Vujisic, Radisav v. INS

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3184
Radisav Vujisic,
Petitioner,
v.
Immigration and Naturalization Service,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals.
No. A29 685 361
Argued April 5, 2000--Decided August 7, 2000
Before Manion, Kanne and Evans, Circuit Judges.
Kanne, Circuit Judge. Petitioner Radisav Vujisic
fled his native Yugoslavia in 1991 rather than
re-enter the army and fight what he considered to
be an unjust civil war against his fellow
countrymen. After arriving in the United States
via Canada, he applied for asylum and withholding
of deportation. An immigration judge rejected the
application, and the Board of Immigration Appeals
affirmed. Vujisic believes the Board erred as a
matter of law in holding that punishment for
desertion from military duty can never constitute
persecution on account of political opinion.
Further, Vujisic contends the Board wrongly took
judicial notice of changed country conditions in
deciding whether he had a legitimate fear of
punishment upon return to his homeland. We
reverse the Board’s decision.
I. History
Vujisic was born in North Gorica, Slovenia, the
son of a career Yugoslav military officer. An
ethnic Serb, Vujisic lived in Slovenia until he
was four years old and moved with his family to
a military base in Serbia. At 18, he entered the
Yugoslav army for one year of compulsory military
service, which he served in Slovenia. At the end
of the year, the army discharged him, and he
returned home. About five months later, in May
1991, military and police officers took Vujisic
in the middle of the night to an army base in
Serbia for "military exercises." He was locked in
a room with other young men, given army uniforms
and blankets and moved to another building, where
they were held for several days. During this
time, Serbia was invading Slovenia, and the
Slovenians were offering armed resistance.
Vujisic’s military hosts told Vujisic and the
other men that the Slovenians were mistreating
Yugoslav soldiers, and Vujisic became convinced
that he and the others would be sent to fight in
Slovenia.
While at the military base, an officer
discovered that Vujisic had been born in Slovenia
and accused him of being a spy. The other men
beat him until another officer stopped them, and
he was interrogated about his family and ties to
Slovenia. The army released Vujisic and the other
men on June 4, 1991, and sent him home. A week
later, army officers came to Vujisic’s home with
reactivation orders, forced their way into the
home and knocked his mother to the ground.
Vujisic was not home at the time and later
managed to flee to a small nearby village. He
left the village and moved in with his girlfriend
in a larger city, where he thought it would be
easier to hide. Eventually, police tracked
Vujisic to his girlfriend’s residence, but
Vujisic escaped over a balcony and began moving
from place to place every few days. Vujisic’s
father was arrested, questioned regarding his son
and dishonorably discharged without pension
benefits.
Vujisic decided he needed to leave the country
and obtained a Canadian visa, ostensibly to play
soccer. Somehow unnoticed by Serbian military and
police, he left from the Belgrade airport days
before it was closed by the government. He lived
and played soccer in Canada for several months
until his girlfriend joined him there, and they
decided to try to enter the United States, where
he had family. He entered the United States on
August 1, 1992, falsely claiming American
citizenship. He pleaded guilty to unlawful entry
and applied for asylum as a political refugee
under sec. 208 of the Immigration and Nationality
Act, or in the alternative, withholding of
deportation under sec. 243(h). In his affidavit,
Vujisic stated his opposition to the war:
I have many Croatian, Muslim and Slovenian
friends, and I do not believe in the ethnic
cleansing being perpetrated against them in the
former Republics of Yugoslavia. My complete
inability to assist the Republic of Yugoslavia in
this process as a soldier or otherwise will
subject me to persecution and possible death if
I wish to return to Yugoslavia . . . The Federal
Republic of Yugoslavia has committed many
violations of human rights during the current war
and has been sanctioned by the United [N]ations
and I know that my human rights will be violated
and I will face persecution if I am returned.
I could not fight and would not fight against
these Republics. I could not fight against
friends and family who desired nothing but
independence and freedom to perpetuate the
traditions of their heritage under a democratic
form of government, free from the dogma of
communism.
The immigration judge denied his application
under sec.sec. 208 and 243(h), and on July 29,
1999, the Board affirmed the denial. The Board
held that Vujisic failed to prove that he would
be subjected to persecution on account of his
political beliefs if he were returned to
Yugoslavia. It held that "[p]unishment for
desertion from a military organization has been
found not to constitute persecution on account of
political opinion or any of the other enumerated
grounds." Matter of Vujisic, No. A29 685 361, *2
(Bd. Immigr. App. July 29, 1999). In so holding,
the Board found that:
[T]here is little indication that the authorities
would continue to be concerned about the
applicant’s political opinion or that they would
be inclined to harm him at present on account of
his opinion, 7 years after the events in question
and after the substantial changes . . . in the
former Yugoslavia during the 1990’s.
Id. Since the Board believed Vujisic would not
suffer persecution disproportionate to the
punishment for desertion upon return to his
homeland, it affirmed the immigration judge’s
decision. This appeal followed.
II. Analysis
Under sec. 208 of the Immigration and
Nationality Act, 8 U.S.C. sec. 1158, the Attorney
General may grant asylum to refugees, who are
defined as people unable or unwilling to return
to their home nation "because of a 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); see INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992). The applicant
carries the burden of establishing by presenting
specific facts that he has been the victim of
persecution or has good reason to believe that he
will be singled out for persecution. See
Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir.
1992). We review the Attorney General’s decision,
represented here by the Board’s disposition of
this case, deferentially under the "substantial
evidence test." Id. at 163. We will reverse the
Board’s decision only if the evidence is "so
compelling that no reasonable fact finder could
fail to find the requisite fear of persecution."
Elias-Zacarias, 502 U.S. at 483-84.
Vujisic presented evidence of both past
persecution and a fear of future persecution
based on his perceived Slovenian background. The
immigration judge and the Board ignored
substantial evidence that Vujisic feared
persecution not as a deserter, but because of his
Slovenian roots and his refusal to fight the
Slovenians. The Board correctly assessed that
"[r]efusal to perform military service in one’s
native country is not ordinarily a valid basis
for establishing asylum eligibility," Matter of
Vujisic, No. A29 685 361, at *2, but this is not
the ordinary case. Here, Vujisic was singled out
by the Yugoslav military because of his cultural
background, interrogated and beaten, and he
believed he would be sent to kill Slovenians, who
he thought had a right to be an independent
republic. The Board failed to consider that in
some cases, refusal to enter the army may render
one a refugee if for instance, the reason for
refusal is a "genuine political, religious or
moral conviction or to valid reasons of
conscience." Handbook on Procedures and Criteria
for Determining Refugee Status, United Nations
High Commissioner for Refugees para. 170 (Geneva
1979). Furthermore, the Handbook states that if
the "military action with which an individual
does not want to be associated, is condemned by
the international community as contrary to basic
rules of human conduct, punishment for desertion
or draft evasion could . . . in itself be
regarded as persecution." Id. at para. 171. This
is clearly the case here. The international
community, including the United States, severely
condemned the Serbian military actions in the
Balkan republics and the strategy of genocide
that went with it. Vujisic refused to
participate, and contrary to the government
counsel’s insistence at oral argument, Vujisic’s
desertion from and persecution by a military
force condemned by the international community
can rightly be considered to be caused by his
opposition to the political and nationalistic
policies of the Yugoslav government.
Furthermore, because of his refusal, his family
and in particular his father was subjected to
arrest and punishment, making Radisav’s fear of
future persecution well founded. Cf. Naafi v.
INS, 104 F.3d 943, 947 (7th Cir. 1997) (holding
that asylum seeker failed to establish well
founded fear of persecution based on oppression
of asylum seeker’s family unrelated to asylum
seeker’s actions); Mgoian v. INS, 184 F.3d 1029,
1036-37 (9th Cir. 1998); Arriaga-Barrientos v.
INS, 937 F.2d 411, 414 (9th Cir. 1991). This
persecution of his family, wholly ignored by the
Board, confirmed Vujisic’s fear that he would
suffer more than the average deserter because of
his Slovenian connection. The Board found that
Vujisic "was not physically harmed in the former
Yugoslavia" although he presented specific facts
indicating he had been beaten and interrogated
while in military captivity because of his
feelings toward and connection to Slovenia. It
appears from the Board’s order that it ignored
that evidence. Vujisic’s case was more egregious
and more specific than the claims of "general,
oppressive conditions that affect the entire
population of a country" that we have found
insufficient in other cases. See, e.g., Petrovic
v. INS, 198 F.3d 1034, 1037 (7th Cir. 2000). The
Serbian officials singled out Vujisic for
persecution above that of other draftees,
deserters and Slovenian sympathizers because of
his Slovenian background and the perception that
he would spy for Slovenia. Combined, we find the
evidence presented by Vujisic more than
compelling enough to convince any reasonable fact
finder that he faced a well founded fear of
persecution on account of his political beliefs
in opposition to the war against Slovenia. The
Board’s action in treating Vujisic’s case as one
of ordinary desertion misinterpreted prior case
law on asylum applications by deserters and must
be reversed.
Vujisic next argues that the Board erred in
considering changed conditions in Yugoslavia
between 1991 and 1999. The Board may take
administrative notice of changed country
conditions if it engages in an individualized
review of the applicant’s case. See Petrovic, 198
F.3d at 1038; Rhoa-Zamora v. INS, 971 F.2d 26,
33-34 (7th Cir. 1992). The Board’s order sets out
in minimal fashion that "there is little
indication that the authorities would continue to
be concerned about the applicant’s political
opinion or that they would be inclined to harm
him at present on account of his opinion, 7 years
after the events in question and after the
substantial changes and many events in the former
Yugoslavia during the 1990’s." There appears to
be no justification for this finding, which
flatly ignores the continued international
condemnation of Yugoslavia’s campaigns in Kosovo
and Bosnia since 1991, four months of NATO
bombing of Serbia in 1999 and the indictment for
war crimes of Yugoslav President Slobodan
Milosevic. Nothing in the record supports the
Board’s finding or explains its disregard of all
the evidence that directly contradicts its
decision and strongly suggests that those who
deserted because of sympathies for Slovenia would
be punished upon their repatriation. Therefore,
the Board erred in holding that the changed
country circumstances negated Vujisic’s well
founded fear of persecution.
III. Conclusion
We find the evidence supporting Vujisic’s fear
of persecution so compelling that no reasonable
fact finder could agree with the Board’s
decision, and therefore we reverse the Board’s
order. The case is Remanded to the Board of
Immigration Appeals for further proceedings
consistent with this opinion.