Mercea v. Reno et al, TAMAS-MERCE

• Decision Date: 28 July 2000
• Docket Number: P,No. 99-3155,TAMAS-MERCE,99-3155
• Citation: 222 F.3d 417
• Parties: (7th Cir. 2000) TEODORetitioner, v. JANET RENO and the IMMIGRATION AND NATURALIZATION SERVICE, Respondents
• Court: U.S. Court of Appeals — Seventh Circuit

Page 417

222 F.3d 417 (7th Cir. 2000)

TEODOR TAMAS-MERCEA, Petitioner, v. JANET RENO and the IMMIGRATION AND NATURALIZATION SERVICE, Respondents.

No. 99-3155

In the United States Court of Appeals For the Seventh Circuit

Argued May 16, 2000

Decided July 28, 2000

Petition for Review of an Order of the Board of Immigration Appeals A71 845 008

[Copyrighted Material Omitted]

Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Petitioner, Teodor Tamas- Mercea, seeks review of an adverse decision of the Board of Immigration Appeals ("BIA") denying his requests for asylum, withholding of deportation, and voluntary departure. For the reasons set forth in the following opinion, we dismiss Mr. Tamas' request for voluntary departure, deny the remainder of his petition for review, and affirm the decision of the Board of Immigration Appeals.

I BACKGROUND

A. Facts

Mr. Tamas¹ was born in Romania in 1952 and is a citizen of that country. His ancestry is predominantly Hungarian; his paternal grandmother was Jewish.

Mr. Tamas comes from a wealthy family in the Arad region of Romania. At one time, his family owned considerable land, several houses, and a mill. Several family members were also active in local politics. For example, Mr. Tamas' grandfather was both mayor of the city of Chisindia and leader of the National Peasant Party in that city. Mr. Tamas' father also held the position of mayor in Chisindia.

After World War II, the communists collectivized land in Romania, an action which Mr. Tamas' grandparents and parents opposed. The secret police repeatedly visited the family home to force his grandparents to surrender the family properties to the Romanian government. When Mr. Tamas' grandfather, father and uncle resisted these efforts, they were arrested and beaten.

Mr. Tamas felt the effects of his family's resistance beyond the loss of their land and the suffering of his family members. His teachers withheld high marks and awards from Mr. Tamas because of his family history. When he attended a university, Mr. Tamas' Communist Party classmates received better grades and, eventually, better jobs than Mr. Tamas.

When Mr. Tamas married Rodica Mercea in 1981, his problems with the Romanian government continued. Rodica had a brother in the United States, and Mr. Tamas believes that this, combined with his family history, caused him to be the target of government surveillance. According to Mr. Tamas, "we were constant suspects to the Securitate. They harassed us continually and monitored my activities." R.271.

Tragedy of a different kind struck Mr. Tamas and his wife in 1984. In October 1984, Rodica gave birth to triplet sons; they were premature and therefore were sent to a hospital in a different city. Mr. Tamas visited his sons daily at the hospital for the next three weeks. One day, he arrived at the hospital and was told that the electricity had gone off in the middle of the night, that the generator had not kicked in, and that his sons had died. Mr. Tamas was instructed by hospital authorities to bring in three coffins. The hospital then returned locked coffins to him, and hospital authorities told him not to open the coffins. Mr. Tamas suspected that at least one coffin was empty.

Mr. Tamas quickly became frustrated with the treatment that he and his wife received from Romanian government employees following the death of their sons. For instance, Mr. Tamas had difficulty obtaining death certificates for his children, and Rodica was denied maternity leave because her children had not survived. Mr. Tamas was so angered by the difficulty with the death certificates and with his wife's maternity leave that he threatened the director of public health in his town.

When he tried to find out what happened to his children, his inquiries were met with evasiveness and threats. Specifically, Mr. Tamas was told by the director of his company that if he did not mind his own business, he would lose his job. His wife, too, made inquiries and was told that she would lose her job if she pursued the subject further.

Shortly after the loss of the children, Rodica and one of her co-workers were involved in an accident with a construction vehicle. When Mr. Tamas went to the police station to obtain an accident certificate, the police allegedly would not speak to Mr. Tamas. Sometime later, the driver of the construction vehicle was admitted for the treatment of alcoholism to the hospital in which Rodica worked. The driver apparently told hospital staff that he would not be prosecuted for the incident because he was an informant for the secret police. Mr. Tamas believes that this man intended to kill his wife.

When the communist regime came to an end in Romania, Mr. Tamas attempted to regain his family's land. He was awarded ten hectares of farm land and one of forest; the remaining land and the mill were not returned. When he complained about the fact that the mill was not returned, he was told he would never get it back. When he and his father went to city hall to attempt to get the mill back, his father was beaten and, a few months later, suffered a fatal heart attack. At about this time, Mr. Tamas' car was broken into several times, and someone fired a gunshot through the window of his house.

Mr. Tamas and his wife left for the United States in 1991 and applied for political asylum shortly thereafter. Rodica returned to Romania in 1994 for her father's funeral; she was then unable to gain re-entry to the United States because her visa expired during her stay in Romania.

According to Mr. Tamas, Rodica has continued to be the target of government persecution. She has been advised that she will not be employed in the health care system. Also, when Mr. Tamas' summer home in Romania caught fire, "she was told [by the police] to relax if she doesn't want to burn herself or something." R.90. Finally, Mr. Tamas testified that, since his wife's return, she has been questioned concerning his whereabouts and that, when he receives letters from her, they have been opened.

B. Administrative Proceedings

1.

The Immigration and Naturalization Service ("INS") commenced deportation proceedings in 1994 after Mr. Tamas' temporary visa expired. Mr. Tamas conceded deportability, but renewed his application for asylum. After several administrative delays, the Immigration Judge ("IJ") heard testimony on March 17, 1997. Before the IJ, Mr. Tamas argued that his ethnic and religious background, his family history, the death of his children, and the Romanian government's resistance to explaining his sons' deaths constituted persecution and, therefore, warranted a grant of asylum. Mr. Tamas also argued that he had a well-founded fear of future persecution because the individuals who had persecuted him in the past were still in power. At the conclusion of the proceedings, the IJ took the matter under advisement.

In a written opinion, the IJ analyzed each piece of evidence submitted by Mr. Tamas and concluded that Mr. Tamas had not suffered past persecution within the meaning of the asylum law. The IJ noted that, although the incidents of Mr. Tamas' childhood were unfortunate, he still received a professional education and had been gainfully employed; consequently, this discrimination did not rise to the level of persecution. The IJ reached a similar conclusion with respect to the harassment and surveillance Mr. Tamas endured because of his and his wife's family connections; these actions did not rise to the level of persecution for purposes of the asylum law.

The IJ also addressed the loss of Mr. Tamas' sons and the conflicts with various government offices that followed. The IJ stated

While recognizing the tragic nature of losing one's children, particularly without knowing the reasons or circumstances the court finds that this does not rise to the level of past persecution. It is simply not clear what happened to the children. . . .

Even if the children were taken [by the Romanian government], it does not appear that they were taken on account of the respondent's political opinion.

R.32-33. The IJ determined that "[t]he addition of the wife's accident also does not establish persecution[ ]" because, according to the IJ, Mr. Tamas had not come forward with evidence which suggested that the driver specifically had targeted Rodica, as opposed to simply causing an accident. R.33.

The IJ next addressed Mr. Tamas' argument that he feared future persecution. The IJ rejected this claim in part because the IJ questioned Mr. Tamas' testimony² and in part because circumstances had changed so drastically since Mr. Tamas was last in Romania. Finally, the IJ denied Mr. Tamas voluntary departure because Mr. Tamas had stated during the hearing that he would not depart voluntarily if allowed to do so. Mr. Tamas appealed to the BIA.

2.

The BIA affirmed the IJ's decision and adopted much of his reasoning. First, the BIA agreed that Mr. Tamas suffered discrimination because of his family affiliation, but that this discrimination did not constitute persecution. Furthermore, the BIA concluded that Mr. Tamas' "theories about the death of his infant children and his wife's accident are too speculative a basis upon which to grant asylum." R.3. Finally, the BIA concurred with the IJ's assessment that conditions in Romania had changed to such an extent "that any fear [Mr. Tamas] might have had of returning to Romania should be significantly diminished." Id. Mr. Tamas timely appealed the BIA's denial of asylum.

II DISCUSSION

A. Statutory Standards

"Asylum eligibility 'is a factual determination which we review under the substantial evidence test.'" Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir. 2000) (quoting Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir. 1992)). As a reviewing court, we are not entitled to reverse the BIA's determination "'simply because [we are] convinced that [we] would have decided the case differently.'"...