Immigration – Asylum – Credibility

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Where the petitioner, a native and citizen of Romania, has petitioned for review of a decision of the Board of Immigration Appeals affirming the denial by the immigration judge of his applications for asylum, withholding of removal and relief under the Convention Against Torture, the petitioner lacks credibility and has failed to establish evidence of mistreatment by the Romanian authorities necessary for his asylum claim, so the petition for review must be denied.

“… The government pressed [petitioner Marius] Stanciu on his failure to request asylum during his several earlier trips to the United States, waiting instead until removal proceedings had commenced before filing a defensive application. Stanciu said that he had been scammed by an American attorney in 2004 who told him that he could not obtain asylum but only a green card, and that he originally believed such an application had been made on his behalf even though no record of one has been found.

“That such scams occur is certain, but it leaves open the question of why over a period of several years of allegedly increasing mistreatment in Romania and two more visits to the United States, Stanciu did nothing more to pursue an asylum claim.  The reason for his failure to do so in March 2006, after two further alleged episodes of brutal treatment, is not obvious — especially because he had a paying job and only a short-term visa and so faced obvious risks in doing nothing.

“In our view, the tensions in Stanciu’s testimony are neither overwhelming nor trivial; the extent to which his explanations resolve or exacerbate the problems are a judgment call that a reasonable fact-finder could resolve either way. And the two episodes in question are critical to his persecution and torture claims. Social discrimination and mistreatment — here established independently by Stanciu’s wife’s testimony and the Country Report — are one thing; severe and brutal beatings by government agents, certainly where a recurring pattern, focused on one individual are another.

“In sum, the IJ’s unwillingness to accept the key testimony has some basis in the record. That such mistreatment would be ‘plausible’ does not mean that it in fact occurred or at least that it occurred with the duration and severity necessary to establish persecution or torture. These two episodes aside, the treatment of Roma is deplorable but it is not, on this record, so uniform and universal in its severity as to give every Roma an assured right to asylum. Cf. Rasiah v. Holder, 589 F.3d 1, 5 (1st Cir. 2009).

“Since Stanciu’s asylum claim fails, his application for withholding of removal necessarily fails as well. … And, without the support of the two main episodes, no claim of likely future torture is possible.”

Stanciu v. Holder (Lawyers Weekly No. 01-271-11) (11 pages) (Boudin, J.) (1st Circuit) On petition for review of an order of the Board of Immigration Appeals. Eman H. Jajonie-Daman, Anthony J. McEachern and Amer S. Hakim & Associates on brief for petitioner; John D. Williams, Tony West and Jennifer P. Levings on brief for respondent (Docket No. 10-2165) (Oct. 25, 2011).