Lissitchev v. Ashcroft

Tenth Circuit Court of Appeals

2004 U.S. App. LEXIS 7997

Petitioner Bisser Lissitchev, who claimed that he was repeatedly beaten and threatened because of his political affiliation in Bulgaria, applied for asylum and sought withholding of removal.  Asylum was denied because his application was untimely.  The IJ denied withholding of removal based on its conclusion that the Petitioner’s testimony was not credible.  The Board of Immigration Appeals (BIA) affirmed the IJ’s decision.  The Petitioner appealed the BIA’s decision and the Tenth Federal Circuit Court of Appeals vacated the BIA’s order and remanded for further proceedings.

The Petitioner must show a “clear probability of persecution attributable to race, religion, membership in a particular social group, or political opinion” to be granted withholding of removal.  The IJ denied withholding because he concluded that the Petitioner’s testimony as to such persecution was not credible.  Specifically, the IJ pointed out the following: the State Department did not regard Bulgaria as a country where the authorities would persecute based on membership in an organization; the Petitioner’s political group was part of the coalition government from 1997 to 2000; there were inconsistencies between the Petitioner’s testimony and his application for asylum; and the Petitioner’s physical injuries were not credible because he could not suffer so many beatings without sustaining permanent injuries.

The 10^th Circuit held that the BIA’s decision to affirm the IJ’s holding was not supported by substantial evidence and therefore vacated the decision.  The Circuit court pointed out the following as reasoning for its decision: persecution need not come from governmental authorities; the Petitioner suffered persecution before his political group became part of the coalition government; the stated inconsistencies arose due to inadequate translations; and Petitioner had pointed out that even though the beatings were great in number, they did not cause permanent injuries.