Stanciu v. Holder

• Decision Date: 25 October 2011
• Docket Number: No. 10–2165.,10–2165.
• Citation: 659 F.3d 203
• Parties: Marius STANCIU, Petitioner,v.Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

659 F.3d 203

Marius STANCIU, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 10–2165.

United States Court of Appeals, First Circuit.

Submitted Sept. 12, 2011.Decided Oct. 25, 2011.

Eman H. Jajonie–Daman, Anthony J. McEachern and Amer S. Hakim & Associates, P.C. on brief for petitioner.John D. Williams, Department of Justice, Civil Division, Office of Immigration Litigation, Tony West, Assistant Attorney General, Civil Division, and Jennifer P. Levings, Senior Litigation Counsel, Office of Immigration Litigation, on brief for respondent.Before LYNCH, Chief Judge, BOUDIN and THOMPSON, Circuit Judges.BOUDIN, Circuit Judge.

Marius Stanciu, a native and citizen of Romania, has petitioned for review of a decision of the Board of Immigration Appeals (“BIA”). See 8 U.S.C. § 1252(a)(1) (2006). The BIA affirmed the denial by the immigration judge (“IJ”) of Stanciu's applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Stanciu is ethnically Romani (colloquially a “Gypsy”), and his applications rested on claims of persecution by Romanian police and security forces on account of his Romani heritage.

Stanciu entered the United States on March 22, 2006, on a valid visa that permitted him to work as a truck driver for a specific company until December 10, 2006. In November 2006, a commercial truck inspection revealed that Stanciu had switched employers without authorization and was working as a truck driver for a different company in violation of the terms of his visa. See 8 U.S.C. § 1227(a)(1)(C)(i).

When federal authorities began removal proceedings, Stanciu conceded removability but sought the relief described above. At a May 2008 hearing, Stanciu (who was represented by counsel) and his wife, Monica Stanciu, testified and submitted various materials. He later filed a post-hearing affidavit requested by the IJ who asked that Stanciu address what the IJ considered to be discrepancies in his testimony.

Stanciu described two early incidents in which police falsely accused him of stealing money and beat him in seeking to extort confessions. He also testified that, as a truck driver transporting goods around Europe, he was regularly detained by government security officers on returning to Romania for anywhere between ten hours and two days and questioned and beaten. He reported that he was regularly harassed by local police and, after his first trip to the United States in late 2004, was detained and beaten by officers on his return to Romania.

Stanciu said that in December 2005, after returning from a second trip to the United States, he was again detained at the airport, held in custody for about a week and savagely beaten. He testified that the officers slapped him and beat him on his palms, arms, back, legs, and feet, forcing him to “sit up on the chair like in a regular sitting position but not on the chair. [He] just had to bend [his] knees and stand like that with [his] hands out and they beat [him] on [his] legs.” When Stanciu refused to sign a blank page, the officers slammed a drawer shut on his fingers.

Stanciu said he ended up at the hospital, where he stayed for “four or five days” recovering from his injuries. He also submitted a one-page document that he said his wife acquired from the hospital, which described injuries consistent with the beatings he had recounted. Stanciu's wife confirmed that he had arrived home after his trip six days late and badly beaten, but she also testified that the hospital refused to admit him, offered him medicine and sent him home where he recovered.

Stanciu testified that he continued to be harassed in the months after that incident and was unable to leave the country because the police had his passport; but, in March 2006, his former employer recovered it for him and he left for the United States shortly thereafter. He did not, however, apply for asylum on arriving in the United States, but sought asylum only after removal proceedings were begun against him.

Stanciu included a State Department Country Report on Romania, which said that “[s]ocietal violence and discrimination against the Roma was pervasive”; described “numerous credible reports of police mistreatment and abuse of detainees and Roma, primarily through excessive force and beatings by police”; and noted that “Roma were denied access to, or refused service in, many public places,” and that “Roma faced persistent poverty with poor access to government services, few employment opportunities, high rates of school attrition, inadequate health care, and pervasive discrimination.”

After reviewing Stanciu's post-hearing affidavit addressed to alleged discrepancies, the IJ denied Stanciu's applications for relief in a detailed fifteen-page order. The IJ did not dispute that Roma are subject to both official and private discrimination and mistreatment in Romania, but she regarded the two central incidents needed to establish past persecution of Stanciu to be the detentions and beatings by Romanian officials when Stanciu returned from the United States in 2004 and 2005. These, the IJ acknowledged, were “plausible in light of verifiable conditions in Romania”; but, she concluded, Stanciu's

incredible testimony concerning the frequency and severity of any such mistreatment and his evident attempts to embellish the harm most recently inflicted upon him and his deception concerning his subsequent voluntary travel in and out of Romania[ ] are fatal to his claim that this mistreatment [wa]s severe enough to have constituted persecution.

The IJ further pointed, as bases for doubts about Stanciu's credibility, to specific inconsistencies (discussed below), to Stanciu's ability to travel frequently in and out of Romania, to his failure to apply for asylum during previous trips to the United States, and to his extended family's apparent willingness to remain in Romania.

Disbelieving Stanciu as to the two key incidents, the IJ found that he had not established past persecution nor a well-founded fear of future persecution. This led to the denial of the asylum application, a failure to meet the higher standard of proof required for withholding of removal and the lack of any incidents that even arguably amounted to torture that would permit Stanciu to meet his burden of showing under CAT that future torture was likely. On further review, the BIA affirmed, finding the IJ's adverse credibility determination to be adequately supported by specific evidence in the record.

In this court, Stanciu's arguments collapse into a central claim, namely, that the record establishes past persecution of Stanciu—indeed, torture—and that the alleged discrepancies were adequately explained or insufficiently serious to undercut his testimony. Stanciu's arguments are not frivolous but to prevail on factual and credibility issues, Stanciu must show that the agency's position is unsupported by substantial evidence and “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Toribio–Chavez v. Holder, 611 F.3d 57, 62 (1st Cir.2010).

The judge who heard the testimony first hand always has an advantage over reviewing courts, but, in addition, the IJ here provided specific examples of discrepancies and also gave Stanciu a further opportunity to assuage doubts. “We give great respect to the IJ so long as he provides specific and cogent reasons why an inconsistency, or a series of inconsistencies, render the alien's testimony not credible.” Kartasheva v. Holder, 582 F.3d 96, 105 (1st Cir.2009) (internal quotation marks...