Dimitrov

MEMORANDUM *

Yanko Hristov Dimitrov, a citizen of Bulgaria, appeals the denial by the Board of Immigration Appeals (the BIA) of his petition for asylum. We remand.

The parties are familiar with the facts. We proceed to issues of law. First, the BIA erred in its credibility determination by treating as central to Dimitrov’s claims the evidence of his ethnicity as a Gypsy. What is central is the persecutor’s belief as to the status of the persecutor’s victim. In deciding whether anyone has a well-founded fear of persecution or is in danger of losing life or liberty because of [protected ground], one must continue to look at the person from the perspective of the persecutor. Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987), overruled as to a subordinate point of evidence by Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996). Nothing impugned Dimitrov’s story that he was beaten by police who characterized him as a Gypsy. He pursued a scavenger’s trade characteristic of a class at the bottom of society, analogous to that of untouchables. He did what Gypsies did and when he stepped beyond their bounds, he was threatened, jailed and beaten as a Gypsy.

The dissent would affirm the…

dissenting:

I respectfully dissent. Yanko Hritsov Dimitrov petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Dimitrov claimed before the BIA that he was a Bulgarian Gypsy, even though he spoke no Romani, did not have a Gypsy name, and appeared to know little about Gypsy culture. The BIA found Dimitrov’s testimony he was a Gypsy was “implausible,” and, on the basis of this adverse credibility finding, denied his applications for relief.

Contrary to the majority’s assertion, the BIA’s adverse credibility finding went to the heart of Dimitrov’s claims. See Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir.2004) (holding that when an immigration judge (“U”) denies asylum based “on an adverse credibility determination, he must provide specific, cogent reasons to support his determination ... [which] cannot be peripheral, but rather must go to the heart of petitioner’s claim”). Even if Dimitrov could prevail by claiming his persecutors perceived him to be a Gypsy, that was not his claim before the BIA. Dimitrov claimed he was entitled to asylum because…