Atanas Entchev v. Atty Gen USA , 432 F. App'x 68 ( 2011 )

IMG-156 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-4369
___________
ATANAS ENTCHEV; MAYIA ENTCHEVA; ENISLAV ENTCHEV,
Petitioners
v.
ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency Nos. A073-178-406, A073-178-405, and A073-185-055)
Immigration Judges: Honorable Annie S. Garcy and Honorable Daniel Meisner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
June 22, 2011
Before: SCIRICA, FISHER and ALDISERT, Circuit Judges.
(Filed: June 23, 2011)
___________
OPINION
___________
PER CURIAM
1
Petitioners, Atanas Entchev, Mayia Entcheva, and Enislav Entchev (collectively,
“petitioners”), natives and citizens of Bulgaria, petition for review of the Board of
Immigration Appeals‟ (“BIA”) final order of removal. For the following reasons, we will
deny their petition.
I.
Atanas Entchev (“Entchev”) entered the United States in August 1991 as a
nonimmigrant exchange visitor on a J-1 visa. His wife, Mayia Entcheva, and son,
Enislav Entchev, entered the United States in 1992 and 1993, respectively. They were
authorized to remain in the United States until July 30, 1993. Before their authorization
expired, the petitioners applied for asylum. Entchev argued persecution based on his
political beliefs in opposition to the Communist party, which ruled Bulgaria until 1989.
The former Immigration and Naturalization Service (“INS”) did not grant relief. Instead,
the INS issued orders to show cause charging the petitioners as deportable for
overstaying their visas and transferred the case to the Immigration Judge (“IJ”). See 8
U.S.C. § 1227(a)(1)(B).
In 1997, following a merits hearing, the IJ ruled that the petitioners failed to
establish eligibility for asylum and withholding of deportation, but granted voluntary
departure. The BIA dismissed the petitioners‟ appeal, and the petitioners sought review
in this Court. While their petition for review (“PFR”) was pending, they filed a motion to
reopen with the BIA based on the fact that Entchev was approved for an employment-
based visa. In October 2002, the BIA granted the motion to reopen and remanded the
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case to the IJ. Because the petitioners were no longer subject to a final order of
deportation, this Court granted the Government‟s motion to dismiss the PFR. See C.A.
No. 02-2631.
On remand before the IJ, the petitioners moved to continue the proceedings to give
Entchev the chance to apply to the Department of State for a waiver of the foreign
residence requirement imposed by 8 U.S.C. § 1182(e). A grant of the waiver would
allow Entchev to apply for adjustment of status. In September 2009, the IJ denied the
motion to continue, and the BIA subsequently dismissed the petitioners‟ appeal. This
PFR followed.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252(a). Because the BIA issued its
own opinion, we review its decision rather than that of the IJ. See Li v. Att‟y Gen. of the
United States, 400 F.3d 157, 162 (3d Cir. 2005). However, we review the decision of the
IJ to the extent that the BIA defers to or adopts the IJ‟s reasoning. See Chavarria v.
Gonzales, 446 F.3d 508, 515 (3d Cir. 2006). We review the BIA‟s denial of asylum and
withholding of deportation for substantial evidence. See Ahmed v. Ashcroft, 341 F.3d
214, 216 (3d Cir. 2003); Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir. 2003). Under
this deferential standard of review, we must uphold the BIA‟s findings “unless the
evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft,
242 F.3d 477, 484 (3d Cir. 2001).
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The petitioners first seek review of the BIA and IJ‟s denial of asylum and
withholding of deportation. They argue that Entchev is entitled to asylum because he
suffered past persecution and has a well-founded fear of future persecution on account of
his political opinion in opposition to the Communist Party. See 8 U.S.C. § 1101(a)(42).
In its decision denying asylum, the IJ explained that in Bulgaria Entchev received a good
education, held a steady job even after resigning from the Communist Party and joining
Podkrepa (a political organization opposed to Communism), was able to obtain a passport
and freely leave and enter the country, and was not prevented by the Bulgarian
government from participating in a United States government-sponsored fellowship
program. Those facts, the IJ concluded, showed that Entchev did not suffer past
persecution and did not have a well-founded fear of future persecution.
In dismissing the appeal, the BIA adopted the IJ‟s analysis and added an additional
reason for denying asylum: even assuming that Entchev suffered past persecution,
changed country conditions rebutted any presumption of a well-founded fear of future
persecution. Relying on the 1996 Profile of Asylum Claims and Country Conditions
(“Country Report”), the BIA concluded that the situation in Bulgaria had drastically
improved since 1989 and that organizations such as Podkrepa were now openly part of
the political process.
The petitioners argue that the BIA erred in dismissing their appeal. Specifically,
they assert that the threats Entchev received from members of the Communist Party rose
to the level of persecution, and that the BIA violated their due process rights by relying
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on the 1996 Country Report in concluding there were changed country conditions in
Bulgaria.
The petitioners‟ argument rests largely on the notion that Entchev received threats
sufficient to establish past persecution. The first threats came during the 1990 elections
when Entchev was threatened with “clearance” (i.e., death); threats that, by Entchev‟s
own admission, he did not at first take seriously. Entchev claimed that as time went on
he received more credible threats. At the IJ hearing, Entchev testified that a young
coworker and a neighbor both threatened that Entchev would be “[paid] back” (i.e.,
jailed) for his political views. Entchev also testified that after he left Bulgaria, a
uniformed person came looking for him at his apartment and told his mother-in-law that
when Entchev returned he would be jailed.
For a threat – even a death threat – to constitute persecution, it must be more than
sinister and credible; it must be highly imminent and concrete. See Chavarria, 446 F.3d
at 518; Li, 400 F.3d at 164-65. It must be sufficiently menacing so as to cause significant
actual suffering or harm. See Li, 400 F.3d at 164. Although disconcerting, the threats in
Entchev‟s case were generalized, and do not appear to have resulted in significant actual
suffering. Accordingly, substantial evidence supports the BIA and IJ‟s conclusion that
Entchev did not establish past persecution.1
1
To the extent that Entchev argues that he suffered past persecution due to
economic harm, the argument fails. The record shows that Entchev held a steady job
during his time in Bulgaria and did not have any substantial problems supporting himself
or his family.
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The petitioners also argue that the BIA violated their due process rights by
analyzing country conditions in Bulgaria based on the Country Report because it was
entered into evidence by the IJ rather than the Department of Homeland Security
(“DHS”) attorney at the IJ hearing. Aside from citing to general principles that DHS has
the burden of establishing changed country conditions, see 8 C.F.R. § 208.13(b)(1)(ii),
the petitioners do not explain how the Country Report‟s admission into evidence violated
their rights. Regardless, because the petitioners did not object to the admission of the
Country Report at the IJ hearing, their argument regarding the Country Report is waived
and we will not rule on it in the first instance.
The Country Report provides strong support for the BIA‟s conclusion of changed
country conditions. The Country Report paints a picture of Bulgaria as a country that
significantly changed since the fall of Communism in 1989, and in which organizations
like Podkrepa are now free to express their political viewpoints. Accordingly, substantial
evidence supports the BIA‟s conclusion that country conditions in Bulgaria had changed
such that Entchev could not demonstrate a well-founded fear of future persecution.
The petitioners also argue that the IJ and BIA erred in denying Entchev
withholding of deportation. Because Entchev failed to establish eligibility for asylum, he
also failed to establish the higher eligibility threshold required for withholding of
deportation. Cf. Guo v. Ashcroft, 386 F.3d 556, 561 n.4 (3d Cir. 2004) (discussing
withholding of removal).
III.
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The petitioners also challenge the denial of their motion to continue. We review
the denial of a continuance for abuse of discretion. See Khan v. Att‟y Gen. of the United
States, 448 F.3d 226, 233 (3d Cir. 2006). We will reverse only if the denial is arbitrary,
irrational, or contrary to law. See id.In 2002, the BIA granted the petitioners‟ motion to reopen and remanded their
case to the IJ to allow Entchev to apply for adjustment of status based on an approved
employment-based visa petition. Although Entchev had been approved for the visa, he
also needed to fulfill the requirements of the J-1 visa program to be eligible for
adjustment of status. Under the program, Entchev was required to either return to
Bulgaria for two years after completing the exchange program or obtain a waiver
(“§ 1182(e) waiver”) of the requirement. See 8 U.S.C. § 1182(e).
Previous counsel filed a § 1182(e) waiver in 1997 that was denied. On remand,
current counsel explained that he believed previous counsel had also filed a waiver
application in 2001. At one of the initial hearings on remand the petitioners requested a
continuance for time to look into the alleged 2001 waiver application and to prepare a
new waiver application. The IJ granted a four month continuance. At the next two
hearings, counsel explained that he had almost determined the status of the 2001 waiver
application, but still needed additional time to find the information. Two more
continuances were granted – one for a month and the second for an additional sixty days.
At the final hearing, counsel explained that he discovered that the Department of
State had no record of the 2001 waiver application. He further explained that a visa
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petition Entchev‟s daughter had filed based on her marriage to a United States citizen had
been approved. Counsel had not yet filed a § 1182(e) waiver because he wanted to wait
for Entchev‟s daughter to adjust status so he could include her as a lawful permanent
resident (“LPR”) family member in the waiver application. The IJ denied the motion to
continue, reasoning that the petitioners had not presented evidence that a new waiver
application would be substantially different from the 1997 waiver application that was
denied.
The BIA held that the petitioners had not shown good cause for a continuance
based on the following: Entchev had not yet received a § 1182(e) waiver and therefore
was not yet eligible for adjustment of status; the 1997 waiver application had been
denied; Entchev had not yet completed a new waiver application or submitted evidence
that he was in the process of doing so; and during the six years between the BIA‟s 2002
remand order and the first IJ hearing on remand the petitioners never looked into the
status of the 2001 waiver application.
The BIA‟s decision was not an abuse of discretion. At the final IJ hearing, the
petitioners were unable to provide the IJ with any convincing reasons why a new waiver
application would obtain a different result. The previous waiver application was based
on a no objection letter from Bulgaria. See 8 U.S.C. § 1182(e). Based on counsel‟s
representations at the IJ hearings, it appears that Entchev‟s new waiver application would
be based on a combination of the no objection letter and a fear of persecution, which is
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another ground for a waiver. See id. These are arguments that either were made or could
have been made when Entchev filed his first waiver application.
At the final IJ hearing, counsel explained that the fact of the daughter‟s marriage
to a United States citizen and pending adjustment of status would make a new waiver
application substantially stronger than the previous one. Under § 1182(e) another basis
for waiver is if the alien‟s departure “would impose exceptional hardship upon the alien‟s
spouse or child (if such spouse or child is a citizen . . . or a lawfully resident alien)[.]” As
the petitioners‟ counsel admitted, however, Entchev‟s daughter is not a child for purposes
of the Immigration and Nationality Act, because she is married. See 8 U.S.C.
§ 1101(b)(1) (“The term „child‟ means an unmarried person . . . .”); A.R. at 177.
Accordingly, her pending adjustment of status does not create an additional basis for a
§ 1182(e) waiver.
Although the daughter‟s adjustment to LPR status may slightly strengthen
Entchev‟s ties to the community, and as a matter of discretion the Department of State
may therefore be more inclined to grant a waiver, it is far from clear that the status of
Entchev‟s daughter as an LPR would result in a different outcome for a new waiver
application. Accordingly, the petitioners failed to put forward any persuasive reason why
a new waiver application would result in a different outcome than the previous one.
Moreover, the motion to continue did not lay out a concrete timeline, and instead
asked for a continuance for as long as it took for Entchev‟s daughter to adjust status.
Even if the IJ had granted a continuance, once Entchev‟s daughter adjusted status
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Entchev would still have had to request a further continuance for his waiver application
to be adjudicated. Accordingly, Entchev offered “only the speculative possibility that at
some point in the future” he would be eligible to adjust status based on his approved visa
petition. Khan, 448 F.3d at 235 (internal quotation marks and citation omitted). Because
Entchev did not adduce evidence that there was a greater likelihood a new waiver
application would be granted and the motion to continue essentially requested an open-
ended time period, the denial of the continuance was not an abuse of discretion.
IV.
Based on the above, we conclude that substantial evidence supports the BIA and
IJ‟s decisions denying asylum and withholding of deportation, and that the BIA did not
abuse its discretion by upholding the IJ‟s denial of the motion to continue. Accordingly,
we will deny the Petition for Review.
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