Mihaylov v. John Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1575

STEFAN ANTONOV MIHAYLOV; and LUDMILA GEORGEVA NAYDENOVA,

Petitioners,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS

Before

Torruella, Lynch, and Lipez, Circuit Judges.

Peter Darvin for appellant.
Hillel R. Smith, Attorney, Office of Immigration Litigation,
with whom Peter D. Keisler, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, were on brief, for appellee.

August 17, 2004
 LIPEZ, Circuit Judge. Petitioner Stefan Antonov

Mihaylov, a native and citizen of Bulgaria, seeks review of the

decision of the Board of Immigration Appeals (BIA) denying his

application for asylum. Petitioner Ludmila Georgeva Naydenova is

a derivative asylum applicant.1 Mihaylov argues that the evidence

presented below compels a conclusion that he was persecuted in the

past on account of his political opinion and is therefore entitled

to a statutory presumption of a well-founded fear of future

persecution. He further claims that the evidence of changed

circumstances offered by the government is insufficient to overcome

that presumption and that he is therefore eligible for asylum.

Ordinarily, we review the BIA's decision under our

deferential "substantial evidence" standard, upholding that

decision if it is "supported by reasonable, substantial, and

probative evidence on the record considered as a whole." INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992). In this case, however,

we are unable to conduct a proper substantial evidence review of

the BIA's decision because neither the BIA nor the Immigration

Judge explained with adequate clarity and particularity the grounds

1
Naydenova, Mihaylov's wife, is included in the asylum
petition based on Mihaylov's experiences. While this opinion
refers primarily to petitioner Mihaylov, the decision rendered
applies to both petitioners. See 8 U.S.C. § 1158(b)(3)(A).

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for rejecting Mihaylov's past persecution claim. In light of this

legally insufficient explanation, see Gailius v. INS, 147 F.3d 34,

44 (1st Cir. 1998), we vacate the BIA's order and remand the case

for further proceedings consistent with this opinion.

I.

In July 1992, petitioners Stefan Antonov Mihaylov and

Ludmila Georgeva Naydenova entered the United States without

inspection. The petitioners applied for asylum and withholding of

removal on May 7, 1993. The Immigration and Nationality Service

hearing officer determined that they were ineligible for asylum and

withholding, and referred their case to the Immigration Judge.

Approximately five years later, on January 27, 1999, the INS issued

Mihaylov and Naydenova notices to appear, charging them with

unlawful presence in the United States in violation of section

212(a)(6)(A)(i) of the Immigration and Nationality Act (INA). The

petitioners conceded the charge but renewed their request for

asylum and withholding of removal. They also submitted a petition

for relief under the Convention Against Torture (CAT), and

requested voluntary departure in the event that removal was

necessary.2 On August 4, 2000, after hearing testimony on the

merits of the petitioners' claims, the Immigration Judge denied

their applications and entered an order of removal to Bulgaria.

2
Mihaylov does not appeal the IJ's decision regarding his
claims for withholding of removal, relief under the CAT, and
voluntary departure.

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The BIA issued a summary affirmance without opinion on March 28,

2003.3 See 8 C.F.R. § 1003.1(a)(7). This petition followed.

II.

We summarize the evidence that Mihaylov presented to the

IJ and then discuss the IJ's evaluation of that evidence. Stefan

Mihaylov was born in 1962 in Sofia, Bulgaria. Mihaylov's father

was a member of the communist party, but his maternal grandfather,

Stefan Todorov Georgiev, was an outspoken critic of Bulgaria's

communist regime. In 1954, the government arrested Georgiev on

fabricated murder charges in retaliation for his political

activities, and sentenced him to twelve years in prison. As a

result of Georgiev's conviction and sentence, Mihaylov and the

other members of his family were stigmatized as anti-communist

dissidents and enemies of the Bulgarian government.

By the time that he was thirteen years old, Mihaylov

began to have trouble with the communist authorities. In his last

year of elementary school, he spoke out against the Communist Youth

League (DKMS), which all secondary school students were expected to

join. Because of his opposition to the DKMS, Mihaylov received low

conduct grades, which precluded him from attending his choice of

secondary school. In 1977, the district superintendent of schools

ordered Mihaylov to meet with him throughout the year for political

3
Where, as here, the BIA summarily affirms the decision of
the IJ, we review the decision of the IJ. Quevedo v. Ashcroft, 336
F.3d 39, 43 (1st Cir. 2003).

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education lessons. During those sessions, the school official

frequently struck Mihaylov and threatened to send him to reform

school if he did not cooperate.

On April 17, 1978, when Mihaylov was fifteen years old, a

uniformed policeman appeared at the door of his family's apartment

and demanded that Mihaylov accompany him to the police station.

Without notifying Mihaylov's parents, the policeman took Mihaylov

to an unfamiliar detention facility where he was locked up in a

small, windowless cell. The cell contained only a bed, a bucket

for a toilet, and a lightbulb which stayed on 24 hours a day. On

the day of his detention, Mihaylov suffered a loss of consciousness

and subsequently lost control of his bodily functions. The prison

guard refused to allow him to bathe or clean his soiled clothes and

denied his request to see a doctor. Mihaylov was later

interrogated by two officials who riduculed him for smelling badly,

humiliated him, and compared him to his grandfather. They asked

Mihaylov where he had been on certain dates, whether he knew

certain people, and whether he was a member of a political group.

When his answers did not satisfy them, the officials struck

Mihaylov with clubs or their fists on his legs, back, arms, and

face.

Mihaylov was detained for six or seven days. During that

time, he was interrogated and beaten frequently and was not allowed

to wash or change his clothes. On two occasions, he was denied

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access to a toilet. Mihaylov again requested to see a doctor, and

again that request was refused. On April 24, Mihaylov was ordered

to sign a document stating that he had not been harmed, beaten, or

subjected to force in any way while in custody, and that he had

been held only for interrogation. He was then taken by van to a

local Sofia police station and was released.

In the weeks following his detention, Mihaylov's physical

condition deteriorated. He began to lose sensitivity through the

lower part of his body and eventually was unable to walk. He was

diagnosed with acute inflammation of the nerves of his spinal cord

and spent a month in the hospital and three more months in a

rehabilitation center. He eventually regained his ability to walk

with a cane, but remained permanently disabled.

In the years following his arrest, Mihaylov was

frequently harassed by government officials He was arrested more

than ten times for minor "offenses" such as wearing long hair, blue

jeans, and a crucifix; ordered to pay fines because of his

appearance; and forced to sign an agreement to stay away from

downtown Sofia. On one occasion, Mihaylov was arrested and

detained on suspicion of dealing in foreign currency.

In 1989, Mihaylov was detained by a government security

agent, Hristo Rachev, who questioned him about his visits to the

United States Embassy and referred to Mihaylov's prior detentions.

Rachev threatened to have Mihaylov imprisoned on false charges if

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he did not agree to become a government informant. Mihaylov

reluctantly agreed, and he met with Rachev about 30 times over the

next year. During those meetings Rachev asked Mihaylov to identify

pictures of individuals and to provide information about political

activities and specific people. Mihaylov grew increasingly afraid

for his safety. On January 30, 1990, he fled Bulgaria with

Naydenova, who was by then his wife, and traveled to Canada. He

applied for asylum, but that application was denied. Mihaylov and

Naydenova then entered the United States on July 12, 1992.

In her supporting testimony, Naydenova stated that after

she began to live with Mihaylov, she was repeatedly warned by

security officials and threatened with the loss of her job at the

Ministry of Culture if she continued to associate with him because

he was from a "bad family." She explained that both her family and

Mihaylov's were anti-communist and were mistreated by the communist

party, and noted that being anti-communist was like a "sticker" on

one's back that follows you for the rest of your life. She

described an unsettling phone call to her home in which a man

demanded to know where Mihaylov was and ordered her to tell him

that "his friend Hristo Rachev called." When Naydenova gave her

husband the message, he began shaking uncontrollably. Later that

year, Mihaylov and Naydenova were rounded up as part of a mass

detention in a particular section of town. Naydenova explained

that she and her husband were pulled out of a group at the police

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station and ushered into an office, where she was introduced to

Rachev, whose name and voice she recognized. Mihaylov and Rachev

engaged in a furtive conversation, and the couple was subsequently

released.

Mihaylov also submitted numerous documentary sources in

support of his past persecution claim. Those sources included the

State Department's 1989 Country Report on Human Rights Practices

for Bulgaria, which described the harsh repression and widespread

human rights abuses of Bulgaria's communist regime prior to its

collapse in November 1989, including arbitrary arrest and

detention, cruel and unusual treatment and punishment of prisoners,

and "prison deaths caused by torture and beatings." Bulgarian laws

"provide[d] severe punishment for the voicing of any belief or

conviction which [was] contrary to official policy or critical of

the State," and "Bulgarians were detained, tried, imprisoned, and

exiled for criticism and actions that were political in nature."

The report described "the internal security forces which monitored

the 'ideological' activities of citizens" and "directed an

elaborate system of informers in virtually all workplaces,

residential areas, and social organizations to monitor the daily

lives of Bulgarians for signs of dissent." Besides the State

Department report, the record contains at least sixteen additional

documents including a Radio Free Europe report on Bulgaria,

scholarly works, and newspaper articles – all of which discuss the

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Bulgarian Communist regime's persecution of political dissidents.

Mihaylov also submitted an affidavit from his mother, and the jail

and character records of his grandfather, which described his

grandfather's problems with the communist government and his

family's reputation as enemies of the regime.

In a written opinion that included an extensive, twenty-

page summary of the applicable record evidence but only two pages

of legal analysis, the IJ denied Mihaylov's request for asylum and

withholding of removal, concluding that he had failed to establish

past persecution or a well-founded fear of future persecution on

account of his political opinion or membership in a social group.4

She explained that Mihaylov "did not establish that the cause of

his mistreatment by the former Bulgarian authorities was his or his

family's political opinion" or his membership in a social group.

With respect to his fear of future persecution, the IJ noted that

the communist regime in Bulgaria collapsed in 1989, citing the

State Department country reports for Bulgaria for 1997 and 1999.

She stated that Mihaylov "failed to offer any evidence that any

government agent or other militia member still has any inclination

to punish him for his political belief." The IJ further found that

Mihaylov "failed to meet his burden in establishing a well-founded

fear of future persecution on account of his social group

persecution as a family member." (emphasis in the original).

4
Mihaylov does not argue on appeal that he was persecuted on
account of his membership in a social group.

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 Although the IJ accepted Mihaylov's account of past

events, she stated, without elaboration, that "the Court [found]

his reasons for the occurrence of th[o]se events not to be

credible." She was also troubled by Mihaylov's testimony

concerning his use of alcohol, referring to it throughout her

opinion and explaining that

[Mihaylov] presented testimony that must be viewed
through the veil of alcoholism, use of other drugs such
as Valium, and major depression with anxiety attacks. He
repeatedly minimized his use of Valium before this Court
when compared with information he gave to Doctor Rines
and the female respondent's observations. Further, the
amount of alcohol he reported he consumed daily varied
widely in amount in his testimony to the Court and in his
report to his doctors. The male and female respondents'
testimonies concerning the male respondent's drinking
were also at variance. The Court notes the oft quoted
aphorism that alcoholism is "a disease of denial." The
Court, nonetheless, must take his less than forthright
report to this Court concerning his addiction to inform
his testimony overall.

The IJ also denied Mihaylov's requests for protection under the CAT

and for voluntary departure. Mihaylov appealed the IJ's decision

to the BIA, which summarily affirmed without opinion.

III.

We have emphasized the need for clear administrative

findings in reviewing the decision of the IJ or BIA. Gailius, 147

F.3d at 46-47. "A reviewing court should judge the action of [the

BIA] based only on reasoning provided by the agency, not based on

grounds constructed by the reviewing court," Yatskin v. INS, 255

F.3d 5, 9 (1st Cir. 2001), and "that basis must be set forth with

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such clarity as to be understandable," Gailius, 147 F.3d at 46-47.

Likewise, "in the case of an adverse credibility determination, the

IJ must offer a specific, cogent reason for [her] disbelief." Qin

v. Ashcroft, 360 F.3d 302, 306 (1st Cir. 2004) (citation and

internal quotations omitted). Thus, we will remand if the agency

fails to state "with sufficient particularity and clarity the

reasons for denial of asylum" or otherwise to "offer legally

sufficient reasons for its decision." Gailius, 147 F.3d at 46-47.

An asylum applicant bears the burden of establishing that

he or she meets the statutory definition of a refugee and is

therefore eligible for asylum. 8 C.F.R. § 208.13(a). Applicants

may meet this burden in one of two ways. First, an applicant

qualifies as a refugee if he or she demonstrates a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion. 8

C.F.R. § 208.13(b); El Moraghy v. Ashcroft, 331 F.3d 195, 202-03

(1st Cir. 2003). Alternatively, the applicant is entitled to a

presumption of a well-founded fear of persecution if he or she

establishes past persecution on account of one of the five

statutory grounds. 8 C.F.R. § 208.13(b)(1); Yatskin, 255 F.3d at

9.

In the present case, the IJ did not reject Mihaylov's

claim that he was persecuted. Rather, she concluded that he failed

to demonstrate that the persecution was on account of his political

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opinion. She offered only one specific reason in support of this

ruling, stating that Mihaylov admitted that he may have been

detained in 1972 for an ordinary crime rather than for his

political opinion:

[A]lthough the male respondent claims he was initially
detained because he was targeted for his political
opinion, he later admitted that the police searched the
family's home and that there may have been a criminal
matter involved. In such a case, the police would have
been within their authority to detain a suspect . . . .

We do not agree that Mihaylov "later admit[ted]" in the

course of his testimony that he may have been detained on suspicion

of having committed a non-political crime. Rather, his testimony

consistently conveyed his belief that he was detained because of

his political opinion. During cross examination, the INS attorney

questioned Mihaylov about a potential discrepancy between his

testimony and what he told the asylum officer during his initial

interview in 1998 about whether he was arrested for a crime or for

his political opinion. Although Mihaylov acknowledged that he had

told the asylum officer that he was detained because he was

suspected of criminal activities, he explained that "in Bulgaria

both the political and criminal activities are being called

criminal activities."5 Hence, the IJ's finding that Mihaylov

5
Mihaylov's explanation was supported by the State
Department's 1989 Country Report on Human Rights Practices for
Bulgaria, which Mihaylov submitted in support of his asylum
application. That report stated that many forms of political
dissent were then characterized as crimes under the Bulgarian Penal
Code, which prohibited "crimes against the People's Republic, anti-
state agitation and propaganda, slander against the State,

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admitted that he may have been detained for a crime relies on a

mischaracterization of the evidence and does not provide a

legitimate basis for her rejection of his claim of past

persecution.

Aside from this unsupportable finding of a discrepancy in

Mihaylov's testimony as to the motivation for his detention, the IJ

offered no specific reasoning in support of her conclusion that

Mihaylov failed to prove that his persecution was on account of his

political opinion. That void is particularly troubling in light of

the considerable evidence of political persecution that we have

summarized above. Although the IJ described Mihaylov's testimonial

evidence at some length at the beginning of her opinion, she failed

to relate that evidence to her rejection of Mihaylov's past

persecution claim. Mihaylov's documentary evidence received even

less consideration; while the IJ briefly noted that "[t]he Court

received the Amended I-589 and Supporting Documents into evidence,"

her opinion did not discuss any of the documents submitted with

Mihaylov's asylum application, many of which related to the

connection between his past persecution and political opinion.

Although an IJ need not discuss every piece of evidence produced by

an asylum applicant, she must give reasoned consideration to the

petition and may not ignore substantial testimonial and documentary

spreading untrue allegations about the Government, and committing
acts that create distrust toward the Government." (internal
quotations omitted).

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evidence. See Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000).

Mihaylov's evidence of past persecution was substantial and

important, and the IJ's silence about it does little to assure us

that it was considered. If Mihaylov's testimony and supporting

documentary evidence are true, he may well have suffered

persecution in the past on account of his political opinion.

The IJ also made an odd credibility finding.

Specifically, the IJ found that while Mihaylov "provided a

consistent, basic skeletal outline of events, including his

detention at age 15, and other encounters, the Court finds his

reasons for the occurrence of these events not to be credible."

(emphasis added). This finding seems to rest on the premise that

Mihaylov's assertion that he was persecuted because of his

political opinion is itself an evidentiary fact to be credited or

discredited. Yet Mihaylov does not claim to have personal

knowledge of his persecutors' motives, nor does his theory about

those motives constitute a fact from which the IJ could infer that

Mihaylov was persecuted because of his political opinion. Hence,

the relevant question is not whether Mihaylov's proffered reasons

for his persecution are credible but whether he has provided "some

evidence . . . , direct or circumstantial" that his persecutors

were motivated, at least in part, by his political opinion.6

6
Here, as is usual in asylum cases, there is no direct
evidence as to why Mihaylov was detained, beaten, harassed, and
forcibly recruited as an informer. Therefore, the IJ should have
considered whether the objective facts in the record created a

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Elias-Zacarias, 502 U.S. at 483 (emphasis in the original).

Therefore, the IJ's adverse credibility finding was misplaced.

Finally, and relatedly, the IJ's opinion is suffused with

suggestions that Mihaylov's present use of alcohol and

inconsistencies in his testimony concerning that use undermined his

credibility as a general matter. Yet, there is no evidence in the

record, expert or otherwise, that Mihaylov was an alcoholic, nor

did the IJ explain what bearing Mihaylov's alcohol use could have

had on the legal issues. Some of the IJ's observations appear to

relate to Mihaylov's competence to testify rather than his

credibility, notwithstanding that she expressly found that he was

a competent witness.7 Other statements note discrepancies between

Mihaylov's testimony concerning his daily alcohol consumption and

the testimony of his wife and doctors, without explaining how those

discrepancies bear any legitimate relationship to Mihaylov's asylum

claim. See Bojorques-Villanueva v. INS, 194 F.3d 14, 16 (1st Cir.

1999) (explaining that an adverse credibility determination "must

be based on discrepancies that involved the heart of the asylum

claim") (citation and internal quotations omitted). Ultimately,

it is impossible to avoid the conclusion that the IJ's legal

reasonable inference that Mihaylov was persecuted because of his
political opinion.
7
A "competent witness" is "a witness who is legally qualified
to testify" whereas a "credible witness" is "a witness whose
testimony is believable." Black's Law Dictionary 1596 (7th ed.
1999).

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conclusions were colored by her assumptions and personal views

about individuals who abuse drugs and alcohol. This suggestion of

a lack of impartiality further undermines our confidence in the

reasons given by the IJ in support of her finding that Mihaylov

failed to establish past persecution. See Cordero-Trejo v. INS, 40

F.3d 482, 487 (1st Cir. 1994) ("[D]eference is not due where

findings and conclusions are based on inferences or presumptions

that are not reasonably grounded in the record, viewed as a whole,

or are merely personal views of the immigration judge.").

Where, as here, the IJ's reasoning is inadequate to

support a finding of past persecution, we generally must remand to

the BIA. This is so because if Mihaylov did in fact establish past

persecution, he was entitled to a regulatory presumption of a well-

founded fear of future persecution. El Moraghy, 331 F.3d at 204-05

(citing 8 C.F.R. § 208.13(b)(1)). In that case, the burden should

have shifted to the government to refute that presumption by

establishing a fundamental change of circumstances such that

Mihaylov no longer has a well-founded fear of persecution. 8

C.F.R. § 208.13(b)(1)(i)(A). Here, the government never had to

face that burden.

The government suggests, however, that it met that burden

in any event by showing evidence of changed country conditions in

Bulgaria, namely that the former communist regime is no longer in

power. See Yatskin, 255 F.3d at 9-11 (excusing as harmless error

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the BIA's failure to provide a reasoned basis for rejecting

petitioner's past persecution claim where uncontested evidence of

changed country conditions overcame any presumption of a well-

founded fear). We do not agree that the record compels a

conclusion that changed country conditions obviated any presumptive

well-founded fear in Mihaylov's case. A regime change does not

necessarily eliminate the objective basis for an applicant's fear

of persecution at the hands of his former oppressors, even if those

individuals were part of the old regime. As the Seventh Circuit

recently explained, citing much of the same documentary evidence

provided by Mihaylov, "there is evidence that Bulgaria's former

communist bigwigs, quickly recycled as socialists and now busy

cosying up to the United States, retain significant power in

Bulgaria, especially and quite relevantly over the security

service, and continue to pursue the old vendettas against

anticommunists." Niam v. Ashcroft, 354 F.3d 652, 657 (7th Cir.

2004) (holding that regime change in Bulgaria did not establish

that asylum applicant who had been persecuted for his anti-

communist beliefs no longer had a well-founded fear of

persecution).

Thus, the IJ's failure to provide adequate reasons for

her rejection of Mihaylov's past persecution claim leaves us

without a sufficient basis to affirm the BIA's decision. Under

these circumstances, we remand to the BIA to determine whether

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Mihaylov's testimony and supporting evidence establishes past

persecution and hence a well-founded fear of future persecution on

account of his political opinion. See Gailius, 147 F.3d at 47

(noting that remand is appropriate in the asylum context "when a

reviewing court cannot sustain the agency's decision because it has

failed to offer legally sufficient reasons for its decision").

IV.

The order of the BIA is vacated, and the case is remanded

to the BIA for further proceedings consistent with this opinion.

So ordered.

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