United States Court of Appeals
For the First Circuit
No. 10-2165
MARIUS STANCIU,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Thompson, Circuit Judges.
Eman H. Jajonie-Daman, Anthony J. McEachern and Amer S. Hakim
& Associates, P.C. on brief for petitioner.
John D. Williams, Department of Justice, Civil Division,
Office of Immigration Litigation, Tony West, Assistant Attorney
General, Civil Division, and Jennifer P. Levings, Senior Litigation
Counsel, Office of Immigration Litigation, on brief for respondent.
October 25, 2011
BOUDIN, Circuit Judge. Marius Stanciu, a native and
citizen of Romania, has petitioned for review of a decision of the
Board of Immigration Appeals ("BIA"). See 8 U.S.C. § 1252(a)(1)
(2006). The BIA affirmed the denial by the immigration judge
("IJ") of Stanciu's applications for asylum, withholding of
removal, and relief under the Convention Against Torture ("CAT").
Stanciu is ethnically Romani (colloquially a "Gypsy"), and his
applications rested on claims of persecution by Romanian police and
security forces on account of his Romani heritage.
Stanciu entered the United States on March 22, 2006, on
a valid visa that permitted him to work as a truck driver for a
specific company until December 10, 2006. In November 2006, a
commercial truck inspection revealed that Stanciu had switched
employers without authorization and was working as a truck driver
for a different company in violation of the terms of his visa. See
8 U.S.C. § 1227(a)(1)(C)(i).
When federal authorities began removal proceedings,
Stanciu conceded removability but sought the relief described
above. At a May 2008 hearing, Stanciu (who was represented by
counsel) and his wife, Monica Stanciu, testified and submitted
various materials. He later filed a post-hearing affidavit
requested by the IJ who asked that Stanciu address what the IJ
considered to be discrepancies in his testimony.
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Stanciu described two early incidents in which police
falsely accused him of stealing money and beat him in seeking to
extort confessions. He also testified that, as a truck driver
transporting goods around Europe, he was regularly detained by
government security officers on returning to Romania for anywhere
between ten hours and two days and questioned and beaten. He
reported that he was regularly harassed by local police and, after
his first trip to the United States in late 2004, was detained and
beaten by officers on his return to Romania.
Stanciu said that in December 2005, after returning from
a second trip to the United States, he was again detained at the
airport, held in custody for about a week and savagely beaten. He
testified that the officers slapped him and beat him on his palms,
arms, back, legs, and feet, forcing him to "sit up on the chair
like in a regular sitting position but not on the chair. [He] just
had to bend [his] knees and stand like that with [his] hands out
and they beat [him] on [his] legs." When Stanciu refused to sign
a blank page, the officers slammed a drawer shut on his fingers.
Stanciu said he ended up at the hospital, where he stayed
for "four or five days" recovering from his injuries. He also
submitted a one-page document that he said his wife acquired from
the hospital, which described injuries consistent with the beatings
he had recounted. Stanciu's wife confirmed that he had arrived
home after his trip six days late and badly beaten, but she also
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testified that the hospital refused to admit him, offered him
medicine and sent him home where he recovered.
Stanciu testified that he continued to be harassed in the
months after that incident and was unable to leave the country
because the police had his passport; but, in March 2006, his former
employer recovered it for him and he left for the United States
shortly thereafter. He did not, however, apply for asylum on
arriving in the United States, but sought asylum only after removal
proceedings were begun against him.
Stanciu included a State Department Country Report on
Romania, which said that "[s]ocietal violence and discrimination
against the Roma was pervasive"; described "numerous credible
reports of police mistreatment and abuse of detainees and Roma,
primarily through excessive force and beatings by police"; and
noted that "Roma were denied access to, or refused service in, many
public places," and that "Roma faced persistent poverty with poor
access to government services, few employment opportunities, high
rates of school attrition, inadequate health care, and pervasive
discrimination."
After reviewing Stanciu's post-hearing affidavit
addressed to alleged discrepancies, the IJ denied Stanciu's
applications for relief in a detailed fifteen-page order. The IJ
did not dispute that Roma are subject to both official and private
discrimination and mistreatment in Romania, but she regarded the
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two central incidents needed to establish past persecution of
Stanciu to be the detentions and beatings by Romanian officials
when Stanciu returned from the United States in 2004 and 2005.
These, the IJ acknowledged, were "plausible in light of verifiable
conditions in Romania"; but, she concluded, Stanciu's
incredible testimony concerning the frequency
and severity of any such mistreatment and his
evident attempts to embellish the harm most
recently inflicted upon him and his deception
concerning his subsequent voluntary travel in
and out of Romania[] are fatal to his claim
that this mistreatment [wa]s severe enough to
have constituted persecution.
The IJ further pointed, as bases for doubts about
Stanciu's credibility, to specific inconsistencies (discussed
below), to Stanciu's ability to travel frequently in and out of
Romania, to his failure to apply for asylum during previous trips
to the United States, and to his extended family's apparent
willingness to remain in Romania.
Disbelieving Stanciu as to the two key incidents, the IJ
found that he had not established past persecution nor a well-
founded fear of future persecution. This led to the denial of the
asylum application, a failure to meet the higher standard of proof
required for withholding of removal and the lack of any incidents
that even arguably amounted to torture that would permit Stanciu to
meet his burden of showing under CAT that future torture was
likely. On further review, the BIA affirmed, finding the IJ's
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adverse credibility determination to be adequately supported by
specific evidence in the record.
In this court, Stanciu's arguments collapse into a
central claim, namely, that the record establishes past persecution
of Stanciu--indeed, torture--and that the alleged discrepancies
were adequately explained or insufficiently serious to undercut his
testimony. Stanciu's arguments are not frivolous but to prevail on
factual and credibility issues, Stanciu must show that the agency's
position is unsupported by substantial evidence and "any reasonable
adjudicator would be compelled to conclude to the contrary." 8
U.S.C. § 1252(b)(4)(B); Toribio-Chavez v. Holder, 611 F.3d 57, 62
(1st Cir. 2010).
The judge who heard the testimony first hand always has
an advantage over reviewing courts, but, in addition, the IJ here
provided specific examples of discrepancies and also gave Stanciu
a further opportunity to assuage doubts. "We give great respect to
the IJ so long as he provides specific and cogent reasons why an
inconsistency, or a series of inconsistencies, render the alien's
testimony not credible." Kartasheva v. Holder, 582 F.3d 96, 105
(1st Cir. 2009) (internal quotation marks omitted). And, Stanciu's
claim is governed by a statutory amendment that gives weight to
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such flaws even if they do not go "to the heart of the applicant's
claim."1
Stanciu's descriptions are far from incredible on their
face, so we turn to the specific discrepancies on which the IJ
rested, considering as well the BIA's discussion since it supported
the IJ's analysis. Toribio-Chavez v. Holder, 611 F.3d 57, 62 (1st
Cir. 2010). The IJ's assessment rested not on a single conflict or
concern but rather on the aggregate as casting doubt on what the IJ
agreed were events that plausibly could have occurred.
First, Stanciu testified that in 2005 he was beaten by
Romanian authorities so badly that he was hospitalized for "four to
five days," yet his wife testified that he was turned away from the
hospital (although given "calming medicines") and recovered from
his injuries entirely at home. Stanciu's explanation for this
discrepancy in his post-hearing affidavit was that he was
disoriented after the beating and believed he had recovered in the
hospital.
The explanation is not itself incredible but it does not
account for the change in his story between the hearing, where he
1
REAL ID Act of 2005, Pub. L. No. 109-13, div. B, § 101(a)(3),
119 Stat. 302, 303 (codified at 8 U.S.C. § 1158(b)(1)(B)(iii)
(2006)). In setting out familiar criteria for credibility,
Congress provided that they included "any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim." Id.; see also Mariko v. Holder, 632 F.3d 1, 5-
6 (1st Cir. 2011).
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was sure he was in the hospital for several days, and the
affidavit, where disorientation was alleged to have clouded his
recollection. It is also somewhat troubling that Stanciu testified
in the first instance directly contrary to his wife on a subject
that can hardly have gone unmentioned between the couple in the
days and months after the episode.
The next inconsistency concerned Stanciu's travels to
Germany in February and March 2006. Stanciu's travels abroad were
indirectly relevant to his persecution claim because they bore on
his ability to leave and re-enter Romania at will and his
willingness to expose himself to border crossings that posed a
special opportunity for harassment. E.g., Loho v. Mukasey, 531
F.3d 1016, 1017-18 (9th Cir. 2008). The trips to Germany were
relatively recent in relation to the hearing, which took place in
May 2008, and not easily explained by a lapse in memory.
Yet Stanciu insisted during his hearing testimony--even
after being confronted with indications in his passport to the
contrary--that he had not left Romania at those times. His wife
testified that he had made the visits, the passport stamps
confirmed the travel, and he later admitted in his post-hearing
affidavit that he had gone to Germany and sought citizenship there.
We cannot fault the IJ for finding Stanciu's explanation in the
affidavit–-that he "simply forgot" about that travel due to stress
and an unspecified medical condition--inadequate.
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The third inconsistency identified by the IJ related to
the length of Stanciu's detention when he returned to Romania from
his second trip to the United States in December 2005. Stanciu had
originally claimed in his asylum application that he was detained
for ten days, amending this at the hearing to six days. He then
testified that he arrived in Romania on December 6, and was
detained for "six or seven days." This meshed with the testimony
of his wife who said that he arrived home on December 12 and with
the record that she said she had obtained from the hospital about
his treatment.2
However, Stanciu's passport and the Department of
Homeland Security's computerized travel records indicate that he
actually left the United States on December 1, 2005, and arrived in
Romania on December 2. This might make the original ten-day
detention story more plausible, but it did not square with his own
hearing testimony; and when pressed by the IJ, Stanciu responded in
his post-hearing affidavit--irrelevantly--that his asylum
application stated only that he returned in "December 2005,"
without specifying any particular date.
There are some other concerns as well. The government
pressed Stanciu on his failure to request asylum during his several
2
At the hearing, the IJ questioned the accuracy of both the
testimony of Stanciu's wife as to the severity of his condition and
the authenticity of the one-page document, which bore no seals or
letterhead, purporting to be from the hospital where Stanciu was
treated.
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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.3
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.4 Social discrimination and mistreatment--here
3
Stanciu did say that he spoke to different immigration
lawyers during his trips to the United States in 2005 and 2006, but
there is no indication that he ever inquired further of any of them
about his eligibility for asylum.
4
Stanciu says that his wife testified to his injuries, that
the IJ deemed her credible and that this alone established
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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. E.g., Burbiene
v. Holder, 568 F.3d 251, 256 (1st Cir. 2009); Santosa v. Mukasey,
528 F.3d 88, 92 & n.1 (1st Cir. 2008). And, without the support of
the two main episodes, no claim of likely future torture is
possible.
The petition for review is denied.
persecution; but what the IJ found credible were her descriptions
of societal discrimination. The IJ did not endorse, and appears to
have discounted, her testimony about the December 2005 injuries.
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