253(h)(1); Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 159-60, 113 S.Ct. 2549, 2552-54, 125 L.Ed.2d 128 (1993); INS v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498-99, 81 L.Ed.2d 321 (1984).

So the domain in which the Board exercises discretion may in practice be considerably narrower than we are suggesting — and anyway most of those hundreds of millions of victims of discrimination in foreign lands don’t have the money to travel to the United States. Still, the statute was designed as a filter, and the mesh would be too broad if every foreign victim of discrimination in his homeland were eligible for asylum. There is discrimination even in the United States; many thousands of judicial and administrative claims are filed every year complaining of discrimination because of race, ethnicity, sex, or religion, and while many of the claims do not have merit many others do. There is much worse discrimination against minorities in many other countries.

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