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Toptchev v. Immigration and Naturalization Service

July 03, 2002

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

Before Ripple, Kanne, and Rovner, Circuit Judges.

The opinion of the court was delivered by: Rovner, Circuit Judge.

ARGUED SEPTEMBER 20, 2001

Petitioners Peter Toptchev and Tania Toptcheva, husband and wife, are natives and citizens of Bulgaria. After they entered this country without inspection in 1993, the Immigration and Naturalization Service (INS) placed them in deportation proceedings. Petitioners 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 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 decision 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 assistant 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 coaching 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 describes 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 January 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 streetcar because Toptchev was dressed in Western-style clothing. Three years later, when Toptchev was playing for a soccer team in the town of Shumen, state security police 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 banishment 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 Nikolov'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. Afterwards, 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 afterward, 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 explosion.

Several months after Toptchev's departure from Bulgaria, Captain Nikolov paid a visit to his wife to inquire where Toptchev had gone. The visit left Toptcheva unsettled, and she decided to move in with her in-laws. Over the next several 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 superiors, 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 Toptcheva, 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 hospitalized for an extended period of time after two people assaulted 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 experienced 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. *fn1

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 ...


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