296 F.3d 316
Constantin RUSU, Petitioner,
U.S. IMMIGRATION & NATURALIZATION SERVICE; John Ashcroft, Attorney General, Respondents.
American Immigration Law Foundation; American Immigration Lawyers Association; Catholic Legal Immigration Network, Incorporated; Capital Area Immigrants' Rights Coalition; Lutheran Immigration and Refugee Service, Amici Curiae.
United States Court of Appeals, Fourth Circuit.
Argued February 27, 2002.
Decided July 22, 2002.
COPYRIGHT MATERIAL OMITTED ARGUED: Michael Joseph Begland, Hunton & Williams, Richmond, Virginia, for Petitioner. Afsaneh Ashley Tabaddor, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents. Jungyoun Traci Hong, American Immigration Law Foundation, Washington, D.C., for Amici Curiae. ON BRIEF: E. Marie Tucker Diveley, Turner A. Broughton, Hunton & Williams, Richmond, Virginia, for Petitioner. Robert D. McCallum, Jr., Assistant Attorney General, Allen W. Hausman, Senior Litigation, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Respondents.
Before WIDENER and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Petition for review denied and judgment affirmed by published opinion. Judge KING wrote the opinion, in which Judge WIDENER and Senior Judge HAMILTON joined.
KING, Circuit Judge.
Petitioner Constantin Rusu seeks our review of the May 2001 Order of the Board of Immigration Appeals (the "BIA") denying his application for asylum. Order of the Board of Immigration Appeals, File No. Aye-fgz-izh (BIA 2001) (the "BIA Order"). Rusu contends that his video conferenced asylum hearing violated his due process and statutory rights, and that the BIA erred in declining to grant him asylum. Although we agree that his asylum hearing was conducted in a haphazard manner, we conclude that Rusu suffered no prejudice as a result thereof. We therefore deny his petition for review and affirm the BIA.
Rusu fled his native Romania in 1989, allegedly out of fear of persecution by the Communist government of Nicolai Ceausescu. Rusu apparently had been an organizer for a transcendental meditation group which the Ceausescu government deemed to be subversive. Rusu contends that, as a result of his involvement in this group, he was interrogated and assaulted on multiple occasions by the Romanian secret police (the Securitate) in the years preceding his flight from that country. On one occasion, the Securitate supposedly held Rusu for three days, during which they tortured him by removing his teeth with pliers and a screwdriver.
Upon escaping from Romania, Rusu travelled first to Yugoslavia and applied for asylum there. Before Rusu's status could be determined, however, war broke out in the Balkans. He then fled to Canada and applied for asylum, but his application was denied. In November 1999, he left Canada and illegally entered the United States. Shortly after arriving in this country, Rusu obtained a passport from the Romanian Embassy. In February 2000, he flew to Great Britain, but he was refused entry and forcibly returned to the United States.
Upon his return, Rusu was placed in a detention facility in Farmville, Virginia, and he was charged by the Immigration and Naturalization Service (the "INS") with being removable under § 212(a)(6)(A)(i) of the Immigration and Naturalization Act (the "INA"). On February 28, 2000, the INS instituted removal proceedings against him. Rusu then applied for Asylum and Withholding of Removal (the "Application") and, on September 18, 2000, an Immigration Judge (the "IJ") conducted an asylum hearing. The hearing was conducted by video conference, during which Rusu remained in an INS detention facility in Farmville, while the IJ, as well as counsel for Rusu and the INS, were in a courthouse in Arlington, Virginia. Under this procedure, video cameras and television monitors were set up in both Farmville and Arlington to provide contemporaneous transmission of the hearing's images and sounds between the two sites.
Rusu's asylum hearing consumed approximately three hours, and it was plagued by communication problems. Although Rusu's best language is Romanian, he declined to accept an interpreter and chose instead to testify in English. In addition, due to his damaged mouth and missing teeth, he was unable to speak clearly. The IJ had difficulty comprehending Rusu's testimony, and on numerous occasions she stated that she could not understand Rusu and requested that he repeat himself. The court reporter was also unable to fully understand him, and the transcript of Rusu's asylum hearing testimony is marked "indiscernible" a total of 132 times. Moreover, Rusu had difficulty comprehending the questions of his counsel, Mr. Schneiderman, and the IJ, and they were often obliged to repeat themselves. Rusu also became confused when the person addressing him was not the one on camera (e.g., Schneiderman would ask a question but the camera would be focused on the IJ), and on several occasions he directed his response to the wrong person. Finally, there were technological problems with the video conference equipment. During the hearing, the IJ asked a correctional officer in Farmville to move Rusu closer to the camera, once stating "I think maybe that will help me understand him better." The IJ was also compelled to suspend the hearing at one point in order to check the quality of the equipment and its ability to record Rusu's voice.
In sum, the record reveals that the IJ and the lawyers, on the one hand, and Rusu, on the other, had difficulty understanding one another. After some effort, however, the IJ concluded that she could glean the asserted factual basis of Rusu's Application. In her decision she stated:
We are conducting the hearing by televideo conference and had to have [Rusu] repeat some of his answers in order to understand it. We have assured ourselves however that we did understand the testimony. The testimony appears to be clear on the tape.
Oral Decision of the Immigration Judge, File No. Abm-wqh-yek at 5 (Sept. 18, 2000) (the "IJ Decision"). In the IJ Decision, she observed that, in order to be eligible for asylum, a petitioner must have a well-founded fear of persecution, and that such a fear must be objectively reasonable. Id. at 3-4. She noted that Romania had undergone substantial reform of its political process, and, pursuant to 1992 legislation, most of the former Securitate officers had been purged from the present security force. She also observed that there was no evidence that individuals who either (1) engaged in transcendental meditation, or (2) were previously critical of the Ceausescu government, were currently in danger of persecution. Thus, the IJ concluded that Rusu's fear of future persecution was not well-founded. Id. at 7-8. In addition, while she found Rusu's claims of past persecution to be unpersuasive, she stated that, assuming their validity, he nonetheless failed to qualify for asylum as a matter of discretion. Id. at 9-10. The IJ therefore ordered Rusu to voluntarily depart the United States or, in the alternative, to be deported. Id. at 12.
Rusu appealed the IJ Decision to the BIA, which dismissed his appeal on May 17, 2001. Rusu has now petitioned for our review of the BIA Order, and we possess jurisdiction pursuant to 8 U.S.C. § 1252.
It is elementary that any judicial inquiry into the handling of immigration matters is substantially circumscribed. As the Supreme Court observed in Landon v. Plasencia, "control over matters of immigration is a sovereign prerogative, largely within the control of the executive and the legislature." 459 U.S. 21, 34, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982). Deportation and asylum hearings, however, are subject to the requirements of procedural due process. Mathews v. Diaz, 426 U.S. 67, 77, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86, 100-01, 23 S.Ct. 611, 47 L.Ed. 721 (1903); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir.1995). We review de novo a claim that the procedures utilized in such hearings contravened due process or the INA. Jacinto v. INS, 208 F.3d 725, 727 (9th Cir.2000). In order to prevail on a due process challenge to a deportation or asylum hearing, an alien must demonstrate that he was prejudiced by any such violation. Gandarillas-Zambrana, 44 F.3d at 1256-57; Farrokhi v. INS, 900 F.2d 697, 703 n. 7 (4th Cir. 1990). Similarly, an alien must "establish prejudice in order to invalidate deportation proceedings on a claim that [his] statutory or regulatory rights were infringed." Garcia-Guzman v. Reno, 65 F.Supp.2d 1077, 1085 (N.D.Cal.1999) (citing United States v. Cerda-Pena, 799 F.2d 1374, 1377 (9th Cir.1986)). And we may only find prejudice "when the rights of [an] alien have been transgressed in such a way as is likely to impact the results of the proceedings." Jacinto, 208 F.3d at 728; see also Farrokhi, 900 F.2d at 702-03.
Rusu maintains that the video conferencing procedures utilized in his asylum hearing violated due process and the INA by rendering him unable to present his case for asylum in a meaningful manner. Before addressing the merits of this contention, we will briefly examine the legal principles governing the procedural rights of asylum petitioners.
In assessing whether a deportation or asylum hearing has comported with due process, we are guided by the principles of Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in which the Court recognized that "[t]he fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." As the Court acknowledged, what constitutes being heard at "a meaningful time and in a meaningful manner" will have different meanings in different circumstances, and due process only "calls for such procedural protections as the particular situation demands." Id. at 334, 96 S.Ct. 893. Because of the Government's compelling interest in controlling immigration, hearing procedures that comport with due process in the asylum context might well be unacceptable in other proceedings. Mathews v. Diaz, 426 U.S. at 79-80, 96 S.Ct. 1883. Nevertheless, due process requires, at a minimum, that the INS adopt procedures to ensure that asylum petitioners are accorded an opportunity to be heard at a meaningful time and in a meaningful manner, i.e., that they receive a full and fair hearing on their claims. Jacinto, 208 F.3d at 727; Campos-Sanchez, 164 F.3d at 450; cf. Landon v. Plasencia, 459 U.S. at 36, 103 S.Ct. 321 (observing that fair exclusion hearing for permanent resident alien must provide alien with opportunity to present case effectively); Gandarillas-Zambrana, 44 F.3d 1251, 1257 (4th Cir.1995) (concluding that IJ's questioning in deportation hearing did not violate due process because it did not deprive petitioner of "fair and meaningful hearing").
Therefore, regardless of how rapidly technological improvements, such as video conferencing, may advance, the Government remains obliged to ensure that asylum petitioners are accorded a meaningful opportunity to be heard before their cases are determined. In this regard, the procedures utilized in Rusu's hearing could have resulted in the denial of a full and fair hearing on his claim. The utilization of video conferencing, although enhancing the efficient conduct of the judicial and administrative process, also has the potential of creating certain problems in adjudicative proceedings. As Chief Judge Wilkinson has appropriately observed, "virtual reality is rarely a substitute for actual presence and ... even in an age of advancing technology, watching an event on the screen remains less than the complete equivalent of actually attending it." United States v. Lawrence, 248 F.3d 300, 304 (4th Cir.2001) (discussing video conferencing in sentencing proceedings). More specifically, video conferencing may render it difficult for a factfinder in adjudicative proceedings to make credibility determinations and to gauge demeanor. United States v. Baker, 45 F.3d 837, 844-46 (4th Cir.1995); Edwards v. Logan, 38 F.Supp.2d 463, 467 (W.D.Va.1999) ("Video conferencing ... is not the same as actual presence, and it is to be expected that the ability to observe demeanor, central to the fact-finding process, may be lessened in a particular case by video conferencing. This may be particularly detrimental where it is a party to the case who is participating by video conferencing, since personal impression may be a crucial factor in persuasion.").
The potential negative impact of video conferencing on a fact-finder's credibility assessments may be of little consequence in certain types of proceedings. See Baker, 45 F.3d at 844-45 (concluding that factfinder's ability to judge demeanor and credibility have limited value in civil commitment hearing). In asylum hearings, however, findings made with respect to a petitioner's credibility are usually central to the resolution of the asylum claim. As the BIA has observed, "[i]t is well established that we attach significant weight to the credibility of an asylum applicant. A [petitioner's] consistent and detailed testimony can be sufficient to meet the burden of establishing persecution." In Re O-D-, 21 I & N Dec. 1079, 1998 WL 24904 (BIA 1998); see also 8 C.F.R. §§ 208.13(a) & 208.16(b) ("The testimony of the applicant, if credible, may be sufficient to sustain the burden of proof without corroboration."). Moreover, the BIA accords deference to an IJ's credibility determinations, primarily because the IJ had an opportunity to personally observe the petitioner's testimony. In Re A-S-, 21 I & N Dec. 1106, 1998 WL 99553 (BIA 1998) ("[B]ecause the Immigration Judge has the advantage of observing the alien as the alien testifies, the Board accords deference to the Immigration Judge's findings concerning credibility and credibility-related issues."); see also Matter of Burbano, 20 I & N Dec. 872, 1994 WL 520994 (BIA 1994). In fact, as the Ninth Circuit has observed, "[a]n adverse determination of [the credibility] issue, by reason of our highly deferential standard of review, would be almost insurmountable." Kaur v. INS, 237 F.3d 1098, 1101 (9th Cir.2001). Put simply, an IJ's ability to judge a petitioner's credibility and demeanor plays a pivotal role in an asylum determination; an unfavorable credibility determination is likely to be fatal to such a claim.
A second problem inherent in the video conferencing of asylum hearings is its effect on a petitioner's lawyer. Because video conferencing permits the petitioner to be in one location and an IJ in another, its use results in a "Catch 22" situation for the petitioner's lawyer. While he can be present with his client — thereby able to confer privately and personally assist in the presentation of the client's testimony — he cannot, in such a circumstance, interact as effectively with the IJ or his opposing counsel. Alternately, if he decides to be with the IJ, he forfeits the ability to privately advise with and counsel his client. Therefore, under either scenario, the effectiveness of the lawyer is diminished; he simply must choose the least damaging option.
In addition to the problems inherent in the use of video conferencing technology, the manner of how video conferencing functioned in Rusu's hearing created additional barriers to the presentation of his case. The record reveals several instances where Rusu's difficulty in communicating with the IJ resulted from technological problems beyond his control. Specifically, the IJ at one point asked that Rusu be moved closer to the camera because she felt it might make it easier for her to understand him. On another occasion, she asked him to be moved because she was having difficulty seeing him. Moreover, there was some question about sound quality, as reflected in the 132 instances in the hearing transcript where Rusu's testimony was marked "indiscernible," and the IJ paused to check the sound quality during the hearing. Finally, the video conferencing technology did not permit Rusu to see everyone at the Arlington site, forcing him to converse with individuals who were not visible to him on camera.
Our acknowledgment of these problems, however, does not mean that Rusu was denied a full and fair hearing on his asylum claim. First, at least part of Rusu's inability to communicate with the IJ resulted from his decision to testify in English. As we noted previously, due process and the INA merely require that Rusu have a meaningful opportunity to present his claim. The INS and the courts were under no obligation to ensure that Rusu made a meaningful presentation — that was properly left to Rusu and his lawyer. Therefore, to the extent that Rusu's problems were self-inflicted, he is unable to seek relief from the judiciary. Second, in his asylum hearing, Rusu was afforded a substantial amount of time to explain the basis of his claim. Moreover, it is clear to us that, throughout the hearing, the IJ made a sincere effort to understand his testimony, and she provided him with numerous opportunities to elaborate and to clarify it. Cf. Perez-Lastor v. INS, 208 F.3d 773, 782 (9th Cir.2000) ("[W]e recognize that, as a practical matter, an IJ may ameliorate the damage caused by an incompetent translation by asking for clarification or repetition."). The record demonstrates that, by the end of the hearing, the IJ understood the factual predicate for Rusu's Application. As such, although the circumstances of the asylum hearing were problematic, and they should not have been countenanced by the INS, Rusu nevertheless seems to have had an opportunity to be heard "at a meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S. at 333, 96 S.Ct. 893.
In the final analysis, however, we need not definitely resolve whether Rusu was accorded a full and fair hearing, because he is unable, in any event, to show any prejudice resulting from a due process violation. Farrokhi, 900 F.2d at 703 n. 7. To prevail on his contention that the video conferencing procedures violated due process, Rusu must show that better procedures are likely to have made a difference in the outcome of his hearing. Cf. Perez-Lastor, 208 F.3d at 780 ("In the case of an incompetent translation claim, the [prejudice] standard is whether a better translation would have made a difference in the outcome of the hearing."). Rusu, however, can make no such showing.
As we observed in Huaman-Cornelio v. BIA, an alien is only eligible for asylum if he is a refugee, and a refugee is "any person who is unable to return to his or her country because of `persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" 979 F.2d 995, 999 (4th Cir.1992) (quoting 8 U.S.C. § 1101(a)(42)(A)). In that decision, we further noted that "[t]he standard for proving a `well-founded fear of persecution' is the `reasonable person test.'" Id. (quoting M.A. v. INS, 899 F.2d 304, 311 (4th Cir.1990) (en banc)). Therefore, an individual seeking asylum must show (1) that he has a subjective fear of persecution based on race, religion, nationality, social group membership, or political opinion, (2) that a reasonable person would have a fear of persecution in that situation, and (3) that his fear has some basis in objective reality. Id. Rusu is unable to satisfy this three-prong standard for asylum eligibility. Regardless of the procedures utilized in his asylum hearing, Rusu could not have shown that former members of the Securitate would still persecute him today. Since Rusu left Romania in 1989, the Ceausescu government has fallen and the security force has been substantially reformed. Moreover, Rusu does not appear to know anything of vital interest to former security officers; his best rationale for fearing persecution is that a cabaret dancer once told him that unnamed Romanian officials were selling weapons and training troops in foreign countries. As such, a reasonable person in Rusu's circumstances would not have a well-founded fear of persecution.
Rusu is also unable to qualify for asylum based on his claim of past persecution. The BIA has recognized that victims of past persecution may occasionally qualify for asylum, even when a threat of persecution no longer exists, if the past persecution was so severe that the balance of equities favors a grant of asylum. Matter of Chen, 20 I & N Dec. 16, 1989 WL 331860 (BIA 1989). In this case, however, no such equities exist. Rusu has no familial or other ties to this country, and, although the persecution he suffered, if his testimony is credited, was horrible, it is not of the scale warranting a grant of asylum.
Therefore, even if Rusu's asylum hearing had not been conducted in such a haphazard manner, and even if his testimony had been fully credited, he could not have prevailed on his claim for asylum. Because he suffered no prejudice from the manner in which his asylum hearing was conducted, we must sustain the decision of the BIA.
For the foregoing reasons, we deny Rusu's petition for review, and we affirm the judgment of the Board of Immigration Appeals.
PETITION FOR REVIEW DENIED AND JUDGMENT AFFIRMED.