Floroiu v. Gonzales

• Decision Date: 02 April 2007
• Docket Number: No. 06-1333.,06-1333.
• Citation: 481 F.3d 970
• Parties: Danut FLOROIU, Alina Floroiu, and Dania Floroiu, Petitioners, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.3d 970

Danut FLOROIU, Alina Floroiu, and Dania Floroiu, Petitioners, v. Alberto R. GONZALES, Respondent.

No. 06-1333.

United States Court of Appeals, Seventh Circuit.

Argued January 24, 2007.

Decided April 2, 2007.

David Trais (argued), Richard H. Trais, Chicago, IL, for Petitioners.

Doris Clark (argued), Office of the United States Attorney, Indianapolis, IN, Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Hillel R. Smith, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.

PER CURIAM.

Danut and Alina Floroiu, Seventh-day Adventists from Romania who are married, along with their daughter, Dania, petition for review of an order of the Board of Immigration Appeals ("BIA" or "Board") denying their applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Following a removal hearing, an Immigration Judge ("IJ") denied their requests for relief on grounds that an asylum application was untimely and that, with respect to their applications for withholding of removal and relief under CAT, the Floroius failed to sustain their burden of showing it was more likely than not that, if returned to Romania, they would suffer persecution or torture because of their religion. The BIA affirmed. The Floroius now petition for review of only the denial of their application for withholding of removal. Because the IJ manifested a clear bias against the Floroius, which deprived them of their right to a fair hearing, we grant their petition for review.

1.

Danut and Alina Floroiu entered the United States in February 2000 as non-immigrant visitors. After an attempt to have their five-year-old daughter, Dania, enter the United States in January 2003, the Immigration and Naturalization Service initiated removal proceedings against all three family members. See 8 U.S.C. §§ 1182(a)(7)(A)(i)(I), 1227(a)(1)(A) & 1227(a)(1)(B).

At the hearing before the IJ, the Floroius conceded removability but requested asylum, claiming religious persecution. In support of their claim, Mr. Floroiu testified that, on four separate occasions between 1997 and 2000, he had been prevented from preaching his faith and distributing Seventh-day Adventist literature with members of his youth group. The first incident occurred in the city of Bicaz in 1997, when a local Romanian Orthodox priest told them to go home and not return to the town. The second incident occurred in Girov in 1998, when Mr. Floroiu and the youth group attempted to distribute religious literature door-to-door, and another Orthodox priest told them to leave the city. Mr. Floroiu reported this to the police, who said they could not do anything because the Orthodox Church is supported by the majority of the people. The third incident, also in 1998, occurred in the city of Cuiejdi. As before, a local Orthodox priest told Mr. Floroiu and his group to stop handing out the literature. A verbal altercation ensued, and people from the village joined in and threatened to kill Mr. Floroiu and other members of his group.

The fourth and most heated incident occurred in 2000 in Piatra Neamt Darmantspi, when a priest again instructed Mr. Floroiu and his group to stop proselytizing and get out of the town. This confrontation escalated into a physical fight between Mr. Floroiu and the priest while a crowd gathered round; the priest threatened to kill Mr. Floroiu but did not injure him. One of Mr. Floroiu's friends witnessed this event and called the police, who brought Mr. Floroiu into the station and questioned him about the situation leading to the fight. After a few hours, the police released Mr. Floroiu, advised him not to return to the neighborhood, and warned him that the police would not be available to protect him in the event of any future conflict.

The Floroius testified that they had reason to fear future persecution if returned to Romania. Mr. Floroiu claimed that, since early 2000, there has been a warrant out for his "preventative arrest" in Romania, naming as his offense the distribution of religious literature. A.R. at 263-68; see also id. at 152-53. Mr. Floroiu also said that friends and family members have warned them not to come back because they would face further persecution. Letters from family and friends in Romania corroborating the Floroius' testimony were provided to the IJ. Mr. and Ms. Floroiu also testified that in Romania people work and children go to school on Saturdays, which violates Seventh-day Adventist teachings. Other than confirming that they continue to practice Seventh-day Adventism in the United States, the Floroius did not discuss any details of how they now practice their religion in this Country.

The Government presented the State Department's country reports and reports on international religious freedom for Romania. These reports indicated that Romania's constitution provides for freedom of religion and that the government officially recognizes seventeen religions, including the Seventh-day Adventist Church. The reports note that, although the government generally respects religious rights, there are some exceptions. The reports indicate that, "[a]lthough protected by law, several minority religious groups, which include both recognized and unrecognized religions, made credible complaints that low-level government officials and Romanian Orthodox clergy impeded their efforts to proselytize, interfered in religious activities, and otherwise discriminated against them." A.R. at 250. The report goes on to acknowledge that, in some instances, "local police and administrative authorities tacitly supported societal campaigns (some of which were violent) against proselytizing," even though there is no law against proselytizing. Id. The reports detail various attacks on Adventist churches and prayer groups. Finally, the reports observe, recognized religions have the right to teach religion in public schools, however, Seventh-day Adventists have complained credibly that they were unable to hold classes in their faith and that their children have been compelled to attend Orthodox religion classes.

The IJ found the Floroius ineligible for asylum because they had filed their application three years after they entered the Country, well past the one-year statutory deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ denied their claims for withholding of removal and relief under the CAT — claims that are not subject to the one-year time bar—because he determined that the past harm suffered by the Floroius did not rise to the level of persecution and that they had not established a likelihood of their being persecuted or tortured if returned to Romania. He relied on those portions of the State Department's country reports indicating that Seventh-day Adventists "are allowed to practice their religion in Romania and that the Romanian government has followed the legal protections for free expression of religion in practice and that Seventh-[d]ay Adventists are recognized as one of the religions who are [sic] allowed to register in Romania." A.R. at 84. The IJ found "that the respondents' claim such as it is is greatly exaggerated that [sic] the events on which they base their claim were partly the result of their own actions." A.R. at 83. The IJ's reasoning concluded with the following language in which he described the Floroius' practice of religion as offensive both in this Country and Romania:

My observation of the respondents and their behavior in Romania and in the United States indicates to me that they are essentially zealots, that is people who practice their religion in a way which is very often offensive to the majority and that they have deliberately forced their religious expression on that majority in situations in which they have reason to know that that [sic] the manner of that expression would provoke an adverse reaction from the majority. This is not to condone any religious intolerance on the part of Romanian Orthodox believers, but it is to say that the respondents are not mere victims because of their Adventist faith but rather to a degree contributorily negligent for acting in a way so as to provoke people who they know or should have reason to know would be offended by their aggressive proselytizing.

A.R. at 84-85.

The BIA dismissed the Floroius' appeal. First, the Board noted that the Floroius did not challenge the one-year filing deadline for asylum applications, and added that no exceptions to that deadline were present. The Board then denied the Floroius' applications for withholding of removal and for CAT relief. In reaching this determination, the Board acknowledged the observation in the country reports that the Romanian Orthodox Church had shown some hostility toward minority religious groups, but explained that the Floroius had not shown that their mistreatment rose to the level of persecution or that they had a well-founded fear of future persecution. Finally, the Board noted that "although the Immigration Judge inappropriately described the respondents as religious zealots, we find that he adhered to the role of impartiality assigned to him as one acting in a judicial or quasi-judicial capacity, and that the factual errors contained in his decision are harmless as they do not alter our ultimate decision." A.R. at 41 (citation omitted).

The Floroius filed with this court a timely petition for review of the BIA's decision and on the same day filed a "motion to reopen/reconsider" with the BIA. A.R. at 12. In the latter motion, the Floroius argued that the IJ did not adequately consider their claims of persecution, and they submitted purportedly new evidence that included a newspaper article from 2000 translated from Romanian into English entitled "The Adventists have yet to suffer if they want to grow!" and a second copy of the 2000 arrest warrant...