Ion Lapadat, a native of Romania, and his family, including his wife Simona and four children, are Roma. They fled Romania in 2016 after years of severe mistreatment, seeking asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge found the family members credible but denied their applications, concluding that the harm they suffered did not rise to the level of persecution and that they did not have a well-founded fear of future persecution. The Board of Immigration Appeals affirmed this denial. The BIA specifically found that the Roma are not a disfavored group in Romania, relying on European Union efforts to combat antigypsyism, and determined that the Lapadats' experiences, including a shooting and an attempted kidnapping, were either isolated criminal acts or insufficient to constitute persecution.
Judge Mendoza, writing for the panel, held that the BIA committed clear legal error on two primary grounds. First, regarding past persecution, the court applied the substantial evidence standard and found that the record compelled a finding that the Lapadats suffered serious harm rising to the level of persecution. The BIA erred by ignoring Ion's credible testimony that he was shot in the back and skull, an act the court described as 'serious physical violence' that eclipses mere harassment. The court also found that the attempted kidnapping of the daughters and the threats of rape and death, combined with an ongoing pattern of police beatings and discrimination, collectively established past persecution. The panel clarified that it was deciding only the first prong of the past-persecution claim—the severity of the harm—and left the determination of whether the harm was on account of a protected ground to the agency. Second, the court addressed the BIA's analysis of the Roma as a disfavored group. The panel rejected the BIA's reliance on European Union reforms, stating that the EU is not a government and its policies do not negate the Romanian government's documented history of anti-Roma abuse. The court found that centuries of exclusion, police brutality, and state-tolerated discrimination unmistakably establish the Roma as a disfavored group in Romania. Consequently, the BIA's conclusion that the Lapadats lacked a well-founded fear of future persecution was likely erroneous, as the record contained egregious evidence of group persecution.
The Ninth Circuit granted the petition and remanded the case to the Board of Immigration Appeals. On remand, the agency must reassess whether the persecution was motivated by a protected ground and evaluate the Lapadats' individualized risk of future persecution. The court's decision establishes that the Roma are a disfavored group in Romania and that the specific harms suffered by the Lapadats, including being shot and the attempted kidnapping of their children, constitute past persecution under the substantial evidence standard. This ruling likely creates a rebuttable presumption of a well-founded fear of future persecution for the Lapadats, shifting the burden to the government to prove a fundamental change in circumstances.
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