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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


In the
United States Court of Appeals
For the Seventh Circuit

No. 01-1369

RODICA POP,

Petitioner,

v.

IMMIGRATION and NATURALIZATION SERVICE,

Respondent.

On Petition for Review 
From the Board of Immigration Appeals
No. A72 670 847

Argued September 25, 2001--Decided November 2, 2001



  Before ROVNER, DIANE P. WOOD, and EVANS,
Circuit Judges.

  EVANS, Circuit Judge.  Rodica Pop, a
Jehovah's Witness since birth, left her
native Romania with her mother in 1993 at
the age of 15. She arrived in the United
States and was granted permission to stay
here for a few months as a "nonimmigrant
visitor." She stayed longer than that.
After the INS initiated deportation
procedures, the underlying facts of which
Pop conceded, she filed for asylum (and
withholding of deportation) in September
of 1994. An immigration judge (Fujimoto)
denied Pop's request and the Board of
Immigration Appeals adopted the IJ's
reasoning and affirmed. Pop's petition
seeks a review of that decision./1

  The starting point and ground rules in
a case like this have been stated many
times, so we'll note only a few of them
here. The Attorney General, in his
discretion, may grant asylum to an alien
who is a "refugee." 8 U.S.C. sec.
1158(b). A refugee is defined as one 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."/2 8 U.S.C. sec.
1101(a)(42)(A). If past persecution is
demonstrated, a presumption arises that
the applicant has a well-founded fear of
future persecution. 8 C.F.R. sec.
208.13(b)(1)(i). The presumption is
rebuttable if conditions in the country
from which the applicant fled have
changed "to such an extent that the
applicant no longer has a well-founded
fear of being persecuted if he or she
were to return." Id. Even if the
presumption is rebutted, an applicant may
still qualify as a refugee based on past
persecution alone if she "demonstrates
compelling reasons for being unwilling to
return to . . . her country of
nationality . . . arising out of the
severity of the past persecution."/3 8
C.F.R. sec. 208.13(b)(1)(ii); Bucur v.
INS, 109 F.3d 399, 404-05 (7th Cir.
1997).

  The BIA's determination that Pop was not
eligible for asylum must be upheld 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). We
reverse only if the evidence is such that
a reasonable fact finder would be
compelled to reach an opposite
conclusion. Id. Where the BIA adopts the
reasoning of the IJ, as it did here, we
review the IJ's analysis. Dobrican v.
INS, 77 F.3d 164, 167 (7th Cir. 1996).

  With these principles in mind, we turn
to Pop's case. Pop testified to a number
of incidents underlying her claim of
persecution. She said that her grade
school teachers intentionally lowered her
grades so she could not advance within
the Romanian school system. In the fourth
grade, Pop said a teacher beat her until
she passed out because she refused to bow
in front of the Romanian flag during a
patriotic ceremony. In the fifth grade, a
teacher beat her for refusing to join the
Young Communist Union because she was a
Jehovah's Witness. Other teachers beat
her and, Pop said, she was laughed at
when she attempted to answer questions in
class. Pop testified that she was beaten
for carrying the Bible to religious
gatherings. She also testified that the
police raided her house more than five
times, that she was stopped on the
street, and that the police kept
Jehovah's Witnesses under surveillance.

  We understand Pop to be making two main
claims. First, she claims that her grade-
school teachers intentionally lowered her
grades because she was a Jehovah's
Witness. As a result, Pop says she was
unable to pursue her education beyond the
eighth grade. She claims that if sent
back to Romania, her low grades will
foreclose access to further education
and, therefore, dim her economic
prospects. This is an argument about the
future effects of past persecution. Pop
is not arguing that those who would deny
her access to educational opportunities
in Romania will be persecuting her
because of her religion./4 Rather, she
is arguing that the effects of past
persecution--i.e., her artificially low
grades--will be visited on her in the
future because they will foreclose
advancement in the Romanian educational
system. How that will all play out, for
Pop is now at least 23 years old, is
unclear. Nevertheless, the question
toaddress is whether this claim of past
persecution, assuming it occurred, is
severe enough to qualify Pop for asylum.
8 C.F.R. sec. 208.13(b)(1)(ii); Bucur,
109 F.3d at 404-05.

  Pop also alludes to the beatings she
suffered in school and the harassment, by
police and villagers, against her because
she is a Jehovah's Witness. This
potentially gives rise to a second claim
that she will be subjected to persecution
anew if she returns to Romania. If Pop
could establish past persecution on this
basis, it would give rise to the
presumption of a well-founded fear of
future persecution, but the government
argues that this presumption is rebutted
by the changed conditions in Romania
since the fall of Ceausescu, the infamous
Communist dictator, in 1989.

  We need not travel very far down the
road suggested by either claim, however,
because Judge Fujimoto found that Pop did
not meet her burden of establishing past
persecution (at all) because her claim
was not credible./5 An applicant has
the burden of proving that she meets the
definition of a refugee. 8 C.F.R. sec.
208.13(a). "The testimony of the
applicant, if credible, may be sufficient
to sustain the burden of proof without
corroboration." Id. We give Judge
Fujimoto's credibility determination
substantial deference. Ahmad v. INS, 163
F.3d 457, 461 (7th Cir. 1999).
Credibility determinations are questions
of fact and "should only be overturned
under extraordinary circumstances,"
although they must be supported by
"specific, cogent reasons" that "bear a
legitimate nexus to the finding." Id.
(citations omitted).

  Judge Fujimoto noted three bases for
questioning Pop's credibility. First, Pop
testified that she graduated from the
eighth grade in 1989 (before the
Communist government fell). Her
transcript reveals, however, that she
graduated 2 years later, in 1991. Second,
Pop testified that she received low
conduct grades and that her rejection
from further education was based, in
part, on these grades. But her transcript
reveals that she received high conduct
marks throughout grade school. Third, Pop
testified that the police raided her
family's home to find Bibles, that she
was beaten on her way to religious
gatherings, and that the police kept
Jehovah's Witnesses under surveillance.
Strangely, she did not mention these
incidents in her asylum applications or
during her interview with the INS./6

  Judge Fujimoto's first two bases for his
credibility determination concern Pop's
first claim that she was persecuted when
her teachers lowered her grades. The
inconsistencies between Pop's testimony
and her transcript go to the heart of
this claim, and the transcript shows she
received her lowest grades a year and a
half after the fall of Ceausescu./7 She
also testified that her low conduct
grades affected her application for
further schooling. Yet her conduct grades
were perfect except for in the fifth
grade. The written transcript clearly
reveals inconsistencies in Pop's
testimony.

  Further evidence in the record supports
Judge Fujimoto's determination. Pop's
grades were not consistently poor even
though she was a Jehovah's Witness
throughout her grade school education.
Her grades did not drop precipitously un
til fifth grade. Even then, the only
academic term in which she received
mainly failing grades in her academic
subjects was 1990-91, after the
revolution. Yet, even at that point, her
grades were as high as they had ever been
in music, physical education,
agriculture, and conduct. We can find no
"extraordinary circumstances" to warrant
upsetting the judge's credibility
determination based on the
inconsistencies in Pop's testimony
regarding her academic record.

  The judge also questioned Pop's
credibility concerning her second claim,
that she suffered past persecution
because she was beaten outside of school,
her home was raided, and Jehovah's
Witnesses were kept under police surveil
lance. We hesitate to find that one
seeking asylum must state in his or her
application every incident of persecution
lest the applicant have his or her
credibility questioned if the incident is
later elicited in direct testimony. See
Aguilera-Cota v. INS, 914 F.2d 1375, 1382
(9th Cir. 1990) ("Aguilera's failure to
file an application form that was as
complete as might be desired cannot,
without more, properly serve as the basis
for a finding of a lack of
credibility."). Asylum forms are
frequently completed without the advice
of counsel by poor, illiterate people who
do not speak English. Id. Pop testified
that her uncle and aunt filled out her
first asylum application because she did
not understand it.

  That said, Pop did not mention the
incidents in either of two asylum
applications. The application form in the
record specifically asked whether Pop had
been "mistreated" by government
authorities and requested detailed
information about the mistreatment.
Moreover, Pop did not mention the
incidents in an interview with an INS
official. It is important to note also
that Pop's present application focuses on
the limited educational and economic
opportunities available to her in
Romania. Without denying the gravity of
these concerns, it seems apparent that
when asked to list specific incidents of
mistreatment, a person might be inclined
to list the most invasive events, such as
government raids and surveillance. Judge
Fujimoto apparently interpreted the
omission as bearing on whether these
incidents actually happened. Moreover,
Judge Fujimoto was considering these
omissions in the context of a record that
contained other inconsistencies in
testimony, which he, unlike us, heard
firsthand. We do not believe that
"extraordinary circumstances" exist in
the record to warrant overturning the
adverse credibility finding that doomed
Pop's claim.

  The order under review is Affirmed.

FOOTNOTES

/1 Because Pop entered deportation proceedings prior
to April 1, 1997, we apply statutory immigration
law as it stood prior to passage of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996. See Bradvica v. INS, 128 F.3d 1009,
1011 n.1 (7th Cir. 1997).

/2 The standard for withholding deportation is more
strict, requiring a "clear probability" that
persecution will occur upon the applicant's
return. 8 U.S.C. sec. 1253(h)(1). Accordingly, if
Pop cannot meet the asylum standard, she cannot
meet the standard for withholding deportation.
Iliev v. INS, 127 F.3d 638, 641 (7th Cir. 1997).

/3 Bucur applied the (double) standard found in 8
C.F.R. sec. 208.13(b)(1)(ii), which states that
an applicant who cannot rely on a fear of future
persecution must show a severe form of past
persecution to qualify as a refugee. The appli-
cant in Bucur did not challenge the regulation
itself, 109 F.3d at 405, nor does Pop.

/4 See br. of pet'r at 28 ("Rodica's claim is not
that she is prevented from practicing her reli-
gion, but that she faces continuous punishment
for her past disobedience due to her religious
beliefs . . . ."); id. at 35 ("Even if Rodica is
free to practice her religion, she is not free
from the past persecution she suffered as a child
because of it.").

/5 Even if the claim had been credible, Judge Fuji-
moto also found that it did not rise to the level
of persecution. Because we affirm on other
grounds, we need not consider whether the acts
alleged constitute persecution.

/6 The applications include the present one and one
that Pop previously had completed. The present
application is included in the record but the
latter one is not. Nonetheless, Pop admitted that
she did not list these incidents in the latter
application.

/7 Pop claims that Judge Fujimoto overemphasized the
importance of this inconsistency because he had
an overly rosy view of change in the years
immediately following the revolution. She claims
that he erred by relying on the State Depart-
ment's optimistic report on Romania. It is un-
clear whether Judge Fujimoto relied on thisreport
specifically when weighing this inconsistency.
His determination was based, at least in part, on
the simple fact that Pop testified incorrectly as
to when she graduated from eighth grade. To the
extent that Judge Fujimoto did rely on the re-
port, he was entitled to do so. Kaczmarczyk v.
INS, 933 F.2d 588, 594 (7th Cir. 1991) (holding
that it was not error for the BIA to take notice
of changed conditions in a country and to base
its findings on State Department advisory opin-
ions, to which "we give considerable weight").

.




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