Toptchev, Peter v. INS ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-1508
PETER TOPTCHEV and TANIA TOPTCHEVA,
Petitioners,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________
On Petition for Review
from the Board of Immigration Appeals
Nos. A72 130 046 and A72 130 045
____________
ARGUED SEPTEMBER 20, 2001—DECIDED JULY 3, 2002
____________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Petitioners Peter Toptchev and
Tania Toptcheva, husband and wife, are natives and citi-
zens of Bulgaria. After they entered this country without
inspection in 1993, the Immigration and Naturalization
Service (INS) placed them in deportation proceedings. Pe-
titioners conceded that they were subject to deportation
but sought asylum or withholding of deportation based on
a number of adverse experiences in Bulgaria that they
ascribe to official persecution based on Toptchev’s political
and religious beliefs. The Immigration Judge (IJ) concluded
that the petitioners had not established a well-founded
fear of persecution in the event of their return to Bulgaria,
and the Board of Immigration Appeals (the BIA or the
2 No. 01-1508
Board), concurring in that finding, dismissed their appeals.
The petitioners have filed a petition for review of the BIA’s
decision and ask us to reverse. We affirm the BIA’s deci-
sion and deny the petition for review.
I.
Peter Toptchev played soccer professionally in Bulgaria
for twenty years, and for a period of time he played on the
national team. As a result of his athletic career, he was
well-known in Bulgaria. When he retired from the sport,
Toptchev obtained an associate degree in international
tourism from the International Tourism Institute, and he
later earned a second degree in soccer coaching from the
Sports Institute. He found work as an administrative as-
sistant doing auditing at a hotel that had an international
clientele. Toptchev also sought out positions as a soccer
coach, but it appears that he was never able to hold a coach-
ing position, which he attributes to his problems with the
Bulgarian authorities.
Toptchev believes that he fell into disfavor with Bulgarian
security personnel for two reasons: He is Catholic, and
Catholics are a religious minority in Bulgaria, and he de-
scribes his political views as anti-totalitarian (Toptchev had
declined an invitation to join the Communist Party). After
a series of run-ins with the Bulgarian authorities and other
adverse incidents, Toptchev concluded that he could not
safely remain in Bulgaria given his religious and political
beliefs. He obtained permission to depart Bulgaria in Janu-
ary 1990 and has not returned since that time.
Two of the incidents that gave rise to Toptchev’s belief
date back to the 1960s: In 1964, when Toptchev was 17, a
police officer accosted him while he was awaiting a street-
car because Toptchev was dressed in Western-style cloth-
ing. Three years later, when Toptchev was playing for a
soccer team in the town of Shumen, state security police
No. 01-1508 3
confiscated a Bible, a crucifix, and religious icons from his
residence, took him to a police station, struck him in the
face, and detained him for three days; police also searched
his home in the capital city of Sofia.
The next incident took place in 1984, when state security
officials again detained Toptchev, this time for fraternizing
with foreign citizens. It seems that Toptchev had agreed to
have dinner with foreign guests who were staying at the
hotel where he worked. (Toptchev had already come under
suspicion because he, unlike other hotel workers, declined
to fill out reports on the hotel’s foreign guests.) Officials
released him from custody only after he signed a written
statement acknowledging that he was to avoid such contact
in the future. A regional security officer, Captain Nikolov,
warned Toptchev that he would suffer a two-year banish-
ment from the city of Sofia if he violated the agreement. In
the wake of this incident, Toptchev lost his position as a
coach for a soccer team; he later learned that this was Niko-
lov’s doing. He encountered a similar fate in subsequent
coaching positions.
In 1988, Toptchev witnessed someone push his friend
Neven Ovcharov into the path of an oncoming streetcar.
Ovcharov, whom Toptchev describes as a prominent writer
and dissident, was mortally wounded in the incident. After-
wards, Toptchev testified, the police told him not to testify
in support of a legal action brought by Ovcharov’s survivors.
He also received a telephone call from an unidentified
caller, whom he believed to be Captain Nikolov, warning
him to remain silent or his life would be in danger. Soon af-
terward, a truck attempted to ram Toptchev’s car, and he
believed this to be an attempt on his own life. Two years
later, after Toptchev had left Bulgaria, a second friend,
Stoyan Petkov, perished in a suspicious automobile explo-
sion.
Several months after Toptchev’s departure from Bulgaria,
Captain Nikolov paid a visit to his wife to inquire where
4 No. 01-1508
Toptchev had gone. The visit left Toptcheva unsettled, and
she decided to move in with her in-laws. Over the next sev-
eral months, according to Toptcheva, Nikolov repeatedly
harassed her. In April of 1990, when Toptcheva stopped by
her home to pick up some clothes, Nikolov forced his way
into the apartment, grabbed her blouse, and opened it.
“[H]e just did not look like a human being,” she testified.
A.R. 94. “He looked like an animal and I think, you know,
his intention was to rape me . . . .” Id. After her screams
summoned neighbors, Nikolov broke off the assault and ran
away. When Toptcheva reported the incident to his superi-
ors, Nikolov visited her yet again and threatened her. A
month later, Toptcheva, a chemical engineer, lost her job of
fourteen years with a chemical manufacturer. Her boss told
her that she was an excellent employee, but explained that
he had “too many political problems” with respect to her
family and that he was under pressure to fire her. A.R. 97.
Meanwhile, Nikolov continued to follow and harass Top-
tcheva, warning her that “this was just the beginning of
[her] problems.” A.R. 98. Finally, in July 1990, Toptcheva
obtained an exit visa and joined her husband in Canada,
where they both sought asylum.
The petitioners have a son, Ivo Toptchev, who remained
in Bulgaria after their departure. In 1991, he was hospital-
ized for an extended period of time after two people as-
saulted him and broke his leg. Because his attackers took
nothing from him, both he and the petitioners suspect that
the attack was orchestrated by Captain Nikolov. He exper-
ienced no further attacks after this incident. Eventually,
however, he and his wife also made the decision to leave
Bulgaria and seek asylum in the United States.1
1
An Immigration Judge granted asylum to Ivo Toptchev on Jan-
uary 21, 1997. The parties now agree that the judge granted him
(continued...)
No. 01-1508 5
At the time of the hearing before the IJ, other relatives of
Toptchev and Toptcheva remained in Bulgaria. Toptchev’s
parents continued to live there on his father’s pension. His
brother lived there as well and worked as a researcher for
an ecological institute. Toptcheva’s father, whose political
differences with the government led to his imprisonment in
the late 1970s, also remained in Bulgaria and collected a
pension.
The petitioners still own a condominium in Bulgaria as
well. According to Toptcheva, it was broken into after their
departure; but the record tells us nothing more about the
circumstances of the break-in.
After the Canadian authorities denied their application
for refugee status, the petitioners entered the United States
illegally in January 1993. In November of that year, they
were served with orders to show cause why they should not
be deported. As noted above, the petitioners conceded de-
portability, see A.R. 44, but sought asylum or, alternatively,
1
(...continued)
asylum based on persecution suffered by his wife due to her Ro-
mani ethnicity; however, at the time we heard oral argument in
this case, the parties were not privy to the rationale underlying
the grant of asylum. In order to clarify that point, we asked the
Service’s counsel to supplement the record in this appeal with a
copy of the administrative record of proceedings conducted on Ivo
Toptchev’s asylum claim. The INS complied with our request. It
has also asked us to disregard that supplemental record, however,
arguing (1) that we lack authority to consider evidence that was
not before the Board, and (2) that the grant of Ivo Toptchev’s asy-
lum request was derivative of his wife’s claim and therefore unre-
lated to his parents’ asylum claim. Because the parties agree
that the Ivo Toptchev proceeding has no bearing on the petition-
ers’ appeal, we shall indeed disregard the record of that proceed-
ing. We thank the INS for complying with our request and sub-
mitting that record.
6 No. 01-1508
withholding of deportation based on the incidents identified
above, which they attributed to Toptchev’s religious and
political beliefs.
Following an evidentiary hearing on December 13, 1994,
the IJ delivered an oral decision denying the petitioners’
request for asylum and withholding of deportation. As a
threshold matter, the IJ determined that “the record does
not reveal a level of mistreatment that can be characterized
as past persecution so as to warrant a finding of statutory
eligibility for asylum.” IJ Decision at 7. The IJ observed
that (1) the petitioners both had been able to obtain grad-
uate-level degrees; (2) Toptchev and Toptcheva (until her
discharge shortly before her departure) both had been suc-
cessfully employed in Bulgaria; (3) neither had ever been
formally charged with any offense; (4) there was no record
evidence to support a claim of past persecution based on
their religious beliefs; (5) their negative experiences with
Captain Nikolov did not rise to the level of persecution and
in any case petitioners had not shown that relocation so as
to avoid further harassment by him was infeasible; and (6)
both petitioners had been able to secure official permission
to depart Bulgaria without evident difficulty. Id. at 7-8.
Alternatively, the IJ found that the petitioners had not
established a likelihood of present or future persecution in
Bulgaria. The IJ noted that according to a May 1994 Profile
of Asylum Claims and Country Conditions in Bulgaria
prepared by the U.S. State Department’s Office of Asylum
Affairs (Bureau of Human and Humanitarian Rights), the
country had made significant strides toward democracy fol-
lowing the overthrow of communist dictator Todor Zhivkov
in late 1989. In the opinion of the Department, mistreat-
ment that had taken place during the communist era was
unlikely to persist in the future, at least on a national level.
Mistreatment of Bulgarian citizens, if it did recur, was most
likely to manifest itself on the local level, and could thus be
No. 01-1508 7
avoided by relocation. Id. at 6-7; see A.R. 128-30. The IJ
noted that the petitioners had adduced no evidence calling
into question the State Department’s assessment or which
otherwise suggested that the “political landscape” in Bul-
garia had remained unchanged since their departure. IJ
Decision at 9-10. He also pointed out that Toptchev’s retired
parents continued to live in Bulgaria on pensions and his
brother remained employed as a researcher, and, so far as
the evidence revealed, none of them had suffered any
negative consequences due to Toptchev’s political views or
his departure from the country. Id. at 10. Although the Top-
tchevs’ son had been attacked, the evidence was not suf-
ficient to establish that the attack had anything to do with
the Toptchevs’ perceived political views or that it was
instigated or condoned by government authorities. Id. Like-
wise, the evidence did not, in the IJ’s view, establish that
Neven Ovcharov’s death was orchestrated by the Bulgarian
authorities in retribution for political views that could be
imputed to the Toptchevs. Id.
Having concluded that the Toptchevs had established nei-
ther past persecution nor a likelihood of persecution upon
return to Bulgaria, the IJ denied their request for asylum.
Id. at 10-11. Noting that the requirements for withholding
of deportation were more demanding than those for asylum,
the IJ found them ineligible for withholding of deportation
on the same basis. Id. at 11.
The Toptchevs appealed the IJ’s decision to the BIA and
in a January 31, 2001 decision, the Board concurred in the
denial of asylum and withholding of deportation and dis-
missed the petitioners’ appeal. The BIA took administrative
notice of the Department of State’s 1999 Country Reports on
Human Rights Practices (Feb. 23, 2000). The Country Re-
port on Bulgaria confirmed that the country was now a
parliamentary republic in which the government was
democratically elected and religious freedom was guaran-
8 No. 01-1508
teed. BIA Decision at 2. In view of the progress that the
country had made since the overthrow of its communist
regime, the Board agreed with the IJ that the evidence
did not supply grounds for a well-founded fear of persecu-
tion in the event of the petitioners’ return to Bulgaria. Id.
at 2-3.
II.
We have jurisdiction to review the BIA’s decision pursu-
ant to section 106 of the Immigration and Nationality Act
(the “INA” or the “Act”), 8 U.S.C. § 1105a (1994).2
Section 208(a) of the Act grants the U.S. Attorney General
broad discretion to bestow asylum on any alien who quali-
fies as a “refugee.” 8 U.S.C. § 1158(b)(1). The INA in turn
defines “refugee” as “any person who is outside any country
of such person’s nationality . . . and who is unable or
unwilling to return to . . . that country because of per-
secution 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). The
statute does not supply a definition of “persecution,” but we
have repeatedly described it as “punishment or the inflic-
tion of harm for political, religious, or other reasons that
this country does not recognize as legitimate.” E.g.,
Begzatowski v. INS, 278 F.3d 665, 669 (7th Cir. 2002). As we
have also indicated, persecution means more than harass-
ment and may include such actions as “ ‘detention, arrest,
2
Section 106 was repealed by the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 and replaced with a
new provision codified at 8 U.S.C. § 1252. The new provision does
not apply here, however, because the INS placed the Toptchevs in
deportation proceedings prior to April 1, 1997. See, e.g., Kara-
petian v. INS, 162 F.3d 933, 935 (7th Cir. 1998).
No. 01-1508 9
interrogation, prosecution, imprisonment, illegal searches,
confiscation of property, surveillance, beatings, or tor-
ture.’ ” Id., quoting Mitev v. INS, 67 F.3d 1325, 1330 (7th
Cir. 1995).
A petitioner seeking a discretionary grant of asylum must
first establish his statutory eligibility for such relief. See
id. at 1329. To do that, he must prove either that he has
been persecuted in the past or that he has a well-founded
fear of future persecution. E.g., Begzatowski, 278 F.3d at
669. To be “well-founded,” the petitioner’s fear of future
prosecution must not only be genuine, but objectively rea-
sonable. Mitev, 67 F.3d at 1331. Satisfactory proof of past
persecution will give rise to a presumption that the pe-
titioner also has a well-founded fear of future persecution.
8 C.F.R. § 208.13(b)(1); see, e.g., Begzatowski, 278 F.3d at
669 (quoting Ambati v. Reno, 233 F.3d 1054, 1059-60 (7th
Cir. 2000)). However, that presumption is rebuttable,
§ 208.13(b)(1)(i)(A); Begzatowski, 278 F.3d at 669, and if
conditions in the petitioner’s homeland have improved
sufficiently that persecution of the petitioner is unlikely to
recur, the Board may deny his request for asylum notwith-
standing the petitioner’s past persecution. See, e.g., Vaduva
v. INS, 131 F.3d 689, 690-91 (7th Cir. 1997).
Where, as here, the Board has denied relief to a petitioner
seeking asylum, our review is highly deferential; we inquire
only whether the Board’s decision has the support of “rea-
sonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,
481, 112 S. Ct. 812, 815 (1992); 8 U.S.C. § 1105a(a)(4)
(1994). We will disturb the Board’s finding only if the record
is “so compelling that no reasonable factfinder could fail to
find the requisite fear of persecution.” Id. at 483-84, 112 S.
Ct. at 817.
Section 243(h) of the INA requires the Attorney General
to withhold a petitioner’s deportation if his “life or freedom
10 No. 01-1508
would be threatened . . . on account of race, religion, na-
tionality, membership in a particular social group, or polit-
ical opinion.” 8 U.S.C. § 1253(h) (1994). However, the
criteria for withholding of deportation are more stringent
than those for a grant of asylum. There must be more than
just a chance, but rather “a clear probability of persecu-
tion.” INS v. Stevic, 467 U.S. 407, 430, 104 S. Ct. 2489, 2501
(1984). The petitioner therefore must show “that it is more
likely than not that he or she will be subjected to persecu-
tion upon deportation,” INS v. Cardoza-Fonseca, 480 U.S.
421, 430, 107 S. Ct. 1207, 1212 (1987). A petitioner who has
not established a well-founded fear of persecution in
support of his asylum claim necessarily has not demon-
strated that he faces a “clear probability” of persecution
such that he is entitled to withholding of deportation. E.g.,
Iliev v. INS, 127 F.3d 638, 641 (7th Cir. 1997).
In this case, the Board essentially adopted the IJ’s deci-
sion as its own and added that Bulgaria’s continued prog-
ress toward democracy, as evidenced by the State Depart-
ment’s Country Report, lent additional support to the denial
of the petitioners’ requests for asylum and withholding of
deportation. To the extent the BIA adopted the IJ’s deci-
sion, we are essentially reviewing the IJ’s analysis. E.g.,
Dobrican v. INS, 77 F.3d 164, 167 (7th Cir. 1996). We there-
fore begin our review with the IJ’s decision.
A. The Immigration Judge’s Decision
The Toptchevs contend that the IJ failed to fully consider
all of the evidence that they presented on the question of
past persecution. In their view, the judge’s finding that they
had not experienced past persecution rests on the six sub-
sidiary observations we noted above (see supra at 6), and
these observations in turn betray a focus on irrelevant
considerations in some instances and in others an incom-
plete and (in at least one instance) erroneous understand-
No. 01-1508 11
ing of the facts. Based on these purported errors, the Top-
tchevs assert that the IJ’s decision, and the BIA’s decision
adopting it, are flawed and that the matter should be re-
manded for a more careful review of the evidence.
However, in their appeal to the BIA, the Toptchevs did
not identify the flaws in the six observations that they now
maintain were central to the IJ’s finding on the question of
past persecution. Instead, they simply reasserted that the
evidence established a well-founded fear of persecution and
asked the BIA to take notice that former communists had
regained power in Bulgaria in the 1994 elections. A.R. 16-
17, 25. A petitioner who has not first presented an issue to
the Board has failed to comply with the statutory require-
ment that he exhaust his administrative remedies. 8 U.S.C.
§ 1105a(c) (1994); see Singh v. Reno, 182 F.3d 504, 511 (7th
Cir. 1999), citing Mojsilovic v. INS, 156 F.3d 743, 748 (7th
Cir. 1998). As the INS points out, each of the specific errors
that the Toptchevs cite to this court could have been ad-
dressed by the BIA, had they only been brought to the
Board’s attention. Because they were not, we lack jurisdic-
tion to address them. § 1105a(c); e.g., Mojsilovic, 156 F.3d
at 748; Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir.
1993).
Thus, we are left to consider generally whether the IJ’s
decision has the support of substantial evidence, and we
conclude that it does. Without deciding the point, we may
assume, consistent with the petitioners’ appellate argu-
ment, that the mistreatment that they experienced prior to
their departure amounts to adequate evidence of past per-
secution. Nonetheless, we must affirm the denial of asylum
if the evidence before the IJ supported his finding that the
Toptchevs are not likely to be persecuted in the future if
returned to Bulgaria. See, e.g., Vaduva, 131 F.3d at 690-91.
As we noted earlier, although evidence of past persecution
gives rise to a presumption that the petitioner has a well-
founded fear of future persecution, the presumption is
12 No. 01-1508
rebuttable. See Begzatowski, 278 F.3d at 669. The pertinent
regulation on asylum eligibility specifies that an immi-
gration judge “shall deny the asylum application of an
alien found to be a refugee on the basis of past persecution
if . . . [inter alia] [t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-
founded fear of persecution in the applicant’s country of
nationality . . . on account of race, religion, nationality,
membership in a particular social group, or political opin-
ion[.]” 8 C.F.R. § 208.13(b)(1)(i)(A) (emphasis supplied). The
regulation does identify an exception for cases in which
there are “compelling reasons . . . arising out of the severity
of the past persecution” for an applicant being unwilling to
return to his or her native country notwithstanding the
unlikelihood of future prosecution. § 208.13(b)(iii)(A). How-
ever, “[o]nly in rare cases is past persecution ‘so severe that
it would be inhumane to return the alien to his native
country even in the absence of any risk of future persecu-
tion.’ ” Dobrota v. INS, 195 F.3d 970, 974 (7th Cir. 1999)
(quoting Vaduva, 131 F.3d at 690). This is not one of those
rare cases.
Here, the IJ concluded that even if the petitioners had
successfully established some form of past persecution, they
were unlikely to experience a recurrence of that persecution
upon return to Bulgaria, given the passage of time since
their departure coupled with the country’s progress toward
democracy. IJ Decision at 8-9, 10-11. The IJ’s conclusion
was based in significant part on the State Department’s
1994 Profile of Asylum Claims and Country Conditions in
Bulgaria, see IJ Decision at 6-7, along with the petitioners’
failure to present any evidence rebutting the State Depart-
ment’s assessment or otherwise suggesting that the “po-
litical landscape” in Bulgaria remained unchanged, id. at 9.
As this court has noted repeatedly, the Board reasonably
may rely upon the State Department’s assessment of cur-
rent country conditions as they relate to the likelihood of
No. 01-1508 13
future persecution, given the Department’s expertise in
international affairs. E.g., Vaduva, 131 F.3d at 691; see 8
C.F.R. § 208.12(a). The Department’s Profile supports the
IJ’s finding with respect to future persecution, e.g., Tamas-
Mercea v. INS, 222 F.3d 417, 424-25 (7th Cir. 2000), and
particularly in the absence of evidence calling the State
Department’s opinion into question, we have no reason to
question the judge’s reliance on it.
Additional record evidence, which has a more specific
bearing on the likelihood that the Toptchevs will be perse-
cuted, also supports the IJ’s assessment. First, as the IJ
noted, Toptchev’s parents and his brother continued to live
in Bulgaria—his parents were retired and lived on his
father’s pension, and his brother was working as a re-
searcher. A.R. 85-86, 87. So far as the record revealed, none
of these family members had had a run-in with Bulgarian
authorities since his departure from the country. See IJ
Decision at 10. Likewise, the IJ heard evidence that Top-
tcheva’s father continued to live in Bulgaria and collect a
pension. A.R. 108. The fact that the petitioners’ family
members continue to live unmolested in their native coun-
try supports the conclusion that the petitioners lack a well-
founded fear of persecution. See Tzankov v. INS, 107 F.3d
516, 520 (7th Cir. 1997), citing Mitev, 67 F.3d at 1332. Sec-
ond, as the IJ also noted, both Toptchev and Toptcheva
were able to obtain passports and official permission to
leave Bulgaria.3 See A.R. 78, 103-04; IJ Decision at 8. That
the government did not interfere with their efforts to leave
the country tends to undermine the notion that they will be
persecuted if returned to Bulgaria. See, e.g., Dobrota, 195
3
The IJ cited this fact in support of his finding that the petition-
ers had not experienced past persecution, see IJ Decision at 8, but
it also is relevant to the likelihood that they might experience fu-
ture persecution.
14 No. 01-1508
F.3d at 974; Gonzalez v. INS, 77 F.3d 1015, 1022 (7th Cir.
1996). Third, Toptchev testified that he and his wife still
own a (now-unoccupied) condominium in Bulgaria. A.R. 76,
82-83.4 That the government apparently has not interfered
with the Toptchevs’ property again supports the IJ’s finding
that future persecution is unlikely. Sayaxing v. INS, 179
F.3d 515, 522 (7th Cir. 1999); see generally, e.g., Begza-
towski, 278 F.3d at 669 (citing confiscation of property
as an example of activity that can constitute persecution),
quoting Mitev, 67 F.3d at 1330. Certainly, none of these
circumstances forecloses the possibility of future pros-
ecution, but collectively, and along with the Profile, they
amount to “reasonable, substantial, and probative evidence”
supporting the IJ’s determination that the petitioners do
not have a sufficiently well-founded fear of persecution to
warrant a grant of asylum under the INA. Elias-Zacaria,
502 U.S. at 481, 112 S. Ct. at 815.
B. The Board’s Decision
When it affirmed the IJ’s decision in 2001, the Board cited
the State Department’s 1999 Country Reports on Human
Rights Practices as additional evidence indicating that the
Toptchevs lack a well-founded fear of future persecution
upon return to Bulgaria. The Board was free to take admin-
istrative notice of this publication as evidence of improved
conditions in the petitioners’ homeland, so long as the
Board did not neglect to undertake a particularized review
of the petitioners’ case. E.g., Meghani v. INS, 236 F.3d 843,
848 (7th Cir. 2001). The face of the BIA’s order reveals that
the Board in fact did engage in a particularized review of
4
Toptcheva testified that someone had broken into the condomin-
ium in 1992 or 1993, A.R. 106, but the record gives us no reason
to believe that the break-in was anything but an ordinary bur-
glary.
No. 01-1508 15
the Toptchevs’ case, see Mansour v. INS, 230 F.3d 902, 908
(7th Cir. 2000). At the same time, the 1999 Country Report
on Bulgaria supports the Board’s conclusion that the peti-
tioners are unlikely to experience persecution upon their
return to Bulgaria given that country’s continued evolu-
tion toward a democratic state. Although conditions in
Bulgaria vis à vis human rights remain far from perfect,
Bulgaria now has a record of several democratic elec-
tions, its constitution recognizes freedom of religion, and in
fact religious minorities are tolerated. See Country Re-
ports on Human Rights Practices (Feb. 23, 2000),
.
Coupled with the evidentiary record upon which the IJ
relied, the 1999 Country Report on Bulgaria establishes an
adequate evidentiary basis for the Board’s conclusion.
E.g., Tomas-Mercea, 222 F.3d at 424-25.
The Toptchevs suggest that they were deprived of the
opportunity to rebut the information contained in the Coun-
try Report, but we disagree. The Toptchevs were repre-
sented by counsel in their appeal to the Board, and the
BIA’s decision to take administrative notice of the (then)
current Country Report on Bulgaria could not reasonably
have taken their attorney by surprise, given the regularity
with which the Board relies on the Country Reports. The IJ
himself had relied upon the State Department’s Profile of
Asylum Claims and Country Conditions in Bulgaria when
he concluded that the Toptchevs were unlikely to encounter
future persecution, so it was entirely foreseeable that the
Board would look to that and similar information when it
addressed the petitioners’ appeal. Indeed, the petitioners
themselves asked the Board to take administrative notice
of the communists’ re-ascension to power in the 1994
Bulgarian elections. A.R. 17. Finally, once they received the
Board’s decision, the Toptchevs could have filed a motion
with the Board asking it to reopen their case so that they
might present new evidence rebutting the facts of which the
16 No. 01-1508
Board had taken notice. See 8 C.F.R. § 3.2; Sivaainkaran v.
INS, 972 F.2d 161, 166 (7th Cir. 1992); Kaczmarczyk v. INS,
933 F.2d 588, 597 (7th Cir.), cert. denied, 502 U.S. 981, 112
S. Ct. 583 (1991). Having elected not to pursue that option,
the Toptchevs may not now complain that they were pre-
cluded from responding to the Country Report on which the
Board relied.
For all of these reasons, we conclude that the decision to
deny the Toptchevs’ application for asylum has the requisite
evidentiary foundation. It follows inevitably that the denial
of their request for withholding of deportation, which is
governed by more stringent criteria, was likewise proper.
III.
We AFFIRM the decision of the Board of Immigration
Appeals and DENY the petition for review.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—7-3-02