Toptchev v. INS, Seventh Circuit
In this case, the court ruled that the asylum application was properly denied because changed country conditions made it unlikely that the applicant would face persecution in the future.
Peter and Tania Toptchev, citizens of Bulgaria, unlawfully entered the US in 1993. The INS placed them in deportation proceedings, and they applied for asylum. The application was denied on the basis that they had failed to show that they had a well-founded fear of persecution if returned to Bulgaria. The Board of Immigration Appeals affirmed, and the couple appealed to the Seventh Circuit.
Toptchev, a former professional soccer player, claimed to have been persecuted in Bulgaria because he is a Catholic and because he refused to join the Communist Party. In 1967, he was detained and beaten, and his Bible and crucifix were confiscated. In 1984, he was again detained and released only after he agreed to cease fraternizing with foreign visitors to the hotel where we worked. At the same time, he lost his job as a soccer coach. He later learned that this was the doing of a regional security officer. In 1988, he saw someone push a friend in front of a streetcar, killing him. He received calls threatening him if he testified in a case brought by his friend’s family. Shortly thereafter, a truck rammed his car, an incident Toptchev believed was an attempt on his life, and motivated by the same security officer. He then left Bulgaria. Soon after his departure, the security officer visited his wife, and continued to harass her for many months, until she also left Bulgaria.
The Seventh Circuit found that even if it was assumed that the couple had faced persecution in Bulgaria in the past, there was no evidence it would occur again. Since they left the country in 1990, it had made significant progress to becoming a democracy where civil liberties are respected. Moreover, they continued to have family members in Bulgaria who did not face trouble from the government. Therefore, the denial of asylum was affirmed.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/7th/011508p.pdf.
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Singh v. INS, Ninth Circuit
In this case, the court found that the denial of a motion to reopen was contrary to law, and ordered that the INS consider the merits of the petitioner’s application for adjustment of status.
Ranjit Singh, a citizen of India, unlawfully entered the US in 1990. He was married to a permanent resident and was awaiting her to obtain citizenship for his adjustment of status application to be approved. However, throughout this time, he was in deportation proceedings. From 1995 to 1997, he attended five different hearings, and at each one the proceedings were continued to wait for his wife to become a citizen. Finally, after she obtained citizenship, they went to a hearing. He arrived at the hearing at 1:00, at which time he learned that the hearing had been scheduled for 11:00 that day, and that he had been ordered deported in absentia.
Singh filed a motion to reopen, which was denied by the immigration judge. He appealed to the Board of Immigration Appeals, which found that because there were no exceptional circumstances, there was no basis to reopen the case. Singh then appealed to the Ninth Circuit.
Denials of motions to reopen by the Board are granted only if they are “arbitrary, irrational, or contrary to law.” The INS argued that the failure to appear for a hearing cannot be an exceptional circumstance because it occurs with great regularity. The Ninth Circuit found that the cases on which the INS relied were not applicable in this case, because in those, the immigrants had every reason to avoid appearing at their deportation hearings because they had no basis on which to avoid deportation. Singh, on the other hand, as the spouse of a US citizen with an approved immigrant visa petition, would likely have not been deported had he appeared at the hearing. Indeed, the INS agreed that had he been at the hearing, he would not have been ordered deported. The court further found that Singh did present exceptional circumstances. For years he had diligently appeared for his hearings, all of which had been scheduled for 1:00. Finding that denying the motion to reopen created “an absurd result,” the court reversed the denial and remanded with instructions for the Board to consider the merits of Singh’s application for adjustment of status.
The opinion is available online at http://caselaw.lp.findlaw.com/data2/circs/9th/0171043p.pdf.
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