### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 1792

M ARIYA B ORISOVA G EORGIEVA and
L ACHEZAR D. D IMITROV , Petitioners
,

v.

E RIC H. H OLDER , J R ., Attorney General of the United States
, Respondent

.

____________________

On Petition for Review of a Final Order of the Board of Immigration Appeals.

____________________
A RGUED J ANUARY 15, 2014

— D ECIDED M AY 6, 2014

____________________

Before F LAUM , E ASTERBROOK , and R OVNER , Circuit Judges

. F LAUM , Circuit Judge

. Mariya Boriso va Georgieva and Lachezar Dim i trov are Roma asylum

- seekers

. In 2002, the couple left Bulgaria and e n tered th e United States lega l ly

. T hey say they were fleeing some of their non

- Rom a cou ntrym en who had threa t ened Georgieva after she resisted b eing forced into the sex trade and became active in pro

- Roma2 No. 13

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politics . Georgieva and Dimitrov also say they wanted to e scape the a t mosphere of persecu tion that faces the Roma people in Bulgar ia . The immigration j udge found Georgieva’s testimony in credible and denied Georgieva and Dimitrov asy lum

. T he Board of Immigration Appeals a ffirmed the imm i gration judge’s dec i sion . W e deny the co uple’s petition for review

. I. Background Georgieva and Dimitrov we re born in Bulgaria and are Bulgarian cit i zens. They were admitted to the United States on March 6, 2002

. 1 On March 5 , 2003, Georgieva timely r equested asylum, withholding of r e moval, and protection under the Conve n tion Against Torture. On her a p plication, Georgieva listed her husband Dimitrov as a derivative ben ef i ciary. Georgieva filed her application with the Immigration and Natural i zation Service , which referred her case to the Department of Justice’s i m m i gration courts on April 9, b ecause the imm i grati on courts have excl u sive jurisdiction

over Visa Waiver Program asylum appl i cants. 8 C.F.R.

1 Both were admitted under the Visa Waiver Program, which is a reci procal waiver a r rangement where the United States waives its visa r equirement and in exchange the visitor waives his or her right to contest admissibility determinations on removal (except f or as y lum applications, withholding of removal, and protection under the Convention Against Torture ). 8 U.S.C. § 1187(b)(2); Bao Tai Nian v. Holder , 683 F.3d 1227, 1228 (9th Cir. 2012). Visa Waiver Program entrants are entitled to something of a “shortcut” in the asylum pr o cess, because they can proceed d irectly to a hearing before an i mmi gration j udge, bypas s ing some preliminary steps. See, e.g.
, Bayo v. Napolitano , 593 F.3d 495, 499 (7th Cir. 2010). The
p rogram is available for citizens of thirty

- eight di fferent countries, but Bulgaria is not among them. It is not clear from the record how Georgieva and Dimitrov were admitted through the program.No. 13

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§ 1208.2(c)(1)(iii). P roceedings commenced in August 2004, but the case was continued several times. Georgieva and Dimitrov did not appear b e fore an i m migration judg e until May 2011. Georgieva’s credibility is the central issue in this case , b ecause she provided most of the relevant facts and docume ntary evidence is sparse. Georgieva included in her asylum application a six

- page statement d e scribing her experiences in Bulgaria. She also testified at her immigration hearing, and discrepancies emerged between the statement and her
te s timony. We note where the stories diverge as we go. Georgieva grew up in Blagoevgrad, Bulgaria. As a Rom a child , she faced cha l lenges. F or example, s he described one incident in the sixth grade, where a few non

- Rom a boys fo llowed her i nto the bathroom at school. They pushed her down, beat her, yelled at her and called her “a dirty gypsy,” and urinated on her. S he reported the incid ent to s chool o f f icials. B ut instead of responding
, the officials accused her of lying and punished her . Georgieva says she received high grades in school and a p plied to colleges, but that she was not admitted because she was Rom a

. In 2000, Georgieva began working either for a cleaning
company or a s a street sweeper for Blagoevgrad County (there is a discrepancy between her statement and hearing testimony) . In November 2000, Georgieva’s boss allegedly called her into his office and of fered her a higher

- paying job

w orking in a meat factory in Naples , Italy; he claimed the position was part of an exchange program. Georgieva a ccepted , and met her boss’s associates at the Blagoevgrad bus station, where there were seven ot h er Rom a women who had accepted the same “ offer. ” The bus was to travel4 No. 13

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through Macedonia and other former Yugoslav Republics on the way to Naples

. S hortly after the bus crossed into Macedonia, the group stopped for lunch at a h o tel. Armed men arrived and o rdered the women in to hotel rooms. T he women we re then given clothing and makeup and returned to the hotel lobby where they w e re displayed to “important” men who would select them for sex. At this point Georgieva’s asylum appl ication begins to differ markedly from her hearing tes tim o ny.
In her applicat ion statement Georgieva wrote that she “was forced to have sex with a strange man who paid for her like she was meat.” She claimed that this ha p pened multiple times

— enough t hat she lost track of the days

— and that the captors moved the women around to diffe rent places. Eve ntually, Georgieva escaped by hi t ting a man over the head with a lamp as he was undressing. She ran away, and was aided by Ma c edonian laborers working in a field. The labo rers gave her a change of clothes, and eventually a “nice old man” drove her back to the Bulgarian border. Georgieva said it took her three more days to get home from there. Her hearing testimony differs in several particulars. Al though Georgieva still claimed that she was abducted and that her captors tried to force her into the sex trade
, she said that she never had sex with an y one , because she cracked the head of the very first man who selected her on the first day in Macedonia

. She said she walked all the way back t o Blagoevgrad after her escape , which took her two days in total

. Once home, she tried to report her story to the police, the prime minister, and other officials within the Bulgarian government, but to no avail.No. 13

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Georgieva’s stories converge again here. In 2001
, she b ecame involved with a group called Euroroma that advocated for Roma rights in Europe. She volunteered there for the next year. Dimitrov and his family were a c tive in the organ ization, too. T hrough Georgieva’s work there, the couple met and began to date. At some point after she started working for Euroroma, Geor gieva says she r e ceived telephone threats from assoc iates of her former boss. S he a l so claims that in January of 2002
, two men who worked in the sex

- trafficking ring a bducted her outside the Eu ror oma office. One of the men told her that “gypsies like you don’t live long.” The men took Georgieva to an abandoned building and beat her so sever ely that she passed out.

The accounts diverge again after the beating . In her a pplication, Georgieva claimed that she woke up a few days later in the hospital; some kids had found her in the building and the police had taken her to the hospital. At her hearing, however, she testified that the beating put her into a coma for twenty or twenty

- one days and broke her jaw. Georgieva’s jaw required surgery, but the hospital refused service b e cause Georgieva was Roma and she had no health insurance. Instead, Dimi trov found a pr i vate dentist who did a minimal amount of repair work for a small cost. Shortly after the beating incident, the couple left for the United States. Dimitrov testified that Ge orgieva suffered from pain and constant hea d ache s as a result of the beating and that she has received additional med i cal care in Evan ston , Illinois . Both testified that they fear persecution if they are returned to Bulgaria, especially because both of their families have left the country and now reside in Italy and the6 No. 13

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United Kingdom. Georgieva and Dimitrov have two Amer ican

- born sons, aged six and ten, and the older son has been diagnosed with autism. At the outset of the hearing, the immigration judge found Georgieva’s different a c counts of her time in Macedonia “very clear, detailed, and specific,” and impossible to reco ncile. The immigration judge thought the discrepancies ser ious, and decided that Georgieva had not adequately e xplained them. Moreover, t he immigration judge had brought the di s crepancies to Georgieva’s attention at the outset of the hearing

. Georgieva claimed that her asylum application w as inac curate, b ut she made only small tweaks that did not a ddress the central inconsistencies and she did not explain why she had not amended her applica tion further . The imm i gr ation judge acknow l edged that inaccuracies in initial asylum applic a tions are common, often because of faulty transl ations or the lack of cou n sel. But an attorney assisted Georgieva in pr e paring her application and Georgieva did not claim that the translation was faulty

. The immigration judge went on to find that Georgieva had not provided enough docume n tary evidence to corrobo rate her story, and

so ordered Georgieva and Dim i trov removed to Bulgaria. The couple appealed to the Board of Immigration A ppeals, and while the appeal was pending also filed a motion to remand to the immigration jud ge

. In their remand motion, the couple argued that they had received ineffective assi stance both from their counsel before the immigration judge and from the lawyer who had helped pr e pare Georgieva’s initial application

. Before the Board , Georgieva and Dimitrov’s new atto rneys argued that any di s crepancies in Georgieva’s storiesNo. 13

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were due to clerical or tran s lation errors, and that Georgieva had not had an opportunity to explain them. But the Board found that the immigration judge ’s credibility fin d ing wa s based on specific eviden ce and was ad e quately explained

. The Board also found that Georgieva had been given the o ppo r tunity to re c oncile her stories, but had not done so. Fina lly, the Board denied the r e quest for a remand based on ina dequate assistance, because it thought Georgieva and Dim itrov’s counsel in the immigration proceedings co m petent.
I I. Discussion
In cases like this, where the Board of Immigration A ppeals’ order supplements the decision of the immigration judge , we review the immigration judg e ’s opinion as su pplemented by the Board. Raghunathan v. Holder , 604 F.3d 371, 379 (7th Cir. 2010)

. We review f actual findings only to ensure that substantial evidence supports the i m migration judge ’s

or Board’s decision. See, e.g.
, Abdoulaye v. Holder , 72 1 F.3d 485, 490 (7th Cir. 2013)

. Under the Immigration and Nationality Act, the Attorney General or the Secretary of Homeland Security may grant asylum to refugees. 8 U.S.C. § 1158(b). A refugee is “any pe rson who is outside any country of such person’s n ationality ... who is unable or unwilling to return to ... that country because of persecution or a well

- founded fear of persecution on account of race, nationality, membe r ship in a particular social group, or political opinion ... .” 8 U.S.C. § 1101(a)(42)(A). This means asylum appl i cant s must show either past persecution or a well

- foun ded fear of future pe rsecution because of membership in a protected class. See Wang v. Gonzales , 445 F.3d 993, 99 7

– 9 8 (7th Cir. 2006). An applicant’s proof of past persecution can come from multiple8 No. 13

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sources, including a recitation of her exper i ences in her as ylum application, testim o ny at her immigr a tion hearing, and any supporting documentary evidence, if it exists. Capric v. Ashcroft , 355 F.3d 1075, 1085 (7th Cir. 2004)

. A. The immigration judge’s credibility finding In asylum cases, t raditional or objective means of authe nticating an applicant’s statements can be difficult or impo ssible

– applicants often hail from war

- torn, impo v erished, or inhospitable parts of the world . Thus, the immigration judge must often evaluate the credibility of the applicant claiming persecution , which the immigration judge can do by consi dering the “internal consistency, detail, and plausibil ity ” of the applicant’s story. Capric , 355 F.3d at 1085 (cita tions omi tted). If the applicant’s test i mony is credible, it can be suff icient to satisfy her burden. But if the immigration judge finds the applicant incredible due to inconsistencies , then the applicant must explain the discrepancies and provide cred ible , extrinsic evidence in corroboration. Id. at 1086. Georgieva applied for asylum before the enactment of the Real ID Act , which li m its judicial review of an immigr ation judge’s credibility finding. 8 U.S.C. § 1158(b)(1)(B)(iii). The new standards apply only to asylum applications su bmitted after the enactment of the statute

— May 11, 2005. Pub. L. No. 109

- 13, § 101, 119 Stat. 231, 305 (2005); Mitondo v. Mukasey , 523 F.3d 784, 787 (7th Cir. 2008). Thus, we review Georgieva’s applicat ion under pre

– Real ID Act law. We will uphold the immigration judge’s credibility finding so long as it is supported by “specific, cogent reasons [bearing] a le gi timate nexus to the finding. ” Capric , 355 F.3d at 1086 (cit ations and i n ternal quotation marks omit ted). Only t hose i nconsistencies that “go to the heart of” the applicant’s asylumNo. 13

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claim can support an incredibility finding; minor inconsis te n cies on peripheral matter s can not

. Id. at 10 90. 2 The immigration judge’s in credibility finding in this case centered on Georgieva ’s two retellings of her encounter with the Macedonian sex trade

. Simply put, Georgieva could not have been forced to have sex with multiple individuals over multiple nights but also have escaped on her first night in Macedonia without having sex with anybody. She also could not have been sheltered by Macedonian laborers and shu ttled to the Bulgarian border by a kindly old man while also walking all the way from Macedonia back to Blagoevgrad. These discrepancies fairly “go to the heart of” Georgieva’s claim. The incident in Macedonia was central to her claim of past pers e cution.

We have warned of the problems that can sometimes arise with statements that a c company initial asylum applic ations

— i.e., poor translators, careless or uns crupulous pr eparers, or the lack of legal counsel

. See , e.g. , Chen v. Gonzales
, 420 F.3d 707, 710 (7th Cir. 2005). But the immigration judge realiz ed and discussed these problems and Georgieva did not argue that there were translation problems

. She also ha d
an atto r ney representing her when she filed her application. 3

2 Under the Real ID Act, by contrast, immigration judges can base an adverse credibility finding on any inconsi stency, whether it goes to the heart of the applicant’s claim or not. 8 U.S.C. § 1158(b)(1)(B)(iii).

3 The immigration judge also noted the other, more minor inconsiste ncies in Georgieva’s stories. The immigration judge took care to note that these inconsi stencies (relating to Georgieva’s former place of emplo yment and the way Georgieva arrived at the hospital after being assaul ted) would not have su p ported an incredibility finding on their own, but further supported the incredibility finding.10 No. 13

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T he immigration judge also afforded Georgieva the chance to cure the inconsis t encies by amending her stat ement. When she was asked specifically about the di s crepa ncies, Georgieva said that sh e had “clarified with her attorney that her original statement was in error.” But she did not a ttempt to explain how the error on the a p plication occurred in the first place or offer any further explanation. Her atto rney amended the application to correct a few clerical errors, but left the heart of the story intact.

The immigration judge also properly gave Georgieva the chance to corroborate her testimony and rehabilitate herself with documentary evidence. See Uwase v. As h croft , 349 F .3d 1039, 1041 (7th Cir. 2003). Georgieva attempted to corrob orate her story by introducing a copy of her passport pages showing that she left Bulgaria for Mac e donia and returned one day later , her Euror oma membership card, and medi cal

re c ords from when she was assaulte d outside Euroroma. B ut the immigration judge was unconvinced, because these do cuments did not cure the fundamental inconsisten cies in her testimony. The immigration judge also explained that Georgieva could have reasona bly provide d additional co rroboratio n

— perhaps via affidavits from family or friends

— of the beating she suffered as a child or the attempt to sell her into the sex trade

. If such evidence was unavailable, it

was Georgieva ’s burden to explain why she had not pr oduced it and why it was unreason able for the immigration judge to expect her to do so

. See Hussain v. Gonzales , 424 F.3d 622, 629 (7th Cir. 2005) (noting that an immigration judge must explain “why it is reasonable to expect additional co rroboration ... [and] an account of why the petition er’s e xplanation for not produ c ing that corroboration is inad equate.”). She did not explain either. Accordingly, it was re a-No. 13

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sonable for the immigration judge to conclude that Georgieva had not overcome the discrepancies in her stories that led to the incred ibility finding

. One feature that gives us pause is that Georgieva’s hea ring tes timony , which she claims is the accurate telling, is a ctually the less severe of the two stories. An a sylum applicant would be more likely to embellish , not scale back, her st ory at the hearing, in an effort to bolster her case. See, e.g.
, Xiao v. Mukasey , 547 F.3d 712, 717 (7th Cir. 2008) (upholding a dverse credibility finding where an asylum

- seeker initially failed to disclose alleged forced abortion at the hands of Chinese officials but then sought to include it in her applic ation and at her hearing)

. But this fea ture of Georgieva’s case cannot rescue her from the immigration judge’s adverse credibility finding. Our dec i sion in Ahmad v. INS , 163 F.3d 457 (7th Cir. 1999), is instructive. The asylum applicant there was an Ahma di Muslim seeking to avoid removal to Pak istan. In his asylum application, he claimed that Sunni Mu slims in Pakistan had regularly tortured him and had threa tened him if he did not leave the country . But a t his hearing, the appl i cant walked back his accusa tions

— he claimed that while his tormenters tied him to a pole over night, they had harassed him only once and never tortured him

. Id. at 459

– 62. So while we also face testimony less horrific than the a llega tions contained in the initial appli cat ion, we must affirm the immigration judge’s finding , as we did in A h mad

. Georgieva had a new lawyer before the Board of Imm igration Appeals and sought a remand to the immigration
court in part for ineffective assistance of counsel. She claimed that the deficient performances of both the attorney who helped prepare her initial application statement and the12 No. 13

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attorney s who represented her in the immigr a tion court led
to the adverse credibility finding

. But the Board found the performance of Georgieva’s former attorneys adequate, e specially since her second crop of atto r neys had the oppo rtunity to

— and did

— amend her earlier state ment

. On appeal, Georgieva does not argue ineffective assi stance of counsel d irectly , but she raises the same alleged shortcomings by her attorneys to explain the inconsiste n cies in her testimony. In short, she says that her asylum applic ation statement was i n accurately taken by her first lawyer, and that the lawyers who represente d her in the immigr ation court failed to a mend the meat of her claim (though they did change a few dates )
, despite telling her that they would. The immigration judge asked Georgieva directly about the inconsistencies in her story and she indicated that her lawyer had fixed the errors in her application . But she

now says that this was a mi s under standing on her part. W hat happened, she avers, is that the immigration judge a nd the attorneys had an untranslated colloquy where the small changes were actua l ly mad e, and that she mistakenly thought the lawyer had made the substantive changes she requested. Thus, when the judge asked her about the inco nsistencies b e tween her application and hearing testimony, she did not know what she was conce d ing

. Georgieva’s motion before the Board was brought purs uant to Matter of Lozada , 19 I

. & N

. Dec. 637 (B.I.A. 1988), which set forth procedures for pursuing an ineffective assi stance of counsel claim before the Board. Lozada requires that the lawyer whose perf ormance is being attacked be notified and be given the opportunity to respond. Id. at 639. Georgieva’s attorneys from the immigration court moved onNo. 13

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their own to supplement the record before the Board and d efend their performance

— they said that Georgieva w as co nfused about what had happened and had difficulty keeping her stories straight during hearing preparation, and that the immigration judge gave her plenty of opportunities to amend her application. Georgieva of course disputes this claim . But w hatever actually transpired during Georgieva’s hearing p reparation, she has nothing but her bare assertion to suggest that she was unaware of the contents of her statement or that the immigration judge did not give her a genuine opportunity to make corrections . In the immigration context, as in other areas, “[l]itigants are genera l ly bound by the conduct of their attorneys, absent egregious circu mstances.” Id. The immigration judge was in the best position to evaluate Georgieva’s credibility, and n othing about her lawyer’s performance requires us to upset the immigration judge’s finding of incredibility

. B. Past p ersecution Though we affirm the immigration judge’s credibility d etermination, Georgieva would still be entitled to relief if she could demonstrate through independent ev i dence that she was a victim of past persecution

. But persecution is more than haras s ment, and Georgieva cannot make the strong showing required

. See Ciorba v. Ashcroft , 323 F.3d 539, 545 (7th Cir. 2003)

. Persecution includes:

detent ion, arrest, interrogation, prosecution, impri sonment, illegal searches, co n fiscation of property, survei llan ce, beatings, torture,

... behavior that threatens the same ... and non

- life

- threatening beha vior such as torture and economic depriv a tion if the r esul ting con ditions are sufficiently severe. ... However,14 No. 13

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generalized conditions of hardship which affect entire populations do not rise to the level of persecution

. Capric , 355 F.3d at 1084 (internal citations and quotation marks omitted). Outside of her testimony, Georgieva lacks evidence to show that she was pers e cuted because she is Roma. She has no evidence corroborating the childhood incident that o ccurred in the school restroom. She also has nothing to su pport her claim that she was ta rgeted for the sex trade , nor anything to connect her 2002 assault to her st a tus as a Roma

. Although Georgieva did not contradict herself in the retel ling of some incidents, such as the beating she suffered as a child, a “single discrepancy is enough to fi nd petitioner’s e ntire testimony not credible

. ” Xiao , 547 F.3d at 717.

T he corroborating evidence

— consisting of Dimitrov’s testimony, a copy of a page from her passport, her Euroroma membership card, and some dental records

— merely show s that Georgieva is R oma, that she was in Eu ror oma, that she was in Macedonia for one day in 2000, and that she had de ntal surgery after being assaulted in 2002. None of this ev idence shows that any of the harm she suffered was because of her Roma heritage

. C. Well

- founded fear of future persecution Asylum a pplicants who have n ot been persecuted in the past can still demonstrate eligibility for asylum by showing a fear of future persecution that is subjectively ge n uine and objectively reasonable. See, e.g.
, Li Ying Zheng v. Holder , 722 F.3d 986, 990 (7th Cir. 2013) . The applicant’s subjective fear is generally established through her test i mony and depends on the immigration judge ’s evaluation of her credibility. Capric
,No. 13

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355 F.3d at 1085. The objective component requires the a pplicant to prove either (1) a reasonable probability she will be singled out for persecution or ( 2) a pattern or pra c tice of persecution against a particular group, to which she belongs. 8 C.F.R. § 208.13(b)(2). Georgieva introduced no evidence ( except he r testimony) that she would be si n gled out for persecution upon retur ning to Bul garia. S o she can prevail only if she can demo nstrate a pattern or practice of mistreatment of the Roma pe ople in Bulgaria. Pattern and practice requires a strong sho wing, and persecution of an ethnic group must be “extreme” to qualify. Mitreva v. Gonzales , 417 F.3d 761, 765 (7th Cir. 2005). As we have often indicated , “[t]here must be a sy stematic, pervasive, or organized effort to kill, imprison, or severely injure members of the protected group, and this e ffort must be perpetrated or tolerated by state actors.” Id. (c itation s and internal quotation marks omitted).

In Mitreva , we were also faced with a Roma asylum

seeker from Bulgaria. The conditions on the ground for the Bulga rian Roma then were similar to what they are now

. There is no doubt that the Roma are victims of pervasive discrimination in e m ployment, education, health care, and housing , and are occasionally the targets of vi o lence

. See U.S. Dep’t of State, Country Reports on Human Rights Practices for 2013, Bulgaria , at 24

– 26 (2013), available at http://www.state.gov/documents/organization/220473.pdf

. B ut there is no indication that the Bulgarian government

sanc tions this conduct

. Id. ; Mitreva , 417 F.3d at 766. If a n ything , State Department reports indicate that anti

- Roma vi olence has declined since Mitreva was decided in 2005
, even as discrimination remains widespread

. See U.S. Dep’t of State,16 No. 13

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2010 Country Reports on Human Rights Practices, Bulgaria, at 23 (2010), a vailable at http://www.state.gov/documents/organization/160182.pdf

. In short, there is no reason for us to find a pattern of pers ecution of the Roma in Bulgaria in 2014 where there was none in 2005

. Georgieva also makes a claim for humanitarian asylum base d on the “other ser i ous harm” her family will suffer if removed, because of the ages of her children and her older son’s autism. However, humanitarian asylum is only avail able for those asylum

- seekers who have demonstrated past persecution. See, e.g.
, Matt er of L

- S , 25 I. & N. Dec. 705, 710 (B.I.A. 2008). Because Georgieva has not established past
persec u tion, she is ineligible for humanitarian asylum. Finally, to be eligible for withholding of removal, Georgieva must show a “clear probability ” that she wo uld be persecuted. Toure v. Holder , 624 F.3d 422, 428 (7th Cir. 2010). Similarly, r elief under the Convention Against Torture only applies where it is “more likely than not” that the d eportee will be tortured if returned to the country of removal. Id. at 429. Thus, Georgieva’s other claims require a stronger

c ase than that needed for asylum, so they fail as well

. The petition for review is D ENIED

.