
USCA1 Opinion

	




             July 7, 1992       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-2227                                   ALICJA TOKARSKA,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                        ON PETITION FOR REVIEW OF AN ORDER OF                      THE IMMIGRATION AND NATURALIZATION SERVICE                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                 ____________________            Steve J.  Gutherz and Law  Offices of Steve  J. Gutherz,  P.C., on            _________________     ________________________________________        brief for appellant.            Stuart  M. Gerson,  Assistant  Attorney General,  Civil  Division,            _________________        Richard  M. Evans,  Assistant  Director, and  Marshall Tamor  Golding,        _________________                             _______________________        Attorney, Office  of Immigration and Litigation,  Civil Division, U.S.        Department of Justice, on brief for appellee.                                 ____________________                                         -1-                                 ____________________                       Per Curiam.  Alicja Tokarska appeals a final order                       __________             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"                                         -3-                                          3             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).               ___ ______________                       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                          ____             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.             ___ ___________      ___             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                                         -4-                                          4             abused its  discretion in deciding that  the persecution she             suffered was  not sufficient.   INS v.  Elias Zacarias,  112                                             ___     ______________             S.Ct.  812, 817  (1992).    See  also    NLRB  v.  Columbian                                         _________    ____      _________             Enameling & Stamping Co., 306 U.S. 292, 300 (1939).             ________________________                       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                                        ____             show past  persecution so severe that  repatriation would be             inhumane."   Baka  v. INS,  1992 U.S.  App. LEXIS  10318, *7                          ____     ___             (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                                    ___ ______    ___             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                                         -5-                                          5             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                                                     ____             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                                 ______    ___             (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                                       ______             asylum lawful where claimant jailed twice for interrogation,             three days  each time, harassed by officials at work); Kubon                                                                    _____             v.  INS, 913 F.2d 386, 388 (7th Cir. 1990) (denial of asylum                 ___             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.                                                      ________  ______             INS, 916 F.2d 1257  (7th Cir. 1990) (neutral, non-Solidarity             ___                                         -6-                                          6             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,                                                                  ______             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                        ____             asylum.                       The judgment  of the Board of  Immigration Appeals             is summarily affirmed pursuant to Local Rule 27.1.                          ________                                         -7-                                          7
