Mihail Ileana appeals the decision of the Board of Immigration Appeals upholding an immigration judge’s denial of Ileana’s application for asylum, withholding of deportation, and voluntary departure. Ilea-na argues that the immigration judge: (1) violated his due process rights in permitting his counsel to withdraw; (2) insufficiently supported her adverse credibility determinations, and (3) lacked sufficient basis for concluding that he neither suffered past persecution nor had a well-founded belief in future persecution. He also claims that his pro se representation at the evidentiary hearing was so ineffective as to make the hearing fundamentally unfair. We reverse and remand for further consideration, in accordance with this opinion.
Ileana, a Romanian citizen, entered the United States in 1994 as a nonimmigrant visitor. Shortly thereafter, he submitted a self-prepared 1-589 Application for Asylum and Withholding of Removal. The INS denied this application and placed
In late January 1998, the Immigration Judge (IJ) held a final master calendar hearing at which she scheduled an eviden-tiary hearing for April 23, 1998. At the same time, Schreiber informed the IJ that she intended to move for permission to withdraw as Ileana’s counsel. Ileana confirmed that he no longer wanted Schreiber to represent him, and the IJ signaled her intention to grant Schreiber’s motion upon its being filed. Schreiber also requested a continuance of the hearing date to give Ileana time to find new counsel. In response, the IJ predicted that Ileana would be unable to obtain a work authorization for the period of time that the hearing would be delayed and that prediction prompted Schreiber to consent to the April 23rd hearing date.
In February 1998, Schreiber filed her motion to withdraw representation. The IJ granted the motion on, or sometime prior to, April 15, 1998, when she sent Ileana a letter confirming the April 23rd hearing date.
Ileana appeared pro se at the scheduled April 23rd hearing, arguing that because family members were practicing Baptists, and because of his political statements and activities, he suffered persecution in Romania under the Ceausescu regime and would be subject to future persecution if he returned. The IJ denied Ileana’s application for asylum, withholding of departure, and voluntary departure, finding that Ileana was not a credible witness and that he failed to establish either past persecution or a well-founded fear of future persecution. The Board of Immigration Appeals (BIA) affirmed the IJ’s findings.
This court must uphold the BIA’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacaricis,
A. Past Persecution
Ileana claims that the IJ did not adequately support her adverse credibility determination pertaining to past persecution. The IJ based her adverse credibility determination primarily upon 1) the fact that his two applications for asylum mention different examples of persecution, and 2) that Ileana’s responses to queries of government counsel and the court were “delayed and rambling.” Ileana argues that IJ’s are capable of making mistakes in credibility determinations, and that he was not intentionally unresponsive to questions or evasive, but rather he did not understand the questions. Ileana cites to Aguilera-Cota v. U.S. INS,
The Court will not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion, and determine whether the
None of these submissions are internally inconsistent or otherwise implausible. The IJ’s main reason for disbelieving them was that many of them were absent from Ilea-na’s initial asylum application, which he filled out in 1994. However, this application was prepared without counsel, and probably without a translator. Put simply, “[fjorms are frequently filled out by poor, illiterate people who do not speak English and are unable to retain counsel. Under these circumstances, the IJs cannot expect the answers provided in the applications to be as comprehensive or as thorough as they would be if set forth in a legal brief.” Aguilera-Cota v. INS,
Moreover, the application that Ileana filled out in 1994 does not lend itself to a comprehensive accounting of detail after detail. As the Second Circuit explains: “the circumstances surrounding the application process do not often lend themselves to a perfectly complete and comprehensive recitation of an applicant’s claim to asylum or withholding, and that holding applicants to such a standard is not only unrealistic but also unfair.” Secaida-Rosales v. INS,
Indeed, when asked why he omitted the demonstrations from his initial 1994 application, Ileana explained — quite plausibly— that “I didn’t know that this will count for my case.” Id. at 309 (holding that the IJ held petitioner to an “inappropriately exacting standard” in discounting his explanation that “he had been scared and flustered by his recent arrest and impending
The IJ’s purported finding of affirmative inconsistencies is also dubious. First, the IJ asserted that Ileana gave inconsistent testimony regarding his role in a demonstration: “On questioning [Ileana] states that it was a spontaneously [sic] demonstration when workers and others came out and walked to the city hall. In his affidavit ..., [Ileana] asserts that he organized the demonstration in Arad.” (J.A.39) Note, however, that Ileana’s affidavit mentions two demonstrations: the first one in Arad that he organized, and a second one in Timishoara in which he merely participated. (J.A. 136-37) Yet right before giving the culprit answer, Ileana spoke of demonstrations “[i]n my city which is Arad and then Timishorara.” (J.A.93) The IJ did not ask Ileana if he was confusing the two demonstrations, however, or otherwise seek clarification. And in a recent immigration case, we vacated the deportation order when “[i]nstead of attempting to reconcile the discrepancies, the [IJ] simply, and unjustifiably, assumed that there was an inconsistency between the two testimo-. nies.” Daneshvar v. Ashcroft,
Second, the IJ appeared to label as “contradictory” two separate incidents of police beatings. The following exchange took place at the hearing:
Q: You now say that in 1993 ... Sergeant Moruro and Lieutenant San-dru, took you to the police station and they hit you with a gun, because you spoke badly about Securi-tate. Is that the truth?
A: Yes.
Q: Sir, can you tell me why in your application for asylum in 1994, you said that Sergeant Moruru and Lieutenant Sandru came to your house in July of 1989, and that they took you in 1989 to the police station and they questioned you about being in demonstrations then. And that they accused you of being against the Communist party and the Ceausescu regime? And they hit you across the back of your legs with a baton?
A: Because they had on file people that wanted to leave the country and talking badly.
Q: Well which was it, did they beat you in the face with a gun in ’93 or did they hit you across the back of the legs with a baton in ’89?
A: Both incidents are true.
(J.A. 99) There appears to be no contradiction. Ileana said that both incidents happened, and the only evidence of any contradiction is that he left one off his initial application (which for the reasons detailed above, hardly demonstrates inconsistency). Moreover, although “refugees rarely are able to offer direct corroboration of specific threats,” Aguilera-Cota,
The IJ also inquired “why is it that these gentlemen would accuse you of being against the Communist party in 1989, when your own application that you swore was true, not more than an hour ago says you were dues paying member of the Communist party up until 1990.” As Ileana answered — quite logically — “I wasn’t active in the Communist party ... I was just made to join the party when I was working for the railroad in Arad.” (J.A.45) Indeed, if simply paying dues to the Communists gave everyone in Romania a free ride to say whatever they wanted, there would not have been any persecution at all. See Dia v. Ashcroft,
Finally, the IJ’s catch-all argument — that Ileana’s responses to her questions were “delayed and rambling” — hardly suggests that Ileana lacked credibility. “[Mjost witnesses, particularly uneducated, non-English speakers seeking asylum, are uncomfortable and nervous when being cross-examined and, perhaps, when being questioned by a judge.” Arulampalam v. Ashcroft,
In sum, Ileana provided numerous instances of persecution with few contradictions. The IJ’s conclusions with respect to the few contradictions are generally not supported by substantial evidence in the record. We therefore reverse the IJ’s findings with respect to Ileana’s past persecution.
B. Future Persecution
Ileana asserts that the BIA erred in upholding the IJ’s finding of insufficient evidence of either past persecution or a well-founded belief in future persecution. The record demonstrates the IJ based her conclusion on both her credibility assessment of Ileana as well as governmental reports belying Ileana’s claims regarding the prospect of future persecution in Romania. At the hearing, Ileana, acting pro se, offered no additional evidence — beyond that which was already in his asylum application — to contradict the government’s reports of improved conditions in Romania. Instead, he asked the court take judicial notice of an excerpt from a 2003 State Department report on human rights conditions in Romania. (Appellant’s Br. at 31-32.) This court limits its review of any petition for asylum to the administrative record the BIA considered. 8 U.S.C. § 1105a(a)(4) (repealed); 8 U.S.C. § 1252(b)(4)(A).
Ileana testified that he would be persecuted upon his return by the local authorities and the secret police (the latter was known during the Communist-era as the Securitate). When confronted with the fact that the Romanian government changed in 1997, Ileana responded “[t]he
The Department of State report also addresses the issue of surveillances and intrusions in homes — which Ileana complained about in his affidavit. As the Department of State report explains, “[s]ecu-rity officials may enter residences without proper authorization from a prosecutor if they deem a threat to national security to be ‘imminent.’ ” And “although the law requires the [security service] to obtain a warrant from a prosecutor to carry out intelligence activities involving ‘threats to national security,’ it may engage in a wide variety of operations, including ‘technical operations,’ to determine if a situation meets the legal definition of a threat to national security.” (J.A.112) As for the right to engage in political expression, the Department of State report explains that citizens may suffer criminal penalties for “defamation of the country.” (J.A.112) Similarly, “[t]he law forbids public gatherings to espouse Communist, racist, or Fascist ideologies, or to commit actions contrary to public order or national security. ” (emphasis added) And Romania “punishes unauthorized demonstrations or other violations by imprisonment and fines.” (J.A. 113)
In their written decisions, neither the IJ nor the BIA explicitly addressed this evidence — even though it was in the very report on which they relied. Other courts have reversed the BIA for failing to take note of this type of evidence present in country reports — including reports specific to Romania. For instance, in Gui v. INS,
Similarly, the IJ and BIA failed to address or even mention any of the documentary evidence submitted by Ileana with his 1996 application. This evidence provided corroborated his assertions that the new security service (known as the “SRI”) is not necessarily any better than the old one. Ileana submitted a report from the
This is not to say that the IJ and the BIA necessarily had to defer to Ileana’s evidence. But their upbeat assessments of the state of the government, politics, and the former secret police in Romania appear to lack substantial support given the contrary evidence Ileana submitted that the IJ and the BIA failed to acknowledge explicitly. See Vujisic v. INS,
Instead of addressing this evidence, the IJ told Ileana that “I have information from the Department of State that says that the Securitate no longer exist and the files of Securitate have been sealed for forty years----[w]hat information do you have that contradicts that?” When Ileana did not answer, the IJ “[l]et the record reflect that there’s been a lengthy pause,” and the IJ pointed to that pause in her credibility determinations. Again, however, this pause followed the IJ’s assertions to Ileana about the state of Romania that
Finally, the IJ missed the point when she concluded that Ileana was misleading her about whether leaving the country is a crime for which he would be punished. It is not entirely clear, first of all, whether Ileana actually stated that leaving the country is a crime. He answered “yes,” to the question “It’s not a crime to leave Romania is it?” — he could very well have meant, yes, you are correct. (J.A.89) Indeed, even after Ileana answered, the IJ told him “you don’t understand my question.” (J.A.89) In any event, Ileana’s testimony was clearly not trying to make a point about formal legislative enactments; rather, he was testifying that the local police would punish him because he left the country — regardless of law formally on the books. That the national Romanian government did not formally enact a law prohibiting individuals from leaving the country did not mean that local officials— who Ileana claimed were sympathetic to the former Communist government— would not punish him for doing so. And “[w]hen an IJ bases her conclusion on an erroneous interpretation of the testimonial and documentary evidence in the record, it undoubtedly is not supported by substantial evidence.” Dia,
The failure to grapple with the contrary evidence in the record is further compounded by the fact that four years passed from the time that the IJ issued her decision and the time that the BIA affirmed it. “Only heaven knows why the case languished for so long in the BIA, during which time Popp’s connections with the United States could only have strengthened and his ties to Romania could only have been more attenuated. But it can fairly be said that the record before us sheds absolutely no light on current country conditions in Romania that one might think relevant to an asylum claim.” See Popp v. INS,
No doubt, Romania has improved since its officially Communist days. But “[t]he fact that such abuses may not have been widespread or may not have formed a clear pattern does not mean that particular individuals who have been targeted in the past are safe.” Lal v. INS,
Thus, the BIA’s judgment should be VACATED and the case REMANDED for further consideration. Because we vacate the removal order on other grounds, we need not decide whether Ileana’s Sixth Amendment right to counsel was violated in his previous hearing before the IJ.