Islami v. Gonzales

• Decision Date: 23 June 2005
• Docket Number: Docket No. 03-40095.
• Citation: 412 F.3d 391
• Parties: Elrem ISLAMI, Petitioner, v. Alberto GONZALES, United States Attorney General, Bureau of Citizenship and Immigration Services, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

412 F.3d 391

Elrem ISLAMI, Petitioner, v. Alberto GONZALES, United States Attorney General, Bureau of Citizenship and Immigration Services, Respondent.

Docket No. 03-40095.

United States Court of Appeals, Second Circuit.

Argued: May 26, 2005.

Decided: June 23, 2005.

COPYRIGHT MATERIAL OMITTED

Harry A. DeMell, New York City, for petitioner.

Stephen R. Cerutti, II, Assistant U.S. Attorney, for Thomas A. Marino, U.S. Attorney for the Middle District of Pennsylvania, Harrisburg, PA, for respondent.

Before: CALABRESI, KATZMANN, and PARKER, Circuit Judges.

CALABRESI, Circuit Judge.

Elrem Islami ("Islami"), a former resident of Kosovo, and a citizen of Yugoslavia,¹ came to the United States on December 17, 1999 and, on May 17, 2000, petitioned for asylum and withholding of removal, under the Immigration and Nationality Act of 1952, as well as for protection under Article 3 of the U.N. Convention Against Torture ("CAT").

I.

In his application, Islami alleged that as a Muslim and ethnic Albanian residing in Kosovo, he had been persecuted by ethnic Serbs who dominated the Yugoslavian government and military. Islami escaped from Kosovo in February 1998 largely to avoid being conscripted into the Yugoslavian military, a fate he says he tried to resist (1) because of his concerns that the ethnic Serbs physically abused their Albanian counterparts and, more importantly for our analysis, (2) because he feared that he would be ordered to participate in unlawful and brutal Serb-led military campaigns, which were widely condemned internationally. (In this respect, he notes that these alleged brutalities were directed especially at his fellow Muslims and ethnic Albanians.)

Islami first sought asylum in Germany in 1998, but was denied protection and ordered to return to Kosovo. He then fled to the United States in December 1999 (where much of his immediate family had sought refuge),² and applied for asylum.

On February 20, 2002, an Immigration Judge ("IJ") denied his petition. The IJ found that even if Islami's claims of harassment and mistreatment were true, the actions committed against him did not rise to the level of persecution. Moreover, the IJ held that Islami's fears of future persecution were not well-founded in light of improved conditions in Kosovo (particularly given the installation of a new government in Belgrade) since Islami's departure.

This decision was summarily affirmed on May 28, 2003, by the Board of Immigration Appeals ("BIA"). Islami filed the instant petition for review in this court.

He argues that the IJ erred as a matter of law in concluding that, because compulsory military service is not a bona fide ground for claiming persecution, Islami was not eligible for asylum. Islami explains that he was not avoiding military service per se, but rather that he was objecting to being forced to take part in military activities that were widely condemned by the international community as criminal. He also resisted service because he feared physical abuse by ethnic Serbs who occupied dominant positions in the military.

Additionally, Islami contends that the conditions in Kosovo have not improved as dramatically as the IJ concluded. Islami claims that notwithstanding the NATO invasion and occupation, incidents of persecution of ethnic Albanians persist to this day.

II.

To establish eligibility for asylum, an applicant must show that he or she is a refugee who has suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution on one of these grounds.³ See 8 U.S.C. § 1101(a)(42); Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). To be entitled to withholding of removal, the applicant must meet the requirements of asylum eligibility and establish that it is more likely than not that were he or she to be deported his or her life or freedom would be threatened on account of one of the five bases for asylum. See Diallo, 232 F.3d at 284-85. "It is easier to establish eligibility for asylum, but the power to grant asylum to eligible aliens is discretionary, and reserved to the Attorney General. By contrast, the Attorney General must withhold the deportation of an alien who passes the stricter test for this form of relief." Jin Shui Qiu, 329 F.3d at 148 (internal citations omitted).⁴

Article 3 of the CAT provides that "[n]o State Party shall expel [or] return... a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, art. III, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, codified at 8 U.S.C. § 1231 and implemented at 8 C.F.R. § 208.16. We have defined torture "as the intentional infliction of pain or suffering that is perpetrated or sanctioned by a nation's authorities." Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004); see also 8 C.F.R. § 208.18(a)(1) (defining torture, for purposes of the CAT, in equivalent terms); Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 134 (2d Cir.2003) (referring to definition of torture in 8 C.F.R. § 208.18(a)(1)).

To qualify under the CAT, an alien must establish that "it is more likely than not that he or she would be tortured if removed to the proposed country of removal," Ramsameachire, 357 F.3d at 184 (internal quotation marks omitted). The regulations provide that

[i]n assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered, including, but not limited to:

(i) Evidence of past torture inflicted upon the applicant;

(ii) Evidence that the applicant could relocate to a part of the country of removal where he or she is not likely to be tortured;

(iii) Evidence of gross, flagrant or mass violations of human rights within the country of removal, where applicable; and

(iv) Other relevant information regarding the conditions in the country of removal.

8 C.F.R. § 208.16(c)(3).

Once an alien has met this burden, the United States may not remove him or her to that country. See Ramsameachire, 357 F.3d at 184; see also Mu-Xing Wang, 320 F.3d at 144 n. 20 ("To be entitled to relief under CAT, however, [an applicant] must establish that there is greater than a fifty percent chance (i.e. that it is `more likely than not') that he will be tortured upon return to his or her country of origin."); 8 C.F.R. § 208.16(c)(2).

Importantly, the IJ or BIA must consider all evidence of possible torture independent of the IJ's or BIA's analysis of asylum claims. In other words, it is reversible error to conclude that a CAT claim is "necessarily precluded because [an applicant] had failed to carry his burden of proof with respect to his asylum claim." Ramsameachire, 357 F.3d at 184.

III.

We apply the deferential substantial evidence standard in evaluating factual findings of the BIA or IJ. See Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir. 2003) (per curiam). The BIA's or IJ's determination will be upheld if it is supported by reasonable, substantial and probative evidence in the record. See Alvarado-Carillo v. INS, 251 F.3d 44, 49 (2d Cir.2001) (noting that "[s]ubstantial evidence... is more than a mere scintilla" and that it "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" (internal quotation marks omitted)); Jin Shui Qiu, 329 F.3d at 149 ("Substantial evidence review... is slightly stricter than the clear-error standard ... yet we will not reverse the BIA simply because we disagree with its evaluation of the facts." (internal quotation marks omitted)).

We review de novo questions of law regarding "what evidence will suffice to carry any asylum applicant's burden of proof." Id. at 146 n. 2. Importantly, if the IJ or BIA were to use an "inappropriately stringent standard when evaluating an applicant's testimony," we would treat that as a legal, rather than factual error. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).

Where, as in this case, the BIA summarily affirms the IJ's decision, we review the decision of the IJ directly. See id. at 305.

IV.

Islami's principal claim of persecution involves his refusal to join the Serb-dominated national army. Typically, compulsory military service does not provide asylum seekers with adequate cause for claiming persecution. See, e.g., Foroglou v. INS, 170 F.3d 68, 71 (1st Cir.1999); Krastev v. INS, 101 F.3d 1213, 1217 (7th Cir.1996). Courts, however, have identified two broad exceptions to this rule. First, if an individual's refusal to serve in the military leads to disproportionately excessive penalties, inflicted on him or her because of that individual's race, religion, nationality, membership in a particular social group, or political opinion, he or she may be eligible for asylum. See Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir.2004). Second, an individual may be eligible for asylum if he or she is fleeing to avoid punishment for refusing to join a "military force condemned by the international community." See Vujisic v. INS, 224 F.3d 578, 581 (7th Cir.2000); see also Mekhoukh, 358 F.3d at 126 (noting that for an applicant to be eligible for asylum on this basis the military must be condemned by the international community as one that commits human rights abuses and that the petitioner must have a conscientious objection to serving in that military).

Here, the IJ's finding that Islami was unlikely to receive disproportionately excessive penalties simply because he was an ethnic Albanian was supported by substantial evidence.⁵ But, the IJ erred in failing to recognize that service in the Yugoslavian army would likely require Islami's participation in military campaigns widely "condemned by the...