Marcu v. I.N.S.

• Decision Date: 26 June 1998
• Docket Number: No. 96-70881,96-70881
• Citation: 147 F.3d 1078
• Parties: 98 Cal. Daily Op. Serv. 5067, 98 Daily Journal D.A.R. 7021 Miron Florin MARCU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1078

147 F.3d 1078

98 Cal. Daily Op. Serv. 5067, 98 Daily Journal

D.A.R. 7021

Miron Florin MARCU, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-70881.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 2, 1998.

Decided June 26, 1998.

John R. Alcorn, Susan E. Schultz, Lois S. Laughlin, Law Offices of John R. Alcorn, Newport Beach, California, for the petitioner.

Nelda C. Reyna, Office of Immigration Litigation, Civil Division, Department of Justice, Washington, DC, for the respondent.

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A70-046-326.

Before: WALLACE, TROTT, and HAWKINS, Circuit Judges.

Opinion by Judge WALLACE; Dissent by Judge MICHAEL DALY HAWKINS.

WALLACE, Circuit Judge:

Miron Florin Marcu, a citizen of Romania, petitions for review of the Board of Immigration Appeals' (BIA) denial of his application for asylum and withholding of deportation. We have jurisdiction to hear this petition pursuant to 8 U.S.C. § 1105a(a), and we deny the petition.

Because this petition was filed prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546, we do not apply its provisions regarding the scope of judicial review. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997).

I

We present the facts as accepted by the BIA, which were based on the immigration judge's findings. Marcu was born in 1942 in Romania, to a Romanian father and a mother who was a United States citizen. He asserts that his mother's citizenship was the cause of Romanian government persecution.

When a communist regime took control of the Romanian government in 1945, most of Marcu's family's possessions were confiscated. The family managed to keep its main home, which also served as an office of the United States Department of State. This office, known as the "United States legacy," remained in place until 1949, after which the Romanian government put "pressure against [his family]."

The government then moved Marcu's family into "a small room, 10 feet by 12 feet, with no facilities, no water, no anything, only a room." Marcu's mother was detained by local police, who sought her renunciation of her U.S. citizenship. When she refused to do so, she was imprisoned.

As a child, Marcu was taunted by other children due to his mother's ties to the United States. When he finished high school, he applied to a university, but his application was lost repeatedly, and he ultimately settled for attending a technical trade school. At the trade school, a teacher denounced him as an "enemy of the people."

Marcu was interrogated by police and beaten in 1964 for listening to Radio Free Europe and in 1968 for wearing jeans made in the United States. In 1970 and in the early 1980s, he was detained and questioned by the police a number of times and his home was searched repeatedly. Although his first wife was allowed to emigrate to the United States in 1984, he was denied permission to visit her. They were later divorced.

In 1990, Marcu applied again for a visa to visit the United States. Local police detained him, beat him to the point of unconsciousness, and threatened him: "We take care of the enemy of the people. We take care, we shut their mouth. This means we kill them."

After Marcu arrived in the United States with his second wife, local police came to his Romanian house and questioned his mother-in-law about his visit and his anticipated return date. The police also warned her to disassociate herself from Marcu because of his ties to the United States.

Marcu has conceded deportability and the only issues are whether he should be granted asylum or have his deportation withheld. The immigration judge assigned to the case held a hearing on December 21, 1993, at which time Marcu and the Immigration and Naturalization Service (INS) presented evidence. On March 14, 1994, the immigration judge denied relief. Marcu appealed to the BIA, which affirmed the immigration judge on September 24, 1996, holding that Marcu was not eligible for asylum because he did not have a well-founded fear of future persecution, given the massive governmental changes in Romania in the past decade.

II

Marcu first petitions for review on the ground that the BIA's determination of ineligibility for asylum is not supported by substantial evidence. Our review of the BIA's determination of ineligibility for asylum is extremely narrow. That determination must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4). This is a highly deferential standard of review. "To reverse the BIA finding we must find that the evidence not only supports that conclusion, but compels it...." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (emphasis in original).

"To establish eligibility on the basis of a 'well-founded fear of persecution,' " Marcu must demonstrate both an objectively reasonable and subjectively genuine fear. Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc) (Fisher ). If an applicant demonstrates that he has suffered past persecution, a rebuttable presumption of a well-founded fear of future persecution will be triggered. See 8 C.F.R. § 208.13(b)(1)(i). The INS can rebut this presumption by showing, by a preponderance of the evidence, that conditions "have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." Id.

In this case, the BIA appeared to assume that Marcu had demonstrated subjectively genuine fear of future persecution. It held, however, that he had failed to demonstrate objectively reasonable fear of such persecution and thus was not eligible for asylum.

We must determine whether the evidence present in this record compels reversal of the BIA's determination of ineligibility. That is the only issue before us. It was unnecessary for the BIA to discuss the finding of the immigration judge that Marcu had suffered harassment and discrimination, but had failed to prove these acts to be government persecution. The reason the BIA did not need to make a finding on whether Marcu had demonstrated past persecution was because even if past persecution were demonstrated, triggering a presumption that Marcu has a well-founded fear of future persecution, 8 C.F.R. § 208.13(b)(1)(i), the BIA found that the INS had rebutted the presumption successfully.

Like the BIA, we need not decide whether Marcu suffered government persecution or merely some police harassment, mistreatment, etc. that is discriminatory but not official government persecution. See generally Fisher, 79 F.3d at 961. We assume for purposes of our decision that Marcu has shown past persecution, and proceed to determine whether there is substantial evidence in the record to support the BIA's conclusion that the INS successfully rebutted the presumption of future persecution. ¹

In holding that the presumption was rebutted, the BIA relied primarily on a letter from the United States Department of State, signed by Roger Dankert, Director of the Office of Asylum Affairs in the Bureau of Human Rights and Humanitarian Affairs. Director Dankert made his own analysis and enclosed a four-page report prepared by the Bureau that described the sweeping changes that had occurred in Romania since the overthrow of Ceausescu. According to that report, "current conditions have so altered as to remove any presumption that past mistreatment under Ceausescu or in the chaotic first year after his overthrow will lead to mistreatment in the future." We have previously described these country reports as " 'the most appropriate and perhaps the best resource' for 'information on political situations in foreign nations.' " Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir.1995), quoting Rojas v. INS, 937 F.2d 186, 190 n. 1 (5th Cir.1991). This makes sense because this inquiry is directly within the expertise of the Department of State.

Based on this letter and enclosed report, the BIA concluded that, while Marcu may have suffered from past persecution during the communist regime, the conditions had changed sufficiently so that he no longer had a well-founded fear of persecution. The report provides substantial support for this conclusion. Although Marcu was detained and beaten by police agents in 1990, this incident--the first such incident in several years--occurred during the "chaotic first year" mentioned in the report. There are no alleged abuses after that time, which is completely consistent with the Department of State report. ²

Moreover, the Department of State report was individualized to Marcu's situation. Director Dankert's letter stated that the Department's conclusions were based on an "analysis of country conditions and other relevant factors, plus an evaluation of the specific information provided in the application." Based on this, he stated:

The applicant is not correct in stating that there has been "no real change in the Romanian Government" since he left. He is also incorrect in stating that his U.S. connections would be a basis for retribution against him. We see no reason why the applicant could not reside tranquilly in Romania.

Director Dankert's analysis thus provides substantial support for the BIA's determination that the INS had rebutted the presumption of future persecution. Indeed, as the BIA pointed out in its opinion, the documentary evidence Marcu submitted in some ways confirms the country report's observation that the conditions in Romania have changed noticeably. See, e.g., International Human Rights Law Group, cited in 139 Cong. Rec. S14220 (daily ed. Oct. 21, 1993) ("The Law Group is pleased to note that the human rights situation in Romania has improved during the past year in several respects."); Helsinki Watch, cited in 139 Cong. Rec. S14218 ...