Roman v. Immigration & Naturalization Service

Citation233 F.3d 1027
Decision Date05 December 2000
Docket NumberNo. 99-3510,99-3510
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Parties(7th Cir. 2000) EMIL ROMAN and DOCHITA ROMAN, <A HREF="#fr1-1" name="fn1-1">1 Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, and JANET RENO, Attorney General of the United States, Respondents

Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge.

Emil Roman and his wife Dochita are Romanian natives and citizens who seek review of the Board of Immigration Appeals' ("BIA") decision to deny their application for asylum under the Immigration and Nationality Act ("INA") sec. 208(a), 8 U.S.C. sec. 1158(a), and for withholding of deportation pursuant to INA sec. 243(h), 8 U.S.C. sec. 1253(h). Mr. Roman claims that he and his wife are unable to return to Romania because he has suffered, and will continue to suffer, political persecution from former members of Nicolae Ceausescu's Communist regime who now hold positions of power in the new democratic government. For the reasons set forth in the following opinion, we affirm the decision of the BIA.

I BACKGROUND
A. Facts

Mr. Roman's troubles began in 1963 as a high school student in Sibiu, Romania, when he refused to join the Youth Communist Union. He claims that, as a consequence, he "had no position" in the school even though he was one of the best students, and his application to college was initially rejected. R.61. He ultimately was admitted to "mechanic[s']" college two hundred miles away in Bucharest, where he believed that he could more freely express his political opinions. R.62. One year later in 1968, Mr. Roman took part in a student demonstration against Ceausescu's Communist regime. According to Mr. Roman, he was constantly under surveillance because of his participation in the demonstration.

After college, Mr. Roman was hired by the government-owned Tarom Airlines as an aviation engineer. He worked at Tarom for twenty years until he left for the United States in 1992. Mr. Roman claims that every time he left the country for business, he was warned that, if he tried to apply for asylum, his possessions would be confiscated, his wife (a flight attendant at the same company) would be fired, and his daughter would be placed in an orphanage. The Securitate (secret police) questioned him hundreds of times, once for nine hours; however, he was never jailed. According to Mr. Roman, his wife Dochita had been married to a Securitate officer, and, after she divorced the officer, she "lost everything including her son." R.149. Mr. Roman also alleges that Dochita's ex-husband informed the Securitate that her family had "subversive characteristics." Id.

While at Tarom Airlines, Mr. Roman was asked to join the Communist Party many times, but always refused. As a result, he contends, he never was promoted. He claims that he never was fired, however, because he was highly qualified. About twice a year he would travel outside Romania for the company and, on one occasion, he was sent to the United States for training.

Mr. Roman was in Nigeria on business when Ceausescu's regime was overthrown in December 1989. He returned to Romania in January of 1990 and participated in demonstrations against the Communists who remained in power after the revolution. According to Mr. Roman, in September 1991, he was beaten by three miners because, he suspects, of his political beliefs.

At that time, Mr. Roman belonged to a group at Tarom that was attempting to privatize the company. The new leaders at Tarom told Mr. Roman that his efforts were futile, demoted him, and warned him that, if he did not mind his own business, he would have an "accident." R.72. Mr. Roman also was threatened over the telephone. In May 1992, he discovered that the tires of his car were punctured; one week later, the lug nuts on one wheel were loosened. Afterward, Mr. Roman received an anonymous phone call warning him that if he did not "shut up," he would have more serious problems. R.153. According to Viorica Seceleanu, a former Tarom flight attendant, Mr. Roman was considered a "troublemaker" at Tarom, although she did not know why. R.114-15.

After the 1989 overthrow of Ceausescu's Communist regime, there were no restrictions on Mr. Roman's travel outside of Romania. Prior to his July 1992 arrival in the United States, he was permitted to travel to this country with his wife for vacation in December 1991 and again in April 1992. Mr. Roman decided to leave Romania for good when the "new Communists" (who were part of the old regime) came into power and threatened that, if he did not mind his own business, they would create a "file" for him and tell everyone that he was an "informer." R.84, 154. The Romanian government granted Mr. Roman an exit permit to leave the country.

B. Administrative Proceedings
1.

Mr. Roman and his wife entered the United States in July 1992 as nonimmigrant visitors authorized to stay in the country for six months. They remained in the country after the authorization period ended, and, on May 11, 1993, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause and Notice of Hearing charging the Romans with deportability under INA sec. 241 (a)(1)(B), 8 U.S.C. sec. 1251(a)(1)(B) (1994). A deportation hearing was held on November 12, 1993, in which the Romans admitted that they overstayed their authorized visit and requested asylum, withholding of deportation, and, in the alternative, voluntary departure.

Mr. Roman attached an eleven-page narrative statement to his asylum application detailing his claims of past persecution and his fears of reprisal should he return to Romania; he also submitted 75 published articles commenting on the repressive Ceausescu regime and the aftermath of the 1989 overthrow. On March 9, 1994, the immigration judge ("IJ") held an evidentiary hearing on the Romans' application for asylum and withholding of deportation. The IJ's demeanor at the hearing fairly could be described as brusque and impatient; the judge often criticized Mr. Roman's counsel for not getting to the point quickly enough.2 Further, the IJ repeatedly interrupted counsel's examination to ask questions of the witnesses.

At the request of the IJ, the State Department's Board of Human Rights and Humanitarian Affairs ("BHRHA") issued an advisory opinion in January 1994, observing that under the Ceausescu regime, Mr. Roman and his wife "prospered in terms of education, employment, and travel abroad" and that "[there] is no way that somebody repeatedly threatened and harassed as he claims would have been so successful [for] so long under Ceausescu." R.118. The BHRHA further noted that Mr. Roman's account of persecution after the overthrow "comports badly with country conditions." Id. In a December 1993 country profile, the BHRHA opined that Romania has undergone fundamental changes since the overthrow of Ceausescu's repressive Communist regime in 1989. Although the country still struggles with the transition from a totalitarian and centralized state to a democracy with a free- market economy, civil liberties (i.e., freedom of speech, press, assembly, association, religion and travel) are respected. The BHRHA observed that anti-Communist sentiments cited by many asylum applicants now place them within the mainstream of political opinion. Although the BHRHA deemed the 1992 national elections a success, it noted that some Romanians are still suspicious of their leaders, many of whom held office under the previous regime. But the BHRHA opined that "current country conditions have so altered as to remove any presumption that past mistreatment under Ceausescu or in the chaotic first year after his overthrow will lead to mistreatment in the future. . . . Most Romanians have a difficult task in plausibly establishing that they would face severe and targetted [sic] mistreatment upon return to their country." R.120-21. The BHRHA also noted that a number of Romanians have abandoned refugee status and returned to Romania to claim property or arrange for relatives to join them in the United States.

After considering Mr. Roman's testimony as well as his narrative statement, the IJ denied the Romans' application for asylum and withholding of deportation, finding that Mr. Roman's claim was based "upon generalized statements, speculation, all of which are uncorroborated by any credible evidence." R.48. The IJ noted that Mr. Roman was never imprisoned in Romania, was not prevented from attending school or college, and was able to keep his job at a government-owned airline for twenty years until he left for the United States. The IJ then granted the Romans' alternative request for voluntary departure on or before June 9, 1994. The Romans appealed the IJ's decision to the BIA.

2.

Over five years later in September 1999, the BIA rendered its decision dismissing the Romans' appeal. First, the BIA addressed the Romans' argument that the IJ limited their right to present their case, finding any alleged errors to be harmless because they did not identify any specific additional testimony that would likely change the result in the case. Nonetheless, the BIA did not adopt the analysis of the IJ, nor did the Board credit the opinion of the BHRHA as to Mr. Roman's treatment prior to the 1989 overthrow. Instead, the Board found credible Mr. Roman's account of events before the revolution, observing that "it is not inconsistent with pre- 1989 country conditions in Romania that a needed 'technocrat' such as [Mr. Roman] would be subject to surveillance, threats, and harassment, particularly if he was seen as not following the Communist party line. . . . Clearly the management of the government owned airline for which [Mr. Roman] worked viewed him as not supporting the Communist Party philosophy." R.3. The BIA concluded,...

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