INS v. Rusu , 296 F.3d 316 ( 2002 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CONSTANTIN RUSU, 
Petitioner,
v.
U.S. IMMIGRATION & NATURALIZATION
SERVICE; JOHN ASHCROFT, Attorney
General,
Respondents.
AMERICAN IMMIGRATION LAW  No. 01-1776
FOUNDATION; AMERICAN IMMIGRATION
LAWYERS ASSOCIATION; CATHOLIC
LEGAL IMMIGRATION NETWORK,
INCORPORATED; CAPITAL AREA
IMMIGRANTS’ RIGHTS COALITION;
LUTHERAN IMMIGRATION AND REFUGEE
SERVICE,
Amici Curiae.

On Petition for Review of an Order of the
Board of Immigration Appeals.
(A70-278-077)
Argued: February 27, 2002
Decided: July 22, 2002
Before WIDENER and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Petition for review denied and judgment affirmed by published opin-
ion. Judge King wrote the opinion, in which Judge Widener and
Senior Judge Hamilton joined.
2 RUSU v. INS
COUNSEL
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 FOUN-
DATION, Washington, D.C., for Amici Curiae. ON BRIEF: E.
Marie Tucker Diveley, Turner A. Broughton, HUNTON & WIL-
LIAMS, Richmond, Virginia, for Petitioner. Robert D. McCallum, Jr.,
Assistant Attorney General, Allen W. Hausman, Senior Litigation
Counsel, Office of Immigration Litigation, Civil Division, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondents.
OPINION
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. A 70 278 077 (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.
I.
Rusu fled his native Romania in 1989, allegedly out of fear of per-
secution 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 Roma-
RUSU v. INS 3
nian 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 deter-
mined, however, war broke out in the Balkans. He then fled to Can-
ada 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 Farm-
ville, Virginia, and he was charged by the Immigration and Natural-
ization Service (the "INS") with being removable under
§ 212(a)(6)(A)(i) of the Immigration and Naturalization Act (the
"INA").1 On February 28, 2000, the INS instituted removal proceed-
ings against him. Rusu then applied for Asylum and Withholding of
Removal (the "Application") and, on September 18, 2000, an Immi-
gration Judge (the "IJ") conducted an asylum hearing.2 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.3
1
Rusu was also charged with being removable under § (2)(A)(i)(I) of
§ 212(a) of the INA, which provides that aliens who are convicted of
crimes involving moral turpitude are inadmissible (not eligible for
admission into the United States). The BIA found this charge to be with-
out merit, and we therefore need not address it.
2
Because Rusu filed his Application with the INS after it had instituted
removal proceedings, the Application was referred to an IJ for adjudica-
tion in those proceedings. 8 C.F.R. § 208.14(c)(1). As the essence of
Rusu’s appeal is that he was denied a meaningful opportunity to plead
his asylum claim, we characterize the proceeding before the IJ as Rusu’s
"asylum hearing."
3
Pursuant to 8 U.S.C. § 1229a(b)(2)(A)(iii), a removal proceeding
"may take place . . . through video conference. . . ."
4 RUSU v. INS
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 diffi-
culty 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 prob-
lems 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.
RUSU v. INS 5
Oral Decision of the Immigration Judge, File No. A 70 278 077 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 sub-
stantial reform of its political process, and, pursuant to 1992 legisla-
tion, most of the former Securitate officers had been purged from the
present security force.4 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 addi-
tion, while she found Rusu’s claims of past persecution to be unper-
suasive, she stated that, assuming their validity, he nonetheless failed
to qualify for asylum as a matter of discretion.5 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. § 1252.64
The Ceausescu government was overthrown in 1989 and replaced
with a constitutional democracy. The Securitate has been disbanded, and
the present security force lacks the powers of arrest and detention. May
1998 Dep’t of State, Bureau of Democracy, Human Rights and Labor,
Romania: Profile of Asylum Claims and Country Conditions.
5
An individual who has experienced past persecution may be eligible
for asylum, even if he does not have a well-founded fear of future perse-
cution, if the balance of equities favors a grant of asylum. Matter of
Chen, 20 I&N Dec. 16 (BIA 1989).
6
In considering a petition for review such as that of Rusu, we review
only "the findings and order of the BIA, not those of the IJ." Huaman-
Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992). The BIA has the
power to "review an IJ’s findings de novo, to make its own findings even
as to matters of credibility, and to assess the legal sufficiency of the evi-
dence." Id. at 998. In this case, however, the BIA made findings identical
to those of the IJ. BIA Order at 3-4.
6 RUSU v. INS
II.
It is elementary that any judicial inquiry into the handling of immi-
gration matters is substantially circumscribed. As the Supreme Court
observed in Landon v. Plasencia, "control over matters of immigra-
tion is a sovereign prerogative, largely within the control of the exec-
utive and the legislature." 459 U.S. 21, 34 (1982). Deportation and
asylum hearings, however, are subject to the requirements of proce-
dural due process. Mathews v. Diaz, 426 U.S. 67, 77 (1976);
Yamataya v. Fisher (The Japanese Immigrant Case), 189 U.S. 86,
100-01 (1903); Gandarillas-Zambrana v. BIA, 44 F.3d 1251, 1255
(4th Cir. 1995). We review de novo a claim that the procedures uti-
lized 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.
III.
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.7
7
In performing a due process analysis, we also dispose of Rusu’s statu-
tory claims under the INA. Pursuant to 8 U.S.C. § 1229a(b)(4), an alien
is entitled to (1) "the privilege of being represented, at no expense to the
Government, by counsel of the alien’s choosing"; (2) "a reasonable
opportunity to examine the evidence against" him; (3) a reasonable
opportunity to "present evidence on [his] own behalf"; and (4) a reason-
able opportunity to "cross-examine witnesses presented by the Govern-
RUSU v. INS 7
Before addressing the merits of this contention, we will briefly exam-
ine the legal principles governing the procedural rights of asylum
petitioners.
A.
In assessing whether a deportation or asylum hearing has com-
ported with due process, we are guided by the principles of Mathews
v. Eldridge, 424 U.S. 319, 333 (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."8 As
the Court acknowledged, what constitutes being heard at "a meaning-
ment." The purpose of these protections is to ensure that an asylum
petitioner receives a meaningful hearing. If a petitioner is not able to
examine the evidence against him, to present evidence on his own behalf,
or to cross-examine witnesses to the extent of his statutory rights under
8 U.S.C. § 1229a(b)(4), then he has failed to receive a full and fair hear-
ing consistent with due process. Jacinto v. INS, 208 F.3d 725, 727-28
(9th Cir. 2000) ("When these [statutory] protections are denied and such
denial results in prejudice, the constitutional guarantee of due process
has been denied."); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir.
1999).
8
The INS maintains that Mathews v. Eldridge is inapplicable to Rusu’s
case. It observes that, while Mathews v. Eldridge lays out the require-
ments for procedural due process, i.e., the procedures the Government
must observe before depriving an individual of life, liberty, or property,
Rusu, as an illegal immigrant, has no legally protected liberty interest in
remaining in the United States. The Government is correct on this point;
Rusu has no vested "right to stay and live and work in this land of free-
dom." Landon v. Plasencia, 459 U.S. 21, 34 (1982). Nevertheless, it is
well established that "[e]ven one whose presence in this country is
unlawful, involuntary, or transitory is entitled to [the] constitutional pro-
tection" of the Fifth Amendment’s Due Process Clause. Mathews v. Diaz,
426 U.S. 67, 77 (1976). As such, an illegal alien possesses an identifiable
liberty interest in being accorded "all opportunity to be heard upon the
questions involving his right to be and remain in the United States"
before being deported. Yamataya v. Fisher (The Japanese Immigrant
Case), 189 U.S. 86, 101 (1903). Although Rusu’s interest is, in these cir-
cumstances, substantially attenuated, it remains a cognizable interest
within the Mathews v. Eldridge framework.
8 RUSU v. INS
ful time and in a meaningful manner" will have different meanings in
different circumstances, and due process only "calls for such proce-
dural protections as the particular situation demands." Id. at 334.
Because of the Government’s compelling interest in controlling immi-
gration, hearing procedures that comport with due process in the asy-
lum context might well be unacceptable in other proceedings.
Mathews v. Diaz, 426 U.S. at 79-80. 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 mean-
ingful 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(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) (conclud-
ing that IJ’s questioning in deportation hearing did not violate due
process because it did not deprive petitioner of "fair and meaningful
hearing").
B.
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 Wilkin-
son 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 equiv-
alent 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 dif-
ficult 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
RUSU v. INS 9
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 detri-
mental where it is a party to the case who is participating by video
conferencing, since personal impression may be a crucial factor in per-
suasion.").9
The potential negative impact of video conferencing on a fact-
finder’s credibility assessments may be of little consequence in cer-
tain 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 (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 cor-
roboration."). Moreover, the BIA accords deference to an IJ’s credi-
bility determinations, primarily because the IJ had an opportunity to
personally observe the petitioner’s testimony. In Re A-S-, 21 I&N
Dec. 1106 (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 Bur-
bano, 20 I&N Dec. 872 (BIA 1994). In fact, as the Ninth Circuit has
9
Rule 43 of the Federal Rules of Civil Procedure was amended in 1996
to permit video conferencing in certain circumstances, and the potential
adverse impact of such technology on credibility determinations was
observed in the Advisory Committee Notes. Those Notes provide, in per-
tinent part, as follows:
The importance of presenting live testimony in court cannot be
forgotten. The very ceremony of trial and the presence of the
factfinder may exert a powerful force for truthtelling. The oppor-
tunity to judge the demeanor of a witness face-to-face is
accorded great value in our tradition.
Advisory Comm. Notes to Fed. R. Civ. P. 43(a), 1996 Amendment.
10 RUSU v. INS
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 unfavor-
able 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 con-
ferencing 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 law-
yer.10 While he can be present with his client — thereby able to confer
privately and personally assist in the presentation of the client’s testi-
mony — 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.11
In addition to the problems inherent in the use of video conferenc-
ing 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
10
As coined by the novelist Joseph Heller, a "Catch-22" is a situation
in which the only two seeming alternatives actually cancel each other
out, leaving no means of escape from a dilemma. See Joseph Heller,
Catch-22 (1961).
11
We do not suggest that a petitioner has a right to counsel in an asy-
lum hearing. See 8 U.S.C. § 1229a(b)(4). Rather, to the extent asylum
hearing procedures preclude a petitioner from fully exercising the privi-
lege of counsel, that fact must be considered in determining whether he
has been accorded a hearing that comports with due process. Farrokhi v.
INS, 900 F.2d 697, 701 (4th Cir. 1990).
RUSU v. INS 11
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 con-
verse with individuals who were not visible to him on camera.12
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 previ-
ously, 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 pre-
sentation — 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 recog-
nize 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 prob-
lematic, 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.
12
We must observe that Rusu seems a poor candidate for video con-
ferencing. Because of his dental problems, he had difficulty speaking and
communicating orally. Therefore, while video conferencing may nor-
mally impair communication to some extent, its use in this hearing
appears to have compounded Rusu’s communication problems.
12 RUSU v. INS
C.
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 pro-
cess violation. Farrokhi, 900 F.2d at 703 n.7. To prevail on his con-
tention that the video conferencing procedures violated due process,
Rusu must show that better procedures are likely to have made a dif-
ference 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 eligi-
ble 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, nation-
ality, 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 stan-
dard for proving a ‘well-founded fear of persecution’ is the ‘reason-
able 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.13 Id.13
The standard for prevailing on a petition for withholding of removal
is even more stringent than the standard for asylum. To qualify for with-
holding of removal, a petitioner must show that he faces a clear probabil-
ity of persecution because of his race, religion, nationality, membership
in a particular social group, or political opinion. INS v. Stevic, 467 U.S.
407, 430 (1984). As such, a determination that a petitioner fails to meet
the asylum standard "necessarily means that [the] petitioner did not meet
his burden on the more difficult withholding of [removal] claim."
Huaman-Cornelio, 979 F.2d at 1000. Therefore, in concluding that Rusu
could not have prevailed on his asylum claim, we also dispose of his
petition for withholding of removal.
RUSU v. INS 13
Rusu is unable to satisfy this three-prong standard for asylum eligi-
bility. 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 sub-
stantially reformed. Moreover, Rusu does not appear to know any-
thing 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 persecu-
tion 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 (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 asy-
lum hearing was conducted, we must sustain the decision of the BIA.14
14
Rusu also contends that the BIA’s decisions to deny his requests for
asylum and for withholding of removal are not supported by substantial
evidence. In analyzing such a contention, we reverse the BIA only if "the
evidence presented by the petitioner ‘was so compelling that no reason-
able fact finder could fail to find the requisite fear of persecution.’"
Huaman-Cornelio, 979 F.2d at 999 (quoting INS v. Elias-Zacarias, 502
U.S. 478, 483-84 (1992)). A reasonable factfinder could easily find that
Rusu did not qualify for asylum, because he provided insufficient evi-
dence of a well-founded fear of persecution. As such, this challenge is
without merit.
14 RUSU v. INS
IV.
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