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[NOT FOR PUBLICATION]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.,

_________________
________________________________________
brief for appellant.
Stuart M. Gerson, Assistant Attorney General, Civil Divisi
_________________
Richard M. Evans, Assistant Director, and Marshall Tamor Goldi
_________________
_____________________
Attorney, Office of Immigration and Litigation, Civil Division, U
Department of Justice, on brief for appellee.
____________________
-1-

____________________

Per Curiam.
__________
of

Alicja Tokarska appeals a final order

the Board of Immigration Appeals.

immigration

judge's order

The Board affirmed an

finding Tokarska

deportable for

overstaying her visitor's visa, denying her applications for

asylum and for withholding
voluntary departure

of deportation, and granting her

in lieu of

deportation.

8 U.S.C.

1251(a)(2)(1952) (amended 1990), 1158, 1253(h).

On

Tokarska argues

the Board's

solely that

decision because
show

we should reverse

appeal,

it erred in determining that she failed to

that she had suffered past persecution, as a member of

the Solidarity movement, sufficient

"refugee" status and asylum.

to justify granting her

She asks this court to declare

that she is entitled to a discretionary grant of asylum.

She overlooks,

however, the very

this court in reviewing asylum cases.

is

authorized (in

alien who

his discretion)

is a "refugee."

defines a "refugee" as
to return to her
well-founded

The

limited role of
Attorney General

to grant

8 U.S.C.

asylum

1158(a).

an alien who is unable

The statute
or unwilling

home country "because of persecution

fear

of

persecution

religion,

nationality, membership

group, or

political opinion,"

Thus, the Board has

on
in

account

held that an alien who

-33

of

a particular

U.S.C.

to an

or a
race,
social

1101(a)(42)(A).
seeks "refugee"

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,

likelihood that

despite

she would

the

lack

of

face persecution in

any

real

the future.

See Matter of Chen, Int. Dec. 3104 (BIA 1989).

___ ______________
Tokarska does
Board's

not contest,

determination that

on

she had

no reasonable

future persecution; she argues only that

finding

no

past
____

persecution

qualify her as a "refugee"

that

persecution would

notice

of the

fact

this appeal,

sufficiently

horrendous

to

on humanitarian grounds, even if

not be repeated.

that Solidarity

is

(The

fear no

for her Solidarity

future persecution
INS, 933
___

F.2d

Board took

now part

so that Tokarska

v.

fear of

the Board erred in

coalition governing Poland,

Cf. Kaczmarczyk
___ ___________

the

of

the

clearly could
membership.

588, 593-97

(7th

Cir.

determination

that

1991).)
We

can reverse

the

Board's

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

-44

abused its

discretion in deciding that

suffered was
S.Ct.

not sufficient.

812, 817

(1992).

INS v.
___

See also
_________

the persecution she

Elias Zacarias,
______________
NLRB
____

v.

112

Columbian
_________

Enameling & Stamping Co., 306 U.S. 292, 300 (1939).

________________________
Most "refugee" asylum
reasonable

fear of

address claims
very

future

of past

cases involve

persecution, but

show past
inhumane."

v. INS,
___

1992 U.S.

that

that are

To merit a grant

basis of past persecution, "an

____

persecution so severe that

Baka
____

the few

persecution involve facts

different from those presented here.

of asylum on the

claims of

alien must

repatriation would be
App. LEXIS

10318, *7

(10th

Cir. May

where

past

13, 1992).

This

persecution alone

manifest in the terse

substantial basis

is

in

standard

issue, although

language of the statute, does

in policy and

courts and the Board.

more demanding

the past decisions

See Skalak v. INS, 944

___ ______
___

not

have a
of the

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

struck and injured
government

past persecution:

by a tear-gas

demonstration; she

she was

canister during an

was arrested

anti-

during another

-55

demonstration,

suffered

police during

that arrest

spent

twenty-four hours

physical injury

at

the hands

and subsequent questioning,

in jail;

afterwards, her

of
and

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

administrative

in which

persecution.

(10th

Cir. 1991)

Kapcia v. INS, 944 F.2d 702, 704, 708-09

______
___
(denial of

asylum lawful

arrested four times, detained

house searched,

no

bonus,

finally

was treated

two-day

parents' home

upheld

rejections of similar asylum claims based on

past

suffered

federal courts have

three times, beaten once, had

badly at work;

interrogation,

other claimant

detention,

was searched, received bad

conscripted into

where claimant

army

and

beating,

work projects and

where

he was

harassed,

fired from job); Skalak, 944 F.2d at 365 (denial of

______

asylum lawful where claimant jailed twice for interrogation,

three days
v.

each time, harassed by officials at work); Kubon

_____

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.");

INS, 916 F.2d 1257

___

see also
________

Zalega v.
______

(7th Cir. 1990) (neutral, non-Solidarity

-66

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.

persecution Tokarska

describes is not

the agency must find her

____

Consequently, the

"so compelling" that

eligible for "refugee" status

and

asylum.
The judgment

of the Board of

Immigration Appeals

is summarily affirmed pursuant to Local Rule 27.1.

________

-77