Knezevic v. Ashcroft

• Decision Date: 24 May 2004
• Docket Number: No. 02-72384.,02-72384.
• Citation: 367 F.3d 1206
• Parties: Damjan KNEZEVIC and Danica Knezevic, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

367 F.3d 1206

Damjan KNEZEVIC and Danica Knezevic, Petitioners, v. John ASHCROFT, Attorney General, Respondent.

No. 02-72384.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 4, 2004.

Filed May 24, 2004.

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Douglas D. Nelson (argued) and Alejandro O. Campillo, San Diego, for the petitioners.

Peter D. Keisler, Mary Jane Candaux, Margaret Kuehne Taylor, and Kurt Larson (argued), U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before SILVERMAN, GOULD, and BEA, Circuit Judges.

BEA, Circuit Judge:

Damjan and Danica Knezevic ("the Knezevics"), ethnic Serbs and citizens of Bosnia-Herzegovina, petition this court for review of the Board of Immigration Appeals' ("BIA") summary affirmance of an Immigration Judge's ("IJ") denial of their applications for asylum and withholding of deportation. 8 U.S.C. § 1158 (1996); 8 U.S.C. § 1253(h) (1996). We have jurisdiction under 8 U.S.C. § 1105a(a)(1), as amended by the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009 (September 30, 1996). Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997).¹ Reviewing the record in its entirety, we conclude the IJ's decision that the Knezevics failed to establish past persecution or a well-founded fear of future persecution based on their Serbian ethnicity is not supported by substantial evidence. Accordingly, we GRANT the Knezevics' petition for review. We REMAND the case so that the BIA may determine the reasonableness of requiring the Knezevics to relocate, and for it to reconsider the Knezevics' application for asylum and withholding of deportation.

I FACTS

The Knezevics lawfully entered the United States on visitor visas on July 6, 1996. Shortly after their arrival, and before deportation proceedings were initiated, the Knezevics applied for asylum as "refugees." In their application, they alleged they had suffered past persecution during the civil war in Bosnia-Herzegovina, and claimed a well-founded fear of future persecution if required to return there. The Knezevics alleged they fled their hometown, Drvar, when shelling and bombardment by hostile Croat army forces threatened their lives. The Knezevics claimed that if they were forced to return to Bosnia-Herzegovina, they would fear for their lives because they would be persecuted by the invading Croats on account of their Serbian ethnicity. On January 23, 1997, the INS issued an Order to Show Cause why the Knezevics should not be subject to deportation for overstaying their visitor visas. 8 U.S.C. § 1227(a)(1)(B). At a hearing on November 19, 1997, the IJ found the Knezevics deportable as charged, and denied their joint application for asylum and withholding of deportation.

We accept Mr. Knezevic's unrebutted testimony given at the November 19, 1997 hearing as true because neither the IJ nor the BIA made an adverse credibility finding. Ruano v. Ashcroft, 301 F.3d 1155, 1159 (9th Cir.2002). Mr. Knezevic testified as follows on behalf of himself and his wife:² In 1995, the Croat army began shelling Drvar. The Knezevics feared for their lives because it was widely-known that the Croat forces intended to eliminate all Serbs from the areas they invaded. The Knezevics fled the city on foot, taking only minimal personal effects. Their business and home were destroyed and all their remaining personal property was stolen.

Drvar was under the control of the Croatian and Muslim Federation. If the Knezevics tried to return, they would face persecution and possibly death. They could not return to the Serb-held part of Bosnia-Herzegovina because Muslim forces were planning to attack, and the Serbian army was very weak and could not protect them. They also lacked the resources to relocate to a new part of Bosnia-Herzegovina held by the Serbs. Mr. Knezevic also feared they would not be protected after NATO forces left that part of the country.

To support his testimony Mr. Knezevic also submitted, without objection, a November 8, 1996 United Nations High Commissioner of Refugees Repatriation Information Report (the "UNHCR Report"), which states the following: Before the civil war, 9,000 people lived in the town of Drvar and approximately 17,000 lived in the surrounding municipality. Almost ninety-seven percent of the population was Serbian. Following the Croat invasion in 1995, virtually all of the Serbs fled, and thereafter, Drvar was almost exclusively populated by Croats. Drvar was governed by a non-elected council composed entirely of Croats. Cases of harassment, looting of vacant homes, cattle theft, and physical violence against Serbs were documented, and several empty Serb homes were bombed after requests were made by Serbs to return. Croat forces had established a large military base in Drvar with approximately 2,000 soldiers, who regularly patrolled the streets. Serb attempts to return to Drvar had been unsuccessful, and those who tried were confronted with hostility and violence. One bus carrying Serbs was stoned when they tried to return.

The IJ also admitted into evidence without objection a newspaper article about the build up of the Muslim army near Drvar. The article quoted a senior NATO official as stating, "[t]he question no longer is if the Muslims will attack Bosnian Serbs, but when." NATO Officials: Muslims Secretly Arming to Attack Bosnian Serbs, N.Y. Times, Oct. 3, 1997, at A14.

The IJ also read into evidence from what he called an encyclopedia report. The report contained a short history of the area detailing the longstanding hatred between ethnic and religious groups in Yugoslavia such as the Croats, Serbs and Muslims. Both sides stipulated that the information in this report was correct. The report described the ethnic conflicts and civil war which had erupted in the early 1990s and the ethnic cleansing in which each group engaged in an effort to eradicate the others.

Although the IJ found Mr. Knezevic's testimony credible, he concluded that the Knezevics were not "refugees" because they had not proven individualized persecution. Instead, the IJ found they were "displaced persons," forced from their home by civil war. The IJ also found that the Knezevics failed to establish a well-founded fear of future persecution because their claims of imminent attack by Muslim forces were speculative and vague. On December 8, 1997, the Knezevics filed a Notice of Appeal with the BIA, contending that the IJ erred because, as Serbs, they would face persecution on account of their nationality if returned to Bosnia-Herzegovina.

The definition of refugee found at 8 U.S.C. § 1101(a)(42)(A), uses the term nationality. Claims of persecution based on race and nationality often overlap. See Duarte de Guinac v. INS, 179 F.3d 1156, 1160 n. 5 (9th Cir.1999) (BIA denied Guatemalan Quiche Indian's application for asylum and withholding of deportation based on his ethnicity; court of appeals granted petition and remanded case to BIA, finding that beatings and threats of death constituted persecution). Recent cases use the more precise term of ethnicity, "which falls somewhere between and within the protected grounds of race and nationality." Shoafera v. INS, 228 F.3d 1070, 1074 n. 2 (9th Cir.2000) (internal quotations omitted) (BIA denied asylum application of Ethiopian citizen based on her claim that she was raped on account of her Amharic ethnicity; court of appeals granted the petition and remanded to the BIA finding evidence compelled the conclusion that petitioner was persecuted based on her ethnicity); see also, Baballah v. Ashcroft, 335 F.3d 981, 991 n. 10 (9th Cir.2003), amended on other grounds, 2004 WL 964164 (9th Cir.2004) (BIA denied application for asylum and withholding of removal by Muslim Israeli and his family based on severe harassment, threats, violence and discrimination; court of appeals granted the petition and remanded to the BIA, finding evidence compelled the conclusion that petitioner established persecution based on ethnicity and religion). The Knezevics' claim is based on their Serbian ethnicity.

On June 28, 2002, the BIA, per curiam, summarily affirmed the IJ's decision.³ The Knezevics argue that the IJ erred in denying their application for asylum and withholding of deportation.

II ANALYSIS

A. Standard of Review

We generally review only the BIA's decision, but where, as here, the BIA affirms the IJ's decision without issuing an opinion, we review the IJ's decision as the final agency determination. Falcon Carriche, 350 F.3d at 849. We will uphold the BIA's denial of asylum if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Ruano, 301 F.3d at 1159(internal quotation marks omitted).

B. Asylum and Withholding of Deportation

To be eligible for asylum or withholding of deportation, an applicant must prove that he is a person who is unable or unwilling to return to his country of origin "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." Melkonian v. Ashcroft, 320 F.3d 1061, 1064 (9th Cir.2003); see also 8 U.S.C. § 1101(a)(42). Persecution encompasses the "infliction of suffering or harm upon those who differ in race, religion or political opinion in a way regarded as offensive." Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc).

To establish eligibility for asylum on the basis of past persecution, an applicant must prove an incident that: (1) rises to the level of persecution; (2) is on account of one of the statutorily-protected grounds; and (3) is committed by the government or forces the government is either unable or unwilling to control. Baballah, 335 F.3d at 987. A grant of asylum is discretionary even if the applicant meets the statutory criteria for...