Hengan v. I.N.S.

• Decision Date: 20 March 1996
• Docket Number: No. 95-2939,95-2939
• Citation: 79 F.3d 60
• Parties: Ana Maria HENGAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 60

79 F.3d 60

Ana Maria HENGAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-2939.

United States Court of Appeals Seventh Circuit.

Argued Feb. 28, 1996.

Decided March 20, 1996.

Richard B. Kapnick, James B. Speta (argued), Sidley & Austin, Chicago, IL, for Petitioner.

Anthony W. Norwood (argued), Department of Justice, Office of Immigration Litigation, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, David M. McConnell, Stephen W. Funk, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before COFFEY, EASTERBROOK, and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Ana Maria Hengan was born in Romania, but her ancestry is Hungarian. During the dictatorship of Nicolae Ceausescu, Romania pursued a policy of assimilating minority groups. This policy ended with Ceausescu's government, and today Romania has many political parties and factions based on ethnicity. There is a corresponding anti-minority movement, the Party of Romanian National Unity (Vatra Romaneasca), which favors excluding ethnic minorities from the nation's civic and economic life.

Approximately 11 percent of Romania's population of 23 million is of Hungarian ancestry. Most live in Transylvania, which Romania annexed in 1919, after the Austro-Hungarian empire collapsed. Friction between the Hungarian minority and the 78 percent of the population who consider themselves "native" Romanians has persisted. The government that replaced the communist regime includes some of the nativist factions; Hungarians have been in the opposition. Hengan lived near Cluj, whose mayor, Gheorghe Funar, is a vigorous supporter of the Vatra Romaneasca. Funar outlawed bilingual signs, tried to evict Hungarian organizations from their offices, and whipped up anti-Hungarian sentiment. The State Department's 1993 country report for Romania relates that the central government has been unable to stop Funar's harassment of Hungarians.

Official support for intolerance has private consequences. Hengan, who joined the Hungarian Democratic Union (UDMR) soon after its organization in 1990, became a party leader in her factory and suffered for it. (We recount the facts as Hengan recites them; the immigration judge credited her story.) When she would not give up party work, she was demoted and harassed by the local police. Threatening mail and telephone calls arrived. Someone broke a window of her house and threw in a dead rat with a note stating: "You are next! All Hungarians should be hanged! No Hungarian memorials in our country! Do you understand it?" Slogans appeared on her fence with threats such as: "Hungarians should be hanged, and if you do not stop your activities, we will break your bones." The local police and the Romanian Secret Service not only did nothing to protect her but also began to summon Hengan for weekly questioning--not about who may have been threatening her, but about whom she worked with in the UDMR. In 1991 the UDMR organized a celebration that was broken up by the Vatra Romaneasca, accompanied by members of the Romanian Secret Service (out of uniform, and in their "private capacities"). The attackers beat the Hungarians with sticks; and although Hengan escaped without injury, many other people were hospitalized. Hengan began planning to escape the country. She journeyed to the United States as a tourist, and, shortly after arriving, filed an application for asylum. Her application was supported not only by her own account, but also by an affidavit of a co-worker who has been granted asylum in Germany. And her tale is consistent with the reports of the State Department and international human rights groups, which verified the mistreatment of ethnic Hungarians in Romania during the early 1990s.

An advisory opinion filed in the asylum proceedings by the State Department's Bureau of Human Rights and Humanitarian Affairs, see 8 C.F.R. § 208.11, reports that the Department lacks information about Hengan or her circumstances. The Bureau then made some general observations about the difficult process of establishing tolerance and democracy in Romania. It reported that the UDMR is an active political party that supports democratic reform. The party "occasionally offends the Romanian majority, including the opposition, by pressing strongly on minority issues and calling for collective ethnic rights." But because the UDMR received 7 percent of the vote in the 1992 national elections, the Bureau concluded that it had "difficulty in finding a basis in [Hengan's] account for a plausible concern over mistreatment on her return to Romania." The immigration judge then denied Hengan's application for asylum, writing that the record "does not reveal a level of mistreatment that can be characterized as 'past persecution' by the Romanian government on account of her Hungarian ancestry" sufficient to justify asylum. To support that conclusion, the immigration judge offered five observations:

(1) The respondent was able to obtain post-graduate education and maintain continuous employment from 1973 to 1992.

(2) The respondent was never arrested or charged with any offense, political or otherwise.

(3) The respondent was not subjected to any form of physical abuse by the Romanian authorities.

(4) The respondent was issued a passport and allowed to depart the country without apparent difficulty.

(5) Although the record contains evidence that Hungarians in Romania had been victimized by discrimination and in some cases "forced assimilation", the record herein does not reveal that the respondent suffered these forms of mistreatment to the extent that it can be concluded that she was subjected to "past persecution".

The Board of Immigration Appeals affirmed on the basis of the immigration judge's opinion.

The State Department's generally optimistic assessment of conditions in Romania, coupled with the deference due to the Department of Justice in the administration of the immigration laws, see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Mitev v. INS, 67 F.3d 1325, 1329-30 (7th Cir.1995), may well support a denial of Hengan's application. Many parts of the globe have ethnic conflict, even civil war, but the immigration laws do not offer asylum to all who become embroiled in such strife. See Bevc v. INS, 47 F.3d 907 (7th Cir.1995); Milosevic v. INS, 18 F.3d 366 (7th Cir.1994); Sivaainkaran v. INS, 972 F.2d 161 (7th Cir.1992); Zulbeari v. INS, 963 F.2d 999 (7th Cir.1992). Persecution differs considerably in degree and effect; the Immigration and Naturalization Service is entitled to restrict asylum to those who have suffered the most, or are at greatest risk in the future. Hengan has been through unpleasant experiences, but when she left Romania she was employed and uninjured. The State Department's country report for 1994, issued in February 1995, states that Romania does not persecute any part of the population on account of ancestry, religion, and similar attributes. According to the 1994 report, the UDMR has 28 seats in Parliament's Chamber of Deputies and 12 seats in the...