Violeta Circu v. John Ashcroft, Attorney General

CIRCU, Petitioner, ASHCROFT, Attorney John

General, Respondent.

No. 02-73420. Appeals,

United States Court of

Ninth Circuit.

Argued May and Submitted

Filed Nov. entered the United States on No-

Circu 2, 1994, nonimmigrant aas visitor vember was authorized to re- pleasure. for She in the States until November main United 1996, INS 1995. On March subject to charged deporta- was Circu 1251(a)(1)(B)(1994)1 § under 8 tion U.S.C. overstaying ap- her visitor visa. She for plied asylum religious perse- for based on predominantly Roma- cution. Romania Cho, Rosy H. Dulberg M. and Sharon Orthodox; family her are nian Circu and Francisco, Dulberg, San McVey Mullery & Pentecostal. CA, petitioner. for the her testified Keisler, D. Assistant United Peter young. was family dates back when she Division; General, Civil Attorney States imprisoned; family her father was Her Fuller, Litigation Christopher Senior C. barracks; forced to live and her was Redfern, Counsel; K. Office and Janice In family. was taken from her brother States De- Immigration Litigation, United involving uprising Circu witnessed DC, Justice, Washington, for partment of political strikes Brasov. She several respondent. streets, and injured in the later de- police for interrogated by tained detention, During hours. her she was sexually slapped. In harassed in a inadvertently became involved injuries. As a miners’ strike and suffered SILER, JR.,* O’SCANNLAIN, Before incident, again she was once result HAWKINS, Judges. Circuit interrogated by police and harassed. SILER; Dissent Judge Opinion to public denied Circu was admission Judge HAWKINS. her were not parents universities because Party. In of the Communist members SILER, Judge. Circuit eventually in a to enroll she was able Circu, a native and citizen university in Circu was private Brasov. Romania, for of the deci- petitions review university 1994 after expelled from Immigration Appeals the Board of sion of detailing atrocities print articles trying (“BIA”) claim asylum, for but denying her by the Romanian committed voluntarily depart permitting her to she fled to expulsion, in 1987. After her alia, argues, inter United States. Circu father Her mother and the United States. (“IJ”) and Immigration Judge asylum in the granted have process by right to due BIA violated States. United “1999 Department on the State relying although Circu had The IJ decided Reports on Human Prac- (“1999 failed dem- proven past Report”), persecution, a docu- in Romania tices” per- fear evidence. onstrate well-founded never introduced into ment 1227(a)(1)(B). Siler, Jr., Currently Eugene 8 U.S.C. E. Senior *The Honorable Judge Cir- Circuit Sixth United States cuit, sitting by designation. country to changed condi- chew v. secution due Cir. conclusion, 1994). reaching tions. In the IJ The IJ’s reliance Re As relied Romania port considering when Romania’s changed longer regime Communist was no country conditions did not violate Circu’s freely practice minority more can citizens process due rights. Although the IJ IJ that religions, the determined the Coun- should have the referenced “Romania presumption rebutted Circu’s try Reports Country Report on Human Prac persecution. (“1997 1997” tices for Report”), which was evidence, entered into her reliance on the directly review the IJ’s deci We Report 1999 was a harmless or non- BIA affirmed without opin sion the since material that error did not amount an to v. Ashcroft, Carriche 350 ion. See Falcon abuse of discretion.3 See 8 C.F.R. F.3d Claims 851 ,4 3.1(a)(7)(ii)(B) § violations are reviewed process due de Ashcroft, v. 345 Lopez-Urenda novo. F.3d Upon comparing Report the 1999 with Cir.2003). (9th Circu claims that Report, the 1997 significant we observe no procedures the use of streamlined violates respective differences between reports’ the However, rights. these language concerning religious persecution not, themselves, do procedures violate an in Romania. Accordingly, the IJ did process. to due See 8 right alien’s C.F.R. abuse taking her discretion in administra (e)(4) 3.1(a)(7) (2003)2; § Falcon Car tive of the 1999 See Geta riche, at 350 F.3d 848. chew, Moreover, 25 F.3d at 845. must have had notice that the IJ relied the Because IJ found that Circu Report the 1999 she because raised this persecution, past she was suffered entitled BIA; issue on appeal therefore, to the a presumption legal the well-founded also had the opportunity challenge the persecution. fear of future See 8 C.F.R. report’s contents. INS, 208.13(b)(1); Borja § v. 175 F.3d Cir.1999) (en banc). (9th INS, 737 it was Since not an abuse of discre by can rebut this presumption tion for the IJ to the Report, consider 1999 preponderance showing the evi successfully INS rebutted Circu’s pre dence that the conditions in Romania sumption of future religious persecution. to such an changed “have extent that [Cir- INS, See Marcu v. 147 F.3d 1081 longer no has a well-founded fear cu] (9th Cir.1998) (Country Reports are “the persecuted, should would be she re appropriate most perhaps the best Borja, turn at there.” F.3d foreign resource” for facts on po nations’ situations). Therefore, litical The IJ determined that condi IJ’s de changed, part, taking judi country tions had termination Romania’s condi cial notice tions had Report, changed which was so that Circu would not published the hearing before the suffer future IJ. judicial supported by

We review the IJ’s decision substantial evidence. v.Gui INS, (9th notice for abuse discretion. See Geta 280 F.3d 1003.1(a)(7) §§ 2. Currently 8 C.F.R. the BIA considered this out-of-record evi- (e)(4), respectively. dence, INS, may we also. See Fisher v. (9th Cir.1996) (en banc). F.3d opinion While BIA's streamlined does expressly indicate that relied it 1003.1(a)(7)(ii)(B). 4.Currently 8 C.F.R. 1999 Report, presume we must it did. Since hearing. BIA then failed to the time token, the IJ neither By same remand case to country ignores request con evidence Circu’s consider changed, approve see Larito-Mar the evidence. To this re- had ditions 1095-96 sult, majority inexplicably argues tinez finding Cir.2000), that Circu nor erred to rebut petitioner Romania, relocate another evidence, though it plain new even provided evi Country Reports because not, Narayan v. Ash- ignores she did cli improved of Romania’s dence Cir.2004), croft, 384 F.3d 1065 Marcu, 1081.5 mate. that the BIA address requires type. of this tions not have Finally, Circu did because persecution future a fear of well-founded credibly Circu testified that she Romania, the IJ did to return to were she family experienced reli- her immediate that she did not concluding in not err in Romania from the gious persecution asylum. consequence, a qualify for As departed of her birth until she Roma- time satisfy rig “necessarily to more failed a family nia in 1994. Born into of devout withholding deporta standard for orous Pentecostals, grandfather and fa- both her INS, 116 F.3d Leon-Barrios v. tion.” De imprisoned for their ther were (9th Cir.1997). Therefore, the IJ 391, 394 grandfather’s Her home was con- beliefs. denying in abuse her discretion did not fiscated, forcing family live in Circu’s to asy for humanitarian application Circu’s belonged in Brasov. Because she barracks persecution her past lum because minority, to to a Circu was unable as relief. qualify so such egregious attend church or secure admission openly v. Belayneh public university, to a was threatened physical incarceration or harm if she with DENIED. PETITION her Both of practiced parents faith. her granted asylum the United have been HAWKINS, DALY Circuit MICHAEL States. Judge, dissenting. immigration judge agreed that The in this case be happened would What per- experience qualified past as Circu’s or criminal court unimaginable any civil during religion her on account of secution immigration equivalent land. The in the in Romania. regime Communist proceed- of the a trial is held. The record presump- created a That determination fact trier retires to complete and the ing a well-founded fear tion that Circu had and render a decision. that record consider if returned to Roma- future later, warning or an years without Two 208.13(b)(1). judge contents, C.F.R. nia. 8 its conclude, proceeded to based on the con- then decides the case based judge admitted, gov- that the never that did not exist “evidence” of a document tents Coelho, (citing Dec. 20 I & N recently immi- Matter circuit held when an (BIA 1992)), proce- two because the appeal both and a motion grant files evidence, C.F.R. rules. See 8 newly dures follow different reopen to available consider 3.8, 3.2, (2000). Narayan inappli- §§ independently on the 103.5 BIA should rule cable, a Circu did not file reopen. Narayan Ashcroft, 384 because motion 2004). reopen or Although separate reconsider Sept.16, motion Cir. F.3d 1065 appeal filed an request Because Circu appeal re- case. and the motion Naray- mand, remedy, requested as a sub- be treated as the motion should controlling. appeal, id. at an is not separate issue from stantive successfully ernment had rebutted the tion to remand is filed a separate as presumption by virtue of the State De- tion Here, or as appeal. as in partment’s Report on Hu- Narayan, “the motion to remand asked for (“the man Practices 1999 Re- new proceedings for the IJ to consider port”), report that did not exist until new evidence.” Id. This request, which February nearly years two stemmed from the IJ’s viola- completion July 1998 hearing tion in relying on evidence the rec- in this matter. ord, was a separate reason from the other contentions in Circu’s appeal, which fo- gets appeal,

It worse. On Circu asked cused, among things, other on whether the (“BIA”) Immigration Appeals Board IJ had failed to conduct required indi- to remand the case to the Immigration analysis vidualized (“IJ”) of changed conditions Judge so that she respond, and whether the IJ improperly shifted evidence, through additional to counter the burden to Circu to prove a well-found- report. this BIA only ignored ed fear of persecution. future See id. entirely proper request, it then summarily affirmed the deny IJ’s decision to relief. any event, In I do not dispute that an IJ thought must have she was back in may, in appropriate circumstances, Romania, in the courts of dictator Nicholai facts, notice of including changed country Ceaucescu. conditions. It is crystal in clear this cir cuit

Curiously, that majority argues the when the BIA that or IJ Cir- wishes to actually cu did have notice and an administrative notice opportu- of controversial or nity respond facts, individualized such raised the as whether a —-because change in appeal BIA, issue on to the BIA. The any has vitiated previously is not the proper persecu tribunal for the well-founded fear of tion, agency required introduction evidence. See is give Ordonez v. INS, (9th 777, Cir.2003) 345 “notice to the applicant F.3d 787 that administrative (“The Board will be appellate body is taken and an opportunity whose review, create, function is to not extra-record rec- facts or to show ord.”). why cause Actually, Circu exactly did what administrative notice should not be taken of should have done: those ask the BIA to facts.” Getachew v. Ashcroft, remand to 25 permit the IJ to F.3d her to intro- However, duce new evidence to when an give counter the IJ fails such a report. warning or an opportunity to offer rebut tal, it results in the denial of a full and fair Moreover, a recent decision of this court hearing, which violates due process. See suggests it was error for the BIA not to INS, Gonzalez v. expressly rule on request. Circu’s remand Cir.1996); Castillo-Villagra v. 1068(“To See Narayan, 384 at guard F.3d 1027-29 against piecemeal appeals and to insure this court presented with a full and majority The concludes that there was complete record, the BIA must deprivation address no rights in this and motions, rule giving spe- case because the 1997 Country Report was cific, cogent grant reasons for a or deni- part of the record and there are signif- “no al.”). I (which, do not Narayan read inci- icant differences” between the reports. two authored) dentally, I narrowly as as the I agree; moreover, cannot opinion IJ’s majority. Majority Op. at 941 n. 5. Na- clearly differentiates between the two re- rayan does not turn on whether the ports and relies heavily on report the 1999 Moreover, even if the IJ could have no to address. Circu had that report, considered this substantial evi- IJ states: explicitly example, For support IJ’s conclusion dence does Country January 1997 Profile The report successfully rebutted that the 1999 by Department issued Conditions perse- presumption other that Pentecostals State states portions cution. cannot read One time in had a difficult unregistered sects Although in the 1999 Re- report isolation. However, Romania. See Exhibit (as did) Report the 1997 that port indicates open wor- Report indicates that “provides the Romanian Constitution ship possible marred is now religious freedom and Government occasionally by harassment unsanctioned generally impede does not the observance by local officials. Romania belief,” say on goes it Right[s] Human Practices for Report paragraph that: same February dated holding precludes alone paragraph denominations continued to [S]everal materially did Report the 1999 that low-level allegations make credible affect the IJ’s decision. government officials Romanian Or- clergy impeded their efforts thodox (as The described IJ also noted proselytizing. press reported sev- Baptists ten Report), adherents of minori- eral instances when led publicly beaten crowd ty by others religions prevented were that local priests Romanian Orthodox faith, and local practicing from their law not intervene. IJ concluded police did protect enforcement authorities did proselytizers was against violence them. incident, on other doc- an “isolated” “based It is not hard to provided.” umentation hardly resounding proof This documentation” figure out that the “other sufficiently to re changed conditions have course, which, Report,

was the 1999 statutory presumption fu but Circu’s record, focus- never account of her reli ture suffered es more on discrimination See Kataria v. gious beliefs. Indeed, else- Greek Catholic Church. again citing the opinion, where in the review the work We recognizes that “there Report, the IJ degree an understandable agencies with against have recent non- been backlashes deference, No how- deference. amount religious groups, mainly the traditional ever, deliberate, calculated can excuse the Byzantine Church of the Greek Catholic occurred and cumulative unfairness which Rite,” say is no goes on to “there but here. Pentecostals are indication that traditional even discriminated

being or persecuted I dissent. respectfully day Romania.” against present type of information Circu precisely if present tried have to re-

given grant petition I would

spond. the BIA with instructions to

remand to pres- the IJ permit

remand to to counter the 1999

ent additional evidence

Case Details

Case Name: Violeta Circu v. John Ashcroft, Attorney General

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Nov 22, 2004

Citation: 389 F.3d 938

Docket Number: 02-73420

Court Abbreviation: 9th Cir.