296 F.3d 316 (4th Cir. 2002), 01-1776, Rusu v. U.S. I.N.S.

Docket Nº:01-1776.
Citation:296 F.3d 316
Party Name:Constantin RUSU, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE; John Ashcroft, Attorney General, Respondents. American Immigration Law Foundation; American Immigration Lawyers Association; Catholic Legal Immigration Network, Incorporated; Capital Area Immigrants' Rights Coalition; Lutheran Immigration and Refugee Service, Amici Curiae.
Case Date:July 22, 2002
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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296 F.3d 316 (4th Cir. 2002)

Constantin RUSU, Petitioner,


U.S. IMMIGRATION & NATURALIZATION SERVICE; John Ashcroft, Attorney General, Respondents.

American Immigration Law Foundation; American Immigration Lawyers Association; Catholic Legal Immigration Network, Incorporated; Capital Area Immigrants' Rights Coalition; Lutheran Immigration and Refugee Service, Amici Curiae.

No. 01-1776.

United States Court of Appeals, Fourth Circuit

July 22, 2002

Argued Feb. 27, 2002

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[Copyrighted Material Omitted]

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Michael Joseph Begland, Hunton & Williams, Richmond, Virginia, for Petitioner.

Afsaneh Ashley Tabaddor, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.

Jungyoun Traci Hong, American Immigration Law Foundation, Washington, D.C., for Amici Curiae.


E. Marie Tucker Diveley, Turner A. Broughton, Hunton & Williams, Richmond, Virginia, for Petitioner. Robert D. McCallum, Jr., Assistant Attorney General, Allen W. Hausman, Senior Litigation, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.

Before WIDENER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Petition for review denied and judgment affirmed by published opinion. Judge KING wrote the opinion, in which Judge WIDENER and Senior Judge HAMILTON joined.


KING, Circuit Judge.

Petitioner Constantin Rusu seeks our review of the May 2001 Order of the Board of Immigration Appeals (the "BIA") denying his application for asylum. Order of the Board of Immigration Appeals, File No. A 70 278 077 (BIA 2001) (the "BIA Order"). Rusu contends that his video conferenced asylum hearing violated his due process and statutory rights, and that the BIA erred in declining to grant him asylum. Although we agree that his asylum hearing was conducted in a haphazard manner, we conclude that Rusu suffered no prejudice as a result thereof. We therefore deny his petition for review and affirm the BIA.


Rusu fled his native Romania in 1989, allegedly out of fear of persecution by the Communist government of Nicolai Ceausescu. Rusu apparently had been an organizer for a transcendental meditation group which the Ceausescu government deemed to be subversive. Rusu contends that, as a result of his involvement in this group, he was interrogated and assaulted on multiple occasions by the Romanian secret police (the Securitate) in the years preceding his flight from that country. On one occasion, the Securitate supposedly held Rusu for three days, during which they tortured him by removing his teeth with pliers and a screwdriver.

Upon escaping from Romania, Rusu travelled first to Yugoslavia and applied for asylum there. Before Rusu's status could be determined, however, war broke out in the Balkans. He then fled to Canada and applied for asylum, but his application was denied. In November 1999, he left Canada and illegally entered the United States. Shortly after arriving in this country, Rusu obtained a passport from the Romanian Embassy. In February 2000, he flew to Great Britain, but he was refused entry and forcibly returned to the United States.

Upon his return, Rusu was placed in a detention facility in Farmville, Virginia, and he was charged by the Immigration and Naturalization Service (the "INS") with being removable under § 212(a) (6) (A) (i) of the Immigration and Naturalization Act (the "INA"). 1 On February

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28, 2000, the INS instituted removal proceedings against him. Rusu then applied for Asylum and Withholding of Removal (the "Application") and, on September 18, 2000, an Immigration Judge (the "IJ") conducted an asylum hearing. 2 The hearing was conducted by video conference, during which Rusu remained in an INS detention facility in Farmville, while the IJ, as well as counsel for Rusu and the INS, were in a courthouse in Arlington, Virginia. 3 Under this procedure, video cameras and television monitors were set up in both Farmville and Arlington to provide contemporaneous transmission of the hearing's images and sounds between the two sites.

Rusu's asylum hearing consumed approximately three hours, and it was plagued by communication problems. Although Rusu's best language is Romanian, he declined to accept an interpreter and chose instead to testify in English. In addition, due to his damaged mouth and missing teeth, he was unable to speak clearly. The IJ had difficulty comprehending Rusu's testimony, and on numerous occasions she stated that she could not understand Rusu and requested that he repeat himself. The court reporter was also unable to fully understand him, and the transcript of Rusu's asylum hearing testimony is marked "indiscernible" a total of 132 times. Moreover, Rusu had difficulty comprehending the questions of his counsel, Mr. Schneiderman, and the IJ, and they were often obliged to repeat themselves. Rusu also became confused when the person addressing him was not the one on camera (e.g., Schneiderman would ask a question but the camera would be focused on the IJ), and on several occasions he directed his response to the wrong person. Finally, there were technological problems with the video conference equipment. During the hearing, the IJ asked a correctional officer in Farmville to move Rusu closer to the camera, once stating "I think maybe that will help me understand him better." The IJ was also compelled to suspend the hearing at one point in order to check the quality of the equipment and its ability to record Rusu's voice.

In sum, the record reveals that the IJ and the lawyers, on the one hand, and Rusu, on the other, had difficulty understanding one another. After some effort, however, the IJ concluded that she could glean the asserted factual basis of Rusu's Application. In her decision she stated:

We are conducting the hearing by televideo conference and had to have [Rusu] repeat some of his answers in order to understand it. We have assured ourselves however that we did understand the testimony. The testimony appears to be clear on the tape.

Oral Decision of the Immigration Judge, File No. A 70 278 077 at 5 (Sept. 18, 2000) (the "IJ Decision"). In the IJ Decision, she observed that, in order to be eligible for asylum, a petitioner must have a well-founded fear of persecution, and that such a fear must be objectively reasonable. Id.

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at 3-4. She noted that Romania had undergone substantial reform of its political process, and, pursuant to 1992 legislation, most of the former Securitate officers had been purged from the present security force. 4 She also observed that there was no evidence that individuals who either (1) engaged in transcendental meditation, or (2) were previously critical of the Ceausescu government, were currently in danger of persecution. Thus, the IJ concluded that Rusu's fear of future persecution was not well-founded. Id. at 7-8. In addition, while she found Rusu's claims of past persecution to be unpersuasive, she stated that, assuming their validity, he nonetheless failed to qualify for asylum as a matter of discretion. 5 Id. at 9-10. The IJ therefore ordered Rusu to voluntarily depart the United States or, in the alternative, to be deported. Id. at 12.

Rusu appealed the IJ Decision to the BIA, which dismissed his appeal on May 17, 2001. Rusu has now petitioned for our review of the BIA Order, and we possess jurisdiction pursuant to 8 U.S.C. § 1252. 6


It is elementary that any judicial inquiry into the handling of immigration matters is substantially circumscribed. As the Supreme Court observed in Landon v. Plasencia, "control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Deportation and asylum hearings, however, are subject to the requirements of procedural due process. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-01, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir. 1995). We review de novo a claim that the procedures utilized in such hearings contravened due process or the INA. Jacinto v. INS, 208 F.3d 725, 727 (9th Cir. 2000). In order to prevail on a due process challenge to a deportation or asylum hearing, an alien must demonstrate that he was prejudiced by any such violation. Gandarillas-Zambrana, 44 F.3d at 1256-57; Farrokhi v. INS, 900 F.2d 697, 703 n. 7 (4th Cir. 1990). Similarly, an alien must "establish prejudice in order to invalidate deportation proceedings on a claim that [his] statutory or regulatory rights were infringed." Garcia-Guzman v. Reno, 65 F.Supp.2d 1077, 1085 (N.D.Cal.1999) (citing United States v. Cerda-Pena, 799 F.2d 1374, 1377 (9th Cir. 1986)). And we may only find prejudice "when the rights of [an] alien have been transgressed in such a way as is likely to impact the results of the proceedings."

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Jacinto, 208 F.3d at 728; see also Farrokhi, 900 F.2d at 702-03.


Rusu maintains that the video conferencing procedures utilized in his asylum hearing violated due process and the INA by rendering him unable to present his case for asylum in a meaningful manner. 7 Before addressing the merits of this contention, we will briefly examine the legal principles governing the procedural rights of asylum petitioners.


In assessing whether a deportation or asylum hearing has comported with due process, we are guided by the principles of Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in which the Court recognized that "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." 8 As the Court acknowledged, what constitutes being heard...

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