Mojsilovic v. I.N.S.

• Decision Date: 15 September 1998
• Docket Number: No. 97-3296,97-3296
• Citation: 156 F.3d 743
• Parties: Petar MOJSILOVIC, Anka Mojsilovic, Jelena Mojsilovic, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 743

156 F.3d 743

Petar MOJSILOVIC, Anka Mojsilovic, Jelena Mojsilovic, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-3296.

United States Court of Appeals Seventh Circuit.

Argued May 19, 1998.

Decided Sept. 15, 1998.

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

Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL; David M. McConnell, Marshall T. Golding (argued), Kristal A. Marlow, James A. Hunolt, Department of Justice, Washington, DC, for Respondent.

Before CUDAHY, EASTERBROOK and DIANE P. WOOD, Circuit Judges.

CUDAHY, Circuit Judge.

Petar and Anka Mojsilovic, who are Serbian, left the former Yugoslavia in June 1991 and entered the United States as visitors for pleasure. They were authorized to remain in the country until June 1992, but failed to depart when their authorization expired. They both filed applications for asylum and withholding of deportation, which were denied after asylum office review. In March 1994, Petar and Anka received an Order to Show Cause and Notice of Hearing from the Immigration and Naturalization Service (INS). At the hearing, which was held in July 1994, their attorney conceded deportability and asked for leave to file an amended request for asylum. The Immigration Judge (IJ) granted this request, and Petar and Anka each filed new applications on August 31, 1994. Petar's application stated that it included his two children but not his wife; Anka's application stated that it included her children and her husband. Anka's application left many questions unanswered and contained no supporting materials; Petar's application was a bit more detailed and contained a one-page addendum explaining why he believed he deserved asylum.

A hearing on the merits of the Mojsilovics' claims took place on October 13, 1994. The Mojsilovics' counsel, Gary Spraker, informed the IJ that Petar would testify first, and asked whether Anka should remain outside. This sparked a dialogue about the implications of excluding Anka from the hearing during her husband's testimony:

INS: I would move to sequester them if they're going to be both testifying.

IJ: Well, you know what, I think that's normally--I think that I would be the first one to sequester somebody but there's a due process consideration. She is a respondent in the case....

INS: Then I think we have to do separate cases. We're doing two things here then and if she's also going to be testifying, it seems to me that they've had--they should have two separate asylum cases then.

. . . . .

IJ: Well, let me ask you this, Mr. Spraker, is there--well, if she would waive--if you don't have any problem with it--I mean because I think the due process requires her as a respondent to be present.... In this case, if they're both claiming the same thing ... you know I think it would bolster the credibility of their case if they were separated; but I think that because they are both respondents, that it be--that each of them has a right to be here.

. . . . .

IJ: [D]o you have any objection to her having a seat in the area in the event that we have anything we can have her come in?

Spraker: Oh, no, Your Honor, the purpose of her being present would be the--if it pleases the Court for her being present because of due process consideration--whether she's present or not means nothing to us and--I don't know that her testimony will conflict with his. It may--it may be become an important issue.... I don't know.

R. 89-90. The IJ then instructed Anka to sit in the waiting area while Petar testified.

Petar informed the IJ that he was 45 years old and had worked in a state-owned bookstore in Belgrade prior to coming to the United States. Although he is not a member of a political party, in March 1991 Petar participated in a demonstration against Slobodan Milosevic. Between 30,000 and 50,000 people also took part in the protest. Petar explained that "whoever participated in the demonstration was either beaten up--or attacked with water cannons or--in a way punished on the spot." R. 105. Petar also testified that he had served in the military in 1970 and 1971, and had received a draft notice from the Yugoslav Army soon after he departed for the United States. He stated that he did not wish to fight because "I'm against killing my own people. Because I live with those people until recently; and the politicians who are running the country now, they are actually killing their own people." R. 109. He further explained that the government was probably unaware of his feelings about the war but that, according to his friends and acquaintances, those who were drafted and did not serve "were all proclaimed deserters and the sanctions will be taken against them." R. 105.

When Petar finished, the IJ asked the Mojsilovics' attorney whether Anka would be able to add anything to her husband's testimony. The attorney replied in the negative, and Anka was called into the hearing. The IJ then summarized Petar's testimony for her:

[M]a'am, your husband has just finished testifying. And he testified that there may be two important bases for his Request for Asylum. One of which is that he does not agree with the possible requirement that he be reinducted into the service and to kill his own people. And the other is that he indicated that he participated in a demonstration--a march of 1991--in Belgrade in front of the national theater. And that was in protest of the government. Ma'am, is there anything that concerns you about what has happened in Yugoslavia that is different than these two reasons that your husband has stated?

R. 116. Anka replied that she "would completely agree with" Petar's testimony. Id.

The IJ proceeded to rule on the Mojsilovics' claims. He stated that Petar was credible, but had failed to establish past persecution or any likelihood of future persecution. The IJ accordingly denied the applications for asylum and withholding of deportation, and designated Yugoslavia as the country of deportation. After some procedural maneuvering that is irrelevant for our purposes, the Mojsilovics presented their case to the Board of Immigration Appeals. They argued that Petar had demonstrated a well-founded fear of persecution, and that the IJ had violated Anka's due process rights by sequestering her during Petar's testimony.

The Board affirmed the IJ's decision on the merits, but changed the country of deportation to Serbia. The Board found that Petar--who was not a member of a political party or organization, had participated in only one demonstration (along with at least 30,000 other people), and had testified that the government is unaware of his political beliefs--could not reasonably fear persecution upon return to Serbia. The Board also noted that a government is entitled to require military service and to enforce the requirement with reasonable penalties. See Order of 8/15/97 at 2 (citing Matter of A-G-, 19 I & N Dec. 502, 1987 WL 108955 (BIA 1987)); cf. Rhoa-Zamora v. INS, 971 F.2d 26, 31 n. 2 (7th Cir.1992). With respect to Anka, the Board stated that an IJ has discretion to sequester witnesses, and further commented that Anka had not demonstrated that she was prejudiced by the IJ's action.

I. Fear of Persecution

As we have often explained, the Attorney General of the United States has discretion to grant asylum to any person who demonstrates past persecution or a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group or political opinion." See 8 U.S.C. § 1101(a)(42)(A); § 1158(b)(1). In addition, the Attorney General is required to withhold deportation if there is a clear probability that an alien's life or freedom would be threatened on account of any these factors. See 8 U.S.C. § 1253(h); INS v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). An alien who fails to qualify for a discretionary grant of asylum under § 1158(b)(1) cannot qualify for the more stringent mandatory withholding of deportation. See Iliev v. INS, 127 F.3d 638, 641 (7th Cir.1997). And whether an alien is a "refugee" and therefore eligible for asylum is a factual determination that we review under the substantial evidence test. Accordingly, we will not overturn the Board's decision about the merits of the Mojsilovics' asylum claim unless "no reasonable fact-finder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

The Mojsilovics argue that Petar demonstrated "a well-founded fear of persecution on account of his objections to military service in an army that has been universally condemned for committing crimes against humanity." Petitioner's Br. 33. There are a number of responses to this argument; perhaps the most obvious is that this is not quite what Petar testified at the deportation hearing. When asked why he opposed military service, Petar explained, "I don't wish to fight with people that I lived with until yes--yesterday." R. 102. He later elaborated, "I'm against killing my own people. Because I live with those people until recently; and the politicians who are running the country now, they are actually killing their own people." R. 109. At least on the surface, these comments only reflect the unpleasant realities of civil war and seemingly do not contemplate the ethnic cleansing and other atrocities that have taken place during the Balkan conflict. But even if we accepted Petar's assertion that in light of the "elementary facts of contemporary history," Petitioner's Br. 33 (citing Osmani v. INS, 14 F.3d 13 (7th Cir.1994)), the Board should have understood him to be opposed to service in a "universally condemned" army, Petar's claim for asylum still fails.

Congress established the basic framework that governs claims for asylum when it passed the Refugee Act of 1980, Pub.L. 96-212, 93 Stat. 102. One of primary purposes of the...