Brucaj, Viollca v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3645
VIOLLCA BRUCAJ,
Petitioner-Appellant,
v.
JOHN D. ASHCROFT,
Respondent-Appellee.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A77-645-001
____________
ARGUED JUNE 7, 2004—DECIDED AUGUST 20, 2004
____________
Before POSNER, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Petitioner Viollca Brucaj seeks review
of an adverse decision of the Board of Immigration Appeals
(the “BIA” or “Board”) that denied her request for asylum. For
the reasons set forth in the following opinion, we grant the
petition, reverse the decision of the BIA and remand for
further proceedings consistent with this opinion.
I
BACKGROUND
A. Facts
Ms. Brucaj is an ethnic Albanian, a native of Kosovo and
a citizen of the Federal Republic of Yugoslavia (Serbia-
2 No. 03-3645
1
Montenegro). She was born in Kline, Kosovo, where she lived
until April 1999. Ms. Brucaj resided with her parents and
two older brothers.
On April 9, 1999, Serbian soldiers under the general lead-
ership of Slobodan Milosevic came to Ms. Brucaj’s village
and killed a number of people, including her cousins. Ms.
Brucaj watched the onslaught from a window in her home;
however, she and her family could not leave because
Serbian soldiers had surrounded her village.
The next day, Serbian solders arrived at Ms. Brucaj’s
home. The soldiers accused Ms. Brucaj’s father of storing
illegal weapons. They handcuffed Ms. Brucaj’s mother and
father. Then, with her parents present, the soldiers brutally
gang-raped Ms. Brucaj and beat her with their fists and the
butts of their weapons. Ms. Brucaj’s father also was beaten in
the same manner.
The soldiers demanded to know where Ms. Brucaj’s brother,
Pjerin, was living. Ms. Brucaj told them that Pjerin lived in
Detroit, Michigan. The soldiers stated that they wanted
Pjerin back in Kosovo so they could kill him. Ms. Brucaj
testified that she believed the soldiers had targeted her
family because her father was a member of the Democratic
2
Party of Kosovo.
At some point during this ordeal, Ms. Brucaj lost con-
sciousness. When she regained consciousness, she found
that the soldiers had left her on a roadside in Albania. The
Noklaj family found her and took her to their home in
Albania where she stayed for several months. While she was
1
Kosovo is a province in Serbia, which is part of the Federal
Republic of Yugoslavia (Serbia-Montenegro).
2
Ms. Brucaj was twenty-one at the time of these events.
No. 03-3645 3
there, she made contact with her brother Pjerin. Over time,
Pjerin sent her money, and Ms. Brucaj eventually was able to
buy a United States passport for $5,000. In October of 1999,
Ms. Brucaj fled to the United States. Upon her arrival at
Chicago’s O’Hare Airport, Ms. Brucaj was detained by
immigration officials.
Ms. Brucaj has not heard from her parents since the ordeal
in April of 1999. She stated that her brother, Ardjian, joined
the Kosovo Liberation Army in early 1999 and that he was
taken by a group of soldiers warring against Albanians; Ms.
Brucaj does not know if he is alive. Pjerin, who still resides
in Detroit, testified that he has attempted to find their
parents through the Red Cross and the internet but has been
unable to locate them. Pjerin also stated that he had spoken
by cell phone with their other brother, Ardjian, approximately
one year prior to Ms. Brucaj’s asylum hearing; however,
Pjerin had not heard from Ardjian since that time.
B. Administrative Proceedings
Shortly after her arrival in the United States, the Immigration
and Naturalization Service instituted removal proceedings
against Ms. Brucaj. At her initial hearing, Ms. Brucaj con-
ceded that she was an alien who had sought to procure en-
try to the United States by fraud or willful misrepresentation
of fact, and she sought asylum, withholding of removal and
relief under the Convention Against Torture (“CAT”).
Both Ms. Brucaj and Pjerin testified at her asylum hearing
to the events set forth above. Additionally, the Government
submitted the 2000 State Department Country Report on
Human Rights Practices in Yugoslavia. This report noted
that “[v]irtually no town or settlement escaped the effects of
the Milosevic regime’s campaign of ethnic cleansing in 1999,
4 No. 03-3645
with reports of dozens, sometimes hundreds, of civilians
murdered in each town.” A.R. 230. It also explained that,
beginning in June of 1999, after the NATO campaign that
forced the withdrawal of Yugoslav and Serbian forces, the
United Nations Interim Administrative Mission in Kosovo
(“UNMIK”) began to establish civil authority over Kosovo.
See A.R. 226. Kosovo has been governed separately from
Serbia-Montenegro since that time. The report noted that
“UNMIK generally adhered to international human rights
standards in its administration of the province; however,
serious problems remained, largely as a result of inter-
ethnic tensions.” A.R. 228. The report also recounted that, in
October of 1999, elections in Kosovo were conducted and
were considered a general success, although Serbs did not
participate. See A.R. 227. Furthermore, the report stated that
over “150,000 Kosovar Albanians returned to the province
during the year; only a few ethnic Serbs and other minori-
ties returned.” A.R. 228. According to the report, it appears
that much of the violence in Kosovo is now directed at
Serbs. See A.R. 228.
On the merits, the IJ denied Ms. Brucaj’s asylum claim.
The IJ never made an explicit credibility determination;
however, the IJ appeared to believe Ms. Brucaj’s testimony
regarding the events of April 1999 because the IJ found that
these events established past persecution. See A.R. 37. “[H]ow-
ever,” he concluded, “the presumption of a well-founded
fear of future persecution [wa]s rebutted by changed coun-
try conditions.” Id. The IJ explained:
The respondent and her family suffered harm from the
platforms set forth by former leader, Milosevic. Milosevic
has been removed from power [and] is currently being
prosecuted for the war crimes he committed and sup-
ported during his tenure. The Federal Republic of
No. 03-3645 5
Yugoslavia has been recognized by the international
community and has a new president. See 2000 Country
Report at page 2.
Id. The IJ then noted: “The respondent has failed to establish
her eligibility for asylum; accordingly, she also fails to meet
the more stringent standard of clear probability of pers-
ecution required for relief in the form of withholding of re-
moval.” Id. at 37-38. Although Ms. Brucaj had argued that
she should be granted asylum on humanitarian grounds as
well, the IJ did not discuss this basis for relief in his opin-
3
ion.
Ms. Brucaj appealed the IJ’s decision to the BIA. On
September 9, 2003, a single member of the Board issued a
per curiam order that affirmed the IJ’s decision. The BIA first
noted that, although Ms. Brucaj had suffered past pers-
ecution, it agreed with the IJ that the changed country con-
ditions rebutted the presumption of future persecution.
Unlike the IJ, the BIA also considered Ms. Brucaj’s claim
that she was entitled to humanitarian asylum based on the
past persecution alone. See 8 C.F.R. § 1208.13(b)(1)(iii)(A).
The BIA reasoned that “[a]lthough the respondent suffered
harm amounting to persecution, she has failed to present
3
The IJ also considered and rejected Ms. Brucaj’s claim for relief
based on the CAT. The IJ apparently found that it was not more
likely than not that Ms. Brucaj would be tortured if she were
removed. Again, the IJ relied on the fact that a different regime is
now in power. He also noted that “[t]here have been recent
outbreaks of some violence” under the new regime, “but it was
not through government action or acquiescence.” A.R. 39; see also
8 C.F.R. § 208.18(a)(1) (explaining that the torture must be “by or
at the instigation of or with the consent or acquiescence of a
public official or other person acting in an official capacity”).
6 No. 03-3645
any evidence to support her assertion that she would suffer
severe psychological harm if she were to return to Yugosla-
4
via.” A.R. 2.
II
ANALYSIS
A. Standard of Review
In cases such as this, where “the board’s opinion merely
supplements the immigration judge’s opinion, the latter
opinion as supplemented by the board’s opinion becomes
the basis for review.” Niam v. Ashcroft, 354 F.3d 652, 655-56
(7th Cir. 2004). We review the asylum determination under
the substantial evidence test: The decision may be over-
turned only if the record compels a contrary result. Georgis
v. Ashcroft, 328 F.3d 962, 967-68 (7th Cir. 2003).
B. Asylum Based upon Past Persecution
In order to be eligible for asylum, Ms. Brucaj must
establish that she is a refugee within the meaning of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(42).
One means of meeting this burden is to come forward with
evidence of past persecution. See, e.g., Begzatowski v. INS, 278
F.3d 665, 669 (7th Cir. 2002). If Ms. Brucaj establishes past
4
The Board also held that Ms. Brucaj had failed to establish
eligibility for asylum as a member of a particular social group:
“Moreover, we find that respondent failed to put forth evidence
that she would face a reasonable possibility or a clear probability
of being kidnapped and trafficked for prostitution as a member
of a particular social group if she were now to return to her
country.” A.R. 2.
No. 03-3645 7
persecution, she is entitled to a rebuttable presumption that
she has a well-founded fear of future persecution and
therefore should be granted asylum. See Ambati v. Reno, 233
F.3d 1054, 1069-70 (7th Cir. 2000). The Government may rebut
this presumption if it establishes, by a preponderance of the
evidence, that “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-
founded fear of persecution in the applicant’s country of
nationality . . . .” 8 C.F.R. § 1208.13(b)(1)(i)(A).
In this case, both the IJ and the BIA found that Ms. Brucaj
suffered past persecution, and she is therefore entitled to the
presumption that she will suffer future persecution. However,
the IJ also found that the Government had rebutted the
presumption by establishing that there had been a “fun-
damental change” in regime. The IJ reasoned that Ms. Brucaj’s
past persecution was part of the ethnic cleansing of
Albanians in Kosovo orchestrated by the regime of Milosevic.
Furthermore, because Milosevic had been removed from
office and a new government had been installed, Ms. Brucaj
was not likely to suffer future persecution as a result of her
Albanian ethnicity.
We believe that the IJ’s conclusion is supported by sub-
stantial evidence. The 2000 Country Report discusses the
dismantling of Milosevic’s regime in Yugoslavia and, as set
forth above, the establishment of a new government in the
Kosovo province. The report indicates there is still inter-
ethnic violence; however, much of that violence now is di-
rected at the Serbs. Regarding Kosovo, the report specifically
states that “[a]lthough there was credible evidence of Yugoslav
agents and special forces teams in Kosovo, there were no
8 No. 03-3645
confirmed reports of killings by Yugoslav or official Serbian
5
forces inside the province.” A.R. 230.
Ms. Brucaj does not argue that the evidence of record fails
to support the IJ’s and the BIA’s decision. Instead, she sug-
gests that the BIA, in adjudicating her appeal, should have
considered changes that have occurred in the region since
the Country Report was issued and since the time of the IJ’s
decision. See Reply Br. at 4. Ms. Brucaj identifies two
intervening events that, she believes, should have been
considered by the BIA:
First, in June 2003, hard-line Serb nationalists, who sup-
port Milosevic, regained control in the former Yugosla-
via, Brucaj’s country of feared persecution. See BBC
News, Timeline: After Milosevic A Chronology of Key
Events, December 29, 2003. Second, an issue which partly
underpins the IJ’s decision denying Ms. Brucaj asylum,
in March 2003, Serbian Prime Minister Zoran Djindjic
was assassinated.
Petitioner’s Br. at 14-15.
The Government suggests that the BIA was justified in is-
suing its opinion without reference to the events raised by
Ms. Brucaj because these events have not precipitated a
change in the treatment of Albanians in Kosovo, nor is such
a change likely. The Government notes that since the middle
of 1999, Kosovo has been under the civil authority of the
5
The only actions set forth in the report that bear any resem-
blance to the actions that took place under Milosevic are some
continued efforts by Kosovar Serbs to expel Albanians from the
northern section of the city of Mitrovica; there were no similar
efforts reported with respect to any other areas including Ms.
Brucaj’s hometown of Kline. See A.R. 230.
No. 03-3645 9
UNMIK, under United Nations Security Counsel Resolution
1244, and thus has remained apart from the government of
Serbia-Montenegro generally and Serbia specifically. See
A.R. 226 (2000 Country Report); Department of State
Country Report on Human Rights Practices for Serbia and
Montenegro (2003). “Thus,” the Government states, “Kosovo
remains under the same administration as it did in 2002,
when the [IJ] decided this case.” Respondent’s Br. at 30.
In the typical asylum case, the burden is on the asylum
applicant to submit evidence of changed country conditions to
the BIA by way of a motion to reopen. See Meghani v. INS,
236 F.3d 843, 848 (7th Cir. 2001). We generally have not re-
quired the BIA “to sua sponte take administrative notice of
the most recent country report” in rendering its decision. Id.We do not believe that Ms. Brucaj has presented to us the
type of evidence that suggests some other course of action
is appropriate here. The only authority Ms. Brucaj cites in
her brief to this court—“BBC News, Timeline: After Milosevic A
Chronology of Key Events, December 29, 2003”—does not
clearly support her assertion that “in June 2003, hard-line Serb
nationalists, who support Milosevic, regained control in the
former Yugoslavia.” Perhaps more importantly, this
“Timeline” does not suggest that either the regaining of
control by “hard-line Serb nationalists” or the assassination
of Prime Minister Djindjic has caused a wave of violence
against ethnic Albanians in Yugoslavia generally, in Serbia
(where Kosovo is located) or in Kosovo itself. Finally, Ms.
Brucaj does not explain how these events might impact
Kosovo at all—an area still governed by UNMIK, under the
auspices of the United Nations. Because the authority cited
by Ms. Brucaj does not undermine, in any way, the determi-
nation of the IJ and the BIA that country conditions have
improved such that Ms. Brucaj is unlikely to suffer future
10 No. 03-3645
persecution in Kosovo, we shall not disturb that portion of
the IJ’s or BIA’s decision.
C. Humanitarian Asylum
Even if the Government rebuts the presumption of future
persecution with evidence of a change in regime, the
Attorney General has the authority to grant asylum “as a
matter of discretion for humanitarian reasons if the alien has
suffered an ‘atrocious form[] of persecution’ . . . .” Asani v.
INS, 154 F.3d 719, 722 (7th Cir. 1998) (quoting Matter of
Chen, 20 I. & N. Dec. 16, 18 (BIA 1989)). Humanitarian
asylum has its roots in Matter of Chen, 20 I. & N. Dec. 16. In
Chen, the BIA determined that, even if the presumption of
future persecution arising from past persecution has been
rebutted, an alien may have suffered such severe or atro-
cious forms of persecution at the hands of the former regime
such that it would be inhumane to require the alien to re-
turn to his home country. The BIA explained:
[T]here may be cases where the favorable exercise of dis-
cretion is warranted for humanitarian reasons even if
there is little likelihood of future persecution. That vic-
tims of past persecution should in some cases be treated as
refugees or asylees even when the likelihood of future
persecution may not be great has been recognized by
the Office of the United Nations High Commissioner for
Refugees, in The Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
and the 1967 Protocol Relating to the Status of Refugees
(Geneva, 1988). There, referring to a “general humani-
tarian principle,” it is written:
It is frequently recognized that a person who—or whose
family—has suffered under atrocious forms of pers-
No. 03-3645 11
ecution should not be expected to repatriate. Even
though there may have been a change of regime in his
country, this may not always produce a complete
change in the attitude of the population, nor, in view
of his past experiences, in the mind of the refugee.
Id. at § 136.
Matter of Chen, 20 I. & N. Dec. at 19.
This category of asylum is now codified at 8 C.F.R.
§ 1208.13(b)(1)(iii), which provides that an applicant still
may gain asylum if she “has demonstrated compelling
reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution.” 8 C.F.R.
§ 1208.13(b)(1)(iii)(A). We have explained that, “[t]o establish
such eligibility, an alien must show past persecution so severe
that repatriation would be inhumane.” Asani, 154 F.3d at
724. The BIA has interpreted this form of relief to require an
applicant first to show “severe harm” and “long-lasting
effects.” Matter of N-M-A, 22 I. & N. Dec. 312, 326 (BIA 1998).
If this burden is met, then the IJ or BIA is to consider “a
variety of discretionary factors, independent of the circum-
stances that led to the applicant’s refugee status, such as his
age, health, or family ties, which are relevant to the ultimate
exercise of discretion.” Id. at 325 n.7.
Ms. Brucaj “does not challenge the Board’s authority to deny
her asylum in the exercise of [its] discretion, even for human-
itarian reasons.” Petitioner’s Br. at 16. Rather, she argues
that the BIA’s stated justification for denying her humani-
tarian asylum was insufficient. Ms. Brucaj claims that the
Board’s statement “fell terribly short of the rational explana-
tion to which a litigant is entitled” and that the BIA failed to
explain “why . . . [her] specific circumstances were not
compelling enough for a grant of asylum for humanitarian
reasons.” Id. at 19. The burden is on Ms. Brucaj “to convince
12 No. 03-3645
us that the BIA gave short shrift to the evidence [she] pre-
sented.” Kaczmarczyk v. INS, 933 F.2d 588, 595 (7th Cir.
1991).
The Government explains the BIA decision as holding
that, “although Ms. Brucaj had testified that she still had
memories of her persecution, she presented no objective evi-
dence regarding the psychological harm that she claimed
she would face if she were returned to Yugoslavia.”
Respondent’s Br. at 32. The Board, therefore, “reasonably
found that Ms. Brucaj did not make the required threshold
showing” of lasting psychological harm. Accordingly, the
BIA did not have to “reach the question of whether other
humanitarian factors, such as family ties, would warrant the
general exercise of discretion to grant asylum if the thresh-
old showing had been made.” Id. at 32-33.
There is no question that the BIA addressed Ms. Brucaj’s
claim to asylum on humanitarian grounds in cursory fashion;
it stated: “[A]lthough the respondent suffered harm amount-
ing to persecution, she has failed to present any evidence to
support her assertion that she would suffer severe psychologi-
cal harm if she were to return to Yugoslavia.” A.R. 2. Indeed,
not only is the BIA’s one-line decision overly succinct, but it
also does little more than paraphrase the language of the
applicable regulation. Furthermore, the Board’s statement is
not rendered more clear or complete by reference to, or
6
incorporation of, thorough analysis by an IJ. Cf. Man v. INS,
69 F.3d 835, 838 (7th Cir. 1995) (finding a brief decision of
the BIA did not evidence lack of consideration of peti-
tioner’s situation when BIA decision incorporated findings
of IJ).
6
As noted above, the IJ did not even consider the possibility of
humanitarian relief.
No. 03-3645 13
This court has made clear that the BIA must “consider the
issue of humanitarian aid raised and announce its decision
in terms sufficient to enable a reviewing court to perceive
that it has heard and thought, not merely reacted.”
Vergara-Molina v. INS, 956 F.2d 682, 685 (7th Cir. 1992).
Under the circumstances, we must conclude that the BIA’s
decision did not address the issues with the requisite degree
of clarity necessary to conduct our review.
The BIA’s statement rejecting Ms. Brucaj’s humanitarian
asylum claim is susceptible to several interpretations. For
example, the Government suggests that the BIA rejected Ms.
Brucaj’s humanitarian asylum claim because she failed to
produce some type of objective medical or psychological
evidence to substantiate the lingering effects of the brutality
she experienced in April 1999. See Respondent’s Br. at 32
(explaining that the BIA’s opinion relies on the fact she
“presented no objective evidence regarding the psychological
harm that she claimed she would face if she were returned
to Yugoslavia” (emphasis added)). At oral argument, counsel
for the Government suggested that the “objective evidence”
requirement is grounded in BIA case law, specifically Matter
of N-M-A, 22 I. & N. 312. Although Matter of N-M-A consid-
ered many aspects of humanitarian asylum, including the
order of proof and the factors that contribute to a humani-
tarian asylum decision, it did not set forth specific types of
evidence necessary to substantiate a humanitarian asylum
claim. See id. at 324-26. Additionally, there is nothing in the
regulations to suggest that only certain types of evidence
can be used to demonstrate an asylum applicant’s “compel-
ling reasons for being unwilling or unable” to return to her
country of origin. 8 C.F.R. § 1208.13(b)(1)(iii)(A). To the
contrary, § 1208.13(a) strongly suggests that “objective” or
expert evidence is not necessary. With respect to the initial
burden of establishing asylum eligibility, the regulation
14 No. 03-3645
states, in relevant part: “The burden of proof is on the
applicant for asylum to establish that he is a refugee . . . . The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8 C.F.R.
§ 1208.13(a). In short, there does not appear to be any basis
in the BIA’s own precedent or in the regulations for requir-
ing “objective” or “expert” testimony to establish a humani-
tarian asylum claim.
Alternatively, the BIA simply may have meant that the bru-
tal rape, beating and abandonment experienced by Ms. Brucaj
was not “atrocious” enough to warrant a grant of humani-
tarian asylum. If this view is the basis for the Board’s denial
of relief to Ms. Brucaj, further explanation by the BIA regard-
ing how Ms. Brucaj’s experiences differ materially from other
cases in which humanitarian relief has been granted is nec-
essary. This is especially true given that the “severe and
long-lasting” effects of rape are well-documented and are
similar to those experienced by torture victims. See Lopez-
Galarza v. INS, 99 F.3d 954, 962-64 (9th Cir. 1996) (discussing
effects of rape based on psychological studies).
There is at least one other possible interpretation of the
Board’s statement rejecting Ms. Brucaj’s claim. The BIA may
have meant that it simply was not convinced that, based on
Ms. Brucaj’s testimony, she would suffer psychological harm
if she was returned to Yugoslavia. We certainly hesitate to
attribute such a crabbed appreciation of the brutality suffered
by Ms. Brucaj to the Board. In her testimony, Ms. Brucaj
spoke indirectly to this issue. She stated: “I always think about
[those events]. I never forget about what happened to me.
Even if I go to paradise, I will always think about them.”
A.R. 113. She also stated that she feels her “life is safer here
with my brother.” Id. At a minimum, we hope that the judges
would not make such a crucial judgment based solely on the
inability of the petitioner to articulate any more dramatically
No. 03-3645 15
such a personal and traumatic injury. Again, therefore, if
this is the basis for the BIA’s decision, some elaboration as
to why Ms. Brucaj’s testimony fell short of her burden would
be helpful in conducting our review. We are concerned
particularly about the absence of any thoughtful consider-
ation of the impact of her return to the country of her pers-
ecution without the support of family members, loved ones
whose absence is attributable to the same persecution that
was visited upon her.
In sum, the precise basis for the BIA’s decision cannot be
gleaned from the single-sentence explanation included in
the Board’s order. As set forth above, it may be that the BIA
was exercising its discretion within its statutory and regu-
latory authority when it denied Ms. Brucaj’s claim. It appears,
however, that in considering Ms. Brucaj’s claim, it erected
artificial barriers to relief that are not grounded in statute,
regulation or case law. At a minimum, a more plenary con-
sideration is certainly appropriate. We therefore grant Ms.
Brucaj’s petition and remand the case to the BIA for clarifi-
cation regarding the basis for denying Ms. Brucaj’s humani-
7
tarian asylum claim.
7
Although raised in her administrative proceedings, Ms. Brucaj
did not make any argument in her opening brief regarding her
CAT claim. Thus, she has waived that claim. See Wedderburn v.
INS, 215 F.3d 795, 799 (7th Cir. 2000). Ms. Brucaj also argued in
her administrative proceedings that she had a well-founded fear
of future persecution based on her membership in a particular
social group: young single women in the province of Kosovo
and/or Albania. See A.R. 14-15. However, again, she failed to
make any argument with respect to this claim before this court
and, therefore, has waived that claim. See Wedderburn, 215 F.3d at
799.
16 No. 03-3645
Conclusion
For the foregoing reasons, the petition for review is granted,
the judgment of the BIA is reversed, and this case is remanded
for further proceedings.
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-20-04