Milosevic v. I.N.S.
| Decision Date | 22 February 1994 |
| Docket Number | No. 93-1188,93-1188 |
| Citation | 18 F.3d 366 |
| Parties | Tihomir MILOSEVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Ferenc P. Vandor (argued), Chicago, IL, for petitioner.
William J. Howard, David J. Kline, Norah Ascoli Schwarz (argued), Dept. of Justice Office of Immigration Litigation, William P. Barr, Office of U.S. Atty. Gen., Washington, DC, A.D. Moyer, I.N.S., James B. Burns, Office of U.S. Atty., Chicago, IL, for respondent.
Before CUMMINGS and COFFEY, Circuit Judges, and ZAGEL, District Judge. *
Tihomir Milosevic ("Milosevic") is a citizen of the former Republic of Yugoslavia who entered the United States on a six-month visitor's visa in June 1985 and never left. He has petitioned this court for review of the Board of Immigration Appeal's ("Board") decision denying him asylum or withholding of deportation under 8 U.S.C. Secs. 1158(a) and 1253(h). He also seeks review of (1) the Board's denial of his motion to reopen, and (2) the Board's failure to grant his motion to stay its deportation order. We lack jurisdiction to review the latter two issues, and we affirm the Board's decision denying asylum or withholding of deportation.
Petitioner, who is now approximately 54 years of age, left his native Yugoslavia in 1964 on a Yugoslav passport to seek employment in Austria. He remained in Austria for four years before moving on to West Germany, where he lived and was employed until 1985. While in Germany, Milosevic married a Czechoslovakian citizen, who thereafter sought and was granted asylum and permanent residency in Germany. The marriage produced a son who later became a West German citizen upon reaching the age of 17.
Milosevic left his wife and child and came alone to the United States in 1985. While in America, the petitioner Milosevic married a United States citizen who filed a visa petition on his behalf in 1986. This marriage ended four months later, and at this time Milosevic's second ex-wife withdrew the petition. Shortly thereafter, the INS issued an Order to Show Cause why Milosevic should not be deported as an alien who had overstayed his visa (six months). At his deportation hearing, Milosevic conceded deportability but requested asylum and withholding of deportation under 8 U.S.C. Secs. 1158(a) and 1253(h).
In his application for asylum, the petitioner recited that prior to his arrival (1985) in the United States it was his practice to visit Yugoslavia about twice a year, and that during these visits he was detained and interrogated "numerous times" by the Yugoslav Secret Police regarding his activities in West Germany. He further claimed that on three of these visits (in 1982, 1983, and 1985) the Secret Police detained him for approximately 48 hours, and that on each occasion he was "threatened with physical punishment and torture." He also alleged that at some unspecified time his wife and child in West Germany had been threatened as well as his parents and sister in Yugoslavia. He claimed that during his last trip to Yugoslavia in 1985 the Secret Police warned him not to return again. Since then, he stated, his former wife in Germany has been "warned about [his] return to Yugoslavia," and has also been questioned about his activities "several times."
In two separate places in his application form, Milosevic noted that he had "written" a book critical of the communist regime and that this book would result in his imprisonment if he should ever return to Yugoslavia. Elsewhere on his application he alleged that the Yugoslav government believed he was spying for the West Germans, and that if he were deported to Yugoslavia he would be "killed" (presumably by the Secret Police). In support of this claimed fear he attached a news story about an anti-communist Croatian talk-show host who was killed by unknown assailants in Chicago. In response to a question posed on his asylum application form, the petitioner explained that his failure to seek asylum in Germany at any time during his 15-year residence there was due to the fact that "the UDB (Yugoslav Secret Police) and the BND (W. Germany Secret Police) were collaborating at that time and numerous Yugoslav dissidents were killed in Germany by the Yugoslav Secret Police."
The Office of the Immigration Judge forwarded a copy of petitioner's completed asylum application to the State Department's Bureau of Human Rights and Humanitarian Affairs ("Bureau") for their comments. 1 After reviewing Milosevic's application, the director of the Bureau's Office of Asylum Affairs advised the Immigration Judge ("IJ") that in the Bureau's opinion the petitioner had not established either past persecution or a well-founded fear of future persecution.
Milosevic was then accorded a two-day asylum hearing at which he testified at length regarding his fear of being persecuted by Yugoslavian authorities. He testified that he had come to America to write and publish a book on Euro-communism and that so far he had completed 17 pages of the book he previously had claimed to have "written." He informed the IJ that he had not yet approached any publishers about this book, but that he believed it would be easier to publish the book in America than in Europe. He also explained that although this book would be his first literary effort and would be written in the Serbo-Croatian language, he expected it to be translated into several languages and cause him to be viewed as an enemy by the Yugoslav regime.
Petitioner further testified that on the occasion of two of his visits to Yugoslavia (in 1977 and 1978) he had been detained by the Yugoslav police and asked to inform on the activities of his Yugoslav co-workers in Germany. In spite of the fact that in each instance he refused to provide any information, the authorities released him after 48 hours. He also reported that even though the police threatened on occasion to confiscate his passport and prevent his reuniting with his family in Germany, he continued to visit Yugoslavia about twice a year for seven more years after his last alleged detention. He further claimed that his ex-wife in Germany had warned him that, shortly after he departed for America, persons from the Yugoslav Consulate visited their house to inquire as to his whereabouts. Milosevic later testified that this visit had actually involved a search of his German home, and that a cousin had advised him that the police had searched his parents' home in Yugoslavia as well.
Finally, the petitioner testified that since being struck by a car in January 1987 he had begun to exhibit symptoms that may indicate Parkinson's disease.
The IJ denied Milosevic's application for asylum and/or withholding of deportation. In his oral opinion, the IJ ruled that petitioner had failed to establish either past persecution or a well-founded fear that he would be persecuted in the future if he were returned to Yugoslavia. The IJ noted that Milosevic "relies solely upon his conduct of writing a book for his fears to return back to his native country," and that one could only speculate whether this book would ever be completed, let alone published and noticed by government authorities. The IJ also observed that the petitioner's claimed fear of the Yugoslav Secret Police was undermined by the fact that he had traveled freely to and from Yugoslavia for some 20 years (between 1965, shortly after he first left his native land, until 1985, when he arrived in the United States), by his failure to apply for refugee status in Germany or any other country besides the United States, by his failure to apply for asylum in the United States until after the Order to Show Cause had been issued (more than a year after his arrival in 1985), and by his failure to establish that he could not return to Germany, where he had lived for 15 years and where his former wife and only child both reside.
Milosevic appealed to the Board, contending that the IJ had failed to apply the proper standards of proof in denying his application for asylum and withholding of deportation. On review, however, the Board found that the IJ had correctly explained that to be eligible for withholding of deportation under 8 U.S.C. Sec. 1253(h), the applicant must establish that there is a "clear probability" that he or she will be persecuted as the result of being deported. The Board further found that the IJ did not err in ruling that to be eligible for asylum, an alien must demonstrate that he or she is a "refugee" within the meaning of 8 U.S.C. Sec. 1101(a)(42)(A), and that Milosevic therefore was required to demonstrate that he either had been persecuted in the past or that he had a "well-founded fear" of being persecuted in the future.
The Board also agreed with the IJ that Milosevic's fear of being persecuted upon the publication of his as-yet unwritten book was "nothing more than speculation." It further found that the petitioner's claims of having been verbally threatened by the Secret Police were undermined by the fact that despite these alleged threats he had continued to visit his country regularly on a passport which the Yugoslav government had continued to renew and reissue.
Milosevic filed a motion to reopen the proceedings, which was denied. He subsequently filed a motion to reconsider that denial, as well as a motion to stay deportation pending resolution of his motion to reconsider. Neither of these last two motions had been decided at the time of oral argument before this court.
Petitioner argues that the Board erred in upholding the IJ's decision to deny him asylum or withholding of deportation. Milosevic further contends that the Board also abused its discretion in denying his motion to reopen the proceedings and in failing to decide his motion to stay deportation.
The Attorney General has discretion to grant asylum...
To continue reading
Request your trial
-
Fisher v. I.N.S.
...v. INS, 767 F.2d 1448, 1452 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); Milosevic v. INS, 18 F.3d 366, 370 (7th Cir.1994); cf. Bastanipour, 980 F.2d at 1133 (distinguishing persecution from "mere discrimination or The BIA has accepted this broad definition. ......
-
Bocova v. Gonzales
...persecution based on a visit by the police to his mother's house, in which the police had made no specific threats); Milosevic v. INS, 18 F.3d 366, 371 (7th Cir.1994) (agreeing that petitioner had not established a well-founded fear of future persecution based on a visit to his wife's house......
-
Fisher v. I.N.S.
...v. INS, 767 F.2d 1448, 1452 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)); Milosevic v. INS, 18 F.3d 366, 370 (7th Cir.1994); cf. Bastanipour, 980 F.2d at 1133 (distinguishing persecution from "mere discrimination or The BIA has accepted this broad definition. ......
-
Angoucheva v. I.N.S.
...probability" standard required for withholding of deportation. E.g., Man v. INS, 69 F.3d 835, 837 (7th Cir.1995); Milosevic v. INS, 18 F.3d 366, 372 (7th Cir.1994). Angoucheva initially argues that the Board violated her right to due process by ignoring half of her claim--that prior to flee......