Vaduva v. I.N.S., 97-1931

Decision Date15 December 1997
Docket NumberNo. 97-1931,97-1931
Citation131 F.3d 689
PartiesSever VADUVA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Seventh Circuit

Robert A. Perkins (argued), Perkins & Associates, Chicago, IL, for Petitioner.

Janes Reno, U.S. Atty., Office of the U.S. Atty. General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, Philemina Jones, Kristal A. Marlow, Michelle Gluck, Loreto S. Geisse (argued), Dept. of Justice Civil Div., Immigration Litigation, Washington, DC, for Respondent.

Before CUMMINGS, MANION and EVANS, Circuit Judges.

MANION, Circuit Judge.

Sever Vaduva was 25 years old when he left Romania in August 1993 and entered the United States on a crewman's visa. He later applied for asylum. Although the Board of Immigration Appeals denied asylum, he has a leg up on most petitioners seeking review because the Board found that on at least one occasion Vaduva had experienced persecution while in Romania. Under the law, that finding created a rebuttable presumption in favor of granting Vaduva asylum. See Skalak v. INS, 944 F.2d 364, 365 (7th Cir.1991) ("Past persecution creates a presumption in favor of granting asylum, but the presumption is rebuttable; among other factors admissible in rebuttal is a demonstration that ... the alien is not in danger of being persecuted again."). The Board found the presumption rebutted by the INS' documentary evidence demonstrating that Vaduva could no longer reasonably fear persecution in his homeland. Vaduva appeals the Board's denial of asylum; we affirm.

We will affirm the Board's decision denying asylum if it is supported by "reasonable, substantial, and probative evidence." Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir.1992). There is no dispute that the Board reasonably concluded Vaduva (a member of the pro-democracy National Liberal Party) suffered at least one instance of political persecution while residing in Romania; on Christmas Eve in 1992 he was beaten up (he was punched, his face bruised, and his finger broken) by strangers who told him to stay away from the pro-democratic forces in the country. The Christmas Eve incident by far was the most serious one experienced by Vaduva, and it is noteworthy because it occurred several years after the 1989 overthrow of Nicolae Ceausescu, Romania's brutal Communist dictator. (Vaduva apparently was beaten on one other occasion, in 1987, when Romanian police forced him to do pushups for several minutes while hitting him on the soles of his feet. There were other instances of harassing telephone calls, warnings, and at least one interrogation at the hands of Romanian authorities-these occurred over a period of years, some during and some after the Ceausescu regime.) While the Christmas Eve incident makes Vaduva presumptively eligible for asylum, it does not mean that he is entitled to it. Vaduva exaggerates the statute's terms in claiming otherwise, see Skalak, 944 F.2d at 365 ("[e]ligibility is not entitlement"), and his is not the rare case where past persecution is so severe that it would be inhumane to return the alien to his native country even in the absence of any risk of future persecution. In those cases, asylum must be granted as a matter of law (immediately returning German Jews to Germany after the destruction of the Nazi regime is one example), but "in lesser cases of past persecution and perhaps even in the most serious cases if the persecuted group has become the ruling group, deportation may not be inhumane." Id.

Having demonstrated his eligibility for asylum by proving past persecution, the question becomes whether the Board erred in denying asylum on the ground that Vaduva reasonably could not fear persecution if he returned to Romania. As it does in many cases, the INS asked the State Department for its opinion as to the likelihood of persecution if asylum is denied. The State Department issued a letter doubting that Vaduva had ever been persecuted, and further dismissing any claim that he could fear persecution upon his return to his homeland. "Even if we were to accept [that he was beaten in 1992], there does not, in our view, appear to be a basis on which he can plausibly maintain that he would face new mistreatment pertinent to our asylum legislation on his return to his own country." The Department referenced its June 1995 profile on Romania, in which it acknowledged that Romania had been one of the most oppressive Communist regimes under the dictatorship of Ceausescu. But the report noted that the Ceausescu regime was overthrown in 1989, and since then Romania has had two democratic national elections (in 1990 and 1992) in which the country elected Ion Iliescu president. (There has since been a third; in 1996, Iliescu was defeated.) The report concluded that "the democratic process and protection of individual rights have taken hold" since the 1992 elections; in fact, "country conditions have so altered in the six years since the overthrow of Communism as to remove any presumption that past mistreatment under Ceausescu or in the chaotic first year after his death will lead to future mistreatment."

The Board relied heavily on the State Department's report; it is the only documentary evidence cited to rebut Vaduva's presumption of persecution. It was...

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