Summary
This Ninth Circuit Court of Appeals opinion reviews the Board of Immigration Appeals' denial of asylum and withholding of removal for Ion Lapadat and his family, Roma nationals of Romania. The panel concluded that the record compels a finding that the family's experiences, including Ion being shot in the back and severe threats against his daughters, rose to the level of past persecution. Additionally, the court found that the BIA erred in determining that the Roma are not a disfavored group in Romania. The petition for review is granted and the case is remanded for further proceedings consistent with the court's analysis.
Topics
Practice areas
Questions Presented
- Whether the record compelled a finding that Ion's past mistreatment, considered cumulatively, included serious harm rising to the level of persecution.
- Whether the BIA erred in determining that Roma people are not a disfavored group in Romania for purposes of a well-founded fear of future persecution.
- Whether the petitioners established the remaining elements of past persecution, including nexus to a protected ground and government involvement or inability or unwillingness to control private persecutors.
- Whether Ion established a sufficient individualized risk of future persecution under the disfavored-group framework.
- Whether the petitioners waived review of their CAT claim.
Holdings
- The record compelled the conclusion that Ion's past experiences rose to the level of persecution. The shooting, attempted kidnapping, rape and death threats, and ongoing pattern of serious maltreatment, considered cumulatively, constituted serious harm.
- The record compelled the conclusion that Roma people are a disfavored group in Romania.
- The court decided only that the first prong—serious harm rising to the level of persecution—was established. It left to the agency in the first instance whether the persecution was on account of Roma ethnicity and whether it was committed by the government or forces the government was unable or unwilling to control.
- The court did not decide whether Ion established a sufficient individualized risk of future persecution. It remanded that question to the agency in light of the errors in the past-persecution and disfavored-group analyses.
- The petitioners waived review of the CAT claim by failing to raise or support it before the Ninth Circuit.
Key quotations
“Ion’s testimony that he was shot in the back, together with his family’s credible testimony and the remaining record evidence, collectively compels a finding of serious harm that rises to the level of past persecution.” (5)
“We assess a past-persecution finding by “looking at the cumulative effect of all the incidents [that the] [p]etitioner has suffered.”” (16)
“Here, the “treatment” Ion suffered was extreme: he was shot for being a “gypsy.”” (25)
“This evidence compels the finding that the Roma are a disfavored group in Romania—a reality that the Roma have certainly grappled with for centuries.” (35)
“The record compels our conclusion that Ion Lapadat’s past experiences rise to the level of persecution, and that the BIA erred when it determined that Ion failed to demonstrate his membership in a disfavored group.” (36)
Factual background
The Lapadats are Romanian citizens of Roma ethnicity who experienced longstanding discrimination, police abuse, threats, and violence in Romania. Ion testified credibly that he was shot in the back and head after being called a gypsy, that police refused to investigate, and that he suffered repeated beatings and harassment by police. Simona and the children testified credibly about an attempted kidnapping of two daughters, threats of rape and death, and an assault on Simona. The record also documented pervasive anti-Roma discrimination and mistreatment by Romanian officials and private actors.
Procedural history
Ion Lapadat and his family, Romanian citizens of Roma ethnicity, applied for asylum and related relief after being placed in removal proceedings. The Immigration Judge denied the applications, finding that the mistreatment did not rise to the level of persecution and that the applicants lacked a well-founded fear of future persecution. The BIA affirmed, and the petitioners sought review in the Ninth Circuit. The Ninth Circuit granted the petition and remanded.
Remand instructions
The BIA must reconsider the asylum claim, determine whether the persecution was on account of Roma ethnicity and whether the Romanian government was unable or unwilling to control it, reconsider the individualized-risk issue under the disfavored-group framework, and reconsider withholding of removal. If the BIA finds past persecution on a protected ground, it must apply the resulting rebuttable presumption of eligibility for withholding of removal. The CAT claim remains waived.