Valentina Mitreva v. Michael B. Mukasey

* This successive appeal has been submitted to the original panel under Operating
Procedure 6(b). After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and the record. See
FED. R. A PP. P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 11, 2008 *
Decided September 2, 2008
Before
FRANK H. EASTERBROOK, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
DIANE P. WOOD, Circuit Judge
No. 07‐3058
VALENTINA MITREVA, et al.,
Petitioners,
v.
MICHAEL B. MUKASEY,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Nos. A79‐562‐008
A79‐562‐009
A79‐562‐010
A79‐562‐011
ORDER
Valentina Mitreva, a Bulgarian citizen, came to the United States in 2000. She
applied for asylum, with her husband and two children as derivative applicants, claiming
that she suffered persecution at the hands of Bulgarian police because of her Romani
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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Appeal No. 07‐3058 Page 2
ethnicity. The IJ denied her application and the BIA affirmed, finding that Mitreva had not
proven that the police singled her out because of her ethnicity rather than because she was a
suspect in a burglary, as the police charged. We upheld that ruling because the record did
not compel a contrary conclusion. Mitreva v. Gonzales, 417 F.3d 761, 763‐64 (7th Cir. 2005).
The BIA also sua sponte raised and rejected the possibility that there existed in
Bulgaria a “pattern and practice” of persecution toward Roma, see 8 C.F.R. § 208.13(b)(2)(iii).
It explained that the record evidence showed that the Bulgarian government had instituted
reforms meant to improve educational and employment opportunities for Roma and had
taken steps to investigate and prosecute acts of violence against them by private actors. We
upheld that ruling as well, Mitreva, 417 F.3d at 765‐66, because a pattern or practice of
persecution exists only when a “‘systematic, pervasive, or organized’ effort to kill, imprison,
or severely injure members of the protected group” is “perpetrated or tolerated by state
actors,” id. at 765 (quoting Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005)). Although Roma
unquestionably faced (and continue to face) incidents of discrimination and harassment in
Bulgaria—attacks by private citizens, job discrimination, arbitrary arrest, and forced
evictions—the conditions did not rise to the level of a pattern or practice of persecution. Id.
at 765‐66.
More than three years after losing her original appeal, Mitreva filed a motion to
reopen her case, to which she attached several documents. These documents purportedly
showed materially changed conditions in Bulgaria and rebutted the BIA’s finding that the

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Appeal No. 07‐3058 Page 3
Bulgarian government had made efforts to ameliorate discrimination against Romani
citizens. Two of the documents Mitreva submitted were public documents released before
her original administrative proceedings ended. The other six primarily concerned housing
discrimination and forced eviction of Romani families from certain neighborhoods. The
BIA denied Mitreva’s motion to reopen as untimely because it was filed well outside the 90‐
day deadline for such motions. See 8 C.F.R. § 1003.2(c)(2). It also ruled that Mitreva’s
evidence was cumulative of evidence in the original administrative record and did not
show the sort of changed country conditions that would excuse the belated filing of the
motion. See id. § 1003(c)(3)(ii).
Mitreva devotes much of her brief on appeal to challenging our decision in her
original appeal. We considered and rejected many of her arguments when we denied her
petition for panel rehearing and en banc rehearing several years ago, Mitreva v. Gonzales, No.
04‐1707 (7th Cir. Dec. 23, 2005), and we will not revisit the merits of her original asylum
claim in this appeal.
Mitreva’s only other developed argument is that the BIA violated her right to due
process by refusing to analyze some of the documentary evidence she submitted with her
motion to reopen. But a decision whether to reopen is discretionary, and we have no
jurisdiction to review such denials unless a genuine question of law is presented. See Huang
v. Mukasey, Nos. 07‐2961, 07‐3322, 07‐3673, 07‐3840, 2008 WL 2738067, *1 (7th Cir. July 15,
2008); Kucana v. Mukasey, No. 07‐1002, 2008 WL 2639039, *3 (7th Cir. July 7, 2008).

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Appeal No. 07‐3058 Page 4
Discretionary denials of relief cannot be recast as constitutional violations if, as in this case,
the record does not support even a colorable claim of such a violation. See Zamora‐Mallari v.
Mukasey, 514 F.3d 679, 696 (7th Cir. 2008). Mitreva likens her case to Kaczmarczyk v. I.N.S.,
933 F.2d 588 (7th Cir. 1991), in which we held that “the due process clause of the fifth
amendment requires that petitioners be allowed an opportunity to rebut officially noticed
facts,” particularly when those facts are crucial to the outcome of the administrative
proceeding. Id. at 596. Though Mitreva contends that the BIA took administrative notice of
improving country conditions in Bulgaria in her first appeal, she is incorrect. On the
contrary, the Board relied for those findings on a document Mitreva herself introduced into
the record: the Department of State’s Bulgaria: Country Reports on Human Rights Practices
— 2001 (Mar. 2, 2002). Kaczmarczyk does not apply, and under Kucana we have no
jurisdiction to review the Board’s discretionary denial of relief.
The petition for review is DISMISSED.

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