Tokarska v. I.N.S.

• Court: Court of Appeals for the First Circuit
• Decided: July 7, 1992
• Docket: 91-2227
• Status: Published

Opinion

USCA1 Opinion

July 7, 1992       [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 91-2227

                                   ALICJA TOKARSKA,

                                     Petitioner,

                                          v.

                       IMMIGRATION AND NATURALIZATION SERVICE,

                                     Respondent.

____________________

                        ON PETITION FOR REVIEW OF AN ORDER OF
                      THE IMMIGRATION AND NATURALIZATION SERVICE

____________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Cyr and Boudin, Circuit Judges.
                                           ______________

                                 ____________________

            Steve J.  Gutherz and Law  Offices of Steve  J. Gutherz,  P.C., on
            _________________     ________________________________________
        brief for appellant.
            Stuart  M. Gerson,  Assistant  Attorney General,  Civil  Division,
            _________________
        Richard  M. Evans,  Assistant  Director, and  Marshall Tamor  Golding,
        _________________                             _______________________
        Attorney, Office  of Immigration and Litigation,  Civil Division, U.S.
        Department of Justice, on brief for appellee.

____________________

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____________________

Per Curiam.  Alicja Tokarska appeals a final order
                       __________

             of  the Board of Immigration Appeals.  The Board affirmed an

             immigration  judge's order  finding Tokarska  deportable for

             overstaying her visitor's visa, denying her applications for

             asylum and for withholding  of deportation, and granting her

             voluntary departure  in lieu of  deportation.   8 U.S.C.    

             1251(a)(2)(1952) (amended 1990), 1158, 1253(h).  On  appeal,

             Tokarska argues  solely that  we should reverse  the Board's

             decision because  it erred in determining that she failed to

             show  that she had suffered past persecution, as a member of

             the Solidarity movement, sufficient  to justify granting her

             "refugee" status and asylum.  She asks this court to declare

             that she is entitled to a discretionary grant of asylum.

                       She overlooks,  however, the very  limited role of

             this court in reviewing asylum cases.  The  Attorney General

             is  authorized (in  his discretion)  to grant  asylum  to an

             alien who  is a "refugee."  8 U.S.C.   1158(a).  The statute

             defines a "refugee" as  an alien who is unable  or unwilling

             to return to her  home 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).

             Thus, the Board has  held that an alien who  seeks "refugee"

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status may do so  by showing either (1) that  she reasonably

             fears that she will be persecuted if she returns to her home

             country,  or  (2)  that  she  has  suffered,  in  the  past,

             persecution so severe that her suffering warrants asylum, on

             humanitarian  grounds,  despite   the  lack   of  any   real

             likelihood that  she would  face persecution in  the future.

             See Matter of Chen, Int. Dec. 3104 (BIA 1989).  
             ___ ______________

                       Tokarska does  not contest,  on  this appeal,  the

             Board's  determination that  she had  no reasonable  fear of

             future persecution; she argues only that  the Board erred in

             finding  no  past  persecution  sufficiently  horrendous  to
                          ____

             qualify her as a "refugee"  on humanitarian grounds, even if

             that  persecution would  not be repeated.   (The  Board took

             notice  of the  fact  that Solidarity  is  now part  of  the

             coalition governing Poland,  so that Tokarska  clearly could

             fear no  future persecution  for her Solidarity  membership.

             Cf. Kaczmarczyk  v.  INS, 933  F.2d  588, 593-97  (7th  Cir.
             ___ ___________      ___

             1991).)

                       We  can reverse  the  Board's  determination  that

             Tokarska was not entitled to asylum only if the evidence she

             presented  in   respect  to  her  past   suffering  "was  so

             compelling that no reasonable factfinder could fail to find"

             that  she  had made  the requisite  showing  or the  INS had

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abused its  discretion in deciding that  the persecution she

             suffered was  not sufficient.   INS v.  Elias Zacarias,  112
                                             ___     ______________

             S.Ct.  812, 817  (1992).    See  also    NLRB  v.  Columbian
                                         _________    ____      _________

             Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
             ________________________

                       Most "refugee" asylum  cases involve  claims of  a

             reasonable  fear of  future  persecution, but  the few  that

             address claims  of past  persecution involve facts  that are

             very  different from those presented here.  To merit a grant

             of asylum on the  basis of past persecution, "an  alien must
                                        ____

             show past  persecution so severe that  repatriation would be

             inhumane."   Baka  v. INS,  1992 U.S.  App. LEXIS  10318, *7
                          ____     ___

             (10th  Cir. May  13, 1992).   This  more demanding  standard

             where  past  persecution alone  is  in  issue, although  not

             manifest in the terse  language of the statute, does  have a

             substantial basis  in policy and  the past decisions  of the

             courts and the Board.  See Skalak v. INS, 944  F.2d 364 (7th
                                    ___ ______    ___

             Cir. 1991).  

                       On the record in this case, Tokarska's experiences

             in Poland as a member of the Solidarity movement do not make

             out such a claim.  She points to several facts in support of

             her claim of sufficiently severe  past persecution:  she was

             struck and injured  by a tear-gas  canister during an  anti-

             government  demonstration; she  was arrested  during another

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demonstration,  suffered  physical injury  at  the hands  of

             police during  that arrest  and subsequent questioning,  and

             spent  twenty-four hours  in jail;  afterwards, her  desk at

             work was searched, and she never again received a  promotion

             or pay raise, although she had in the past.  

                       These facts are significantly less compelling than
                                                     ____

             those in  other cases  in which  federal courts have  upheld

             administrative  rejections of similar asylum claims based on

             past  persecution.  Kapcia v. INS, 944 F.2d 702, 704, 708-09
                                 ______    ___

             (10th  Cir. 1991)  (denial of  asylum lawful  where claimant

             arrested four times, detained  three times, beaten once, had

             house searched,  was treated  badly at work;  other claimant

             suffered  two-day  interrogation,  detention,  and  beating,

             parents' home  was searched, received bad  work projects and

             no  bonus,  conscripted into  army  where  he was  harassed,

             finally  fired from job); Skalak, 944 F.2d at 365 (denial of
                                       ______

             asylum lawful where claimant jailed twice for interrogation,

             three days  each time, harassed by officials at work); Kubon
                                                                    _____

             v.  INS, 913 F.2d 386, 388 (7th Cir. 1990) (denial of asylum
                 ___

             lawful  where  claimant  jailed  for  five  days;  "a  brief

             confinement for opposition to a totalitarian regime does not

             necessarily  constitute persecution.");  see also  Zalega v.
                                                      ________  ______

             INS, 916 F.2d 1257  (7th Cir. 1990) (neutral, non-Solidarity
             ___

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member  repeatedly arrested  and  interrogated,  fired  from

             job).   While "[t]he 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," Skalak,
                                                                  ______

             944 F.2d at 365, this is not such a case.  Consequently, the

             persecution Tokarska  describes is not  "so compelling" that

             the agency must find her  eligible for "refugee" status  and
                        ____

             asylum.

                       The judgment  of the Board of  Immigration Appeals

             is summarily affirmed pursuant to Local Rule 27.1.
                          ________

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