Ciorba, Daniela M. v. Ashcroft, John D. ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2213
DANIELA M. CIORBA,
Petitioner,
v.
1
JOHN D. ASHCROFT,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals
A 75 256 249
____________
ARGUED JANUARY 14, 2003—DECIDED MARCH 21, 2003
____________
1
The petition for review correctly identified the Immigra-
tion and Naturalization Service (“INS”), as well as the Attorney
General, as respondents in this case. On March 1, 2003, the INS
ceased to exist as an independent agency within the Depart-
ment of Justice and its functions were transferred to the newly
formed Department of Homeland Security. This petition for
review challenges the decisions of the Executive Office for
Immigration Review (Board of Immigration Appeals and im-
migration court), which is a component of the United States
Department of Justice. Attorney General John D. Ashcroft is
the head of the Department of Justice. The Attorney General,
therefore, has been listed in the caption as the sole respondent.
See 8 U.S.C. § 1252(b)(3) (2000) (respondent is the Attorney
General where immigration court proceeding commenced af-
ter April 1, 1997).
2 No. 02-2213
Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner Daniela M. Ciorba seeks
review of an adverse decision of the Board of Immigra-
tion Appeals (the “BIA” or “Board”) that denied her re-
quest for asylum. For the reasons set forth in the following
opinion, we affirm the decision of the BIA and dismiss
the petition.
I
BACKGROUND
A. Facts
Ms. Ciorba is a twenty-eight-year-old native of Romania.
According to her application for asylum, several genera-
tions of her family actively resisted the Communist regime
and the dictatorship of Ceausescu. Both of Ms. Ciorba’s
grandfathers were jailed for their opposition to collectiv-
ization and were physically debilitated as a result of the
abuse and the lack of medical attention they endured while
incarcerated. See A.R. 136. Ms. Ciorba further claims that
her “grandparents’ stigma of enemies of the communist
regime has reflected upon [her] parents and [herself] as
well,” and, consequently, her parents were under the
close watch of the communist authorities. Id. at 136. They
were called in for questioning, and the entire family was
barred from higher education. See id. at 136-37.
Ms. Ciorba testified that, although neither she, her
husband, nor her parents were involved in any organized
groups opposing the Communist regime, her father ap-
parently participated (and perhaps helped organize) one
No. 02-2213 3
2
rally during which Ceausescu’s picture was burned. After
that time, police came to the family home several times
to question her father. It appears from the record that he
may have been taken for questioning; however, he never
was beaten or jailed. Ms. Ciorba testified that her father
also lost his job as a result of his participation in this
demonstration.
In 1990, when Ms. Ciorba was sixteen, her father left
Romania “[b]ecause he couldn’t rest at night.” Id. at 76. Ms.
Ciorba stated that “[t]hey would come, people he wouldn’t
know from the (indiscernible) or the police station and
2
There appears to be a discrepancy with respect to these facts
within Ms. Ciorba’s asylum application and also between that
application and her testimony at the removal hearing. In
the affidavit attached to her asylum application, Ms. Ciorba
stated that “[m]y husband, whom I married in 1990, was ar-
rested in February 1990 for no particular reason, except that
he was an active member of the Liberal Party . . . .” A.R. 137.
But later in the asylum application, Ms. Ciorba responded “No”
to the following question: “Have you or any member of your
family ever belonged to or been associated with any organiza-
tions or groups in your home country (i.e., a political party,
student group, union, religious organization, military or para-
military group, civil patrol, guerilla organization, ethnic group,
human rights group, or the press)?” Id. at 141.
Furthermore, during her testimony at the removal hearing,
the IJ specifically directed Ms. Ciorba to this question on the
application and again asked if any of her family members
had belonged to a political party or group. In response, Ms.
Ciorba made no mention of her husband’s involvement in a
political party; Ms. Ciorba stated only that her father was
part of a “revolutionary group in 1989” and that he “partici-
pated in a meeting” in which a picture of Ceausescu was
burned. Id. at 62-63.
4 No. 02-2213
start to question him.” Id. Ms. Ciorba’s mother and hus-
3
band followed her father in 1991. She remained in Roma-
nia.
From 1991 until 1996, Ms. Ciorba lived in her family’s
home in Romania. On a monthly basis, the police would
summon her to the station where she would be ques-
tioned for lengths of time ranging from one-half hour to
three hours. She never was arrested, jailed, threatened
or abused in any way. During these sessions, the police
inquired as to why her family had left Romania and as
to the status of their asylum applications. The local police
also came to search her home; however, the record does
not reveal how many times these searches occurred. Dur-
ing some of these searches, the police took gold and
other items that Ms. Ciorba had received from her family
4
in the United States.
In 1996, Ms. Ciorba came to the United States to join her
family; she arrived in January of that year without being
admitted or paroled.
3
Some time before their departure to the United States, Ms.
Ciorba’s husband and mother lost their jobs as well. According
to Ms. Ciorba, this occurred after her father had left for the
United States and applied for asylum. The record does not
reveal the circumstances surrounding the termination of their
employment or what their employment prospects were after
they lost their jobs.
4
The police, however, apparently did not take money that
Ms. Ciorba’s husband and parents had sent to her from the
United States.
No. 02-2213 5
B. Administrative Proceedings
1.
The INS instituted removal proceedings against Ms.
Ciorba in May 1997. At the beginning of her removal
hearing, the IJ stated: “You do have the right to present
your case before the Court. I have explained that to the
lawyers. That’s why I’m here and I’m willing to listen to
you. I have not made a decision in your case. I’m merely
advising the lawyers based upon what I see in the docu-
mentary evidence. And based upon what I see it appears
to be frivolous.” A.R. 56.
Later in the hearing, Ms. Ciorba’s attorney inquired
whether any of Ms. Ciorba’s relatives had suffered any
hardship or mistreatment at the hands of the Romanian
government. Before Ms. Ciorba could respond fully, the IJ
stated: “I want to know what, I want to know and I want
to concentrate between 1991 and 1996 only. Everything
else is too remote to be considered.” A.R. 73. Ms. Ciorba’s
attorney then indicated that there were events involving
Ms. Ciorba’s family—specifically concerning Ms. Ciorba’s
father—that occurred prior to 1991 that, he believed, were
important to Ms. Ciorba’s asylum application. The IJ and
Ms. Ciorba’s attorney then questioned Ms. Ciorba about
what had happened to her father and why he had left
Romania. See id. at 73-77. With the exception of the events
involving her father, Ms. Ciorba’s attorney never made
an offer of proof regarding any other events that oc-
curred prior to 1991 that impacted Ms. Ciorba’s asylum
application.
Near the end of Ms. Ciorba’s testimony, the IJ asked why
Ms. Ciorba was afraid to return to Romania. Ms. Ciorba
replied, “I’m afraid I would be again questioned just like
I was before.” Id. at 88. When pressed for additional rea-
sons by the IJ, Ms. Ciorba stated, “[b]ecause they would
6 No. 02-2213
ask me again why I left, why I came here. They would ques-
tion me again.” Id. Finally, Ms. Ciorba stated that she
feared that she would have to go to the police station again
5
and that the police would search her house again. Id.After receiving the evidence and hearing the arguments,
the IJ concluded that Ms. Ciorba had not met the require-
ments for a grant of asylum. The IJ found that, although
Ms. Ciorba had suffered some harassment at the hands
of local Romanian authorities, that harassment did not
rise to the level of persecution; specifically, the IJ noted
that “the respondent did not testify that on any one of
these occasions was she ever threatened, either sexually
threatened or physically threatened by anyone.” Id. at 37.
Furthermore, the IJ found that there was no nexus be-
tween the harassment and any ground for asylum enu-
merated in the statute. Consequently, the IJ denied Ms.
Ciorba’s request for asylum.
2.
The BIA summarily affirmed the IJ’s decision. It stated:
“The Board affirms, without opinion, the results of the
decision below. The decision below is, therefore, the final
agency determination. See 8 C.F.R. § 3.1(a)(7).” A.R. 2.
Ms. Ciorba filed a timely petition for review in this court.
5
During closing statements to the IJ, Ms. Ciorba’s counsel
acknowledged that “mistreatment . . . by the local police obvi-
ously does not amount to past persecution within the meaning
of the Act.” Id. at 97-98. According to Ms. Ciorba’s counsel,
“the only issue was whether the politically motivated harm or
mistreatment of family members, specifically the father, have
[sic] a bearing on respondent’s fear of persecution.” Id. at 98.
No. 02-2213 7
II
ANALYSIS
A. Standard of Review
We review the BIA’s asylum determination under the
substantial evidence test. See Petrovic v. INS, 198 F.3d 1034,
1037 (7th Cir. 2000). We shall disturb the BIA’s findings
“only if the record lacks substantial evidence to support
its factual conclusions.” Malek v. INS, 198 F.3d 1016, 1021
(7th Cir. 2000). “To win a reversal under this deferential
standard, [Ms. Ciorba] must show not merely that the
record supports a course contrary to that reached by the
BIA, but that the evidence compels that contrary conclu-
sion.” Bradvica v. INS, 128 F.3d 1009, 1012 (7th Cir. 1997).
We review the BIA’s legal analysis de novo. See Marquez
v. INS, 105 F.3d 374, 378 (7th Cir. 1997).
B. Deprivation of Due Process
Ms. Ciorba maintains that the IJ denied her a fair hearing
in two ways. She first claims that the IJ prejudged her
application as evidenced by the IJ’s introductory com-
ments at the removal hearing. We cannot accept that
characterization of the IJ’s comments. Those comments
simply advised the parties and counsel as to the IJ’s initial
assessment of the documentary submissions and were no
doubt designed to focus counsel’s attention on the impor-
tance of the evidentiary submissions to be made during
the ensuing hearing. Indeed, at the time she gave this
preliminary assessment, the IJ explicitly stated that she
had not made a decision in Ms. Ciorba’s case and would
consider the evidence presented during the hearing. See
A.R. 56. Therefore, these comments, without more, do not
establish bias on the part of the IJ.
8 No. 02-2213
Ms. Ciorba also submits that, when the IJ limited testi-
mony to events that occurred between 1991 and 1996, Ms.
Ciorba was prevented from “laying a foundation for her
fear of persecution through a showing that her father
and grandparents had been persecuted and their political
opinions imputed to her . . . .” Petitioner’s Br. at 13. This
argument is unpersuasive for several reasons. First, the
IJ did allow Ms. Ciorba to develop a record of pertinent
events that occurred prior to 1991. When Ms. Ciorba’s
attorney pointed out that Ms. Ciorba’s claim for asylum
was tied to events that occurred prior to 1991 involving
Ms. Ciorba’s father, the IJ questioned Ms. Ciorba regard-
ing why her father had left Romania. Ms. Ciorba’s attor-
ney then followed-up on that questioning in some detail.
See A.R. 73-78. Second, not only did Ms. Ciorba fail to
make an offer of proof to the IJ concerning other pre-1991
events that impacted her asylum application, she also
has failed to explain to this court what that additional
testimony would have been or how it would have af-
fected the asylum determination. We have made clear that
“a petitioner must show that an immigration judge’s re-
fusal to entertain the testimony of his witnesses prejudiced
him, i.e. that the testimony he sought to introduce had
the potential for affecting the outcome of . . . deportation
proceedings.” Podio v. INS, 153 F.3d 506, 511 (7th Cir.
1998) (internal quotation marks and citations omitted). Ms.
Ciorba has not made this showing. Finally, assuming Ms.
Ciorba’s testimony would have focused on the mistreat-
ment of her extended family referenced in her asylum
application, we do not believe that this testimony would
have assisted Ms. Ciorba in establishing her eligibility for
asylum. Ms. Ciorba cannot rely solely on the persecution
of her family members to qualify for asylum, see Tamas-
Mercea v. Reno, 222 F.3d 417, 424 (7th Cir. 2000) (rejecting
the concept of “derivative persecution”); she must show
No. 02-2213 9
that her family’s political opinions have been imputed to
her and that she has suffered or will suffer persecution as
a result, see id. As we shall discuss in greater detail below,
Ms. Ciorba’s evidence fell short of meeting this standard.
C. Fear of Future Persecution
To establish that she is a “refugee” as defined in 8 U.S.C.
§ 1001(a)(42), and therefore eligible for asylum, Ms. Ciorba
must meet two requirements. First, she must come for-
ward with evidence either of past persecution or of a well-
founded fear of future persecution. See Tamas-Mercea, 222
6
F.3d at 423. Second, she also must show that the perse-
cution she endured (or is likely to endure in the future)
was on account of her race, religion, nationality, member-
ship in a particular social group or political opinion. See id.
“Persecution encompasses more than threats to life
or freedom; non-life threatening violence and physical
abuse also fall within this category.” Id. at 424. However,
to sustain an asylum application, the conduct “must rise
above mere harassment.” Roman, 233 F.3d at 1034. This
court has recognized that actions such as “detention,
arrest, interrogation, prosecution, imprisonment, illegal
searches, confiscation of property, surveillance, beatings,
or torture” might cross the line from harassment to perse-
cution. Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir. 1995).
There is no question that Ms. Ciorba has endured some
harassment at the hands of local Romanian police. How-
6
If an alien establishes past persecution, there is a rebuttable
presumption that she also has a well-founded fear of future
persecution and therefore should be granted asylum. See Ambati
v. Reno, 233 F.3d 1054, 1059-60 (7th Cir. 2000).
10 No. 02-2213
ever, Ms. Ciorba never was arrested, jailed, physically
assaulted or threatened. Additionally, she did not suffer
extreme economic deprivation; Ms. Ciorba resided in her
family’s two-bedroom home and lived off of the funds
provided by her family in the United States during the
five years that she remained in Romania after their de-
parture. In short, Ms. Ciorba’s experiences in Romania
are similar to those that this court has recognized as con-
stituting harassment, not persecution. See, e.g., Yadegar-
Sargis v. INS, 297 F.3d 596, 602 (7th Cir. 2002) (holding
that being stopped by police, being interrogated, and be-
ing forced to the back of ration lines constituted harass-
ment); Mousa v. INS, 223 F.3d 425, 430 (7th Cir. 2000)
(holding that having to report to the police, being subject
to regular questioning and surveillance, and having dif-
ficulty finding employment can “reasonably be character-
7
ized as mere harassment”).
Furthermore, we cannot say that the evidence compels
a conclusion that Ms. Ciorba has a well-founded fear of
future persecution in Romania. When asked directly what
she feared if returned to Romania, Ms. Ciorba stated that
she feared only additional questioning by the police and
searches of her home. These actions “do not rise to the
level of persecution under the statute. Consequently,
they also cannot form the basis for a well-founded fear
of future persecution.” Tamas-Mercea, 222 F.3d at 426 (cit-
ing Balazoski v. INS, 932 F.2d 638, 640 (7th Cir. 1991), and
Zalega v. INS, 916 F.2d 1257, 1261 (7th Cir. 1990)).
7
As noted above, during closing statements to the IJ, Ms.
Ciorba’s counsel conceded that the harassment by the local
Romanian police did not constitute persecution for purposes
of asylum eligibility.
No. 02-2213 11
D. Employment of the Board’s Streamlining Procedure
Ms. Ciorba also submits that the BIA abdicated its re-
sponsibility to review the IJ’s decision when it summarily
affirmed that decision without explanation pursuant to
the new streamlining regulation, 8 C.F.R. § 3.1(a)(7). At
oral argument, Ms. Ciorba’s attorney made it clear that
Ms. Ciorba was not mounting a facial challenge to the
regulation; she only objected to the BIA’s invocation of
this procedure with respect to her case.
The applicable regulation, 8 C.F.R. § 3.1(a)(7), permits
a single member of the Board to affirm the decision of the
IJ without opinion if the Board member concludes that
the decision is correct and that any errors in the decision
are harmless. See 8 C.F.R. § 3.1(a)(7)(ii). Additionally, the
single member must further determine either that “the
issue on appeal is squarely controlled by existing Board
or federal court precedent and does not involve the ap-
plication of precedent to a novel fact situation,” or that
“the factual and legal questions raised on appeal are so
insubstantial that three-Member review is not warranted.”
Id. (A) & (B).
Ms. Ciorba argues that her case should not have been
streamlined. She maintains that the IJ committed numer-
ous errors during the removal hearing that prejudiced
her. Furthermore, she maintains, these errors were suffi-
ciently serious to warrant review by a three-member
panel of the Board. She requests that this court remand
the case to the BIA for consideration by a panel as op-
posed to simply a single member.
As our review of this case demonstrates, Ms. Ciorba’s
case raises no substantial issue of law. Moreover, under
existing precedent, there is no factual basis upon which
to support a grant of asylum. Under these circumstances,
12 No. 02-2213
there certainly was no error in employing the streamlin-
ing regulation. This case simply does not present the sort
of situation in which the collective judgment of the Board,
as opposed to the review of one member, might well have
resulted in a different assessment of the petitioner’s case.
Conclusion
For the foregoing reasons, the petition for review is
denied, and the judgment of the BIA is affirmed.
PETITION FOR REVIEW DENIED; AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-21-03