Capric v. Ashcroft, No. 02-3172.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtKanne
Citation355 F.3d 1075
Decision Date23 January 2004
Docket NumberNo. 02-3172.
PartiesSaleh CAPRIC, Camila Capric, Albert Capric, and Elvis Capric, Petitioners, v. John D. ASHCROFT, Attorney General of the United States,<SMALL><SUP>1</SUP></SMALL> Respondent.
355 F.3d 1075
Saleh CAPRIC, Camila Capric, Albert Capric, and Elvis Capric, Petitioners,
v.
John D. ASHCROFT, Attorney General of the United States,1 Respondent.
No. 02-3172.
United States Court of Appeals, Seventh Circuit.
Argued September 25, 2003.
Decided January 23, 2004.

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Mary L. Sfasciotti (Argued), Chicago, IL, for Petitioners.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, John C. Cunningham (Argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondents.

Before CUDAHY, RIPPLE, and KANNE, Circuit Judges.

KANNE, Circuit Judge.


In 1992, Petitioners Saleh Capric, his wife, Camila, and sons, Albert and Elvis, were citizens of Bar, Montenegro, a region in the former Federal Republic of Yugoslavia ("FRY"). Capric's family entered the United States on September 2, 1992, as non-immigrant visitors for pleasure with permission to remain here until March 1, 1993. Capric himself entered this country on September 19, 1992, as a visitor using a passport and visa he later admitted were fraudulent. Capric filed an asylum application in October of 1992, which was eventually denied by the INS on February 15, 1996 ("Application 1"). On that same day, Camila, Albert, and Elvis Capric were placed in deportation proceedings for remaining in the United States beyond their authorized periods of stay. 8 U.S.C. § 1251(a)(1)(C)(1) (Supp. II 1996). In November of 1996, Capric was also placed in deportation proceedings for having procured entry into the United States by fraud or by wilfully misrepresenting a material fact. 8 U.S.C. § 1251(a)(1)(A).

In a hearing on February 25, 1997, before an immigration judge ("IJ"), the Petitioners conceded deportability and Capric renewed his application for asylum, 8 U.S.C. § 1158(a), and withholding of deportation, 8 U.S.C. § 1253(h) (Supp. II 1996). This second asylum application was not actually filed until a hearing on July 18, 1997 ("Application 2"). His wife and sons were included in that application.2 Two hearings were held on Capric's asylum application,3 and on June 11, 1999, the IJ issued a decision denying Capric's application for asylum and withholding of deportability, finding (1) the evidence provided by Capric lacked credibility; and (2) even if this evidence was assumed to be credible, he failed to prove eligibility for asylum. The IJ also granted the discretionary relief of voluntary departure in lieu of deportation. 8 U.S.C. § 1254(e)(1)

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(Supp. II 1996). On July 24, 2002, the Board of Immigration Appeals ("BIA") affirmed the results of the IJ's decision without opinion under its streamlining procedure. 8 C.F.R. § 1003.1(a)(7). This petition for review followed. For the following reasons it is denied.

I. History
A. Background on the Federal Republic of Yugoslavia

From approximately 1989 to 1992, following the death of then Yugoslav communist leader Josip Broz Tito, Serbians, under the leadership of Slobodan Milosevic, asserted direct rule over all of Yugoslavia, including the formerly autonomous provinces of Kosovo and Vojvodina. Consequently, between 1991 and 1992 Slovenia, Croatia, Bosnia and Herzegovenia, and Macedonia all seceded from Yugoslavia. On April 27, 1992, the remaining republics of Serbia and Montenegro formally joined to form the FRY, led by President Milosevic. Milosevic and his party, the Serbian Socialist Party, continued to rule the FRY until September 2000, when he was defeated in a federal election (though he did not concede defeat until October).

Although formally unified with Serbia in 1992, the government and people of Montenegro retained a distinct identity. Specifically, Montenegrins were very critical of Milosevic's brutal police and military campaign against ethnic Albanians, many of whom were separatist insurgents. Milosevic's campaign focused in the southern FRY province of Kosovo, located within Serbia, and lasted from approximately late 1997 until June 1999. International response to this ethnic cleansing campaign included NATO bombings of Serbia and the stationing of NATO, Russian, and other peacekeepers in Kosovo. In June of 1999, Kosovo was formally declared a United Nations protectorate.

In 2000, Vojislav Kostunica was elected President of the FRY in the federal election that removed Milosevic from power. Partisan differences between nationalist President Kostunica and Zoran Djinjic, Prime Minister of Serbia and Democratic Party member, followed the election. Finally, in 2002, Serbian and Montenegrin political leaders began negotiations aiming to forge a more relaxed relationship between the two republics. These talks led to the formal creation of a loose federation called Serbia and Montenegro on February 4, 2003, legally replacing the former Federal Republic of Yugoslavia. As of November 2003, Milosevic is on trial for war crimes, genocide, and ethnic cleansing at the Hague. See United States Department of State, Consular Information Sheet: Serbia and Montenegro (Mar. 20, 2003), available at http://travel. state.gov/serbia_montenegro.html; United States Central Intelligence Agency, The World Factbook: Serbia and Montenegro (Jan. 1, 2003), available at http://www.cia.gov/cia/publications/factbook /geos/yi.html; United States Department of State, Background Note: Federal Republic of Yugoslavia (Aug.2002), available at http://www.state.gov/r/pa/ei/bgn/ 5388.htm.

B. An Overview of the Treatment of Ethnic Albanians in Montenegro

At the time of Capric's asylum hearings in 1998, as a result of Serbian-nationalist control of both the government and a heavily armed police force numbering over 100,000, ethnic Albanians were subject to widespread discrimination throughout Yugoslavia. But their treatment varied significantly from area to area. Specifically, ethnic Albanians were subject to numerous and more serious human rights abuses in Serbia, particularly in the formerly autonomous province of Kosovo. Although human rights abuses existed in Montenegro,

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they did not generally rise to the level found in Kosovo.

The more significant types of mistreatment suffered by ethnic Albanians primarily at the hands of Milosevic-controlled Serbian police included: political killings (in 1996, there was a total of 14 such killings, 13 of which occurred in Kosovo); arbitrary arrest and detention for periods exceeding three days; interrogations and severe beatings while detained; threats and violence against family members, including the holding of family members as hostages; and the arbitrary and illegal searches of homes, vehicles, shops, and offices, typically for weapons, and during which police would confiscate hard currency.

C. Capric's Testimony About His Life in Montenegro

Capric is a forty-three-year-old citizen of the former Federal Republic of Yugoslavia. He was born in Montenegro in 1960 and lived there until coming to the United States in 1992. Capric, his wife whom he married in 1984, and their two sons are Albanian ethnic minorities, as well as Moslems.

Capric began employment with the Yugoslav Customs Service in 1981. He was responsible for railway cargo inspections. His wife, Camila, was also employed by the government. Since 1982, she worked in a post office in Pecurice, Bar, Montenegro, eventually becoming its manager. To facilitate Mrs. Capric's employment in the post office, beginning in 1985, the Yugoslav government allowed the Caprics to reside rent-free in a state-owned apartment unit attached to the post office building.

Beginning in 1989 (coinciding with the death of Tito and the rise of Serbian nationalist control of the FRY), the Caprics began experiencing difficulties. Capric's co-workers, the vast majority of whom were Serbian Orthodox, began to ridicule him because of his religion and ethnicity. This continued until he was fired in 1992. Also in 1989, Capric was called to serve in the Yugoslav military; he refused to appear.

Then in April 1992, the Yugoslav government informed the Caprics that they would have until January 1, 1993 to vacate their apartment because the old post office was being torn down in order to build a new one. Capric was told that if he and his family did not vacate the apartment, he would be placed in jail. The building containing the post office and the Capric apartment was eventually torn down in March or April of 1993, and a new post office was built on that same lot.

In June 1992, uniformed police officers entered the Capric apartment around two or three o'clock in the morning. Capric was taken to a police station in Bar where he was detained for five to seven days, without adequate food or water. While at the Capric residence, the police searched the premises for weapons and money. In addition, the police escorted Mrs. Capric to the post office where they performed a search of those premises as well. However, no weapons were found and no money was confiscated.

Also in 1992, Capric was fired from his job with the Customs Service. It is unclear exactly when in 1992 Capric was fired. Some of Capric's testimony indicates that the police intended his detention at a police station in Bar to result in his firing. He also indicated that he was fired because he refused to serve in the Yugoslav military in 1989. Furthermore, from approximately June until September of 1992, Capric was frequently stopped and questioned by uniformed police.

Capric also stated that he was a member of the Albanian Democratic Party. However, he indicated no specific dates of membership or other affiliation. Capric

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gave no specific information about participation in party activities. In addition, he stated that he was never detained or questioned about his political affiliations or membership...

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108 practice notes
  • Elzour v. Ashcroft, No. 04-9507.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 17, 2004
    ...upon such factors as inconsistencies in the witness' testimony, lack of sufficient detail, or implausibility. See Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). Additionally, an IJ may find Page 1153 witness not to be cred......
  • Balogun v. Ashcroft, No. 02-4248.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 1, 2004
    ...fear persecution"). The "subjective fear component turns largely upon the applicant's own testimony and credibility." Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999) ("An alien satisfies the subjective component by......
  • Diallo v. Ashcroft, No. 03-1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 26, 2004
    ...of proof without corroboration." 8 C.F.R. § 208.13(a). See Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir.2004), Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004), Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir.2004), Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.2003); Georgis......
  • Fessehaye v. Gonzales, No. 03-3933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 8, 2005
    ...of persecution of an identifiable group, to which [s]he belongs, such that" her fear of persecution "is reasonable." Capric v. Ashcroft, 355 F.3d 1075, 1094 (7th Cir.2004); see 8 C.F.R. § The qualification, "if she is a practicing Jehovah's Witness," thus remains the only issue in this case......
  • Request a trial to view additional results
108 cases
  • Elzour v. Ashcroft, No. 04-9507.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • August 17, 2004
    ...upon such factors as inconsistencies in the witness' testimony, lack of sufficient detail, or implausibility. See Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004); Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir.2003) (en banc). Additionally, an IJ may find Page 1153 witness not to be cred......
  • Balogun v. Ashcroft, No. 02-4248.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 1, 2004
    ...fear persecution"). The "subjective fear component turns largely upon the applicant's own testimony and credibility." Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004); see also Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir.1999) ("An alien satisfies the subjective component by......
  • Diallo v. Ashcroft, No. 03-1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 26, 2004
    ...of proof without corroboration." 8 C.F.R. § 208.13(a). See Kourski v. Ashcroft, 355 F.3d 1038, 1039 (7th Cir.2004), Capric v. Ashcroft, 355 F.3d 1075, 1085 (7th Cir.2004), Korniejew v. Ashcroft, 371 F.3d 377, 382 (7th Cir.2004), Uwase v. Ashcroft, 349 F.3d 1039, 1041 (7th Cir.2003); Georgis......
  • Fessehaye v. Gonzales, No. 03-3933.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 8, 2005
    ...of persecution of an identifiable group, to which [s]he belongs, such that" her fear of persecution "is reasonable." Capric v. Ashcroft, 355 F.3d 1075, 1094 (7th Cir.2004); see 8 C.F.R. § The qualification, "if she is a practicing Jehovah's Witness," thus remains the only issue in this case......
  • Request a trial to view additional results

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