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 opinion. Judge King wrote the opinion, in which Judge Widener and

Senior Judge Hamilton joined. 
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 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

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 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 Roma2 RUSU v. INS
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 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").1 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.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

1Rusu 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 without merit, and we therefore need not address it. 

2Because Rusu filed his Application with the INS after it had instituted

removal proceedings, the Application was referred to an IJ for adjudication 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." 

3Pursuant to 8 U.S.C. § 1229a(b)(2)(A)(iii), a removal proceeding

"may take place . . . through video conference. . . ." 

RUSU v. INS 3
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. 

4 RUSU v. INS
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 wellfounded 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.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 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.5Id. 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. § 1252.6

4The 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. 

5An individual who has experienced past persecution may be eligible

for asylum, even if he does not have a well-founded fear of future persecution, 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." HuamanCornelio 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 evidence." Id. at 998. In this case, however, the BIA made findings identical

to those of the IJ. BIA Order at 3-4. 

RUSU v. INS 5
II.

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 (1982). Deportation and

asylum hearings, however, are subject to the requirements of procedural 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 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." GarciaGuzman 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 statutory 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 reasonable opportunity to "cross-examine witnesses presented by the Govern6 RUSU v. INS
Before addressing the merits of this contention, we will briefly examine the legal principles governing the procedural rights of asylum

petitioners. 

A.

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 (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 meaningment." 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 hearing 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). 

8The INS maintains that Mathews v. Eldridge is inapplicable to Rusu’s

case. It observes that, while Mathews v. Eldridge lays out the requirements 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 freedom." 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 protection" 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 circumstances, substantially attenuated, it remains a cognizable interest

within the Mathews v. Eldridge framework. 

RUSU v. INS 7
ful 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.

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. 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; CamposSanchez, 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) (concluding 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 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

8 RUSU v. INS
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.").9

The potential negative impact of video conferencing on a factfinder’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 (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 (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 (BIA 1994). In fact, as the Ninth Circuit has

9Rule 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 pertinent 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 opportunity 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. 

RUSU v. INS 9
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.10 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.11

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

10As 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). 

11We do not suggest that a petitioner has a right to counsel in an asylum hearing. See 8 U.S.C. § 1229a(b)(4). Rather, to the extent asylum

hearing procedures preclude a petitioner from fully exercising the privilege 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). 

10 RUSU v. INS
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.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 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. 

12We must observe that Rusu seems a poor candidate for video conferencing. Because of his dental problems, he had difficulty speaking and

communicating orally. Therefore, while video conferencing may normally impair communication to some extent, its use in this hearing

appears to have compounded Rusu’s communication problems. 

RUSU v. INS 11
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 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.13 Id.

13The standard for prevailing on a petition for withholding of removal

is even more stringent than the standard for asylum. To qualify for withholding of removal, a petitioner must show that he faces a clear probability 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. 

12 RUSU v. INS
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 (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.14

14Rusu 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 reasonable 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 evidence of a well-founded fear of persecution. As such, this challenge is

without merit. 

RUSU v. INS 13
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

14 RUSU v. INS