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Kotasz v. Immigration and Naturalization Service

filed: August 1, 1994.

MIHALY KOTASZ, AGNES HORVATH KOTASZ, MATYAS KOTASZ, AND ERIKA KOTASZ, PETITIONERS,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of a Decision of the Immigration and Naturalization Service. INS Nos. A28-959-155, A28-959-154, A28-959-156, A28-959-157.

Before: Stephen Reinhardt, Thomas G. Nelson, Circuit Judges, and Frank A. Kaufman,*fn* District Judge. Opinion by Judge Reinhardt.

Author: Reinhardt

REINHARDT, Circuit Judge:

Mihaly and Agnes Kotasz, husband and wife, and their two children, Matyas and Erika, petition for review of the Board of Immigration Appeals' ("BIA") decision denying their applications for asylum and withholding of deportation. All four members of the Kotasz family are natives and citizens of Hungary.

Although the BIA did not question the reliability of evidence showing that Mihaly Kotasz ("Mihaly") was arrested and beaten on several occasions by the Hungarian police because of his active opposition to the Hungarian communist government, it denied Mihaly's asylum request. The BIA based its denial of asylum on the fact that Mihaly was arrested "along with numerous other demonstrators," and thus, in its view, was not "singled out" for persecution.*fn1 Similarly, the BIA denied the asylum claim of Agnes Kotasz ("Agnes"), which was based on her ethnic status as a gypsy, because it found that she had not been individually targeted for persecution. Because we find that, as to Mihaly, the BIA erred in its application of the requirement of a particularized threat of persecution, we grant the Kotaszes' petition in part and deny it in part, and remand to the BIA for further proceedings.

I.

As the BIA acknowledged in its opinion, Mihaly is anti-communist. More specifically, he strongly opposed the Hungarian communist government. Mihaly's father took part in the 1956 Hungarian uprising. Mihaly himself was forced to serve at a labor camp for a year and a half because of his refusal to serve in the Hungarian military. Subsequently, to show his opposition to the communist regime, Mihaly participated in several annual demonstrations commemorating the 1848 Hungarian Revolution. At each of these peaceful demonstrations - on March 15 of 1981, 1984, 1985 and 1986 - Mihaly was arrested by the police. Ten to twenty other demonstrators were usually arrested along with him; they would be detained and, at intervals during detention, beaten by the police. The police hit Mihaly in his stomach and kidneys with a rubber truncheon, and called him an anti-communist. Each time Mihaly was detained he suffered one or two days of such treatment and was then released.

The Kotaszes entered the United States on December 5, 1987, as nonimmigrant visitors. Mihaly immediately applied for political asylum and withholding of deportation on behalf of himself and his family; his application described his history of arrests and beatings. Agnes filed a separate asylum application in which she described the discrimination faced by gypsies in Hungary. After certain procedural complications, the Kotaszes' deportation hearing was held on May 17, 1990.

At the hearing, both Mihaly and Agnes Kotasz testified in support of their asylum applications.*fn2 Agnes' testimony was extremely brief: she stated only that in Hungary she was ashamed to admit that she was a gypsy. Mihaly testified at much greater length, describing his mistreatment at the hands of the Hungarian government. He asserted that because of his past political activities he would have "great difficulty" if he returned to Hungary. When questioned about then-recent political changes in Hungary, Mihaly asserted that political harassment continued there because, despite the superficial change of government system, the same people were in power and the same thinking prevailed as under Communism.*fn3 The immigration Judge found his testimony generally credible, but denied the Kotaszes' asylum and withholding of deportation claims and granted them voluntary departure. The BIA affirmed in a three-page Disposition.

The BIA found that neither petitioner had proven the particularized persecution necessary to demonstrate statutory eligibility for asylum under the INA. In its opinion, the BIA stated with regard to Mihaly that "there is no evidence in the record that [he] was singled out for persecution - rather he was arrested with numerous other demonstrators and incarcerated for a short period of time." Regarding Agnes' asylum claim, the BIA found that "there is no evidence that she, as an individual, has been persecuted owing to her ethnic background." Finally, after rejecting the Kotaszes' claims of persecution, the BIA took administrative notice of the political changes in Hungary, noting that a "western-style parliamentary democracy" had been instituted and that the Communist Party was no longer in power.*fn4

This petition for review ensued.

II.

A.

We review legal questions regarding the requirements for establishing eligibility for asylum de novo. Abedini v. INS, 971 F.2d 188, 190 (9th Cir. 1992). Factual findings supporting the BIA's asylum determination, including whether the alien has demonstrated a well-founded fear of ...


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