ILW.COM - the immigration portal Immigration Daily

Home Page

Advanced search

Immigration Daily


Processing times

Immigration forms

Discussion board



Twitter feed

Immigrant Nation


CLE Workshops

Immigration books

Advertise on ILW

VIP Network


Chinese Immig. Daily


Connect to us

Make us Homepage



The leading
immigration law
publisher - over
50000 pages of free

Immigration LLC.

< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3962

Marcel Pop,



Immigration and Naturalization Service,


On Petition for Review
From the Board of Immigration Appeals.
No. A71 030 710

Argued April 20, 2001--Decided January 28, 2002

  Before Easterbrook, Manion, and Kanne,
Circuit Judges.

  Kanne, Circuit Judge.  Petitioner Marcel
Pop, a thirty-five-year-old native and
citizen of Romania, sought asylum as a
political refugee. The immigration judge
("IJ") denied Pop's application for
asylum, and Pop appealed to the Board of
Immigration Appeals ("BIA"), seeking a
remand and alleging ineffective
assistance of counsel. The BIA denied
Pop's appeal because Pop was not
prejudiced by his counsel's allegedly
deficient performance. We affirm.

I.  History

  Pop, a native and citizen of Romania,
entered the United States on February 8,
1991, and applied to the INS for
political asylum. On May 17, 1993, the
INS denied his request and began
deportation proceedings. Pop then
retained Judd Azulay to represent him
during these proceedings. On December 14,
1993, Azulay filed a written application
for asylum for Pop, in which Pop claimed
that the oppressive Communist regimes
under the dictatorship of Ceausescu
persecuted him for his political beliefs.
Further, Pop claimed that the Romanian
government under Ion Iliescu, Ceausescu's
democratically-elected successor, also
persecuted him for his political beliefs.
According to the application, in 1985,
Pop was approached by an unnamed person
who asked him to join the Communist Party
and that following his refusal to join,
he was subjected to surveillance and
interrogation by Ceausescu's notorious
police force, the Securitate, regarding
his political beliefs. Pop explained that
after the execution of Ceausescu in
December 1989, he joined the Liberal
Party that opposed the then-interim
government headed by Iliescu. Pop's
application explained that he was active
at Liberal Party meetings and in numerous
demonstrations against the Iliescu
government. Pop's application stated that
in June 1990, he was arrested and
detained for twenty-four hours on two
occasions, and that during each
detention, he was interrogated and beaten
by the SIR, the successor to the
Securitate. Pop's application further
explained that the SIR warned him to
cease his political involvement and
criticism of the Iliescu government and
that he was subsequently denied job
promotions and salary increases on
account of his beliefs. Finally, Pop's
application stated that Pop believed he
would be arrested and interrogated, be
denied employment, have his life
threatened, and be imprisoned because of
his opposition to the then-current
Iliescu government if he were to return
to Romania.

  Deportation hearings commenced on July
28, 1993, and Pop conceded deportability
but sought asylum as a refugee. The
proceedings were continued until November
4, 1994, at which time Azulay sought an
additional continuance in order to submit
several newspaper articles addressing the
current socio-political conditions in
Romania. This continuance was denied. Pop
was then sworn as a witness and stated
that the information in his asylum
application was true and correct.
Further, Pop testified that he had
nothing to add to the application and
that it adequately and completely
represented his claim for asylum. Other
than Pop's application, Azulay did not
submit any additional evidence on Pop's

  The IJ then issued his oral decision.
The IJ began by reviewing the information
contained in Pop's application regarding
his political activities in Romania. The
IJ then reviewed an Advisory Opinion from
the State Department ("Advisory
Opinion"), which stated that conditions
in Romania had been profoundly
transformed since Ceausescu's overthrow
in 1989 and that the current government
respected civil liberties. The Advisory
Opinion explained that political
conditions in Romania had improved, and
therefore, past mistreatment under
Ceausescu or in 1990 would not lead to
mistreatment by the current government.
The IJ concluded that Pop had not
established either past persecution or a
well-founded fear of future persecution
and thus, he denied Pop's claim for

  On November 4, 1994, Azulay filed a
Notice of Appeal and on March 30, 1995,
Azulay filed a brief that challenged,
inter alia, the IJ's conclusions on
asylum. Pop retained new counsel and on
August 6, 1998, filed a motion to reopen
or in the alternative, to remand his
case./1 The motion asserted that Azulay
provided ineffective assistance to Pop by
failing to properly investigate all of
the facts of his case. Specifically, the
motion contended that Pop's asylum
application lacked information regarding
the granting of asylum to Pop's ex-wife,
Mariana, based on the same factual
background as Pop's claim. Pop also
submitted his own affidavit, numerous
newspaper articles, and an affidavit from
Mariana in support of his motion to

  Initially, Pop's affidavit contended
that Azulay failed to encourage him to
contact Mariana and that Mariana would
have supported his claim. Pop's affidavit
did not detail any additional past
persecution that Pop suffered but
didoutline persecution suffered by
Mariana and her mother. For example, Pop
stated that he witnessed the Securitate
question Mariana and her mother and that
the Securitate harassed Mariana's mother
and father for many years. The newspaper
articles addressed various actions the
Romanian government had taken since the
fall of Ceausescu.

  Mariana's affidavit stated that Pop left
her in 1990, that she soon thereafter
obtained a divorce, and that she and Pop
did not talk again until 1995. Mariana
stated that she came to the United States
in November 1992 and was granted asylum
soon thereafter. Although she did not at
tach her asylum application, Mariana
detailed over fifteen years of
persecution that she, her father, and her
mother endured due to the actions of her
father, a prominent member of the
Jehovah's Witnesses. Mariana also stated
that her family was persecuted by the
Securitate because Mariana's aunt had
emigrated to the United States, and that
the Securitate sought information about
her aunt. According to Mariana, the
Securitate also attempted to recruit her
to spy on her friends, family, and
neighbors, but that Mariana refused to
work with the Securitate. Further,
Mariana stated that her and Pop's son,
Alexander, was granted asylum because of
her permanent resident alien status.
Mariana's affidavit also supported Pop's
claim that he was persecuted for his
political opinions between 1985 and 1991.
Finally, Mariana's affidavit stated that
Mariana and Pop were active in opposing
the Iliescu government from 1989 until
1991 and that Mariana was "certain that
[Pop] will be persecuted if he returns to
Romania, even though the government has
changed again."

  On October 17, 2000, the BIA denied
Pop's appeal and his motion to remand.
The BIA first addressed the appeal and
noted that the facts presented in Pop's
asylum application did not amount to past
persecution. Further, the BIA noted that
the 1992 State Department Country Report
("Country Report") indicated that
political conditions in Romania had
improved considerably, and thus made it
unlikely that Pop would face persecution
in the future. In denying Pop's motion to
remand, the BIA found that Pop was not
prejudiced by any alleged deficiency in
Azulay's representation. The BIA noted
that "current country conditions have
[been] so altered as to remove any
presumption that past mistreatment under
Ceausescu or in the chaotic first year
after his overthrow will lead to
mistreatment in the future . . . despite
the suspicions of some people regarding
leaders who held office under the prior
regime." The BIA also stated that Pop's
fear of future persecution was not
reasonable because it was based entirely
on incidents that occurred prior to the
1992 elections. Addressing the newspaper
articles, the BIA found that they
undermined Pop's position because they
supported the IJ's conclusion that
persons who express their political
opinions in Romania are not currently
persecuted by the Romanian government.
The BIA concluded that Pop was not
prejudiced by Azulay's allegedly
deficient performance because Pop would
still have been deported had Azulay done
what Pop asserted was required. Pop then
appealed the BIA's denial of his motion
to remand.

II.  Analysis

  We review the BIA's decision to deny a
motion to remand for abuse of discretion,
mindful of the broad discretion we must
afford such decisions. See INS v. Abudu,
485 U.S. 94, 110, 108 S. Ct. 904, 99 L.
Ed. 2d 90 (1988). We must affirm the
BIA's denial "unless it was made without
a rational explanation, it inexplicably
departed from established policies, or it
rested on an impermissible basis." See
Man v. INS, 69 F.3d 835, 837 (7th Cir.
1995) (quotation omitted). Pop argues
that the BIA should have remanded his
case because Azulay's performance was
constitutionally deficient. In this
circuit, however, whether there exists a
constitutional right to effective
assistance of counsel in immigration
cases is virtually foreclosed. See Stroe
v. INS, 256 F.3d 498, 501 (7th Cir. 2001)
(implying that alien has no right to
effective counsel unless INS acts as a
"prosecutor"). Even assuming Pop's claim
is not foreclosed, in order to succeed on
such a claim, he must--at a minimum--show
actual prejudice. See Mojsilovic v. INS,
156 F.3d 743, 749 (7th Cir. 1998).
Because Pop has failed to establish
actual prejudice, we need not determine
the extent of the right to effective
assistance of counsel in immigration

  In order to obtain asylum, Pop must
establish that he is a "refugee." See 8
U.S.C. sec. 1158(b)(1). A "refugee" is
defined as one who is unable or unwilling
to return to her home 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." Id.
at sec. 1101(a)(42). If the alien
demonstrates past persecution, a
presumption arises that the alien has a
well-founded fear of future persecution.
See 8 C.F.R. sec. 208.13(b)(1). This
presumption is rebuttable if conditions
in the country from which the applicant
fled have changed to such an extent "that
the applicant no longer has a
well-founded fear of being persecuted" if
he or she were to return./2 Id. at sec.

  In his motion to remand, Pop argued that
the IJ would have granted asylum status
had he known of the additional evidence
that Azulay failed to present. After
examining this evidence, the BIA stated
that the evidence supported the IJ's
conclusion that with democratic elections
in 1992, one could now express one's
political opinion in Romania without fear
of persecution. Relying on the 1992 Coun
try Report, the BIA concluded that even
considering the additional evidence,
political conditions in Romania had
changed to eliminate any well-founded
fear of persecution that Pop may have if
he was to return to Romania. Therefore,
the BIA found that Pop was not prejudiced
because had Azulay presented the
additional evidence, Pop would still have
been deported. We hold that the BIA did
not abuse its discretion in so

  In Dobrota v. INS, 195 F.3d 970, 973
(7th Cir. 2000), we noted that although
police brutality continues, "the Romanian
government generally respects the rights
of its citizens, and no political
disappearances or killings were reported
in Romania in 1998." We stated that the
Romanian Constitution now provides
freedom of expression and that the
government respects this right and
freedom of political association. See id.
We also noted that Romania, while not
ideal, had improved dramatically since
the alien's departure in 1992, and that
citizens were allowed to exercise their
rights without fear of persecution. See
id. Because the alien had not presented
any contemporary evidence concerning
conditions in Romania, we concluded that
he had failed to establish a well-founded
fear of future persecution in Romania and
affirmed the BIA's denial of asylum. See

  In the present case, we agree with the
BIA that conditions have changed in
Romania to eliminate any well-founded
fear of future persecution. The BIA's
conclusion that Romania is a safer place
to express one's political opinion is
supported by the 1992 Country Report, by
our decision in Dobrota, 195 F.3d at 973,
and by numerous other decisions by this
court. See, e.g., Roman v. INS, 233 F.3d
1027, 1036 (7th Cir. 2000) (finding no
well-founded fear of future persecution
in Romania due to changed conditions);
Vaduva v. INS, 131 F.3d 689, 692 (7th
Cir. 1997) (same). Further, we find that
the BIA did not abuse its discretion in
holding that the additional evidence
would not dictate a different result.

  Pop asserts that Azulay should have
submitted to the IJ numerous newspaper
articles concerning Romania and an
affidavit from his ex-wife, Mariana. In
Vaduva, 131 F.3d at 691, we held that
newspaper articles that pre-date a
Country Report are not "probative of
present conditions in Romania, and
therefore of the risk [the alien]
presently faces if he were to return to
his native country." See also Dobrata,
195 F.3d at 973 (holding current
conditions crucial inquiry). As in
Vaduva, in the present case, many of
Pop's articles pre-date the 1992 Country
Report and are therefore not probative of
present conditions in Romania. Further,
the remaining articles support the
conclusion that Romanians may express
their political opinions without any
danger of persecution, and thus support
the IJ's conclusion that Pop lacks a
well-founded fear of future persecution.
Therefore, the articles' omission before
the IJ did not prejudice Pop.

  Further, Mariana's affidavit is not
probative of any persecution Pop would
face upon return for his political views.
Although her affidavit supports Pop's
contention that he was persecuted between
1985 and 1991, it does not contain any
evidence that Pop would be persecuted if
he were to return to Romania today.
Indeed, in addressing any future
persecution, the affidavit contains only
the naked assertion that Pop "will be
persecuted if he returns to Romania, even
though the government has changed."
However, in Gramatikov v. INS, 128 F.3d
619, 620 (7th Cir. 1997), we stated that
unsubstantiated, uncorroborated, and
self-serving evidence concerning current
political conditions in a country is not
sufficiently credible evidence to reverse
the BIA or to rebut the BIA's reliance on
a Country Report. In the present case,
Mariana's affidavit does not substantiate
her assertion with any details, and Pop
fails to present any evidence
corroborating Mariana's assertion.
Therefore, her affidavit is not probative
of any persecution Pop would face upon
his return to Romania, see id., and its
omission before the IJ did not prejudice

  Finally, we reject Pop's contention that
the BIA should have remanded his case
because the INS granted asylum to
Mariana./3 Although the granting of
asylum to a family member may be relevant
to the determination of the alien's
status, it is not legally dispositive.
See Karapetian v. INS, 162 F.3d 933, 937
(7th Cir. 1998). However, the relevance
of the grant of asylum is dependant on
the respective claims being based on the
same facts and the same basis. See id. In
that case, Karapetian and his half-
brother left Georgia at the same time
because of same religious persecution--
including physical attacks on their
church--and filed for asylum "on the same
day, and on the same grounds." Id.
Because Karapetian's and his half-
brother's claim were based "on the same
religious basis, and the same facts," we
questioned the INS's inconsistency in
granting the half-brother asylum and not
Karapetian. See id. However, we upheld
the BIA's decision to deny Karapetian
asylum because although relevant, the
inconsistency was not legally
dispositive. See id. at 937.

  In the present case, Pop contends that
"the IJ may have decided differently if
Pop" had presented Mariana's status,
because, Pop alleges, his claim and
Mariana's claim are based on the same
facts and on the same basis of
persecution. We disagree. Pop and Mariana
relied on materially different facts and
bases to support their respective claims
of asylum./4 Pop seeks asylum as a
political refugee based on six years of
political persecution. Mariana's
affidavit, however, outlines over fifteen
years of religious and social
persecution, with only vague allusions to
any political persecution. Therefore, the
bases are materially different because
Mariana's claim was based mostly on
religious and social persecution whereas
Pop's claim was based on political
persecution./5 Moreover, Mariana stayed
in Romania after Pop left her, and thus,
their claims are materially different be
cause Mariana was persecuted for much
longer than Pop and for approximately
eighteen months after Pop left Romania.
Therefore, unlike in Karapetian, Pop and
Mariana's claims at most may overlap, but
are not based on the "same" persecution
and the "same facts." Any discrepancy in
the treatment of their claims is well
justified on those grounds, and the BIA
did not abuse its discretion in
concluding that the omission of Mariana's
status did not prejudice Pop.

III.  Conclusion

  For the foregoing reasons, we AFFIRM the
decision of the BIA.


/1 The BIA treated the motion as a motion to remand.

/2 If the past persecution is sufficiently heinous,
an alien may be granted asylum even though condi-
tions have changed and the alien lacks a well-
founded fear of future persecution. See Bereza v.
INS, 115 F.3d 468, 474-75 (7th Cir. 1997). Pop
concedes that his past persecution does not rise
to the level required to meet this standard. See,
e.g., Bucur v. INS, 109 F.3d 399, 404-05 (7th
Cir. 1997) (listing examples such as survivors of
the Cambodian genocide).

/3 Pop attempts to frame the disparate treatment as
an equal protection violation. Such an argument
is without merit and does not warrant discussion.

/4 We also question whether one's ex-wife should be
considered a "relative" for these purposes.

/5 Pop's brief to the BIA makes no mention of any
religious or familial persecution against Pop.
Thus, he is foreclosed from contending on appeal
that he was persecuted for either reason. See
Bereza, 115 F.3d at 474.