Asani v. I.N.S.

• Decision Date: 28 October 1998
• Docket Number: No. 97-3556,97-3556
• Citation: 154 F.3d 719
• Parties: Sefadin ASANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 719

154 F.3d 719

Sefadin ASANI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-3556.

United States Court of Appeals Seventh Circuit.

Argued May 14, 1998.

Decided Sept. 3, 1998.

As Modified Oct. 28, 1998.

Jay R. Hoffman (argued), Chicago, IL; Sefadin Asani, Carpentersville, IL, for Petitioner.

Michele Y.F. Sarko, Department of Justice, Office of Immigration Litigation, Washington, DC; Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL; Kristal A. Marlow, Alice E. Loughran (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, Chief Judge, CUMMINGS and BAUER, Circuit Judges.

CUMMINGS, Circuit Judge.

Sefadin Asani is an ethnic Albanian native of the former Yugoslavia and a citizen of Macedonia. His wife and one son live in Macedonia, and he and his other son live in the United States.

In 1983, Asani participated in a political demonstration in Kosovo which supported Albanian rights and advocated the creation of an independent Albanian state. Asani was arrested at the demonstration. The police detained him in jail for two weeks where he was confined to a cell with only enough room to stand and handcuffed to a radiator on the wall. He was deprived of sufficient food and water, each day receiving only one slice of bread and one glass of water. Due to his confinement, he lost his construction job. After his release from jail, Asani came to the United States.

While in Chicago in 1983, Asani became a member of the Union of Kosovo, an Albanian rights organization, and participated in various demonstrations in support of Albanian rights all around the United States. He testified that he had attempted to apply for asylum here but was unable to do so because his attorney had passed away. In February 1987, Asani was deported from the United States to his hometown in the former Yugoslavia. Upon his return, he received a letter instructing him to come to the police station, where he was questioned about his political activities in the United States. He denied participating in any pro-Albanian demonstrations in the United States and knowing individuals on a list showed to him. After approximately four hours of questioning, the police released him.

A few days later, Asani was picked up by the police off of the street. The police again questioned him about his political activities in the United States. The police proceeded to beat him repeatedly with a police stick and their fists. The beating knocked out two of Asani's teeth and left marks on his cheek. He was released at the end of the day and fled to the United States.

On October 14, 1988, Asani entered the United States, where he has remained since that time. Asani once again joined the Union of Kosovo and participated in pro-Albanian demonstrations. As of 1996, the Macedonian authorities still were searching for him, sending letters and going to his home in Macedonia, and making threats against him and his son in the United States.

On December 5, 1994, the Immigration and Naturalization Service ("INS") began deportation proceedings against Asani. On March 18, 1996, an Immigration Judge ("IJ") denied Asani's application for asylum and withholding of deportation and issued an order that he be deported, affording him the privilege of voluntary departure and, in the alternative entering an order of deportation to the former Yugoslav Republic of Macedonia. On September 12, 1997, the Board of Immigration Appeals ("BIA") affirmed, and Asani petitioned this Court for review of the BIA's decision. ¹

I. Asylum Issue

The first issue involves Asani's application for asylum. Asani applied for asylum under § 208(a) of the Immigration and Nationality Act ("Immigration Act" or "INA"), 8 U.S.C. § 1158(a), and withholding of deportation under § 243(h) of the INA, 8 U.S.C. § 1253(h), alleging past persecution and a fear of future persecution if he were to return to Macedonia. The IJ denied his application for asylum, and the BIA affirmed.

Under § 208(a), an "alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of [8 U.S.C. § 1101(a)(42)(A) ]." 8 U.S.C. § 1158; Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990). The Immigration Act defines "refugee" as

any person who is outside any country of such person's nationality * * * and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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. § 1101(a)(42)(A). If an alien establishes past persecution, he or she is then entitled to a rebuttable presumption in favor of granting asylum. This presumption may be overcome by evidence indicating that the alien no longer is in danger of being persecuted again due to changed conditions in the home country. Bereza, 115 F.3d at 472 (quoting 8 C.F.R. § 208.13(b)(1)(I)); Angoucheva v. INS, 106 F.3d 781, 788 (7th Cir.1997); Skalak v. INS, 944 F.2d 364, 365 (7th Cir.1991). However, in some cases, even if there is little likelihood of future persecution, asylum may be granted as a matter of discretion for humanitarian reasons if the alien has suffered an "atrocious form[ ] of persecution" because "[e]ven 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." Matter of Chen, Int. Dec. 3104, at * 16 (BIA 1989).

A. Past Persecution

The BIA found that Asani had not established that he suffered past persecution as contemplated under § 101(a)(42)(A) of the Immigration Act. Specifically, the BIA commented that "[a]lthough the respondent testified that his teeth had been knocked out as a result of being beaten by the police during his last detainment, we do not find that the harm suffered by the respondent rises to the level of past persecution within the meaning of the Act." In Re Asani, A24 348 626, at 2 (BIA Sept. 12, 1997). With respect to the first arrest, the BIA continued that "although the conditions in the facility were deplorable, the record does not reflect that he suffered any physical or psychological harm." Id. As for his last two detentions, the BIA found that they did not constitute past persecution because they "consisted of only a few hours and [Asani] apparently did not suffer any serious injuries from the beating." Id.

We review the BIA's interpretation of the Immigration Act de novo and its factual determinations under the "substantial evidence" standard. Borca v. INS, 77 F.3d 210, 214 (7th Cir.1996).

The BIA found no past persecution, in part because it applied the wrong standard and in part because it seems that the BIA does not believe that knocking a person's teeth out is harm enough to constitute past persecution. Applying an incorrect standard, the BIA apparently believed that Asani was not subject to past persecution because he had not "suffered any physical or psychological harm" from his mistreatment by the Yugoslavian authorities and because he did not receive "serious injuries" when he was beaten by the police. However, this is not the standard recognized by this Court. While the Immigration Act does not provide a definition for the term "persecution," we have defined it as " 'punishment' or 'the infliction of harm' which is administered on account of * * * race, religion, nationality, group membership, or political opinion * * *." Id. "Although the conduct in question need not necessarily threaten the petitioner's 'life or freedom,' it must rise above the level of mere 'harassment' to constitute persecution." Id. (citing Balazoski v. INS, 932 F.2d 638, 642 (7th Cir.1991) (citations omitted)).

Accordingly, we remand in order for the BIA to apply the correct standard. However, we also are concerned that the BIA did not rationally consider the evidence of the harm Asani actually suffered due to his political activities. Even applying an incorrect and more demanding standard, the BIA found that the loss of two of Asani's teeth as a result of a police beating was not a "serious injur[y]" and that a two-week detainment in a cell with only enough room to stand, handcuffed to a radiator, and deprived of sufficient food and water because of Asani's participation in a pro-Albanian demonstration did not constitute "physical or psychological harm." We call into question the BIA's conclusion that the harm Asani suffered did not cause "serious injuries" or result in "physical or psychological harm." If having two teeth knocked out and being deprived of sufficient food and water are not "serious injuries" or "physical harm," what is?

However, because the BIA applied an incorrect standard, we remand for it to apply the proper one, noting that the appropriate standard--"punishment" or "infliction of harm" "that rise[s] above the level of mere 'harassment' "--is even less demanding than the standard used by the BIA and thus questioning whether the BIA's finding that Asani did not suffer past persecution is supported by substantial evidence. Id. On remand, we are confident that the BIA will consider the evidence fully and fairly under the correct standard.

We also note, as guidance on remand, that the two cases cited by the BIA in support of its conclusion that Asani did not suffer past persecution--Zalega v. INS, 916 F.2d 1257 (7th Cir.1990), and Skalak v. INS, 944 F.2d 364 (7th Cir.1991)--are distinguishable.

In Zalega, we held that actions by Polish authorities were not sufficient to demonstrate past persecution justifying granting of asylum where they arrested and interrogated Mr. Zalega on several occasions. 916 F.2d at 1260. Reasoning that "[f]or these detentions...