Begzatowski v. I.N.S., No. 01-2225.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Ripple
• Citation: 278 F.3d 665
• Decision Date: 11 January 2002
• Docket Number: No. 01-2225.
• Parties: Bajram BEGZATOWSKI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

278 F.3d 665 Bajram BEGZATOWSKI, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 01-2225. United States Court of Appeals, Seventh Circuit. Argued November 29, 2001. Decided January 11, 2002.

Page 666

Stephen D. Berman (argued), Chicago, IL, for Barjam Begzatowski.

Page 667

Jennifer Giambastiani, INS, Chicago, IL, Alison M. Igoe, Paul Fiorino (argued), Dept. of Justice, Civ. Div., Immigration Litigation, Washington, DC, for INS.

Paul Fiorino, (argued), John D. Ashcroft, Dept. of Justice, Civ. Div., Immigration Litigation, Washington, DC, for John D. Ashcroft.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Petitioner Bajram Begzatowski seeks review of an adverse decision of the Board of Immigration Appeals (the "BIA" or "Board") denying his requests for asylum and withholding of deportation.¹ For the reasons set forth in the following opinion, we grant the petition for review, reverse the judgment of the BIA and remand for further consideration.

I BACKGROUND

A. Facts

Mr. Begzatowski is an ethnic Albanian from Kicevo, in the Former Yugoslav Republic of Macedonia ("Macedonia"). He attended school in Kicevo until the eighth grade. At that time, all of the Albanian schools were closed. Mr. Begzatowski then moved to Switzerland and lived with an uncle. He returned to Yugoslavia in November 1990, and shortly thereafter was inducted into the Yugoslavian army.

Mr. Begzatowski painted a grim picture of his military experiences. Albanians were segregated from other soldiers; their barracks were small and overcrowded. They were not given regular access to bathing facilities and went without showers for over a month. During basic training, Albanian soldiers had to rise earlier than the Serbians in their unit, they were not issued bullets nor were they given training on a firing range.

According to Mr. Begzatowski's testimony, Albanian soldiers suffered from more than just inadequate facilities and training. Serbian officers would wake the Albanian soldiers in the middle of the night and threaten them with harm if they did not follow orders. These were not idle threats; the officers physically assaulted the Albanian soldiers, but left the Serbian soldiers alone. The Yugoslavian army did not issue bullets to the Albanian soldiers for use in battle; Serbian soldiers, however, were provided with ammunition. Albanians also were deprived of shovels to use to dig themselves in and get out of harm's way. Finally, the Albanians were forced to precede the Serbian soldiers into battle. To ensure that Albanian soldiers cooperated, Serbian soldiers followed at a distance of two to three meters with their guns drawn.

After enduring this treatment for several months, Mr. Begzatowski deserted,² went into hiding and later fled the country. Mr. Begzatowski eventually entered the United States by way of Mexico. Shortly after he arrived, he filed an administrative application for asylum.

B. Administrative Proceedings

1.

On March 10, 1994, an Order to Show Cause was issued and charged Mr. Begzatowski

Page 668

with deportability. At his deportation hearing, Mr. Begzatowski conceded deportability, but requested that the Immigration Judge ("IJ") grant him asylum or withholding of deportation. After a hearing, the IJ found Mr. Begzatowski's testimony credible in almost all respects.³ He also noted that the discrimination described by Mr. Begzatowski had been documented by reputable organizations. However, the IJ determined that the degree of "discrimination" Mr. Begzatowski endured did "not rise to the level necessary to be considered persecution." R.48.

2.

More than five years after the IJ issued his decision, a split panel of the BIA affirmed. The majority found Mr. Begzatowski's testimony "credible in its entirety." R.3. It specifically noted that Mr. Begzatowski "routinely suffered physical mistreatment and was put in harm's way on account of his ethnic and religious background." Id. However, relying on this court's decision in Meghani v. INS, 236 F.3d 843 (7th Cir.2001), the BIA stated that "`unpleasant and even dangerous conditions do not necessarily rise to the level of persecution.'" R.3 (quoting Meghani, 236 F.3d at 847 (internal quotation marks and citations omitted)). Therefore, like the IJ, it determined that "without more, we cannot conclude that the treatment suffered by the respondent rises to the level of persecution." R.3.⁴

The dissenting member of the BIA stated that he believed that Mr. Begzatowski's testimony established past persecution on the basis of his ethnic background. He further stated that there was not sufficient evidence in the record to determine if the presumptive fear of future persecution had been rebutted. For that reason, he stated, he would remand the matter to the IJ for additional findings.

Mr. Begzatowski timely appealed the adverse decision of the BIA.

II ANALYSIS

A. Standard of Review

We review the BIA's asylum determination under the substantial evidence test. See Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir.2000). We shall disturb the BIA's findings "only if the record lacks substantial evidence to support its factual conclusions." Malek v. INS, 198 F.3d 1016, 1021 (7th Cir.2000). However, we review the BIA's legal analysis de novo. See Marquez v. INS, 105 F.3d 374, 378 (7th Cir.1997).

Page 669

B. Past Persecution

Mr. Begzatowski contests the BIA's finding that his experiences in the former Yugoslavia, and specifically in the Yugoslavian army, did not rise to the level of persecution. Specifically, he points to the fact that he was sent into battle without bullets and suffered other abuses while in military service. We evaluate Mr. Begzatowski's claim below.

To prove that he is a "refugee" within the meaning of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(42), and therefore entitled to asylum, Mr. Begzatowski "must come forward with evidence either of a well-founded fear of future persecution or of past persecution. If an alien establishes past persecution, there is a rebuttable presumption that he also has a well-founded fear of future persecution and therefor should be granted asylum." Ambati v. Reno, 233 F.3d 1054, 1059-60 (7th Cir. 2000). "Although there is no statutory definition of persecution, we have described it as punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate." Roman v. INS, 233 F.3d 1027, 1034 (7th Cir.2000) (internal quotation marks and citations omitted). "Persecution encompasses more than threats to life or freedom; non-life threatening violence and physical abuse also fall within this category." Tamas-Mercea v. Reno, 222 F.3d 417, 424 (7th Cir.2000). However, to sustain an asylum application, the conduct "must rise above mere harassment." Roman, 233 F.3d at 1034. Types of actions that might cross the line from harassment to persecution include: "detention, arrest, interrogation, prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings, or torture." Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995).

As stated above, in assessing an asylum application, we owe deference to the factual findings of the BIA. In the present action, the BIA credited Mr. Begzatowski's testimony concerning the harms that he suffered in the Yugoslavian military.⁵ Specifically, the BIA...