Maria Bachkova v. Immigration and Naturalization Service

109 F.3d 376, 1997 U.S. App. LEXIS 5472, 1997 WL 134407
CourtCourt of Appeals for the Seventh Circuit
DecidedMarch 24, 1997
Docket96-2191
StatusPublished
Cited by3 cases

This text of 109 F.3d 376 (Maria Bachkova v. Immigration and 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.

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Maria Bachkova v. Immigration and Naturalization Service, 109 F.3d 376, 1997 U.S. App. LEXIS 5472, 1997 WL 134407 (7th Cir. 1997).

Opinion

FLAUM, Circuit Judge.

Maria Bachkova is a 56-year-old Bulgarian who entered the United States in August 1992 as a visitor. When her visa expired, the Immigration and Naturalization Service initiated deportation proceedings against her. She filed for asylum and withholding of deportation based solely upon her past persecution in Bulgaria. Both the immigration judge and Board of Immigration Appeals denied relief from deportation. In its decision, the Board of Immigration Appeals did not pause to consider whether Bachkova’s past experience amounted to persecution, but rather moved to the second step of the asylum test and found that the past harm was not “of the character” to warrant a present grant of asylum. For the reasons expressed below, we deny Bachkova’s petition for review and affirm the decision of the Board of Immigration Appeals.

I.

Bachkova testified to the following facts at her hearing before the immigration judge. In 1984, during the Bulgarian government’s campaign of forced assimilation of Turks, Bachkova was a teacher in the ethnic Turkish area of Bulgaria. In her role as a teacher, Bachkova expressed sympathy with her Turkish students and expressed her opposition to policies requiring Turks to speak only Bulgarian and to change their names to ethnic Bulgarian names. As a result of her support for the Turks, Bachkova was arrested, imprisoned in a tiny cell for fifteen days, interrogated, and beaten. Upon signing a statement that she would not support the students or protest the forced assimilation policies, she was released. Bachkova was then forced by the authorities to help administer the name change policy; she participated in the assimilation program for roughly ten days.

The tables turned, her door was marked by the Turks as a supporter of the Communist regime. In 1985, she was attacked by two masked men, who she believes to be Turks. In May 1985, her job was terminated without explanation. With some difficulty she found another teaching position for September 1986. As a condition of her new employment, she had to report on the Turkish population.

In 1989, the Communist leader Todor Zhivkov was deposed; Bachkova took part in the resulting celebrations. The police summoned her as a warning to curtail this behavior. She was summoned again in 1990 after her eldest son left Bulgaria. The police interrogated her as to his whereabouts and detained her for five days. Subsequently, her phone was disconnected and her possessions were removed from her apartment by unknown persons. She moved to a school house, which burned down in August 1992. She left for the United States the following *378 week. Since her arrival she has found employment assisting an elderly woman and has married a permanent resident.

II.

Bachkova initially argues that the Board abused its discretion by denying relief from deportation without first reaching the issue of statutory eligibility. To succeed in a petition for asylum, Bachkova must qualify as a “refugee,” defined under 8 U.S.C. § 1101(a)(42)(A). See Krastev v. Immigration and Naturalization Service, 101 F.3d 1213, 1216 (7th Cir.1996); Mitev v. Immigration and Naturalization Service, 67 F.3d 1325, 1329 (7th Cir.1995). Once refugee status is established, it is within the discretion of the Attorney General to grant the alien asylum. See 8 U.S.C. § 1158(a). We do not insist on a particular order to these steps followed by the immigration agency adjudicating asylum determinations. In Immigration and Naturalization Service v. Bagamasbad, 429 U.S. 24, 97 S.Ct. 200, 50 L.Ed.2d 190 (1976), the Supreme Court held that the Board of Immigration Appeals was not required to determine statutory eligibility if such findings would be “purely advisory or eonelusory,” thus freeing the immigration judge or appellate board to leap ahead to its discretionary determination. See id. at 26, 97 S.Ct. at 201. This is not to say that the Board may ignore Bachkova’s past experience: the Board must consider all aspects of a case and its decision must reflect its deliberation. Shahandeh-Pey v. Immigration and Naturalization Service, 831 F.2d 1384, 1389 (7th Cir.1987). Here, the Board’s decision incorporates the immigration judge’s decision detailing Bachkova’s past treatment in Bulgaria and summarizes and addresses Bachkova’s experience in its own decision; thus, we can assume the Board was mindful of this history in its ultimate decision.

Bachkova goes on to argue that what she experienced amounted to past persecution so searing that it would be inhumane to return her to Bulgaria. A deportable alien may be found eligible for asylum on the basis of past persecution alone. See Mitev, 67 F.3d at 1330 (7th Cir.1995). Past persecution creates a rebuttable presumption that a person should not be returned to his country of origin. See Skalak v. Immigration and Naturalization Service, 944 F.2d 364, 365 (1991). This presumption arises in part because the past may be indicative of the future; from a history of persecution we may infer a probability of future persecution. In Bachkova’s case this rationale does not carry great force. Bulgaria is now governed by a parliamentary system, and the Communists, reorganized under the banner of the Socialist party, are no longer the exclusive possessors of power. Consequently, Bachkova’s past persecution under the totalitarian regime does not dictate a likelihood of future persecution.

Bachkova instead relies on the second rationale backing this rebuttable presumption: “The experience of persecution may so sear a person with distressing associations with his native country that it would be inhumane to force him to return there, even though he is in no danger of further persecution.” Id. at 365. On several occasions, this Circuit has attempted, if not to define persecution, at least to specify a range of conduct that will be considered persecution. See Mitev, 67 F.3d at 1329 (collecting cases); Balazoski v. Immigration and Naturalization Service, 932 F.2d 638, 641-42 (7th Cir.1991) (defining persecution “is a most elusive and imprecise task, one that is at the margins perhaps uniquely political in nature”); Zalega v. Immigration and Naturalization Service, 916 F.2d 1257, 1260 (7th Cir.1990). Here, we are not concerned with the broad spectrum of what may or may not be considered persecution. See Skalak, 944 F.2d at 365.

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