Nenadovic v. I.N.S.

• Decision Date: 28 February 1997
• Docket Number: No. 96-2066,96-2066
• Citation: 108 F.3d 124
• Parties: Zoran NENADOVIC and Biljana Nenadovic, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 124

108 F.3d 124

Zoran NENADOVIC and Biljana Nenadovic, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-2066.

United States Court of Appeals Seventh Circuit.

Argued Dec. 6, 1996.

Decided Feb. 28, 1997.

Y. Judd Azulay, Stephen D. Berman (argued), Azulay & Azulay, Chicago, IL, for Petitioners.

Michael J. Shepard, Office of the United States Attorney, Criminal Division, Chicago, IL, Janet Reno, U.S. Attorney General, Office of the United States Attorney General, Washington, DC, Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, David M. McConnell, Stephen W. Funk, Marion E. Guyton, Michael Lindemann, Michelle Gluck (argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, Lisa Arnold, United States Department of Justice, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, COFFEY and FLAUM, Circuit Judges.

COFFEY, Circuit Judge.

Zoran and Biljana Nenadovic (husband and wife, respectively), are natives and citizens of the former Yugoslavia and seek review of the affirmance by the Board of Immigration Appeals ("BIA") of the decision of an Immigration Judge ("IJ") denying their joint request for political asylum or, in the alternative, withholding of deportation. ¹ The issues before us are: (1) did the BIA err when it allegedly concluded that politically-based conscription is not "persecution" under the Immigration and Nationality Act, ² and (2) whether the decision of the BIA was supported by substantial evidence. We affirm.

I. Background

The petitioner was hired as a quality control officer at an armaments plant in the former Yugoslavia that produced "secret" military weapons. He alleges that he was hired in order that he might play on the plant's soccer team. Nenadovic worked at the armaments plant from 1983 until his departure for the United States in 1991. Though Nenadovic testified that nearly all the workers at the plant were required to be members of the Communist Party ("Party"), he claims that he (along with most of the other soccer players) did not belong to the Party. The petitioner states that he was frequently asked to join the Party and each time he refused.

After returning from a trip to visit his grandfather in the United States, Nenadovic claims that he first expressed his anti-communist views at the armaments plant and that as a consequence of his political outspokenness, he was threatened and received rough treatment, though he has failed to offer details of the threats or alleged mistreatment. The petitioner alleges that he spoke out in the plant against the Party, the Milosevic regime and the lack of freedom in the former Yugoslavia. He was also warned by other members of the soccer team that he would "get [in] trouble for that" and told by his managers that he should "think what [he] is talking about."

Although Nenadovic was not drafted, he testified that when war broke out in Vucovar, Croatia in 1991, five non-Party members of the soccer team were drafted and sent to fight in the war, while Party members were not drafted. ³ He also alleged that his manager at the plant, a Party member, told him that he would be the next person sent to the front. (The petitioner stated that he believed his plant manager's threats that he would be the next person sent to the front because of his boss' "military connections," but he has not elaborated upon these alleged connections.) Nenadovic also claims that he received a call from the military to pick up his uniform the same week that his boss threatened to have him sent to the front. ⁴ Furthermore, on the very same day after he picked up his uniform, he applied for and obtained a visa from the United States Embassy in Belgrade and left the country for the United States the following week. Nenadovic does not know if a draft notice was ever issued but he is fearful that if he were to return to the former Yugoslavia, he would be arrested and punished for leaving the country to avoid conscription. Because he was an outspoken anti-communist critic of the Milosevic regime, speaking against it almost daily, and because he was a "famous soccer player in Yugoslavia," the petitioner-appellant claims that if he returned to his native country, "no matter where he lived, he would be recognized and punished." Nenadovic did not, however, mention his notoriety as a soccer player when he applied for asylum.

On April 22, 1994, the petitioner was issued an Order to Show Cause and Notice of Hearing by the Immigration and Naturalization Service ("INS") which recited that he had remained in the United States beyond his November 28, 1991 visa authorization date and was, thus, subject to deportation. At this time, Nenadovic filed an application for asylum ⁵ and withholding of deportation pursuant to sections 208(a) and 243(h) of the Immigration and Nationality Act ("the Act"), 8 U.S.C. §§ 1158(a), 1253(h), or in the alternative, an order of voluntary departure. ⁶ The IJ denied his application for asylum, ruling that he had failed to establish a well-founded fear of future persecution, and accordingly also denied his application for a withholding of deportation because he did not meet the heavier burden of demonstrating a "clear probability" ⁷ of persecution. The IJ did, however, grant the petitioner's request for voluntary departure, giving him until December 31, 1995 to depart from the United States of his own accord.

On May 18, 1995, Nenadovic appealed the IJ's denial of asylum and withholding of deportation to the BIA, which dismissed his appeal on February 16, 1996. In his appeal to this court, the petitioner argues that (1) the BIA erred when it allegedly concluded that conscription based solely on a person's political beliefs is not "persecution" under the Act, and (2) the BIA's finding that he lacked a well-founded fear of persecution is not supported by substantial evidence.

II. Discussion

A petitioner may be granted asylum if the Attorney General, in the exercise of his or her discretion, determines that he is a "refugee." 8 U.S.C. § 1158(a). The Act defines "refugee," in relevant part, as a person who is "unwilling" to return to his own country because of "persecution or a well-founded fear of future persecution on account of ... political opinion...." 8 U.S.C. § 1101(a)(42)(A). ⁸ "Although there is no statutory definition of 'persecution,' our cases have described it as 'punishment or the infliction of harm for political, religious, or other reasons that this country does not recognize as legitimate.' " Mitev v. INS, 67 F.3d 1325, 1330 (7th Cir.1995) (citation omitted). "[T]he Attorney General is not required to grant asylum to everyone who meets the definition of refugee. Instead, a finding that an alien is a refugee does no more than establish that 'the alien may be granted asylum in the discretion of the Attorney General.' " INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987) (citation omitted) (alteration in original); see also Mitev, 67 F.3d at 1329. "The petitioner bears the burden of proving his statutory eligibility...." Krastev v. INS, 101 F.3d 1213, 1216 (7th Cir.1996). The BIA's determination that the petitioner was not eligible for asylum must be upheld if supported by "reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4); see also Mitev, 67 F.3d at 1330. This standard of review is " 'highly deferential.' " Id. (citation omitted). "This deference ... is appropriate given the 'extremely fact-intensive nature of [deportation] inquiries' and the superior expertise of the agencies that administer our immigration law." Id. at 1331 (citation omitted). "[A] reviewing court is not entitled to reverse 'simply because it is convinced that it would have decided the case differently.' Rather, the Board's decision can be reversed 'only if the evidence presented by [the petitioner] was such that a reasonable fact finder would have to conclude that the requisite fear of persecution existed.' " Anton v. INS, 50 F.3d 469, 472 (7th Cir.1995) (emphasis added) (citation omitted). "To reverse [a] BIA finding we must find that the evidence not only supports that conclusion, but compels it." INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 815 n. 1, 117 L.Ed.2d 38 (1992).

A. Conscription Based Upon Political Beliefs As Persecution

Nenadovic argues that the BIA erred as a matter of law in "conclud[ing] that conscription, when conducted to punish people for their political opinions, is not persecution" under the Act. Appellant's Br. at 23. We believe that the petitioner misstated the BIA's holding and as a result has incorrectly framed the issue before us. The BIA found, in relevant part, that

[t]he punishment [petitioner] allegedly fears as a result of his refusal to perform military service does not constitute persecution, since he has not established that it would encompass the infliction of harm or suffering in a way regarded as offensive. Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988). Incarceration alone does not constitute persecution. Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990). Despite [petitioner's] assertion that he would face severe punishment or death as a result of his avoiding conscription, he has supplied no evidence that he would be subject to these measures....

R. at 4 (citation omitted) (emphasis added). We interpret the above-quoted paragraph as stating that (1) punishment for avoiding conscription is not necessarily persecution, ⁹ and (2) even if it was, Nenadovic failed to offer any evidence that such punishment awaited him upon his return to the former Yugoslavia. The BIA arguably implied that conscription as punishment for political opinions could amount to persecution when it stated that "[petitioner] has failed to establish that the conscription laws as applied to him ... are merely a pretext to persecute him for his...