                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2008

Marinescu v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2797




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                                                                  NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 05-2797
                                     ___________


                               ROBERT MARINESCU,
                                            Petitioner
                                       v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                       Respondent

                                     ___________

                         Petition for Review of an Order of the
                             Board of Immigration Appeals
                                   (No. A70-359-595)
                           Immigration Judge: Walt Durling
                                      ___________

                              ARGUED JUNE 14, 2007

           Before: McKEE, STAPLETON, and NYGAARD, Circuit Judges.


                                 (Filed: June 26, 2008)

Anthony R. Holtzman, Esq. (Argued)
David R. Fine, Esq.
Kirkpatrick & Lockhart Preston Gates Ellis
17 North Second Street, 18th Floor
Harrisburg, PA 17101
             Counsel for Petitioner


Mary C. Frye, Esq. (Argued)
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
              Counsel for Respondent

                                       ___________

                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

      This petition for review comes to us following the Board of Immigration Appeals’

reversal of the Immigration Judge’s order to withhold removal of petitioner Robert

Marinescu to Romania in accord with INA §241(b)(3). For the reasons detailed below,

we will grant Mr. Marinescu’s petition and remand to the Board for further consideration

consistent with our holding.




                                            I.

      Mr. Marinescu is a citizen of Romania who was admitted to the United States as a

lawful permanent resident. He was later placed into removal proceedings by issuance of a

Notice to Appear, listing three criminal convictions dating from 1994 to 1997, making

him ineligible for discretionary relief. Marinescu expressed fear of returning to Romania.

       Marinescu and his father testified in support of his application for withholding of

removal pursuant to section 241(b)(3) and pursuant to Article 3 of the U.N. Convention

Against Torture. Mr. Marinescu and his family are of the Roma (“gypsy”) ethnic group.

                                            2
The testimony offered by Marinescu focused upon the consequences of ethnic animus

against Roma that he will face if he was returned to Romania. These consequences

included death threats.

       The Immigration Judge told Marinescu that the testimony did not support either a

finding of past persecution or a finding of future persecution. At Marinescu’s request,

however, the court permitted him to augment the record with further evidence.

Reconvening three months later, Marinescu proffered Ian Hancock, Ph.D. The Judge

accepted Dr. Hancock as an expert witness who testified specifically about the living

conditions of Roma in Romania.

       The Immigration Judge credited the expert’s testimony, and found the following:

approximately 95% of the Roma population in all areas of the country live with an overt

fear of violence; Roma are regularly targeted for violent reprisals and discrimination

from fellow citizens and police throughout Romanian society; police routinely fail to

intervene to stop instances of “mob rule;” and, the police themselves often treat Roma

brutally. The Judge also credited Amnesty International reports that document ethnically

based police violence against Roma who are incarcerated.

       Regarding Marinescu’s plight, the Judge found that, by virtue of his physical

appearance, accent and surname, he will be readily identified as Roma by other

Romanians and the police. This makes it likely that Marinescu, as is the case with the

vast majority of Roma, will be subject to routine violence without police protection, as



                                             3
well as substantial discrimination in education, housing, medical care, employment and

social services.

       Looking to the future, the Judge also found that government efforts directed at

improving the life of Roma is a facade to cover long-standing societal and governmental

ethnic animus. These programs have been “documented failures.” The Judge found that

conditions for the Roma in Romania have grown worse since the fall of Communism.

       Marinescu’s expert was confronted with the Country Report, which contradicted

the expert’s testimony on the sincerity and success of the government’s efforts. The

Judge credited the expert’s testimony that the State Department has consistently failed to

understand the realities of the discrimination and violence suffered by Roma, and has

routinely ignored data that he has provided to them. The Immigration Judge deemed the

Country Report to be unreliable in its description of Roma life in Romania.

       From these factual findings the Immigration Judge concluded that “the unrebutted

evidence in this record points to such a high degree of discrimination and violence that

the court is satisfied that persecution has been established by respondent on account of

race or ethnicity as a Roma.” Moreover, the Judge concluded that Marinescu met his

burden of proof to establish a clear probability that he will be persecuted if returned to

Romania.

       In addressing relief sought under the Convention Against Torture Act, the

Immigration Judge concluded that Marinescu was likely to be detained upon his return.



                                              4
He also determined that such detention would probably subject him to physical attacks by

police. The Judge said “it is more likely than not that respondent will suffer torture upon

his return.” Nonetheless, the Judge did not rule on this claim, stating that it “need not be

addressed” because Marinescu had met his burden to be eligible for other relief.

       The government appealed the Immigration Judge’s findings. The Board of

Immigration Appeals reversed the Immigration Judge’s decision. On the living

conditions of Roma, the Board said:

              The evidence shows both that considerable inequities in
              access to housing, lucrative employment opportunities, and
              social services remain, and that cases of unjustified police
              violence against Roma continue to be reported.

With regard to government efforts to improve the life of Roma, the Board stated:

              We note that the evidence tends to show that the Romanian
              government, while working toward admission into the
              European Union is committed to effecting its anti-
              discrimination framework for improving the situation of the
              Roma in law, police and practice.

Upon these findings, the Board concluded that Marinescu did not meet his burden of

proving eligibility for withholding of removal.

       With regard to relief under the Convention Against Torture, the Board found that

the Immigration Judge incorrectly overlooked the cross examination of Marinescu’s

expert, which revealed that he was speculating when he stated that Marinescu would be

detained and tortured upon his return. While recognizing that the Immigration Judge

refrained from adjudicating this issue, the Board viewed the speculative nature of the

                                              5
expert’s opinion on this topic as insufficient to support relief under the Convention. The

Board formally denied relief to Marinescu under the Convention.




                                             II.

       The Board reversed the Immigration Judge’s decision, declaring that Marinescu

“has not met his burden of proving eligibility for withholding of removal.” This

determination is subject to our review for substantial evidence. Yet, Marinescu

challenges the Board’s decision on a different ground. He petitioned us to review

whether the Board’s decision conforms to the following regulation.

              The Board will not engage in de novo review of findings of
              fact determined by an immigration judge. Facts determined by
              the immigration judge, including findings as to the credibility
              of testimony, shall be reviewed only to determine whether the
              findings of the immigration judge are clearly erroneous.


8 C.F.R. §1003.1(d)(3)(i).

        Marinescu argues that the Board’s decision to deny him withholding of removal is

improper because it failed to identify how, if at all, the Immigration Judge’s factual

findings were clearly erroneous.1 We agree. We find two aspects of the Board’s decision

to be problematic.


       1.
        We understand the clearly erroneous standard in this instance to mean that the
Immigration Judge’s decision is reversible only in situations in which “any reasonable
adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B);
Jishiashvili v. Attorney General of the U.S., 402 F.3d 386, 392 (3d Cir. 2005).

                                             6
       First, without any specific reference to the record, the Board set aside the

Immigration Judge’s factual finding that the Romanian government’s supposed efforts to

quell anti-Roma discrimination and violence were documented failures and a sham. The

Board concluded exactly the opposite: that the Romanian government is working

effectively to fight ethnic discrimination and violence against Roma. The Board’s

decision did not contain any discussion of specifically why it reached the opposite

conclusion. Further, the Board did not provide any declaration or discussion of clear

error by the Judge.

       Moreover, we deduce that the Board must have set aside the Immigration Judge’s

credibility determinations to reach its conclusion about the progress and impact of

governmental programs. We surmise this because the Board’s finding that the

government is successfully advancing its anti-discrimination programs both contradicts

evidence found credible by the Judge and agrees with evidence that the Judge ruled was

unreliable. The Board, however, did not make any effort to justify its finding.

Significantly, it did not reference any specific clear error in the Judge’s credibility

determination.

       The second problem that we identify in the Board’s decision is that it describes the

discrimination of Roma in terms substantially different from the Immigration Judge. The

Judge found that 95% of Roma in Romania live in an “overt fear of violence,” and that

“substantial” discrimination exists in education, housing, medical care, employment and



                                               7
social services. In contrast, the Board refers only to “cases of unjustified violence” and to

“considerable inequities” in access to housing, social services, and “lucrative”

employment. The terms and qualifiers expressed by the Board result in subtle but

significant differences from the findings of the Immigration Judge.

       The Immigration Judge granted relief to Marinescu because he found that anti-

Roma discrimination and violence were so pervasive and severe that it constituted a

likelihood of future persecution. The Board’s decision disagrees not just with the Judge’s

legal judgment, but also with the factual premise for his judgment. This is the crux of

general problem that we have with the Board’s decision.

       The Board is obligated to accept the factual findings of the Immigration Judge

except where a reasonable judge would be compelled to conclude to the contrary. 8

U.S.C. § 1252(b)(4)(B); Jishiashvili, 402 F.3d at 392. Where the Board substitutes its

own interpretation of the facts for those of the Immigration Judge, the Board is engaging

in quintessential de novo review. The regulations expressly prohibit this.

       Here, the Board clearly had a view of the “facts on the ground” in Romania that

differed from that of the Immigration Judge. When the factual premises of the two

decisions are compared, it is clear that the Board summarily described the plight of Roma

in terms portraying the discrimination faced by Roma as less dire and pervasive. The

Board also forecasted a brighter future for Roma, based on its positive perception of

government efforts. For this reason, we must distinguish this case from those in which



                                              8
the Board acts squarely within its discretion to judge the sufficiency of evidence to prove

the likelihood of future persecution. Here, the Board fundamentally altered the factual

findings that supported the Immigration Judge’s grant of withholding of removal. In so

doing, the Board exceeded the scope of its authority by conducting a de novo review of

the Immigration Judge’s decision.

       Finally, regarding relief under the Convention Against Torture, the Board

incorrectly “reversed” the Immigration Judge’s conclusion that Marinescu would, more

likely than not, be subjected to torture. There was no conclusion to reverse. While the

Immigration Judge commented upon evidence relevant to this claim, he explicitly

refrained from ruling upon this relief. Although we disfavor comments such as those

made by the Immigration Judge that unnecessarily confuse the line between dicta and

decision, the Board nonetheless exceeded its authority by ruling on a claim for which a

final order of the Immigration Judge simply did not exist. 8 C.F.R. §1003.1(b).




                                            III.

       For the reasons stated above we grant the petition for review and remand the cause

to the Board of Immigration Appeals for further consideration consistent with this Opinion.




                                             9
MARINESCU v. ATTORNEY GENERAL – No. 05-2797

STAPLETON, J., dissenting:

       I conclude that what separated the IJ and the BIA here was not a dispute about

“findings of fact” as that phrase is used in 8 C.F.R. § 1003.1(d)(3) and, further, that the

administrative system could not work as intended if the BIA applied the “findings of fact”

provisions of that regulation to this type of dispute.

       Sections 1003.1(d)(3)(i), (ii), and (iv), provide in part as follows:

       (I) Facts determined by the immigration judge, including findings as to the
       credibility of testimony, shall be reviewed only to determine whether the
       findings of the immigration judge are clearly erroneous.

       (ii) The Board may review questions of law, discretion, and judgment and all
       other issues in appeals from decisions of immigration judges de novo.

                                             ***

       (iv) Except for taking administrative notice of commonly known facts such as
       current events or the contents of official documents, the Board will not engage
       in factfinding in the course of deciding appeals.

       Marinescu was able to offer no evidence that he had personally been persecuted in the

past. The IJ told him this at the end of the first hearing and suggested that he get an expert.

What Marinescu wound up with was a pattern and practice case based solely on one expert’s

testimony. The IJ, based on that testimony and a definition of “persecution” from a U.N.

handbook, concluded that Marinescu had shown it “a clear probability” (i.e., more likely than

not) that he would be persecuted if returned.

       The BIA concluded:

                                              10
       . . . that the objective evidence of record is insufficient to show that the
       respondent faces a clear probability of harm that would rise to the level of
       persecution.     Although the evidence shows that the longstanding
       discrimination against the Romani community continues to be widespread in
       practice, the evidence does not support a finding that the respondent faces a
       clear probability of suffering legal, economic, and/or social marginalization
       and abuse, such that his life or freedom would be threatened. The evidence
       shows both that considerable inequities in access to housing lucrative
       employment opportunities, and social services remain, and the cases of
       unjustified police violence against Romani continue to be reported. However,
       unlike the Immigration Judge, we do not find that the evidence showing the
       current, unjust treatment of the Romani community, individually or
       cumulatively, rises to the level of a clear probability of persecution. Further,
       we note that the evidence tends to show that the Romanian government, while
       working toward admission into the European Union, is committed to effecting
       its antidiscrimination framework for improving the situation of the Romani in
       law, policy, and practice. We therefore find that the respondent has not met
       his burden of proving eligibility for withholding of removal, and we will
       reverse the Immigration Judge’s grant of relief from removal.

App. at 21a-22a (citations omitted).

       The BIA appears to have resolved two issues here: (1) whether the testimony of

Marinescu’s expert and the reports tendered by the government showed a pattern and practice

of “persecution” as that term is used in the INA (i.e., “threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat to life or freedom,” Lie, 496

F.3d at 536); and (2) whether the evidence as a whole indicated a sufficient degree of risk

(i.e., more likely than not) that Marinescu would be persecuted in the future. The BIA’s

conclusion in favor of the INS on both of these issues does not, I believe, constitute

“factfinding” within the meaning of § 1003.1(d)(3). Indeed, this is the very kind of decision




                                              11
making the BIA frequently does and should do, but we know from subsection (iv) of the

regulation that “the Board will not engage in factfinding in the course of deciding appeals.”

       The BIA did not question the credibility of Marinescu’s expert witness. It took his

testimony at face value and evaluated and weighed it in the context of the cross-examination

and the other expert evidence based on the applicable legal standard. Arguably, perhaps, the

BIA rejected a factual finding of the IJ that the acknowledged commitment of the Romanian

government to equal rights for Romanians is largely ineffective. However, I do not read the

BIA’s “furthermore, we note” comment as rejecting the IJ’s finding regarding

ineffectiveness.   All it says is that the Romanian government, while working toward

admission into the European Union, is trying to make things better. Moreover, I don’t regard

this as crucial to the BIA’s conclusion concerning the non-existence of a “clear probability

of persecution.” App. at 22a.

       I would deny the petition.




                                             12
