Tuesday, January 20, 2009
Court Rejects Asylum Claim Based on ‘Friendship’ With Gypsies
By STEVEN M. ELLIS, Staff Writer
A panel of the Ninth U.S. Circuit Court of Appeals has rejected the asylum bid of a Bulgarian man who claimed he would face persecution for his friendship with the Roma people if returned.
Ruling 2-1 Friday that Petar Donchev failed to demonstrate that members of Bulgaria’s ethnic majority who are friendly to the Roma hold an identifiable, common immutable characteristic they cannot or should not be required to change, the court concluded Donchev was not part of a “particular social group” entitled to protection under the Convention Against Torture.
Donchev entered the United States on a false Belgian passport in 2003, and was apprehended when Bureau of Immigration and Customs Enforcement agents executing a search warrant on the residence of his sister—a U.S. citizen with whom he lived—turned up fraudulent immigration documents and $40,000 in cash.
After the Department of Homeland Security initiated removal proceedings against Donchev and his wife, he sought relief alleging he had been mistreated because his family had friendly relations with their Roma neighbors in Bulgaria, and because he participated in “organizations that fight for the rights of the gypsies.”
Under the Convention Against Torture, a petitioner must demonstrate unwillingness or inability to return home “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.”
Donchev contended that he had been arrested, confined and beaten in the early 1990s while a member of the Bulgarian military for failing to follow orders to mistreat fellow soldiers who were Roma.
He also claimed he was later threatened and beaten by police over his associations before being released without charges, and cited harassment by skinheads, pointing to an incident in which a group beat him and stole his watch after he left a meeting of a pro-Roma group.
The government countered by pointing to a 2000 telegram from the U.S. embassy in Sofia, Bulgaria, stating that anti-Roma discrimination in the country had fallen, that “individual instances…should not be equated with wholesale systematic persecution as contemplated by asylum law,” and that “[n]o objective basis” existed for asylum to be awarded to Bulgarian Roma simply because of ethnicity.
Despite finding that Donchev and his wife were “generally truthful” in their testimony, the immigration judge concluded the alleged abuse lacked an “apparent connection” to the protected ground and denied relief.
The judge opined that Donchev’s testimony as to his superior officers’ motives was “speculative,” that the encounters with police were just examples of “hot-headed young men and hot-headed cops,” and that Donchev did not show his assault and robbery by skinheads had anything to do with his group membership.
On appeal, Judge Andrew J. Kleinfeld, joined by Judge Ronald M. Gould, upheld the immigration judge’s decision.
Noting that Donchev, as a Christian, was most identifiable with the ethnic, religious and cultural majority in his country, and that he had not alleged that his mother—who remained in Bulgaria—had suffered any harassment despite her visible friendships with Roma, Kleinfeld wrote that “[o]verexpansion of refugee status to include amorphous social groups is unfair to other immigrants, because asylum jumps people to the head of the line of those seeking permission to live in the United States.”
“Donchev’s claim arises out of the choices he made in his friends…[and] a reasonable adjudicator would not be compelled to conclude that friends of Roma individuals or of the Roma generally are a ‘particular social group.}
Senior Judge Betty B. Fletcher dissented, citing “credible testimony and corroborating evidence” which she said compelled a finding of past persecution.
Adding that the burden therefore shifted to the government to rebut the presumption of a well-founded fear of future persecution by a preponderance of the evidence, she said reconsideration was appropriate, and she criticized as “unfair” the majority’s assertion that her dissent independently reweighed the evidence.
The case is Donchev v. Mukasey, 05-74709.
Copyright 2009, Metropolitan News Company