Gui v. I.N.S.
| Decision Date | 08 February 2002 |
| Docket Number | No. 00-70287.,00-70287. |
| Citation | 280 F.3d 1217 |
| Parties | Alexandru GUI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Leah W. Hurwitz, Esq., San Diego, California, for the petitioner.
Ronald E. LeFevre, Chief Legal Officer, Immigration and Naturalization Service, San Francisco, California, for the respondent.
Mark C. Walters, Christine Bither, Thankful T. Vanderstar, and Anh-Thu P. Mai, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington D.C., for the respondent.
On Petition for Review of an Order of the Board of Immigration Appeals. I&NS No. A71-595-144.
Before: B. FLETCHER, T.G. NELSON and BERZON, Circuit Judges.
Alexandru Gui petitions this court for review of a decision of the Board of Immigration Appeals ("BIA"). Mr. Gui, who became politically active in his opposition to Communism following Romania's 1989 revolution, contends he was persecuted in 1990 and 1991 on account of his political beliefs. The Immigration Judge ("IJ") did not find Mr. Gui credible and thus held that he did not establish past persecution or the well-founded fear of future persecution necessary for a grant of asylum or withholding of deportation. Mr. Gui appealed the IJ's decision to the BIA and filed a Motion to Remand for reconsideration of claims based on the regulations implementing the United Nations Convention Against Torture. The BIA affirmed the IJ's denial of asylum and withholding of deportation and denied Mr. Gui's motion to reopen the proceedings to assert a claim under the Convention Against Torture. We grant the timely petition for review, find eligibility for asylum, deny withholding of deportation, deny relief under the United Nations Convention Against Torture, and remand to the BIA for an exercise of discretion by the Attorney General as to the grant of asylum.
On February 18, 2000, the BIA entered its final order dismissing Mr. Gui's administrative appeal. Because the Board entered its ruling after October 30, 1996, and because Mr. Gui's case was pending before April 1, 1997, the transitional judicial review rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) apply. Pub.L. No. 104-208, 110 Stat. 3546 (Sept. 30, 1996); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). The panel has jurisdiction pursuant to 8 U.S.C. § 1105a(a), as amended by IIRIRA.
According to his application for asylum and his testimony before the IJ, Mr. Gui comes from an anti-Communist family that opposed the repressive Communist regime that governed Romania from 1947 until a 1989 revolution felled the government of Nicolae Ceausescu. Mr. Gui's grandfather, a member of the National Peasants Party, which opposed the communist regime, was sentenced to five years in a labor camp because he was a landowner and a professor. Mr. Gui's aunt emigrated to the United States over thirty years ago and has settled in San Diego.
Mr. Gui's family has suffered harassment since at least the 1960s. Because of his aunt's emigration, the Romanian government considered the Guis traitors and kept them under close surveillance. At various times, family members reported as ordered to the police station for interrogations. Police repeatedly searched the Gui home without a warrant. The Guis' telephone has been tapped since at least 1976.
As a medical student in the early 1980s, Mr. Gui joined the Romanian Communist Party based on his belief that he would be sent either to jail or to a prison camp if he refused. He renounced his party membership immediately upon the overthrow of the Communist regime in 1989. Mr. Gui supports the Alianta Civica Organization and recognizes the legitimacy of King Michael.1
After the Ceausescu government fell in 1989, Mr. Gui believed that the new government, led by former Communist functionary and long-time Ceausescu foe Ion Iliescu, continued to be antidemocratic and run in large part by the former Communists. In particular, Mr. Gui noted the inclusion of several thousand members of the former state security agency, the Securitate, in the new Romanian Intelligence Service, as well as the appointment of several former communists to positions of power in the new government.
Nonetheless, relying on the new government's proclaimed commitment to democracy and openness, Mr. Gui became a local political activist. He participated in and addressed meetings opposing communist power, spoke on local television, created and distributed political literature, and agitated for the human rights of Hungarians and other minorities.
On September 5, 1990 — just nine months after the Iliescu government assumed power — police ordered Mr. Gui to the police station. There, officers interrogated him for 24 hours regarding his authorship and dissemination of leaflets and other political activities. The police threatened him and warned him to cease his political activities. Because his political activities were not formally punishable, the police instead charged him with "disturbing the public peace" and forced him to pay a hefty fine to obtain release.
As Mr. Gui's political activism continued, so too did harassment by authorities. Mr. Gui's telephone conversations were tapped. His mail arrived opened or not at all. Because of his success as a surgeon, Mr. Gui maintained homes both in his home town and in the town where he worked; police searched both dwellings without warrants and seized documents, newspapers, photos, posters, and letters.
On December 30, 1990 — a year after the fall of the Ceausescu government — a large truck driven by a man who had regularly been following Mr. Gui's car rammed the car from behind, propelling Mr. Gui across a set of railroad tracks at which he had been stopped. Mr. Gui recognized the hit-and-run incident as a common activity of the Romanian secret police, who he says staged such "accidents" to cause injury or death without their being traceable to the government. In the summer of 1991, another hit-and-run accident sent Mr. Gui's car into a three-foot deep ditch. Mr. Gui once again reported the accident and this time was able not only to describe the driver, but also to provide the license plate number of the car that had rammed him. He had adopted the habit of noting license numbers of cars that tailed him. The license plates turned out to be phony and the assailant was never found.
Believing he "had two options, either to stay in my country and continue to ... have unfortunate accidents or to ... leave and get away and put the ocean between me and them," Mr. Gui left Romania in December 1991. After his departure, the government harassed his parents for information about their son. After the police once again searched Mr. Gui's apartment, they detained his mother at the police station and interrogated her for eight hours. Detailing her experience in a letter presented to the IJ, Mrs. Gui told her son that she was now required to provide monthly reports about him.
Fearing for his life should he return to Romania, Mr. Gui applied for asylum on January 21, 1992, just one month and one day after he entered the United States. Mr. Gui fears that his life is at risk because
In addition to his own affidavit, his mother's letter, and 1996 correspondence from a surgeon friend telling of continued harassment, Mr. Gui's briefing to the IJ included dozens of articles spanning 1990-1995 that detailed the continuing power of the former Communists in the government generally and in the police and intelligence forces particularly. Nonetheless, in his August 19, 1996 decision, rendered immediately following Mr. Gui's hearing, the IJ denied Mr. Gui's requests for asylum and withholding of deportation based on his finding that Mr. Gui was not credible. Because he disbelieved his claims, the IJ concluded that Mr. Gui had not satisfied his burden of proving he had a well-founded fear of persecution based on race, religion, nationality, membership in a particular social group, or political opinion.
The IJ doubted several of Mr. Gui's allegations. First, the IJ took issue with Mr. Gui's allegation that his phones were tapped. As proof of the tapping, Mr. Gui had explained that police had interrogated him about information he remembered providing to others by telephone. The IJ, pointing out that Mr. Gui alleged his phones had been tapped since at least 1976, found it "extremely implausible" that Mr. Gui would discuss "incriminating information" on the phone if he knew the government was eavesdropping.
The IJ also found significant fault with Mr. Gui's testimony about the two hit-and-run car crashes. With respect to the 1990 crash, the IJ did not express any specific opinion about whether or not the accident may have occurred, but instead focused on Mr. Gui's claim that he reported the accident to the police and described the face of the driver, whom he recognized as someone who had followed him in the past. The IJ's only statement about the matter was that "[i]t would seem rather difficult for a police organization, even if they attempted to do a thorough investigation, to be able to find someone strictly by a description of a face."
With respect to the 1991 hit-and-run, the IJ did not believe that someone staging an accident would do so by forcing a car off the road into a three foot ditch adjacent to a field. Instead, the IJ believed it "would seem...
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