Roman, Emil v. INS

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3510

EMIL ROMAN and DOCHITA ROMAN,/1

Petitioners,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

and JANET RENO, Attorney General of the

United States,

Respondents.

Petition for Review of an Order

of the Board of Immigrations Appeals.

Nos. A72 412 189, A21 365 054

Argued August 9, 2000--Decided December 5, 2000

Before POSNER, RIPPLE and WILLIAMS, Circuit Judges.

RIPPLE, Circuit Judge. Emil Roman and his wife

Dochita are Romanian natives and citizens who

seek review of the Board of Immigration Appeals’

("BIA") decision to deny their application for

asylum under the Immigration and Nationality Act

("INA") sec. 208(a), 8 U.S.C. sec. 1158(a), and

for withholding of deportation pursuant to INA

sec. 243(h), 8 U.S.C. sec. 1253(h). Mr. Roman

claims that he and his wife are unable to return

to Romania because he has suffered, and will

continue to suffer, political persecution from

former members of Nicolae Ceausescu’s Communist

regime who now hold positions of power in the new

democratic government. For the reasons set forth

in the following opinion, we affirm the decision

of the BIA.

I

BACKGROUND

A. Facts

Mr. Roman’s troubles began in 1963 as a high

school student in Sibiu, Romania, when he refused

to join the Youth Communist Union. He claims

that, as a consequence, he "had no position" in

the school even though he was one of the best

students, and his application to college was

initially rejected. R.61. He ultimately was

admitted to "mechanic[s’]" college two hundred

miles away in Bucharest, where he believed that

he could more freely express his political

opinions. R.62. One year later in 1968, Mr. Roman

took part in a student demonstration against

Ceausescu’s Communist regime. According to Mr.

Roman, he was constantly under surveillance

because of his participation in the

demonstration.

After college, Mr. Roman was hired by the

government-owned Tarom Airlines as an aviation

engineer. He worked at Tarom for twenty years

until he left for the United States in 1992. Mr.

Roman claims that every time he left the country

for business, he was warned that, if he tried to

apply for asylum, his possessions would be

confiscated, his wife (a flight attendant at the

same company) would be fired, and his daughter

would be placed in an orphanage. The Securitate

(secret police) questioned him hundreds of times,

once for nine hours; however, he was never

jailed. According to Mr. Roman, his wife Dochita

had been married to a Securitate officer, and,

after she divorced the officer, she "lost

everything including her son." R.149. Mr. Roman

also alleges that Dochita’s ex-husband informed

the Securitate that her family had "subversive

characteristics." Id.

While at Tarom Airlines, Mr. Roman was asked to

join the Communist Party many times, but always

refused. As a result, he contends, he never was

promoted. He claims that he never was fired,

however, because he was highly qualified. About

twice a year he would travel outside Romania for

the company and, on one occasion, he was sent to

the United States for training.

Mr. Roman was in Nigeria on business when

Ceausescu’s regime was overthrown in December

1989. He returned to Romania in January of 1990

and participated in demonstrations against the

Communists who remained in power after the

revolution. According to Mr. Roman, in September

1991, he was beaten by three miners because, he

suspects, of his political beliefs.

At that time, Mr. Roman belonged to a group at

Tarom that was attempting to privatize the

company. The new leaders at Tarom told Mr. Roman

that his efforts were futile, demoted him, and

warned him that, if he did not mind his own

business, he would have an "accident." R.72. Mr.

Roman also was threatened over the telephone. In

May 1992, he discovered that the tires of his car

were punctured; one week later, the lug nuts on

one wheel were loosened. Afterward, Mr. Roman

received an anonymous phone call warning him that

if he did not "shut up," he would have more

serious problems. R.153. According to Viorica

Seceleanu, a former Tarom flight attendant, Mr.

Roman was considered a "troublemaker" at Tarom,

although she did not know why. R.114-15.

After the 1989 overthrow of Ceausescu’s

Communist regime, there were no restrictions on

Mr. Roman’s travel outside of Romania. Prior to

his July 1992 arrival in the United States, he

was permitted to travel to this country with his

wife for vacation in December 1991 and again in

April 1992. Mr. Roman decided to leave Romania

for good when the "new Communists" (who were part

of the old regime) came into power and threatened

that, if he did not mind his own business, they

would create a "file" for him and tell everyone

that he was an "informer." R.84, 154. The

Romanian government granted Mr. Roman an exit

permit to leave the country.

B. Administrative Proceedings

1.

Mr. Roman and his wife entered the United States

in July 1992 as nonimmigrant visitors authorized

to stay in the country for six months. They

remained in the country after the authorization

period ended, and, on May 11, 1993, the

Immigration and Naturalization Service ("INS")

issued an Order to Show Cause and Notice of

Hearing charging the Romans with deportability

under INA sec. 241 (a)(1)(B), 8 U.S.C. sec.

1251(a)(1)(B) (1994). A deportation hearing was

held on November 12, 1993, in which the Romans

admitted that they overstayed their authorized

visit and requested asylum, withholding of

deportation, and, in the alternative, voluntary

departure.

Mr. Roman attached an eleven-page narrative

statement to his asylum application detailing his

claims of past persecution and his fears of

reprisal should he return to Romania; he also

submitted 75 published articles commenting on the

repressive Ceausescu regime and the aftermath of

the 1989 overthrow. On March 9, 1994, the

immigration judge ("IJ") held an evidentiary

hearing on the Romans’ application for asylum and

withholding of deportation. The IJ’s demeanor at

the hearing fairly could be described as brusque

and impatient; the judge often criticized Mr.

Roman’s counsel for not getting to the point

quickly enough./2 Further, the IJ repeatedly

interrupted counsel’s examination to ask

questions of the witnesses.

At the request of the IJ, the State Department’s

Board of Human Rights and Humanitarian Affairs

("BHRHA") issued an advisory opinion in January

1994, observing that under the Ceausescu regime,

Mr. Roman and his wife "prospered in terms of

education, employment, and travel abroad" and

that "[there] is no way that somebody repeatedly

threatened and harassed as he claims would have

been so successful [for] so long under

Ceausescu." R.118. The BHRHA further noted that

Mr. Roman’s account of persecution after the

overthrow "comports badly with country

conditions." Id. In a December 1993 country

profile, the BHRHA opined that Romania has

undergone fundamental changes since the overthrow

of Ceausescu’s repressive Communist regime in

1989. Although the country still struggles with

the transition from a totalitarian and

centralized state to a democracy with a free-

market economy, civil liberties (i.e., freedom of

speech, press, assembly, association, religion

and travel) are respected. The BHRHA observed

that anti-Communist sentiments cited by many

asylum applicants now place them within the

mainstream of political opinion. Although the

BHRHA deemed the 1992 national elections a

success, it noted that some Romanians are still

suspicious of their leaders, many of whom held

office under the previous regime. But the BHRHA

opined that "current country conditions have 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. . . . Most Romanians

have a difficult task in plausibly establishing

that they would face severe and targetted [sic]

mistreatment upon return to their country."

R.120-21. The BHRHA also noted that a number of

Romanians have abandoned refugee status and

returned to Romania to claim property or arrange

for relatives to join them in the United States.

After considering Mr. Roman’s testimony as well

as his narrative statement, the IJ denied the

Romans’ application for asylum and withholding of

deportation, finding that Mr. Roman’s claim was

based "upon generalized statements, speculation,

all of which are uncorroborated by any credible

evidence." R.48. The IJ noted that Mr. Roman was

never imprisoned in Romania, was not prevented

from attending school or college, and was able to

keep his job at a government-owned airline for

twenty years until he left for the United States.

The IJ then granted the Romans’ alternative

request for voluntary departure on or before June

9, 1994. The Romans appealed the IJ’s decision to

the BIA.

2.

Over five years later in September 1999, the BIA

rendered its decision dismissing the Romans’

appeal. First, the BIA addressed the Romans’

argument that the IJ limited their right to

present their case, finding any alleged errors to

be harmless because they did not identify any

specific additional testimony that would likely

change the result in the case. Nonetheless, the

BIA did not adopt the analysis of the IJ, nor did

the Board credit the opinion of the BHRHA as to

Mr. Roman’s treatment prior to the 1989

overthrow. Instead, the Board found credible Mr.

Roman’s account of events before the revolution,

observing that "it is not inconsistent with pre-

1989 country conditions in Romania that a needed

’technocrat’ such as [Mr. Roman] would be subject

to surveillance, threats, and harassment,

particularly if he was seen as not following the

Communist party line. . . . Clearly the

management of the government owned airline for

which [Mr. Roman] worked viewed him as not

supporting the Communist Party philosophy." R.3.

The BIA concluded, however, that such conduct did

not rise to the level of persecution.

Relying on the BHRHA’s December 1993 country

profile, the BIA also found that the Romans

failed to show a well-founded fear of future

persecution, observing that the post-1989 changes

in Romania were inconsistent with Mr. Roman’s

perception that he may be harmed in the future if

he returned. The BIA also deemed Ms. Seceleanu’s

testimony unhelpful and the voluminous

documentary evidence provided by Mr. Roman

irrelevant to present country conditions. The

Romans timely appealed the BIA’s denial of

asylum.

II

DISCUSSION

On appeal, the Romans argue that (1) the IJ

violated their due process rights at the

deportation hearing by repeatedly interrupting

Mr. Roman’s testimony and cutting off

questioning; (2) the BIA violated their due

process rights by failing to decide their appeal

for more than five years; (3) the BIA erred in

finding that Mr. Roman had not suffered past

persecution; and (4) the BIA erred in finding

that Mr. Roman had not established a well-founded

fear of persecution.

A. Due Process Violations

1. Full and Fair Hearing

The Romans first argue that the IJ denied their

right to a full and fair deportation hearing by

repeatedly interrupting Mr. Roman’s testimony and

cutting off his counsel’s questioning. They cite

Podio v. INS, 153 F.3d 506, 509-11 (7th Cir.

1998), for the proposition that, in the past, the

particular IJ who presided over their hearing has

flouted asylum applicants’ due process rights.

This court reviews de novo the BIA’s

determination that the IJ did not violate due

process. See id. at 509.

First, unlike in Podio, the IJ in this case

allowed the Romans’ corroborating witness to

testify. Cf. id. (IJ refused to allow asylum

applicant’s siblings to testify that Ukrainian

police were looking for him.). Although the IJ

did appear to curtail counsel’s examination of

the witnesses (in a less-than-courteous manner),

the judge’s interruptions and follow-up questions

were apparently intended to focus the hearing

more directly on Mr. Roman’s specific allegations

of persecution. The IJ assured Mr. Roman at the

hearing that he had read Mr. Roman’s eleven-page

narrative statement and, in the decision, noted

that Mr. Roman "testified and essentially

reaffirmed the contents of this narrative" which

he had "carefully read and considered," R.47.

See, e.g., Iliev v. INS, 127 F.3d 638, 642-43

(7th Cir. 1997) (possibly "brusque" conduct of IJ

did not deny asylum applicant a fair trial based

on lack of opportunity to fully present case).

Moreover, Mr. Roman was permitted to testify

about specific instances of mistreatment,

including the problems he endured at Tarom even

after the revolution. The IJ’s impatience with

the Romans’ attorney does not suggest bias (he

was equally brusque with the INS attorney), nor

does it prove that the Romans were deprived of a

fair hearing. See, e.g., Morales v. INS, 208 F.3d

323, 327-29 (1st Cir. 2000) (an alien’s right to

fair hearing was not violated despite IJ’s

impatience when alien was allowed to testify as

to association with labor union and record did

not indicate IJ ignored evidence); Mikhailevitch

v. INS, 146 F.3d 384, 391-92 (6th Cir. 1998)

(judge’s questioning of alien’s counsel was not

intended to prevent alien from presenting

evidence but to clarify time period and focus on

alien’s situation).

Second, to prevail on a due process claim, an

asylum applicant must show prejudice. See

Mojsilovic v. INS, 156 F.3d 743, 749 (7th Cir.

1998). The Romans fail, however, to allege any

testimony excluded by the IJ that, if admitted at

a new hearing, would potentially affect the

outcome of their case. See Shahandeh-Pey v. INS,

831 F.2d 1384, 1389 (7th Cir. 1987) (alien must

produce concrete evidence that violation of

procedural protection actually had potential to

affect outcome of deportation proceedings). Thus,

their claim that the IJ violated due process is

without merit.

2. Undue Delay

Citing our decision in Batanic v. INS, 12 F.3d

662 (7th Cir. 1993), the Romans argue that the

BIA’s five-year delay in rendering its decision

denied them due process and, as a consequence,

they should be granted asylum retroactively to

the date of their application. The Romans’

reliance on Batanic is wholly misplaced. There,

the petitioner was found deportable at a hearing

in which he was denied the right to counsel. See

id. at 663-64. The BIA provided Mr. Batanic a new

hearing, but in the interim, Congress enacted an

amendment to the INA that rendered Mr. Batanic

ineligible for asylum. See id. at 664. In

reliance on the amendment, the IJ denied Mr.

Batanic’s asylum application, and the BIA

affirmed. See id. On appeal, we noted that a

procedural defect, such as the denial of the

right to counsel, is generally cured by holding a

new hearing in which the defect is not present

(i.e. with the assistance of counsel). See id. at

667. However, where the procedural defect has

also resulted in the loss of an opportunity for

statutory relief, we observed that a new hearing

alone cannot cure the defect. See id. The delay

caused by the procedural defect in Mr. Batanic’s

case operated to deprive him of his statutory

right to apply for asylum. See id. As a result,

we allowed Mr. Batanic to apply for asylum nunc

pro tunc to the time of his initial hearing. See

id. at 668.

By contrast, in this case, "there was no

evidence that a procedural defect worked to

deprive [the Romans] of a specific statutory

right." Tamas-Mercea v. Reno, 222 F.3d 417, 427

(7th Cir. 2000). The Romans’ argument that they

would have been granted asylum had the BIA

rendered its decision earlier is no more than

mere speculation. See id. Mr. Batanic, in

comparison, was unequivocally barred from seeking

asylum because of an intervening amendment to the

statute. Thus, the Romans have failed to show a

denial of due process comparable to that in

Batanic.

The Romans also appear to argue that had the BIA

timely adjudicated their appeal, it would have

granted them asylum in view of this court’s

opinion in Borca v. United States, 77 F.3d 210

(7th Cir. 1996). In Borca, this court reversed

the BIA’s asylum determination because it had

employed the wrong standard. The Romans do not

assert, however, that the BIA reviewed their case

under an improper standard; they simply contend

that the BIA erred in crediting the 1993 State

Department report over Mr. Roman’s own account of

his fears of reprisal. Thus, Borca also does not

help the Romans.

We are troubled, however, by the BIA’s prolonged

and unexplained delay, as we are faced with the

predicament of reviewing a decision that may be

based on information that is now outdated and

obsolete. But because the Romans do not contend

that this is the case, we fail to discern any

prejudice from the delay.

B. Asylum

To qualify for asylum, Mr. Roman must show that

he is a refugee, or a person who is "unable or

unwilling" to return to his native 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." 8 U.S.C. sec.

1101(a)(42)(A). To meet his burden of

establishing the requisite fear of persecution,

an asylum applicant "must present specific facts

demonstrating that he has actually been the

victim or [sic] persecution or has good reason to

believe that he will be singled out for

persecution." Petrovic v. INS, 198 F.3d 1034,

1037 (7th Cir. 2000). Our review of the BIA’s

determination of asylum eligibility is

deferential; we shall reverse only if the record

lacks substantial evidence to support the BIA’s

factual conclusions. See Sofinet v. INS, 196 F.3d

742, 746 (7th Cir. 1999).

1. Past Persecution

Although there is no statutory definition of

"persecution," we have described it as

"punishment or the infliction of harm for

political, religious, or other reasons that this

country does not recognize as legitimate." See

id. (quoting Mitev v. INS, 67 F.3d 1325, 1330

(7th Cir. 1995)). The alleged conduct need not

threaten the asylum applicant’s life or freedom,

but it must rise above mere harassment to

constitute persecution. Id. Here, Mr. Roman

argues that the constant surveillance, threats,

and beatings, as well as the sabotaging of his

car and his demotion at Tarom, compel a finding

that he was persecuted on account of his

political beliefs./3 The BIA deemed Mr. Roman’s

account believable but concluded that such

conduct did not rise to the level of persecution.

Our difficulty with the BIA’s finding as to

persecution is that it only appears to address

events that occurred before the 1989 revolution;

the decision ignores Mr. Roman’s allegations of

more serious mistreatment that occurred after

Ceausescu’s overthrow. See Dobrota v. INS, 195

F.3d 970, 974 (7th Cir. 1999) (BIA failed to

consider submissions detailing unchanged

political situation despite fall of Ceausescu);

Hengan v. INS, 79 F.3d 60, 63 (7th Cir. 1996) (IJ

neglected to fully consider Romanian asylum

applicant’s mistreatment after Ceausescu’s

overthrow). Two incidents in particular were

never discussed: the September 1991 beating and

the tampering with Mr. Roman’s car in May 1992.

Although we conclude that substantial evidence

supports the BIA’s determination that Mr. Roman’s

account of surveillance, threats and harassment

prior to Ceausescu’s overthrow did not amount to

persecution, we cannot discern whether the BIA

found that the post-1989 events likewise did not

constitute persecution.

As to the first incident, Mr. Roman alleged that

he was attacked by three miners visiting

Bucharest because (as he originally thought) he

was wearing "Western" clothes; he "later came to

believe that the real reason was political."

R.153. Although a finding of persecution does not

require that the government actually perpetrate

or incite the attack, an applicant must show that

the government "condoned it or at least

demonstrated a complete helplessness to protect

the victims." Galina v. INS, 213 F.3d 955, 958

(7th Cir. 2000). The record here, however, does

not support a conclusion that Mr. Roman’s beating

was orchestrated or allowed by the government.

Although the articles Mr. Roman submitted with

his asylum application suggest that in June 1990,

miners from the western part of the country came

to Bucharest at the behest of then-president Ion

Iliescu to violently subdue the pro-democracy

demonstrations, the record also indicates that

when the miners returned to Bucharest in

September 1991, they were there to protest

Iliescu’s democratic reforms and the steep

economic downturn they believed the reforms had

spawned.

The second incident is more troubling. Mr. Roman

alleges that after Ceausescu’s overthrow, he

became a member of a group at Tarom Airlines who

sought to reform the company toward

democratization. This apparently angered the new

management (who wanted to keep the Communist

system intact), and, as a result, Mr. Roman

claims that he was subjected to repeated threats

and harassment. In May 1992, Mr. Roman contends

that his tires were punctured in the Tarom

parking lot and, one week later, the lug nuts

were loosened. Afterward, Mr. Roman received an

anonymous phone call warning him that if he did

not "shut up," he would have more serious

problems. R.153.

Although these actions appear to rise above

"mere harassment," because the perpetrators

attempted to follow through on their threats,/4

their connection to the government is unclear.

See Nenadovic v. INS, 108 F.3d 124, 129 (7th Cir.

1997) (threats by manager at armaments plant,

where the connection to government was unclear,

did not amount to persecution); Mitev, 67 F.3d at

1330-31 (threats by coworkers as a result of

applicant’s anti-communist activism did not

amount to persecution). Nor is there any

indication that Mr. Roman reported the tampering

with his car to the police or requested

protection and, if so, whether that effort was in

vain. Cf. Hengan, 79 F.3d at 63-64 (persecution

found where applicant, a Romanian of Hungarian

descent, received repeated, personal threats and

authorities did nothing to protect her but

instead began interrogating her weekly). Mr.

Roman bears the burden of presenting specific

facts to show he was persecuted, notably, that

the government orchestrated, or at least

sanctioned, the tampering with his car. See

Petrovic, 198 F.3d at 1037. Because Mr. Roman has

not come forward with such evidence, we cannot

fault the BIA for concluding that Mr. Roman did

not suffer past persecution.

2. Fear of Future Persecution

Although Romania is now a democracy, Mr. Roman

insists that the country is run by former

Communists. At the time of the asylum hearing,

the elected president of Romania was Ion Iliescu,

a former Communist who is now a member of the

Social Democratic Party./5 Mr. Roman believes

that, if he returns to Romania, he will be

arrested and interrogated because he would be

considered a "betrayer" for leaving the country.

R.87. Further, former Securitate officers who

previously had threatened him during the old

regime, and who now occupy high positions in the

government and at Tarom Airlines, might try to

harm him because he was fighting for freedom. The

BIA concluded, however, that "post-1989 changes

in Romania are inconsistent with [Mr. Roman’s]

perception that he may be harmed in the future

upon return to Romania." R.4. The record before

us does not compel a contrary finding.

To establish a well-founded fear of future

persecution, an asylum applicant must show both

that the fear is genuine and that a reasonable

person in his circumstances would fear

persecution. See Asani v. INS, 154 F.3d 719, 724

(7th Cir. 1998). First, as discussed above, many

of the past incidents identified by Mr. Roman do

not rise to the level of persecution under the

statute and, thus, cannot form the basis for a

well-founded fear of persecution. See Tamas-

Mercea, 222 F.3d at 426-27. Further, the 1993

State Department report belies Mr. Roman’s

contention that former members of the Communist

Party would harm him because of his past

political activities. To the contrary, the report

states that "Romania has been profoundly

transformed since the overthrow of . . .

Ceausescu in 1989," R.119, and that "[a]nti-

communist sentiments cited by many applicants

place them now well within the democratic

mainstream of political opinion and activity,"

R.120. The report also notes that a new law

governing the Romanian Intelligence Service

("heir to the justly-hated Securitate") has

"established parliamentary oversight over that

organization and prohibits the hiring of most

former Securitate officers." Id. Further, the old

Securitate files are to be archived for 40 years,

after which they are to be made public. The

report concludes that "current country conditions

have so altered as to remove any presumption that

past mistreatment under Ceausescu or the chaotic

first year after his overthrow will lead to

mistreatment in the future." R.120-21.

We recently have reminded the BIA that it should

treat the State Department’s country report "with

a healthy skepticism, rather than, as is its

tendency, as Holy Writ." Galina, 213 F.3d at 959.

Mr. Roman, however, has failed to identify any

highly credible source of expert knowledge to

contradict the State Department’s evaluation of

the likelihood of persecution if he is forced to

return to Romania. See Vaduva v. INS, 131 F.3d

689, 691 (7th Cir. 1997). All of the articles Mr.

Roman includes in the record predate the State

Department report, most by at least two years. We

have no reason to believe that conditions in

Romania have worsened since the State Department

issued its report in 1993, nor does Mr. Roman

suggest that the BIA’s decision was based on

outdated information./6 See Tamas-Mercea, 222

F.3d at 425 (asylum applicant did not meet burden

of showing well-founded fear of persecution

should he be returned to Romania, where country

profile indicated new intelligence organization

did not have inclination or resources to pursue

same type of surveillance as Securitate); Vaduva,

131 F.3d at 690-92 (asylum applicant lacked well-

founded fear of persecution when he failed to

rebut 1995 State Department Report citing

profound changes in Romania since the overthrow

of Ceausescu). Therefore, we believe there is

substantial evidence to support the BIA’s finding

that Mr. Roman failed to show a well-founded fear

of persecution./7

Conclusion

For the foregoing reasons, the petition for

review is denied, and the decision of the BIA is

affirmed.

AFFIRMED

/1 On October 4, 2000, we granted the petitioners’

motion to dismiss the appeal only as to the

Romans’ daughter, Diana.

/2 For example, the IJ commented, "Just tell, have

him testify as to what actions he took. Period.

I’m not interested in his philosophy. Okay?"

R.59; "Come on, Mr. Geman. Now, let’s get down to

the claim. I don’t care about his family history.

I’ve got your claim here. I’ve read. Now, stick

to this claim." R.64; "Now Mr. Geman, I’m going

to tell you one final time. You’ve got your

package here with his story, with his claim and

its all set out in narrative form. All right?

Now, let’s get on with it." R.67.

/3 Mr. Roman also argues that his wife has been

subject to persecution following her divorce from

a Securitate officer, when she lost everything

including her son. The record, however, contains

no evidence indicating a nexus between this

occurrence and her political opinions, thereby

making a finding of persecution based on these

events inappropriate. See Sofinet, 196 F.3d at

747 (upholding BIA’s denial of asylum in part

because there was no nexus between employer’s

reprimands and applicant’s status as Seventh Day

Adventist).

/4 See Galina, 213 F.3d at 957 (after receiving

threats, phone call linked attack on asylum

applicant’s daughter to applicant’s discovery of

employer’s list of prospective deportees); Boykov

v. INS, 109 F.3d 413, 416 (7th Cir. 1997)

(threats of immediate and menacing nature may, in

some circumstances, constitute past persecution).

/5 Iliescu was since defeated in a 1996 election.

/6 There is no indication that Mr. Roman moved to

reopen the case pursuant to 8 C.F.R. sec. 3.2 to

supplement the record with more current

information on conditions in Romania. See

Kaczmarczyk v. INS, 933 F.2d 588, 597 (7th Cir.

1991).

/7 Last, Mr. Roman argues that the BIA erred in

denying his request for withholding of

deportation. The standard for withholding of

deportation, however, is even more stringent than

the standard for asylum. See Dobrican v. INS, 77

F.3d 164, 168 (7th Cir. 1996) (alien must

establish "clear probability" of persecution).

Since the BIA’s decision that Mr. Roman failed to

demonstrate a well-founded fear of persecution is

supported by substantial evidence, its

determination that he failed to establish a

"clear probability" of persecution is likewise

supported by the evidence.