Petrovic, Dragan v. INS ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-1882
Dragan Petrovic,
Petitioner,
v.
Immigration and Naturalization Service,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
No. A72-215-884
Argued November 12, 1999--Decided January 10, 2000
Before Flaum, Ripple, and Rovner, Circuit Judges.
Flaum, Circuit Judge. On September 18, 1992, the
Immigration and Naturalization Service (INS)
charged Dragan Petrovic with exclusion under the
Immigration and Nationality Act. The Immigration
Court found Petrovic excludable and ineligible
for asylum or withholding of deportation.
Petrovic appealed to the Board of Immigration
Appeals (BIA), which affirmed the Immigration
Court’s decision. Petrovic now petitions this
Court for review. For the reasons stated below,
we affirm the BIA’s decision.
Background
Petrovic, an ethnic Serbian raised in Croatia
(then a province of Yugoslavia), arrived in the
United States in September 1992. Upon arrival, he
announced his intention to seek political asylum.
The INS District Director commenced exclusion
proceedings to determine whether Petrovic was
authorized to enter the country under the
Immigration and Nationality Act, and the INS
allowed him to enter the country temporarily
while his asylum application was pending.
In support of his asylum application, Petrovic
testified as follows. He was born in 1971 in the
town of Otisic, Croatia, formerly part of
Yugoslavia. He is an ethnic Serbian of Eastern
Orthodox faith. In 1980, Petrovic moved with his
family to Solin, where at the time Croatians made
up eighty percent of the population and Serbians
made up fifteen percent. Petrovic lived in Solin
for ten years, until 1990, when he began serving
a year-long commitment as a member of the
Yugoslav army in Macedonia.
In June 1991, Croatia declared its independence
from Yugoslavia. Petrovic alleges that his father
and sister, who remained in Solin, became targets
of religious and ethnic persecution, including
harassment at work by Croatians. Both his father
and his sister were ultimately fired from their
postal jobs. He further alleges that his father
was beaten on a public bus because of his
ethnicity and religion and that the police
refused to investigate or pursue the incident. In
September 1991, Petrovic left the Yugoslav army
and returned to Otisic, where his family was
residing after moving back from Solin. Soon
thereafter, Petrovic joined the Serbian civil
defense forces fighting against the Croatian
army. Early the following year, the United
Nations approved a peace plan, which resulted in
the disarming of the Serbian civil defense
forces. Petrovic testified that Serbians in the
region were increasingly becoming targets of
ethnic violence and discrimination, so he fled to
the United States. He testified that he could be
imprisoned or killed if he returned to Croatia.
Though finding his testimony credible, the
Immigration Court, on July 15, 1993, found
Petrovic excludable under the Immigration and
Nationality Act. The Immigration Court also
denied him asylum and withholding of deportation,
and it ordered him excluded and deported from the
United States. On appeal to the BIA, Petrovic
renewed his asylum claim. The BIA dismissed the
appeal, finding that Petrovic had failed to
demonstrate past persecution or a well-founded
fear of persecution as required under applicable
immigration law. Petrovic now petitions this
Court for review of the BIA’s decision,
challenging whether its decision was adequately
supported by the evidence before it.
Discussion
Congress has a adopted a policy of limited
asylum eligibility. Sivaainkaran v. INS, 972 F.2d
161, 165 (7th Cir. 1992). Under Section 208 of
the Immigration and Nationality Act, 8 U.S.C.
sec. 1158, the Attorney General is authorized to
grant asylum to "refugees." Refugee status may
only be granted to a person unable or unwilling
to return to his 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 establish the
requisite fear of persecution, an applicant must
present specific facts demonstrating that he has
actually been the victim or persecution or has
good reason to believe that he will be singled
out for persecution. See Sivaainkaran, 972 F.2d
at 163.
"The apparatus [Congress] has created for
implementing [asylum] policy rests primarily with
immigration judges and the BIA . . ., and our
role is limited to providing deferential review
of BIA decisions." Sivaainkaran 972 F.2d at 165.
Asylum eligibility "is a factual determination,
which we review under the substantial evidence
test." Id., at 163. Under this deferential
standard, we will reverse the BIA only if the
evidence is "so compelling that no reasonable
factfinder could fail to find the requisite fear
of persecution." INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992).
In challenging the BIA’s decision denying him
asylum, Petrovic first argues that the BIA failed
to consider certain evidence--including
documentary evidence from the U.S. State
Department of organized ethnic terror in Croatia
directed at Serbians--when it ruled that he had
no well-founded fear of persecution. Petrovic
also argues that the BIA gave inadequate
consideration to the experiences of his father
and sister, which bolster his claim that, as a
Serbian, he would be subjected to persecution if
returned to Croatia. Based on these alleged
defects, he contends that the BIA’s conclusion
that he is ineligible for asylum is not supported
by substantial evidence.
The BIA found inadequate Petrovic’s showing that
he had a well-founded fear of persecution based
on his Serbian ethnicity, religion, or any other
protected ground of the Immigration and
Nationality Act. While Petrovic asserted that he
fears conditions of violence in Croatia, the BIA
concluded that he had not provided sufficient
evidence that he would be singled out for
persecution. It considered Petrovic’s evidence
concerning the general conditions in Croatia as
well as the specific evidence pertaining to his
status as a former member of the military and the
alleged acts of persecution against his family
members. However, it concluded that this evidence
of general conditions in Croatia and the
circumstantial proof of discrimination based on
his family’s troubles were insufficient to
establish the type of particularized past
persecution or well-founded fear of persecution
that the law has been interpreted to require.
It is well settled that general, oppressive
conditions that affect the entire population of
a country do not provide a basis for asylum. See
Bradvica v. INS, 128 F.3d 1009, 1013 (7th Cir.
1997); Chavez v. INS, 723 F.2d 1431, 1434 (9th
Cir. 1984); Sanchez v. INS, 707 F.2d 1523, 1527
(D.C. Cir. 1983). In similar contexts, this
principle has been interpreted to mean that fear
of general conditions of ethnic persecution
common to all members of an ethnic minority does
not constitute the well-founded fear required by
statute. Cf. Bevc v. INS, 47 F.3d 907 (7th Cir.
1995) (affirming in part the BIA’s denial of
asylum and holding that Serbia’s campaign of
ethnic cleansing against non-Serbians did not
demonstrate that petitioner, a non-Serbian, would
be singled out for persecution); Zulbeari v. INS,
963 F.2d 999 (7th Cir. 1992) (affirming the BIA’s
denial of asylum of an ethnic Albanian citizen of
Yugoslavia despite evidence of ethnic
discrimination coupled with police interrogation
of the petitioner and his family); Balazoski v.
INS, 932 F.2d 638 (7th Cir. 1991) (affirming the
BIA’s denial of asylum of an ethnic Albanian
citizen of Yugoslavia despite his native
government’s interrogation, detention, and search
of his family). The evidence that Petrovic points
to evinces a fear of conditions faced by all
ethnic Serbians in Croatia. As to the
particularized showing necessary under the law,
however, it is not so persuasive that any
reasonable factfinder would be compelled to find
the requisite fear of persecution. Elias-
Zacarias, 502 U.S. 478, 481 (1992). Therefore, we
cannot reverse the BIA’s determination on these
grounds.
Petrovic next argues that the BIA improperly
considered evidence of improved conditions in
Croatia when it issued its decision in 1999, six
years after the original hearing in the case.
Petrovic acknowledges that the Board is empowered
to consider uncontroverted evidence of changed
conditions in a country, but he alleges that the
Board misinterpreted the evidence in this case.
Specifically, he argues that the BIA read
reports, including those produced by the U.S.
State Department, to suggest that conditions in
Croatia were normalizing but missed crucial
episodes in recent history that bolster his
asylum claim, such as the 1995 Croatian military
offensive that displaced large ethnic Serbian
populations. We find this argument unpersuasive.
The BIA may take administrative notice of
changed country conditions provided that it
engages in an individualized review of the
applicant’s case. Rhoa-Zamora v. INS, 971 F.2d
26, 33-34 (7th Cir. 1992); Kaczmarczyk v. INS,
933 F.2d 588, 594-95 (7th Cir. 1991). Although
Petrovic may disagree with the particular changed
circumstances that the BIA chose to focus on, the
BIA’s opinion clearly indicates that it gave such
an individualized review. The BIA is not required
to independently specify its reasons for
rejecting every piece of evidence that it is
offered. See Villanueva-Franco v. INS, 802 F.2d
327, 330 (9th Cir. 1986). Moreover, the evidence
that Petrovic points to as overlooked by the BIA
at best goes to the issue of general conditions
in Croatia. It does not support, with specific
facts, the claim that he has been or will be
singled out for persecution. Because the BIA
conducted an individualized review of Petrovic’s
case, and because our own review of the BIA’s
evidentiary findings is highly deferential, we
find no reason to reverse its decision here.
Conclusion
For these reasons, we AFFIRM the decision of the
BIA.
AFFIRMED
ROVNER, Circuit Judge, dissenting. We owe the
Board considerable deference, but when the Board
has misapprehended or mischaracterized material
evidence, then it is our responsibility to set
the record straight and return the case to the
Board for further consideration. See, e.g., Kuhai
v. I.N.S., No. 99-1488, 1999 WL 1128795, at *5
(7th Cir. Dec. 9); see generally Universal Camera
Corp. v. N.L.R.B., 340 U.S. 474, 490, 71 S. Ct.
456, 466 (1951).
Petrovic sought to demonstrate a well-founded
fear of persecution in part by showing that his
father and sister have been subject to
ethnically- and religiously-motivated abuse.
Evidence that one’s family members have been
mistreated is widely accepted as proof that the
petitioner himself would likely face persecution
in the event he is returned to his home country.
See, e.g., Ananeh-Firempong v. I.N.S., 766 F.2d
621, 627 (1st Cir. 1985) (Breyer, J.) (collecting
cases). Petrovic testified that his father and
sister both had been harassed by their Croatian
co-workers in the course of their employment with
the postal service and that they ultimately were
discharged--in part because of their religion and
in part because they are Serbian. R. 75; see also
R. 125. He also recounted an incident in which
his father was beaten by a group of Croatian boys
while riding a public bus. According to Petrovic,
the boys singled his father out "[o]nly because
he was Serbian, [and] because of his religion."
R. 76; see also R. 125. When his father reported
the incident to the police, they laughed him off
and refused to file a report--again, "[o]nly
because he was not Croatian." R. 77; see also R.
125. The Board dismissed this evidence with a
single sentence: "The firings of the father and
sister from their postal worker jobs may be
attributable to an employment-related dispute,
and the beating of the father may be attributable
to random violence or criminal activity by
juveniles." R. 4 (emphasis mine). Not one iota of
evidence in the record supports the Board’s
reasoning. On the contrary, Petrovic testified
unequivocally and without contradiction that his
father and sister were fired because of their
religion and nationality, and that his father was
attacked (and the authorities refused to
investigate) for the same reasons. His testimony
in this respect was not challenged on cross-
examination. Moreover, the Immigration Judge
found his testimony credible overall. R. 45. The
Board’s suggestion that there might be other
explanations for the treatment of Petrovic’s
father and sister other than the reasons he cited
thus amounts to nothing more than unfounded
speculation. Cf. Sayaxing v. I.N.S., 179 F.3d
515, 522 (7th Cir. 1999).
Petrovic’s account of what happened to his
family members did not necessarily compel the
Board to find him eligible for asylum or
withholding of deportation. However, we cannot be
confident that the Board has appropriately
exercised its discretion when it has, without
justification, dismissed evidence that has a
significant bearing on the likelihood that the
petitioner will face persecution if returned to
his homeland. Because this aspect of the Board’s
analysis lacks the support of substantial
evidence, I would remand the case to the Board
for a fresh look at the record. See Kuhai, 1999
WL 1128795, at *5.