Summary
The Ninth Circuit amended its opinion and denied the respondent’s petition for panel rehearing in a petition for review of a Board of Immigration Appeals decision concerning asylum and withholding of removal. The court held that the record compelled a finding that Ion Lapadat’s past experiences, including being shot, rose to the level of persecution, and that the BIA erred in determining that Roma are not a disfavored group in Romania. The court granted the petition and remanded for further proceedings, leaving other elements of the asylum and withholding claims for the agency to address.
Topics
Practice areas
Questions Presented
- Whether the record compelled a finding that Ion's past experiences, considered individually and cumulatively, involved serious harm rising to the level of persecution.
- Whether the BIA legally erred by failing to consider Ion's credible testimony that he had been shot and by minimizing or disregarding other highly probative evidence.
- Whether the record compelled a finding that Roma people are a disfavored group in Romania for purposes of establishing a well-founded fear of future persecution.
- Whether the BIA properly assessed the individualized risk of future persecution and the remaining elements of asylum and withholding of removal.
- Whether the petitioners waived review of their CAT claim.
Holdings
- The record compelled the conclusion that Ion's past experiences, including being shot, the attempted kidnapping of his daughters, rape and death threats, police violence, and the ongoing pattern of serious maltreatment, rose to the level of persecution.
- The BIA committed legal error by failing to mention or account for Ion's credible, highly probative, and potentially dispositive testimony that he had been shot.
- The record compelled the conclusion that Roma people are a disfavored group in Romania.
- The court did not decide whether Ion established an individualized risk of future persecution, whether the persecution was on account of Roma ethnicity, or whether Romanian authorities were unable or unwilling to control the persecutors; those issues were remanded to the agency for first-instance consideration.
- The petitioners waived review of the CAT claim by failing to raise or argue it before the Ninth Circuit.
Key quotations
“Where the BIA does not consider all the evidence before it, either by “misstating the record [or] failing to mention highly probative or potentially dispositive evidence,” its decision is legal error and “cannot stand.”” (18)
“The shooting, the attempted kidnapping and the rape and death threats—accompanied by the Lapadats’ credible testimony regarding an ongoing pattern of serious maltreatment—collectively compel a finding of harm rising to the level of persecution.” (19)
“The European Union is not a “government” under Halim. And its policies are irrelevant, absent evidence that the country to which a petitioner faces removal has adopted and implemented them.” (32-33)
Factual background
The Lapadats are Roma and natives and citizens of Romania who fled to the United States in 2016. Ion testified credibly that he was shot in the back and head after being called a gypsy, repeatedly beaten and harassed by Romanian police, and denied employment, healthcare, and public services. Simona and the children credibly described an attempted kidnapping, threats of rape and murder, and a knife attack while officials failed to provide meaningful protection. The record also documented longstanding and pervasive anti-Roma discrimination, violence, and official mistreatment in Romania.
Procedural history
Ion Lapadat and his family sought asylum and related protection based on persecution allegedly suffered in Romania because they are Roma. The Immigration Judge denied relief, and the BIA affirmed, concluding that the mistreatment did not rise to the level of persecution, that the Roma were not a disfavored group in Romania, and that Lapadat lacked a sufficient individualized risk of future persecution. The Ninth Circuit granted the petition for review, remanded for further proceedings, and later denied the government's petition for panel rehearing in the amended opinion and order.
Remand instructions
The BIA must reconsider the asylum and withholding-of-removal claims consistent with the opinion. It must determine whether the persecution was on account of Roma ethnicity or another protected ground, whether the government or forces it could not or would not control committed the persecution, and whether Ion established a sufficiently individualized risk of future persecution. The BIA must also reconsider withholding of removal, including any rebuttable presumption of eligibility arising from a finding of past persecution on a protected ground.