Balliu, Genti v. Gonzales, Alberto R. , 467 F.3d 609 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-1468
GENTI BALLIU,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
On Petition for Review of an Order of
the Board of Immigration Appeals.
No. A77-838-565
____________
ARGUED JANUARY 5, 2006—DECIDED OCTOBER 27, 2006
____________
Before FLAUM, Chief Judge, and ROVNER and WILLIAMS,
Circuit Judges.
ROVNER, Circuit Judge. Asylum applicant Genti Balliu
fled Kosovo claiming that Serbian officials persecuted him
in retaliation for his participation in a pro-Albanian
political organization. Because we find that the immigration
judge misallocated the burden of demonstrating a well-
founded fear of future persecution, we remand to the Board
of Immigration Appeals (BIA) to apply the correct presump-
tion.
Balliu is a native and citizen of Kosovo, a province of the
Republic of Serbia under civil and military administra-
tion by the United Nations. Born in 1975, Balliu, at the age
2 No. 04-1468
of nineteen, joined the Democratic Alliance of Kosovo
(“LDK”), an organization that, according to Balliu, seeks to
preserve Albanian culture and foster Kosovo’s transition to
independence. As a member of the youth group division of
LDK, Balliu regularly distributed leaflets, organized
meetings, attended demonstrations, and talked to other
young people about the Serb occupation and what they
could do to prevent Serb authorities from persecuting
Albanians.
Balliu testified that on January 22, 1995, as he was
walking home, three Serbian policemen stopped him to
conduct a weapons search. Balliu told the policemen that he
did not have or own any weapons, but that he had some
LDK leaflets as well as an Albanian book. The policemen
asked to whom the leaflets and book belonged, and Balliu
replied that they were his. In response, one of the policemen
kicked Balliu and another punched him and hit him with a
rubber-coated metal baton.
Balliu was no stranger to these sorts of attacks. He
testified that in 1981, Serbian police beat his father, and
imprisoned him for a week after he was arrested at a
demonstration for Albanian rights. This event, however,
merely fueled Balliu’s desire to become involved in the
ethnic Albanian movement in Kosovo.
In November 1998, Balliu worked with others to publicize
and organize a large demonstration to commemorate
Albanian flag day. During the demonstration, the Serbian
police began yelling at demonstrators and pushing and
kicking people to disperse the crowd. According to Balliu,
the officers hit Balliu’s friend on the head with a rifle
butt and when Balliu went to his aid, the police hit him
as well and he lost consciousness. Balliu awoke in a hospital
bed and stayed for three days due to difficulty breathing
and moving his arms. It took Balliu weeks to recover and at
his hearing he testified that he still suffered from sporadic
chest and back pain.
No. 04-1468 3
The final episode Balliu recounted began on January 17,
1999, when Balliu and his friends were organizing an-
other youth meeting. They had just delivered a large
amount of anti-Serb literature when they were stopped
by police for a weapons check. The Serb police found anti-
Serb material in the trunk of the car and issued each of the
youths an arrest warrant requiring them to appear at the
police headquarters in Peja the following day. Balliu had
heard of Serbian authorities detaining ethnic Albanians for
weeks or months for minor offenses, so after a discussion
with his family, he borrowed money from an uncle and left
Kosovo, eventually entering the United States in Laredo,
Texas, in May 1999. Balliu applied for political asylum on
December 13, 1999.
When the government initiated removal proceedings,
Balliu’s application for asylum automatically became a
request for withholding of removal under § 241 of the
Immigration and Nationality Act (INA), § 8 U.S.C.
§ 1231(b)(3), and a request for deferral of removal under
Article 3 of the United Nation’s Convention Against Tor-
ture. 8 C.F.R. § 208.3(b). Balliu also requested voluntary
departure. On August 8, 2002, the immigration judge held
removal proceedings and, in an order dated August 8, 2002,
denied his application for asylum, for withholding of
removal, and for protection under the Convention Against
Torture; found that he was not eligible for voluntary
departure; and ordered removal. (R. at 34). The BIA
summarily affirmed without opinion on February 4, 2004.
(R. at 2).
Because the BIA summarily affirmed without opinion, we
review the decision of the immigration judge. Hanaj v.
Gonzales, 446 F.3d 694, 699 (7th Cir. 2006). We must affirm
the immigration judge’s decision if it is supported by
reasonable, substantial, and probative evidence on the
record considered as a whole, and overturn it only if the
record compels a contrary result. INS v. Elias-Zacarias, 502
4 No. 04-1468
U.S. 478, 481, 112 S. Ct. 812, 815 (1992); Jun Ying Wang v.
Gonzales, 445 F.3d 993, 997 (7th Cir. 2006). We review the
BIA’s legal conclusions, including whether it has properly
allocated burdens, de novo. Capric v. Ashcroft, 355 F.3d
1075, 1086 (7th Cir. 2004) (the BIA’s legal conclusions are
reviewed de novo); Chicago Prime Packers, Inc. v. Northam
Food Trading Co., 408 F.3d 894, 898 (7th Cir. 2005) (noting
that the distribution of burdens is a question of law which
a court of appeals reviews de novo.)
To qualify for asylum, Balliu must show that he is a
refugee within the meaning of the INA by proving that he
was persecuted in the past on the basis of his race, religion,
nationality, membership in a social group, or polit-
ical opinion, or alternatively, by proving that he has a
well-founded fear of future persecution for the same
reasons. See 8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C.
§ 1101(a)(42)(A); Bace v. Ashcroft, 352 F.3d 1133, 1137 (7th
Cir. 2003). The immigration judge fully credited Balliu’s
testimony and concluded that Balliu had established that
he had been persecuted in the past. (R. at 27-28).
Generally however, past persecution alone will not suffice
for a grant of asylum. A refugee can qualify for asylum
based on past persecution alone if she “demonstrated
compelling reasons for being unwilling to return to the
country arising out of the severity of the past persecution.”
8 C.F.R. § 208.13(b)(1)(iii)(A); see also Bucur v. I.N.S., 109
F.3d 399, 404-05 (7th Cir. 1997). In other words, “if an
applicant is not in danger of being persecuted if he is
deported, he will not be granted asylum unless the persecu-
tion from which he fled was especially heinous.” Bucur, 109
F.3d at 404-05. The immigration judge concluded that
Balliu’s past persecution was not “so severe that it would be
inhumane to return the alien to his native country even in
the absence of any risk of future persecution.” (R. at 29)
(citing Dobroto v. INS, 195 F.3d 970, 974 (7th Cir. 1999)).
Once an asylum applicant demonstrates that he has been
No. 04-1468 5
persecuted in the past, however, the court must presume
that he has a well-founded fear of future persecution, and
the burden shifts to the government to establish by a
preponderance of the evidence that the conditions in the
petitioner’s homeland have improved such that persecution
of the petitioner is unlikely to recur. Cecaj v. Gonzales, 440
F.3d 897, 900 (7th Cir. 2006); 8 C.F.R. § 208.13(b)(1).
Despite the fact that the government bears this burden,
the immigration judge turned to Balliu “to support the
fact that he would face future persecution” in Kosovo. (R. at
32). Specifically, he stated,
The respondent . . . has not been able to produce other
documentation which would support the fact that he
would face future persecution. The Board in re Y-B-, 21
I & N Dec. 1136 (BIA 1998), stated that an asylum
applicant does not meet his burden of proof by general
and meager testimony. Given the weakness of the
applicant’s testimony with respect to current conditions
in Kosovo, it is the assessment of the Board that the
respondent would need corroborative evidence
to support his claim.
Id. In short, the immigration judge looked to Balliu’s
testimony; he looked to Balliu’s corroborative evidence or
lack thereof; and he looked at the documentary evidence—
newspaper articles, country reports, Amnesty International
reports, etc. all of which were introduced by Balliu,1 and
1
We do not mean to imply that the agency (formerly the Immi-
gration and Naturalization Service, currently the Department of
Homeland Security) cannot rely on exhibits submitted by an
applicant for asylum. Balliu submitted hundreds of pages of
exhibits regarding the conditions in Kosovo and the government
need not submit duplicative or superfluous exhibits merely to
carry its burden. Indeed, in this case the agency properly used
(continued...)
6 No. 04-1468
concluded that Balliu had not presented sufficient evidence
to support his claim that he feared future persecution if
returned to Kosovo. It was not Balliu’s burden, however, to
establish that the conditions in Kosovo continued to present
a threat to him. Once Balliu established that he had been
persecuted in Kosovo, the government had the burden to
establish, by a preponderance of the evidence, that the
conditions had improved sufficiently. Cecaj, 440 F.3d at 900.
It is true that, in the initial pages of the opinion in which
the immigration judge recites the various standards and
requirements of proof in asylum law, he sets forth the
appropriate burden shifting-standard, stating: “[s]atisfac-
tory proof of past persecution will give rise to a presumption
that the petitioner also has a well-founded fear of future
persecution. However, that presumption is rebuttable.” (R.
at 22) (internal citations omitted). Nevertheless, we must
evaluate not what an immigration judge says that he ought
to do at the outset of the opinion, but what it is that he
actually does when applying the standard to the particular
facts of the case. And despite the boilerplate display of the
appropriate standard, the immigration judge placed the
burden on Balliu and not the government when considering
the current conditions in Kosovo. The judge put the full
weight of the burden on Balliu, penalizing him for “not
sufficiently augment[ing] his claim” to support his allega-
tion that he would face future persecution. Id. at 33.
The government’s brief states that “[b]ecause the Immi-
gration Judge found Petitioner’s testimony credible regard-
1
(...continued)
Balliu’s documentary exhibits to cross-examine him about current
conditions in Kosovo. We simply note that the immigration judge
pointed to these exhibits as insufficient to support Balliu’s claim
that the conditions in Kosovo had not changed substantially
enough to allay his fears of future persecution, and as we explain,
this allocation of the burden was incorrect.
No. 04-1468 7
ing the prior acts of abuse by Serbian authorities and his
membership in the LDK, he concluded that Petition [sic]
had established past persecution and therefore enjoyed the
presumption of a well-founded fear of future persecution.
A.R. at 28.” (Respondent’s brief at 13). The immigration
judge, on page twenty-eight of the record, does indeed
conclude that Balliu has established past persecution, but
nowhere on that page or on any other page of the opinion
(other than in the boilerplate language described above)
does the judge mention the proper presumption or the
government’s burden. To the contrary, the immigration
judge repeatedly refers to the shortcomings of Balliu’s proof
without once referring to evidence submitted by or lacking
from the government. The judge made a legal error by
placing the burden on the wrong party. The case must be
remanded to rectify this error.
On remand, the BIA may consider the most recent version
of the State Department’s Country Reports and other
current evidence to make an individualized determination
as to whether Balliu’s particular fear of future persecution
should be allayed by improvements in the political condi-
tions in Kosovo. See, e.g., INS v. Ventura, 537 U.S. 12, 18,
123 S. Ct. 353, 356 (2002) (noting that “remand could lead
to the presentation of further evidence of current circum-
stances” in the applicant’s country of origin); Giday v.
Gonzales, 434 F.3d 543, 556 (7th Cir. 2006); Bace, 352 F.3d
at 1141-42. Because Balliu’s brief on appeal does not set
forth any arguments in support of his claims for withhold-
ing of removal and relief under the Convention Against
Torture, these claims are waived. See Huang v. Gonzales,
403 F.3d 945, 951 (7th Cir. 2005).
The petition for review is granted, the order of removal
vacated, and the case returned to the Board of Immigration
Appeals for further proceedings consistent with this
opinion. Each party to bear its own costs.
8 No. 04-1468
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-27-06