Floroiu, Danut v. Gonzales, Alberto ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1333
DANUT FLOROIU, ALINA FLOROIU,
and DANIA FLOROIU,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
Nos. A95-920-814, A95-920-813, and A95-920-815.
____________
ARGUED JANUARY 24, 2007—DECIDED APRIL 2, 2007
____________
Before RIPPLE, ROVNER and WILLIAMS, Circuit Judges.
PER CURIAM. Danut and Alina Floroiu, Seventh-day
Adventists from Romania who are married, along with
their daughter, Dania, petition for review of an order of
the Board of Immigration Appeals (“BIA” or “Board”)
denying their applications for asylum, withholding of
removal, and relief under the Convention Against Torture
(“CAT”). Following a removal hearing, an Immigration
Judge (“IJ”) denied their requests for relief on grounds
that an asylum application was untimely and that, with
2 No. 06-1333
respect to their applications for withholding of removal
and relief under CAT, the Floroius failed to sustain their
burden of showing it was more likely than not that, if
returned to Romania, they would suffer persecution or
torture because of their religion. The BIA affirmed. The
Floroius now petition for review of only the denial of their
application for withholding of removal. Because the IJ
manifested a clear bias against the Floroius, which de-
prived them of their right to a fair hearing, we grant their
petition for review.
1.
Danut and Alina Floroiu entered the United States in
February 2000 as non-immigrant visitors. After an attempt
to have their five-year-old daughter, Dania, enter the
United States in January 2003, the Immigration and Natu-
ralization Service initiated removal proceedings against
all three family members. See 8 U.S.C. §§ 1182(a)(7)(A)(i)(I),
1227(a)(1)(A) & 1227(a)(1)(B).
At the hearing before the IJ, the Floroius conceded
removability but requested asylum, claiming religious
persecution. In support of their claim, Mr. Floroiu testified
that, on four separate occasions between 1997 and 2000,
he had been prevented from preaching his faith and
distributing Seventh-day Adventist literature with mem-
bers of his youth group. The first incident occurred in the
city of Bicaz in 1997, when a local Romanian Orthodox
priest told them to go home and not return to the town. The
second incident occurred in Girov in 1998, when Mr.
Floroiu and the youth group attempted to distribute
religious literature door-to-door, and another Orthodox
priest told them to leave the city. Mr. Floroiu reported this
No. 06-1333 3
to the police, who said they could not do anything because
the Orthodox Church is supported by the majority of the
people. The third incident, also in 1998, occurred in the
city of Cuiejdi. As before, a local Orthodox priest told
Mr. Floroiu and his group to stop handing out the litera-
ture. A verbal altercation ensued, and people from the
village joined in and threatened to kill Mr. Floroiu and
other members of his group.
The fourth and most heated incident occurred in 2000
in Piatra Neamt Darmantspi, when a priest again in-
structed Mr. Floroiu and his group to stop proselytizing
and get out of the town. This confrontation escalated into
a physical fight between Mr. Floroiu and the priest while a
crowd gathered round; the priest threatened to kill
Mr. Floroiu but did not injure him. One of Mr. Floroiu’s
friends witnessed this event and called the police, who
brought Mr. Floroiu into the station and questioned him
about the situation leading to the fight. After a few hours,
the police released Mr. Floroiu, advised him not to return
to the neighborhood, and warned him that the police
would not be available to protect him in the event of any
future conflict.
The Floroius testified that they had reason to fear future
persecution if returned to Romania. Mr. Floroiu claimed
that, since early 2000, there has been a warrant out for his
“preventative arrest” in Romania, naming as his offense
the distribution of religious literature. A.R. at 263-68; see
also id. at 152-53. Mr. Floroiu also said that friends and
family members have warned them not to come back
because they would face further persecution. Letters from
family and friends in Romania corroborating the Floroius’
testimony were provided to the IJ. Mr. and Ms. Floroiu
also testified that in Romania people work and children go
4 No. 06-1333
to school on Saturdays, which violates Seventh-day Adven-
tist teachings. Other than confirming that they continue to
practice Seventh-day Adventism in the United States, the
Floroius did not discuss any details of how they now
practice their religion in this Country.
The Government presented the State Department’s
country reports and reports on international religious
freedom for Romania. These reports indicated that Roma-
nia’s constitution provides for freedom of religion and
that the government officially recognizes seventeen
religions, including the Seventh-day Adventist Church. The
reports note that, although the government generally
respects religious rights, there are some exceptions. The
reports indicate that, “[a]lthough protected by law, sev-
eral minority religious groups, which include both recog-
nized and unrecognized religions, made credible com-
plaints that low-level government officials and Romanian
Orthodox clergy impeded their efforts to proselytize,
interfered in religious activities, and otherwise discrimi-
nated against them.” A.R. at 250. The report goes on to
acknowledge that, in some instances, “local police and
administrative authorities tacitly supported societal
campaigns (some of which were violent) against prosely-
tizing,” even though there is no law against proselytizing.
Id. The reports detail various attacks on Adventist churches
and prayer groups. Finally, the reports observe, recognized
religions have the right to teach religion in public schools,
however, Seventh-day Adventists have complained
credibly that they were unable to hold classes in their
faith and that their children have been compelled to at-
tend Orthodox religion classes.
The IJ found the Floroius ineligible for asylum because
they had filed their application three years after they
No. 06-1333 5
entered the Country, well past the one-year statutory
deadline. See 8 U.S.C. § 1158(a)(2)(B). The IJ denied their
claims for withholding of removal and relief under the
CAT—claims that are not subject to the one-year time
bar—because he determined that the past harm suffered
by the Floroius did not rise to the level of persecution and
that they had not established a likelihood of their being
persecuted or tortured if returned to Romania. He relied
on those portions of the State Department’s country re-
ports indicating that Seventh-day Adventists “are allowed
to practice their religion in Romania and that the Romanian
government has followed the legal protections for free
expression of religion in practice and that Seventh-[d]ay
Adventists are recognized as one of the religions who are
[sic] allowed to register in Romania.” A.R. at 84. The IJ
found “that the respondents’ claim such as it is is greatly
exaggerated that [sic] the events on which they base their
claim were partly the result of their own actions.” A.R. at
83. The IJ’s reasoning concluded with the following
language in which he described the Floroius’ practice of
religion as offensive both in this Country and Romania:
My observation of the respondents and their be-
havior in Romania and in the United States indicates to
me that they are essentially zealots, that is people
who practice their religion in a way which is very often
offensive to the majority and that they have deliber-
ately forced their religious expression on that majority
in situations in which they have reason to know that
that [sic] the manner of that expression would provoke
an adverse reaction from the majority. This is not to
condone any religious intolerance on the part of
Romanian Orthodox believers, but it is to say that the
respondents are not mere victims because of their
6 No. 06-1333
Adventist faith but rather to a degree contributorily
negligent for acting in a way so as to provoke people
who they know or should have reason to know
would be offended by their aggressive proselytizing.
A.R. at 84-85.
The BIA dismissed the Floroius’ appeal. First, the Board
noted that the Floroius did not challenge the one-year filing
deadline for asylum applications, and added that no
exceptions to that deadline were present. The Board then
denied the Floroius’ applications for withholding of
removal and for CAT relief. In reaching this determination,
the Board acknowledged the observation in the country
reports that the Romanian Orthodox Church had shown
some hostility toward minority religious groups, but
explained that the Floroius had not shown that their
mistreatment rose to the level of persecution or that they
had a well-founded fear of future persecution. Finally, the
Board noted that “although the Immigration Judge inap-
propriately described the respondents as religious zealots,
we find that he adhered to the role of impartiality assigned
to him as one acting in a judicial or quasi-judicial capacity,
and that the factual errors contained in his decision are
harmless as they do not alter our ultimate decision.” A.R.
at 41 (citation omitted).
The Floroius filed with this court a timely petition for
review of the BIA’s decision and on the same day filed a
“motion to reopen/reconsider” with the BIA. A.R. at 12. In
the latter motion, the Floroius argued that the IJ did not
adequately consider their claims of persecution, and they
submitted purportedly new evidence that included a
newspaper article from 2000 translated from Romanian into
English entitled “The Adventists have yet to suffer if they
want to grow!” and a second copy of the 2000 arrest
No. 06-1333 7
warrant for Mr. Floroiu. A.R. at 31-37. The BIA denied this
motion, finding that the proffered evidence was not
previously unavailable, as required for reopening, see 8
C.F.R. § 1003.2(c)(1), and that the Floroius presented no
new legal argument to justify reconsideration, see id.§ 1003.2(b)(1). The Floroius do not challenge that decision.
2.
In the present petition for review of the BIA’s original
decision affirming the denial of asylum and ordering
removal, the Floroius focus on the IJ’s mischaracteriza-
tion of them in his decision as “offensive” religious
“zealots” in both this Country and in Romania. They
contend that they were denied a full and fair hearing
because the IJ’s view about their religious practices pre-
vented him from giving due consideration to the evi-
dence of persecution that they presented as well as cor-
roborative evidence of persecution in the State Depart-
ment’s country reports.
We agree with the Floroius that the IJ departed from the
judicial role and manifested a clear bias against them
constituting a denial of due process. We cannot rely on the
BIA’s review of this matter because we believe that, as a
matter of law, the BIA was wrong in its conclusion that
the IJ had not departed from his judicial role.
It is well-established that, if an applicant in an immigra-
tion court has not received a meaningful opportunity to be
heard, she has been denied due process, and we must
grant her petition and remand for further proceedings. See
Giday v. Gonzales, 434 F.3d 543, 547-48 (7th Cir. 2006);
Kerciku v. INS, 314 F.3d 913, 917-18 (7th Cir. 2003); Roman
v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000). To obtain
8 No. 06-1333
relief, the petitioner must produce some evidence indicat-
ing that the denial of due process “actually had the poten-
tial for affecting the outcome” of the proceedings. Kuciemba
v. INS, 92 F.3d 496, 501 (7th Cir. 1996) (emphasis in origi-
nal).
These procedural rights have been codified. Under the
applicable statutory and regulatory provisions, a lawful
removal proceeding is one in which “[t]he immigration
judge shall receive and consider material and relevant
evidence, rule upon objections, and otherwise regulate
the course of the hearing,” 8 C.F.R. § 1240.1(c), and “the
alien shall have a reasonable opportunity to examine the
evidence against the alien, to present evidence on the
alien’s own behalf, and to cross-examine witnesses pre-
sented by the Government,” 8 U.S.C. § 1229a(b)(4)(B); see
also Podio v. INS, 153 F.3d 506, 509-11 (7th Cir. 1998). Our
task is to determine “whether, given the totality of the
circumstances, the petitioner[s] had a full and fair op-
portunity to put on [their] case.” Giday, 434 F.3d at 548(quoting Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538 (7th
Cir. 2005)). The BIA’s conclusion that the IJ did not violate
due process is a conclusion of law which we review de
novo. Chakir v. Gonzales, 466 F.3d 563, 566 (7th Cir. 2006).
The IJ’s decision reveals that the Floroius were denied the
“reasonable opportunity” mandated by § 1229a. Without
any reasoning, the IJ labeled the Floroius as religious
“zealots” whose exercise of religion was “offensive to a
majority.” Because there was no explanation for that
conclusion, these words betray a predisposition against
the petitioners based on their religious practices. The bias
reflected in the use of this language of intolerance taints the
proceedings, erodes the appearance of fairness and creates
substantial uncertainty as to whether the record below
No. 06-1333 9
was fairly and reliably developed. See Islam v. Gonzales,
469 F.3d 53, 55-56 (2d Cir. 2006). We find it ironic that the
IJ—who is charged with protecting asylum applicants from
religious persecution in their countries of origin—spoke in
the unacceptable language of religious intolerance. See
Huang v. Gonzales, 403 F.3d 945, 948-50 (7th Cir. 2005)
(vacating because the IJ’s extensive questioning about
the applicant’s Catholic beliefs and practices, based on his
own assumptions and with no basis in the record, may
have tainted his analysis of her credibility).
Our conviction that this language evinces bias sufficient
to have denied the petitioners due process is strengthened
by the flatly illogical conclusion about asylum law that
the IJ had drawn. In his view, because the Floroius es-
poused a minority religious belief and because they felt
compelled by their faith to evangelize in a way their
country’s religious majority disapproved of, they were
“contributorily negligent,” A.R. at 84, for any harm they
suffered and could not be heard to complain or seek
protection in the United States. This turns the protection of
asylum on its head. Virtually every asylum seeker
“provoke[s],” id., his persecutors by having some im-
mutable characteristic that another group finds offensive.
When that provocation is based on “race, religion, national-
ity, membership in a particular social group, or political
opinion,” 8 U.S.C. § 1101(a)(42)(A), our asylum laws
support and protect the persecuted. See 8 U.S.C.
§ 1158(b)(1)(A).
Although we have no occasion to determine whether
the Floroius were persecuted in fact or have established
that it is more likely than not that they will be persecuted
on their return, we note that the strength of the Floroius’
religious belief and the fact that their practice in this be-
10 No. 06-1333
lief was unacceptable within the religious traditions of their
community would be a reason to provide protection, not a
justification for denying it.
We have not previously had an opportunity to decide
whether it is appropriate to vacate the decision of an IJ
where a denial of due process is based on an IJ’s bias that
is apparent, as it is here, from the face of the record. Based
on the sound reasoning of our sister circuits that have
vacated IJ decisions due to such apparent bias, we join
those circuits and do so here.1
1
See Islam v. Gonzales, 469 F.3d 53, 55 (2d Cir. 2006) (“[W]hen an
IJ’s conduct results in the appearance of bias or hostility such
that we cannot conduct a meaningful review of the decision
below, we remand.”); Huang v. Gonzales, 453 F.3d 142, 148 (2d
Cir. 2006) (ordering remand “because of the IJ’s apparent bias
and hostility toward” petitioner); Cham v. Attorney General of
the United States, 445 F.3d 683, 691 (3d Cir. 2006) (vacating where
the IJ’s language made it “crystal clear that [he] presumed
[petitioner’s] application to be without merit before even a shred
of testimony had been presented, and treated [him] accord-
ingly”); Sukwanputra v. Gonzales, 434 F.3d 627, 638 (3d Cir. 2006)
(vacating in part because of the IJ’s “bias-laden remarks” which
had no basis in the record); Wang v. Attorney General of the United
States, 423 F.3d 260, 269 (3d Cir. 2005) (vacating because of the
IJ’s manifest hostility and stating that “the mere appearance of
bias on [the IJ’s] part could still diminish the stature of the
judicial process she represents”) (internal quotation marks
omitted); Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1050 (9th Cir.
2005) (vacating where the IJ’s personal conjecture about domes-
tic violence was indicative of bias and stereotypical assump-
tions); Ahmed v. Gonzales, 398 F.3d 722, 724 (6th Cir. 2005)
(vacating where the IJ’s “persistent mischaracterization of the
[petitioners’] testimony biased his decision against them”);
(continued...)
No. 06-1333 11
The IJ’s decision is unsustainable for an additional
reason: his finding that the Floroius’ religious behavior “in
the United States” is “offensive to the majority” has no
basis in the record. A.R. at 84. We shall not uphold a
factual determination that lacks record evidence. See
Guchshenkov v. Ashcroft, 366 F.3d 554, 557-58 (7th Cir. 2004);
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000). In this
case, Mr. Floroiu’s only testimony regarding his time in the
United States was in response to questions about how
long he stayed in the United States during trips he made
prior to his arrival in 2000. Mr. Floroiu provided no
testimony at all about his religious activities in the United
States or about any other activities since he has been here.
Ms. Floroiu testified briefly that the family now belongs
to a Seventh-day Adventist church in Chicago, but did not
provide any information about her church activities or
other aspects of her life in the United States. There is
therefore no basis for the IJ’s conclusion that the Floroius’
behavior in the United States is “offensive to the majority.”
In addition, we cannot sustain the IJ’s decision because
he failed to give due consideration to the evidence favor-
ing the Floroius. We uphold the IJ’s findings of fact
“unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). “To earn
such deference, however, the IJ must announce its deci-
sion in terms sufficient to enable a reviewing court to
perceive that it has heard and thought and not merely
1
(...continued)
Reyes-Melendez v. INS, 342 F.3d 1001, 1002 (9th Cir. 2003)
(vacating because the IJ’s hostile comments and bias indi-
cated that petitioner was denied a full and fair hearing).
12 No. 06-1333
reacted.” Sosnovskaia v. Gonzales, 421 F.3d 589, 592 (7th
Cir. 2005) (internal quotation marks omitted).
The IJ did not consider and analyze adequately the issues
and substantial factual contentions raised before him. The
IJ’s ruling made no reference to the arrest warrant, to the
Floroius’ testimony that the police said they would not
protect them, to the letters from family and friends in
Romania warning that it would not be safe for the Floroius
to return, or to newspaper articles documenting re-
cent attacks on Seventh-day Adventist churches. See
Guchshenkov, 366 F.3d at 557 (vacating where IJ’s analysis
of the evidence was “hopelessly incomplete”); Niam v.
Ashcroft, 354 F.3d 652, 655 (7th Cir. 2004) (vacating be-
cause the IJ’s “analysis flatly failed to engage with the
evidence presented to him”). Instead, the IJ appears to have
treated the country reports submitted by the Government
as irrebuttably dispositive, contrary to our admonitions
regarding the potential for bias in such reports and “the
inability of asylum-seekers to question the conclusions
contained therein.” Sosnovskaia, 421 F.3d at 593-94; Diallo
v. Ashcroft, 381 F.3d 687, 700 (7th Cir. 2004); see also Niam,
354 F.3d at 658-59; Galina v. INS, 213 F.3d 955, 958-59 (7th
Cir. 2000). Moreover, the IJ disregarded evidence in re-
ports that corroborates the Floroius’ testimony, including
documented violent attacks on Seventh-day Adventist
groups by lower-level government officials and Romanian
Orthodox clergy.
The IJ’s handling of this case denied the Floroius’ right
to be heard. Regardless of the strength of their case on the
merits, fundamental tenets of proper administrative
procedure demand that the Floroius be granted a fair
hearing in which the judge gives due consideration to their
arguments without devaluing their case based on their
No. 06-1333 13
lawful exercise of religion. Because they have not received
a fair hearing, and the findings are not supported by the
evidence in the record, we must vacate the IJ’s ruling
and remand for further proceedings. See Sosnovskaia, 421
F.3d at 590 (vacating because the IJ failed to give due con-
sideration to evidence favoring the petitioner); Mansour,
230 F.3d at 908 (vacating because the BIA’s mislabeling of
an applicant’s ethnic and religious affiliation called into
question the logic of the ruling); Chitay-Pirir v. INS, 169
F.3d 1079, 1081 (7th Cir. 1999) (vacating because it was
“impossible to be confident that [the petitioner’s] claim
[had] been fully understood or analyzed”); Hengan v. INS,
79 F.3d 60, 63-64 (7th Cir. 1996) (vacating, despite the
presence of evidence in favor of the Agency that would
“ordinarily . . . lead[] a reviewing court to affirm,” on the
grounds that the IJ took into account irrelevant facts and
did not properly consider the applicant’s arguments).
We strongly encourage the BIA to assign the Floroius’
case to a different judge on remand in order to avoid any
perception of lingering bias. Cf. Georgis v. Ashcroft, 328
F.3d 962, 970 (7th Cir. 2003) (citing Circuit Rule 36 of the
United States Court of Appeals for the Seventh Circuit,
which establishes the same default rule for cases remanded
to federal district courts after trial). We further note that
this is the second time we have faulted this immigration
judge for basing his decision on unsupported specula-
tion about an asylum applicant. See Ko v. Gonzales, 421
F.3d 453, 456 (7th Cir. 2005). We further direct the clerk to
send a copy of this opinion to the Attorney General of the
United States so that he may determine whether any
disciplinary action against the immigration judge is
warranted.
14 No. 06-1333
Conclusion
For the reasons stated above, we grant the petition for
review, reverse the decision of the Board and remand for
further proceedings consistent with this opinion.
PETITION FOR REVIEW GRANTED;
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-2-07