Tokarska v. I.N.S.
U.S. Court of Appeals for the First Circuit
Tokarska v. I.N.S.
Opinion
USCA1 Opinion
July 7, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 91-2227
ALICJA TOKARSKA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER OF
THE IMMIGRATION AND NATURALIZATION SERVICE
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Before
Breyer, Chief Judge,
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Cyr and Boudin, Circuit Judges.
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Steve J. Gutherz and Law Offices of Steve J. Gutherz, P.C., on
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brief for appellant.
Stuart M. Gerson, Assistant Attorney General, Civil Division,
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Richard M. Evans, Assistant Director, and Marshall Tamor Golding,
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Attorney, Office of Immigration and Litigation, Civil Division, U.S.
Department of Justice, on brief for appellee.
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Per Curiam. Alicja Tokarska appeals a final order
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of the Board of Immigration Appeals. The Board affirmed an
immigration judge's order finding Tokarska deportable for
overstaying her visitor's visa, denying her applications for
asylum and for withholding of deportation, and granting her
voluntary departure in lieu of deportation. 8 U.S.C.
1251(a)(2)(1952) (amended 1990), 1158, 1253(h). On appeal,
Tokarska argues solely that we should reverse the Board's
decision because it erred in determining that she failed to
show that she had suffered past persecution, as a member of
the Solidarity movement, sufficient to justify granting her
"refugee" status and asylum. She asks this court to declare
that she is entitled to a discretionary grant of asylum.
She overlooks, however, the very limited role of
this court in reviewing asylum cases. The Attorney General
is authorized (in his discretion) to grant asylum to an
alien who is a "refugee." 8 U.S.C. 1158(a). The statute
defines a "refugee" as an alien 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," 8 U.S.C. 1101(a)(42)(A).
Thus, the Board has held that an alien who seeks "refugee"
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status may do so by showing either (1) that she reasonably
fears that she will be persecuted if she returns to her home
country, or (2) that she has suffered, in the past,
persecution so severe that her suffering warrants asylum, on
humanitarian grounds, despite the lack of any real
likelihood that she would face persecution in the future.
See Matter of Chen, Int. Dec. 3104 (BIA 1989).
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Tokarska does not contest, on this appeal, the
Board's determination that she had no reasonable fear of
future persecution; she argues only that the Board erred in
finding no past persecution sufficiently horrendous to
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qualify her as a "refugee" on humanitarian grounds, even if
that persecution would not be repeated. (The Board took
notice of the fact that Solidarity is now part of the
coalition governing Poland, so that Tokarska clearly could
fear no future persecution for her Solidarity membership.
Cf. Kaczmarczyk v. INS, 933 F.2d 588, 593-97 (7th Cir.
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1991).)
We can reverse the Board's determination that
Tokarska was not entitled to asylum only if the evidence she
presented in respect to her past suffering "was so
compelling that no reasonable factfinder could fail to find"
that she had made the requisite showing or the INS had
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abused its discretion in deciding that the persecution she
suffered was not sufficient. INS v. Elias Zacarias, 112
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S.Ct. 812, 817 (1992). See also NLRB v. Columbian
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Enameling & Stamping Co., 306 U.S. 292, 300 (1939).
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Most "refugee" asylum cases involve claims of a
reasonable fear of future persecution, but the few that
address claims of past persecution involve facts that are
very different from those presented here. To merit a grant
of asylum on the basis of past persecution, "an alien must
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show past persecution so severe that repatriation would be
inhumane." Baka v. INS, 1992 U.S. App. LEXIS 10318, *7
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(10th Cir. May 13, 1992). This more demanding standard
where past persecution alone is in issue, although not
manifest in the terse language of the statute, does have a
substantial basis in policy and the past decisions of the
courts and the Board. See Skalak v. INS, 944 F.2d 364 (7th
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Cir. 1991).
On the record in this case, Tokarska's experiences
in Poland as a member of the Solidarity movement do not make
out such a claim. She points to several facts in support of
her claim of sufficiently severe past persecution: she was
struck and injured by a tear-gas canister during an anti-
government demonstration; she was arrested during another
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demonstration, suffered physical injury at the hands of
police during that arrest and subsequent questioning, and
spent twenty-four hours in jail; afterwards, her desk at
work was searched, and she never again received a promotion
or pay raise, although she had in the past.
These facts are significantly less compelling than
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those in other cases in which federal courts have upheld
administrative rejections of similar asylum claims based on
past persecution. Kapcia v. INS, 944 F.2d 702, 704, 708-09
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(10th Cir. 1991) (denial of asylum lawful where claimant
arrested four times, detained three times, beaten once, had
house searched, was treated badly at work; other claimant
suffered two-day interrogation, detention, and beating,
parents' home was searched, received bad work projects and
no bonus, conscripted into army where he was harassed,
finally fired from job); Skalak, 944 F.2d at 365 (denial of
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asylum lawful where claimant jailed twice for interrogation,
three days each time, harassed by officials at work); Kubon
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v. INS, 913 F.2d 386, 388 (7th Cir. 1990) (denial of asylum
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lawful where claimant jailed for five days; "a brief
confinement for opposition to a totalitarian regime does not
necessarily constitute persecution."); see also Zalega v.
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INS, 916 F.2d 1257 (7th Cir. 1990) (neutral, non-Solidarity
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member repeatedly arrested and interrogated, fired from
job). While "[t]he experience of persecution may so sear a
person with distressing associations with his native country
that it would be inhumane to force him to return there, even
though he is in no danger of further persecution," Skalak,
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944 F.2d at 365, this is not such a case. Consequently, the
persecution Tokarska describes is not "so compelling" that
the agency must find her eligible for "refugee" status and
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asylum.
The judgment of the Board of Immigration Appeals
is summarily affirmed pursuant to Local Rule 27.1.
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Reference
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