Matei v. Garland ( 2023 )

Case: 22-60144 Document: 00516678665 Page: 1 Date Filed: 03/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 16, 2023
No. 22-60144 Lyle W. Cayce
Clerk
Romulus Matei; Madalina Barbu,
Petitioners,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency Nos. 205-388-987; 205-388-988
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Per Curiam:*
Romulus Matei and Matei’s derivative beneficiary, Madalina Barbu,
petition for review of the Board of Immigration Appeals’ (BIA) decision
affirming without opinion the immigration judge’s (IJ) denial of Matei’s
application for asylum and withholding of removal. Matei claims asylum
based on alleged past persecution and a fear of future persecution in Romania
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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because he is of Roma ethnicity. We grant the petition for review, vacate the
order of removal, and remand to the BIA.
I
Matei, a native and citizen of Romania, entered the United States
illegally in 2012. The day Matei entered the United States, the Department
of Homeland Security (DHS) served him with a notice to appear, charging
him as an alien present in this country without admission or parole. Less than
a week later, DHS initiated removal proceedings. Barbu is Matei’s wife and
derivative beneficiary. 1 She has withdrawn her own application. Therefore,
this court focuses solely on Matei’s claims.
Matei filed an I-589 application for asylum and withholding of
removal. The application claimed that he is of Roma ethnicity and would face
persecution on account of this ethnicity in Romania. Although he initially
also sought relief under the Convention Against Torture (CAT), he
withdrew that claim.
The IJ held a removal hearing at which Matei testified regarding his
circumstances. First, while he was in school, his classmates called him a
“gypsy” and accused him of stealing food. When he was accused of stealing
food, the school director gave him a warning and said that if it happened
again, he would be expelled.
Second, in 1994, when Matei was in seventh grade, he was in a
restaurant with some friends when two classmates came over and asked
Matei’s friends “how could they sit down with such a person like [Matei],
how could they talk to [him].” One of Matei’s friends stood up and told the
classmates to leave them alone, but one of the classmates pushed Matei. In
response, Matei “pushed somebody.” As a result of the incident, Matei was
1
See 8 U.S.C. § 1158(b)(3)(A) (“A spouse or child . . . of an alien who is granted
asylum under this subsection may . . . be granted the same status as the alien if
accompanying . . . such alien.”).
2
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convicted of public disturbance and fighting and served three months of a six-
month sentence. He was the only Roma involved and the only person
convicted. He claims the police hit him and called him a “gypsy.” Matei
believes he received such a harsh punishment because the father of one of the
classmates “had a great position in the society.”
Third, Matei testified that he left school in seventh grade to work on
farms. In 1998, he went to the labor department to try to obtain better
employment. The department told him an eighth-grade diploma was
mandatory and that as a “gypsy” without an education, he should go back to
the farm where he used to work and could find work. Matei was able to
consistently find work on farms and in construction but still lived in poverty.
Although he went to Italy in 2003 to work, he returned to Romania after less
than three months because he believed conditions were better in Romania.
When asked why he left Romania in 2012, Matei stated that he was
afraid his family was going to increase in size and he would not have the
money to support them. When asked why he would not go back to Romania,
Matei stated, “I do not have any reasons to go back because I have nothing
there. The last thing that I had I sold out in order to come here.” He later
stated that it would be hard in Romania because he has “another two children
born here, and that’ll be very hard to take care of five children there.” In
2017, he sent his thirteen-year-old daughter back to Romania to care for her
great grandmother.
The IJ found Matei’s testimony credible. However, she held that
Matei had failed to show he suffered past persecution and failed to show he
had a well-founded fear of future persecution. The IJ also held that because
Matei had failed to satisfy the lower standard for asylum, he could not meet
the more demanding standard for withholding of removal. The BIA affirmed
the IJ’s decision without opinion, so the IJ’s decision became the final agency
determination. Matei timely appealed. This court has jurisdiction under 8
U.S.C. § 1252(a).
3
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II
An “applicant may qualify as a refugee,” and thus be eligible for
asylum, “either because he or she has suffered past persecution or because
he or she has a well-founded fear of future persecution.” 2 “The burden of
proof is on the applicant for asylum to establish that he or she is a
refugee. . . .” 3 However, “[a]n applicant who has been found to have
established . . . past persecution shall also be presumed to have a well-
founded fear of persecution on the basis of the original claim.” 4
“Persecution is . . . an extreme concept.” 5 “Examples of persecution
include, but are not limited to, threats to life, confinement, torture, and
economic restrictions so severe that they constitute a threat to life or
freedom,” 6 and the “harm or suffering need not be physical.” 7 Persecution
“does not encompass all treatment that our society regards as unfair, unjust,
or even unlawful or unconstitutional.” 8 Further, “harassment, intimidation,
threats, or even assault” do not necessarily constitute persecution. 9
This court typically “only review[s] decisions made by the” BIA and
considers the IJ’s decision only to the extent that it “impact[s] the [BIA]’s
2
8 C.F.R. § 1208.13(b); see 8 U.S.C. § 1101(a)(42)(A); Cabrera v. Sessions, 890
F.3d 153, 159 (5th Cir. 2018).
3
8 C.F.R. § 1208.13(a).
4
8 C.F.R. § 1208.13(b)(1); see also Arulnanthy v. Garland, 17 F.4th 586, 595 (5th
Cir. 2021).
5
Kumar v. Garland, 52 F.4th 957, 970 (5th Cir. 2022) (quoting Morales v. Sessions,
860 F.3d 812, 816 (5th Cir. 2017)).
6
Morales, 860 F.3d at 816 (internal quotation marks and citation omitted).
7
Abdel-Masieh v. I.N.S., 73 F.3d 579, 583 (5th Cir. 1996) (citation omitted).
8
Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020) (quoting Majd v. Gonzales, 446
F.3d 590, 595 (5th Cir. 2006)).
9
Id.4
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decision.” 10 However, when the BIA affirms absent opinion, as is the case
here, this court reviews the IJ’s findings and conclusions. 11
We review questions of law de novo and review factual findings for
substantial evidence. 12 “Substantial evidence supports a decision unless ‘the
evidence is so compelling that no reasonable fact finder could fail to find the
petitioner statutorily eligible for relief.’” 13 We generally also review the
decision “procedurally to ensure that the complaining alien has received full
and fair consideration of all circumstances that give rise to his or her
claims.” 14 The BIA and IJ are not required to “address evidentiary minutiae
or write any lengthy exegesis.” 15 However, the opinion must show
“meaningful consideration of ‘the relevant substantial evidence supporting
the alien’s claims.’” 16 “In assessing whether the applicant ‘received full and
fair consideration,’ this court looks to see ‘merely that [the BIA]
consider[ed] the issues raised, and announce[d] its decision in terms
sufficient to enable a reviewing court to perceive that it has heard and thought
10
Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002) (citing Castillo-Rodriguez v.
I.N.S., 929 F.2d 181, 183 (5th Cir. 1991)); see also Sealed Petitioner v. Sealed Respondent, 829
F.3d 379, 383 (5th Cir. 2016); Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009) (citation
omitted).
11
Efe, 293 F.3d at 903.
12
See Ghotra v. Whitaker, 912 F.3d 284, 287-88 (5th Cir. 2019).
13
Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (quoting Mirza v.
Garland, 996 F.3d 747, 752 (5th Cir. 2021)).
14
Abdel-Masieh v. I.N.S., 73 F.3d 579, 585 (5th Cir. 1996) (internal quotation marks
omitted) (quoting Zamora-Garcia v. I.N.S., 737 F.2d 488, 490 (5th Cir. 1984)
(unpublished)).
15
Kumar v. Garland, 52 F.4th 957, 973 (5th Cir. 2022) (quoting Abdel-Masieh, 73
F.3d at 585).
16
Id. (quoting Abdel-Masieh, 73 F.3d at 585).
5
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and not merely reacted.’” 17 A failure to show such consideration is
considered an error. 18
“Where an agency has failed to comply with its responsibilities, we
should insist on its compliance rather than attempt to supplement its
efforts.” 19 Therefore, “[i]f this court determines that the BIA applied an
inappropriate standard or neglected necessary findings, the court will vacate
the decision and remand to the BIA.” 20
Here, the IJ properly determined that Matei failed to show that he
suffered past persecution, which meant Matei bore the burden of showing a
well-founded fear of persecution. However, the IJ failed to announce the
decision regarding fear of persecution in sufficient terms for this court to
“perceive that [the IJ] has heard and thought and not merely reacted.” 21
A
The IJ found that Matei’s experiences were not severe enough to
amount to past persecution. Matei argues that the IJ applied “too harsh a
standard in conducting this prong of the asylum inquiry.” He argues that the
harm he faced need not be physical and that persecution can be based on
cumulative effect. However, the IJ acknowledged that there is no
“universally accepted definition” of persecution and that it could entail
“physical punishment, infliction of harm, or significant deprivation of
liberty.” Further, the IJ acknowledged that “[m]ultiple lesser harms
17
Ghotra v. Whitaker, 912 F.3d 284, 290 (5th Cir. 2019) (quoting Efe v. Ashcroft,
293 F.3d 899, 908 (5th Cir. 2002)).
18
See Cabrera v. Sessions, 890 F.3d 153, 162-63 (5th Cir. 2018).
19
Abdel-Masieh, 73 F.3d at 585 (quoting Sanon v. I.N.S., 52 F.3d 648, 652 (7th Cir.
1995)).
20
Ghotra, 912 F.3d at 288 (citing Iruegas-Valdez v. Yates, 846 F.3d 806, 811, 813
(5th Cir. 2017)).
21
Id.at 290 (quoting Efe, 293 F.3d at 908).
6
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suffered in the aggregate may rise to the level of persecution.” Although the
IJ considered as part of her analysis that Matei did not show evidence of his
physical harm, the IJ properly described the legal standard for persecution,
considered Matei’s testimony cumulatively, and found that the alleged
incidents did not rise to the level of persecution. Contrary to Matei’s
contention, it does not appear that the IJ required a showing of physical
harm. 22
The name-calling in school, accusation of stealing food, three-month
imprisonment for fighting, incident in which he was hit by police, and
employment in agriculture and construction that Matei experienced while in
Romania do not compel a conclusion that the harm he endured amounts to
persecution. 23 The IJ was not required to infer that the three-month
imprisonment was on account of Matei being Romani rather than because he,
as he admits, fought in public. 24 Additionally, this court has found that
physical harm does not necessarily compel a finding of past persecution. 25
A claim of past persecution is weakened if the applicant “endured a
threat or assault but . . . nevertheless chose[] to stay in his home country for
22
See Morales Lopez v. Garland, 852 F. App’x 758, 769 (5th Cir. 2021)
(unpublished) (stating that although IJ noted lack of physical harm, IJ did not require a
showing of physical harm); Ciupangel v. Att’y Gen. U.S., No. 20-2451, 2021 WL 3673192,
at *1 (3d Cir. Aug. 19, 2021) (unpublished) (rejecting claim that IJ focused solely on
physical harm when the IJ also considered other types of alleged harm and found harms did
not rise to the level of persecution).
23
See Kumar v. Garland, 52 F.4th 957, 970 (5th Cir. 2022) (applying the substantial
evidence standard to a determination of whether conduct amounts to persecution).
24
See Jiannong Jiang v. Holder, 400 F. App’x 859, 865 (5th Cir. 2010) (per curiam)
(unpublished) (“Punishment for a criminal act cannot be considered persecution unless the
punishment is ‘excessive or arbitrary’ and is motivated by a statutorily protected ground.”
(quoting Abdel-Masieh v. I.N.S., 73 F.3d 579, 584 (5th Cir. 1996))); Tesfamichael v. Gonzales,
469 F.3d 109, 117 (5th Cir. 2006) (finding BIA was not required to draw inference that
prosecution for illegal act was due to protected ground).
25
See, e.g., Kumar, 52 F.4th at 970 (stating two beatings and subsequent injuries by
country’s ruling political party do not compel a finding of past persecution).
7
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a period of time.” 26 Matei was imprisoned for three months in 1994, and he
went to the department of labor in 1998. Although Matei alleges that these
events, along with the other discrimination he faced as a student, constitute
past persecution, he remained in Romania until he traveled to Italy in 2003.
Further, he chose to return to Romania from Italy within three months
because he believed conditions were better in Romania, and he then remained
in Romania until 2012. Additionally, when asked why he chose to leave
Romania in 2012, Matei did not mention persecution, instead stating that he
was afraid that his family was going to increase and he would not have the
money to support them. The years after the described incidents in which
Matei remained in Romania, his choice to return to Romania from Italy, and
his reasoning for moving to the United States all weaken his claim of past
persecution.
Because Matei failed to prove past persecution, he bore the burden of
establishing a well-founded fear of future persecution. 27
B
The IJ found that Matei failed to prove that he had a well-founded fear
of future persecution. “To show a well-founded fear of persecution, an alien
must have subjective fear of persecution, and that fear must be objectively
reasonable.” 28 One way an applicant can show an objectively reasonable fear
is “by proving that he belongs to a group of people against whom ‘there is a
26
Gjetani v. Barr, 968 F.3d 393, 399 (5th Cir. 2020) (citations omitted).
27
See Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir. 2019).
28
Arulnanthy v. Garland, 17 F.4th 586, 595 (5th Cir. 2021) (quoting Cabrera v.
Sessions, 890 F.3d 153, 159-60 (5th Cir. 2018)); see also Matadi v. Barr, 821 F. App’x 277,
285 (5th Cir. 2020) (per curiam) (unpublished) (“To demonstrate a well-founded fear of
future persecution, a petitioner must establish that his fear is both ‘subjectively genuine’
and ‘objectively reasonable.’”).
8
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pattern or practice of persecution.’” 29 A pattern or practice of persecution
must be “systemic, pervasive, or organized.” 30 The IJ found that Matei did
not prove a pattern or practice of persecution. However, Matei argues that
there is evidence in the record that “compels a contrary conclusion.”
To explain the finding that Matei failed to prove a pattern or practice
of persecution against the Roma in Romania, the IJ cites evidence in the
record that, although “there is societal discrimination against Roma,” the
government has taken steps “to integrate the Roma community” and “the
Romanian government has taken steps to ameliorate the relationships with
the Romani community by using Romani mediators to facilitate
communication between Roma and authorities and to assist in crisis.”
The IJ erroneously stated that this information is in the 2017 and 2018
country reports. Only the 2011 country report discusses efforts by the
Romanian government to improve conditions. The 2017 report describes no
such efforts, instead describing “police violence against the Roma
community” as one of the “most significant human rights issues.” Further,
the 2017 report states that “[d]iscrimination against Roma continued to be a
major problem” and that “Romani groups complained that police
harassment and brutality, including beatings, were routine.” It also discusses
segregation along ethnic lines, forced evictions, and other discrimination
faced by Roma. None of this information from the 2017 report is included in
the IJ’s opinion, and the 2018 country report is not in the record.
The IJ stated, without elaboration, that Matei “has not presented
evidence of a systematic, pervasive, or organized effort to kill, imprison, or
severely injure the Roma group.” However, Matei did present evidence of
29
Aziz v. Mukasey, 301 F. App’x 369, 371 (5th Cir. 2008) (per curiam)
(unpublished) (quoting 8 C.F.R. § 1208.16(b)(2)); see also Qorane v. Barr, 919 F.3d 904, 910
(5th Cir. 2019).
30
Gjetani, 968 F.3d at 398 (quoting Wijono v. Gonzales, 439 F.3d 868, 874 (8th Cir.
2006)).
9
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frequent police brutality, as described in the 2017 report, and there is no
indication of whether the IJ considered this evidence or considered if such
brutality rises to the level of persecution. Although we do not require the IJ
to “address evidentiary minutiae or write any lengthy exegesis,” 31 when the
only evidence cited comes from an older country report, that evidence is
improperly attributed to more recent country reports, and there is no
indication that the IJ considered the treatment of Roma actually described in
the more recent country reports, the IJ has not “announce[d] its decision in
terms sufficient” 32 for this court to ensure Matei “received full and fair
consideration.” 33 The IJ’s analysis “raises too great a concern that [she] did
not adequately consider the evidence before [her].” 34 It is not sufficient that
the IJ stated “all admitted evidence has been considered,” especially in light
of the lack of an opinion from the BIA.
Accordingly, we remand this case to the BIA for a decision on Matei’s
asylum eligibility that properly considers his objective fear of future
31
Kumar v. Garland, 52 F.4th 957, 973 (5th Cir. 2022) (quoting Abdel-Masieh v.
I.N.S., 73 F.3d 579, 585 (5th Cir. 1996)).
32
Ghotra, 912 F.3d at 290 (quoting Efe v. Ashcroft, 293 F.3d 899, 908 (5th Cir.
2002)).
33
Id. (quoting Abdel-Masieh, 73 F.3d at 585); see Emmanuel-Tata v. Garland, No.
20-60487, 2022 WL 126982, at *3 (5th Cir. Jan. 12, 2022) (per curiam) (unpublished)
(finding BIA’s statement that the record did not contain relevant evidence, when the
record did contain relevant evidence, weighed in favor of finding that the applicant “did
not receive ‘meaningful consideration of the relevant substantial evidence supporting’ his
claims.” (citing Abdel-Masieh, 73 F.3d at 585)); Adjonke v. Mukasey, 255 F. App’x 914, 915
(5th Cir. 2007) (per curiam) (unpublished) (stating court was “not convinced that
[applicant] received full and fair consideration of the circumstances giving rise to his
claims” when the IJ noted improvements in 2004 but did not discuss evidence of
deterioration in 2005); cf. Ndifon v. Garland, 49 F.4th 986, 990 (5th Cir. 2022) (finding
statement that applicant “points to no other objective evidence to support his . . . claim,”
when applicant did present other evidence, to weigh in favor of concluding BIA did not
adequately consider the evidence supporting CAT claim).
34
Ndifon, 49 F.4th at 990 (citing Emmanuel-Tata, 2022 WL 126982, at *3); see also
Adjonke, 255 F. App’x at 915.
10
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persecution. 35 The IJ appears not to have determined whether Matei has a
subjective fear of persecution. Such a determination should also be made on
remand if the BIA determines that Matei has shown objective fear.
III
Finally, we turn to the denial of withholding of removal. “To qualify
for withholding of removal, an alien ‘must demonstrate a clear probability of
persecution upon return.’” 36 The IJ stated that because Matei “failed to
satisfy the lower standard for asylum . . . [h]e cannot meet the more
demanding standard for withholding of removal.” However, as described
above, we are not convinced that Matei received full and fair consideration
of the circumstances giving rise to his claims of persecution upon return.
Thus, on remand, the BIA should determine whether the requirements for
withholding of removal have been satisfied.
* * *
We GRANT the petition for review, VACATE the order of
removal, and REMAND for further proceedings consistent with this
opinion.
35
See Jalloh v. Barr, 794 F. App’x 418, 421 (5th Cir. 2019) (per curiam)
(unpublished).
36
Munoz-Granados v. Barr, 958 F.3d 402, 408 (5th Cir. 2020) (quoting Roy v.
Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004)).
11