Barnut v. Ashcroft

KOZINSKI, Circuit Judge,

dissenting.

The majority believes that the IJ “found that Barnut was not credible and denied asylum on that basis,” Maj. op. at 230, but I don’t think this is the most plausible interpretation of what the IJ did. As I read the IJ’s decision, he found that Bar-nut was not, and was not likely to be, persecuted. The IJ noted, for instance, that Barnut’s “beatings” were not severe— they caused only “superficial damage.” E.R. 93. This finding would have been unnecessary if the IJ were rejecting Bar-nut’s testimony about the beatings altogether; such statements make sense only if the IJ concluded that the mistreatment was insufficient to establish eligibility for asylum.

The IJ did quote from Mejia-Paiz v. INS, 111 F.3d 720 (9th Cir.1997), a case that ultimately turned on credibility. However, the passage he quoted referred both to credibility and to an asylum applicant’s statutory burden. Id. at 722 (“[T]he petitioner bears the burden of persuading the IJ that his evidence is credible and the IJ is entitled to evaluate assertions of past persecution in light of the strength or weakness of such other evidence as the petitioner may present.”) (emphasis added) (citation and footnote omitted), cited in E.R. 94. The IJ then noted that “there have been a number of occurrences in [Barnut’s] life which are very inconsistent with his claims of being ... subject to the ‘pattern of persecution’ and the dire consequences that he opines if he had to return to Romania.” E.R. 94. The word “inconsistent” in this passage could have meant that the IJ didn’t believe Barnut, but it could equally well have meant that these experiences—which the IJ believed—were incongruous with or did not support a finding that Barnut was persecuted. When the record supports two interpretations of the IJ’s decision, we should not presume, as the majority does, that the IJ meant the erroneous one.

Viewed as a straightforward persecution analysis, rather than a credibility determination, the IJ’s decision is supported by substantial evidence. The record supports his findings about the severity of Barnut’s mistreatment: He did not seek medical attention and Barnut himself characterized his injuries as “superficial.” E.R. 112-13, 115; see Prasad v. INS, 47 F.3d 336, 339—40 (9th Cir.1995). Moreover, Barnut’s difficulties with the government did not keep him from receiving a government education or getting a job with a government clinic. Barnut’s reliance on Gui v. INS, 280 F.3d 1217, 1227-28 (9th Cir.2002), is misplaced. Gui dealt with a different Romania, a command economy in which all education was provided by the state. See id. (“The IJ failed to note that typically all education under Romania’s Communist regime ... was provided by the state. Thus the fact that Mr. Gui’s education was state-funded is hardly a surprise.”). Now that private educational and employment opportunities are available in Romania, Barnut’s ability to secure benefits from the Romanian government certainly bears on whether he was being persecuted by that same government.

Because the majority and I read the IJ’s opinion so differently, one possibility would be for us to remand so that the IJ can clarify the basis of his ruling. See Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991); Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). But it probably doesn’t matter that the majority instead assumes the IJ found that Barnut was incredible, rejects that decision and remands. If I am correct that the IJ actually decided that Barnut suffered no past persecution, nothing in the majority’s remand order will preclude him from doing so again. Thus, while I believe we should deny the petition for review outright, the majority’s remand will have no permanent effect on the outcome of the ease.