Brucaj v. Ashcroft

• Citation: 381 F.3d 602
• Decision Date: 20 August 2004
• Docket Number: No. 03-3645.,03-3645.
• Parties: Viollca BRUCAJ, Petitioner-Appellant, v. John D. ASHCROFT, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

381 F.3d 602

Viollca BRUCAJ, Petitioner-Appellant, v. John D. ASHCROFT, Respondent-Appellee.

No. 03-3645.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 2004.

Decided August 20, 2004.

Petition for review from the Board of Immigration Appeals.

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Larry J. Hagen (argued), Oak Park, IL, for Petitioner.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Elizabeth J. Stevens (argued), Department of Justice, Washington, DC, for Respondent.

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-Montenegro).¹ 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 leadership 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 Party of Kosovo.²

At some point during this ordeal, Ms. Brucaj lost consciousness. 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 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 conceded that she was an alien who had sought to procure entry 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, 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 interethnic 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 minorities 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]owever," he concluded, "the presumption of a well-founded fear of future persecution [wa]s rebutted by changed country 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 supported during his tenure. The Federal Republic of 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 persecution required for relief in the form of withholding of removal." 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 opinion.³

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 persecution, it agreed with the IJ that the changed country conditions 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 any evidence to support her assertion that she would suffer severe psychological harm if she were to return to Yugoslavia." A.R. 2.⁴

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 overturned 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 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 (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 "fundamental 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 substantial 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 interethnic violence; however, much of that violence now is directed at the Serbs. Regarding Kosovo, the report specifically states that "[a]lthough there was credible evidence...