Mojsilovic v. I.N.S., No. 97-3296

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUDAHY, EASTERBROOK and DIANE P. WOOD; CUDAHY
Citation156 F.3d 743
PartiesPetar MOJSILOVIC, Anka Mojsilovic, Jelena Mojsilovic, et al., Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Docket NumberNo. 97-3296
Decision Date15 September 1998

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.

Page 745

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

Page 746

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...

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35 practice notes
  • Iddir v. I.N.S., No. 01-3799.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 6, 2002
    ...final orders where the alien has exhausted administrative remedies); Singh v. Reno, 182 F.3d 504, 511 (7th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.1993); see also Coit Independence Joint Venture v. FSLIC, 489 U.S......
  • Gonzalez v. O'Connell, No. 03-1527.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 21, 2004
    ...his claim as constitutional and claiming futility. See Health Equity Res. Urbana, 927 F.2d at 965; see also Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998) ("Although due process claims do not usually require exhaustion because the [BIA] cannot adjudicate constitutional issues, the requ......
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...preserve the right to judicial review of that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998). Although due process claims generally do not require exhaustion because the BIA does not have authority to review consti......
  • Afanwi v. Mukasey, No. 06-1236.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 19, 2008
    ...Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 241 (2d Cir.1992); Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988); Magal......
  • Request a trial to view additional results
35 cases
  • Iddir v. I.N.S., No. 01-3799.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 6, 2002
    ...final orders where the alien has exhausted administrative remedies); Singh v. Reno, 182 F.3d 504, 511 (7th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Castaneda-Suarez v. INS, 993 F.2d 142, 144-45 (7th Cir.1993); see also Coit Independence Joint Venture v. FSLIC, 489 U.S......
  • Gonzalez v. O'Connell, No. 03-1527.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 21, 2004
    ...his claim as constitutional and claiming futility. See Health Equity Res. Urbana, 927 F.2d at 965; see also Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998) ("Although due process claims do not usually require exhaustion because the [BIA] cannot adjudicate constitutional issues, the requ......
  • Capric v. Ashcroft, No. 02-3172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 23, 2004
    ...preserve the right to judicial review of that claim. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998). Although due process claims generally do not require exhaustion because the BIA does not have authority to review consti......
  • Afanwi v. Mukasey, No. 06-1236.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • May 19, 2008
    ...Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir.1999); Mejia Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cir.1999); Mojsilovic v. INS, 156 F.3d 743, 748 (7th Cir.1998); Saleh v. U.S. Dep't of Justice, 962 F.2d 234, 241 (2d Cir.1992); Lozada v. INS, 857 F.2d 10, 13-14 (1st Cir. 1988); Magal......
  • Request a trial to view additional results

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