Perkovic v. I.N.S.

Citation33 F.3d 615
Decision Date29 August 1994
Docket NumberNo. 93-3200,93-3200
PartiesVaso and Djela PERKOVIC, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Thomas R. Williams (argued and briefed), Kerr, Russell & Weber, Mary M. Lane, Detroit, MI, for petitioners.

James Montgomery, Dist. Director, I.N.S., Detroit, MI, Philemina McNeill Jones (argued and briefed), Donald Keener, U.S. Dept. of Justice, Immigration Litigation, Civ. Div., Stuart M. Gerson, U.S. Dept. of Justice, Civ. Div., Washington, DC, Barbara L. Beran, Office of U.S. Atty., Columbus, OH, Robert Brown, I.N.S., Cleveland, OH, for respondent.

Before: KENNEDY and NELSON, Circuit Judges; and LIVELY, Senior Circuit Judge.

NELSON, Circuit Judge, delivered the opinion of the court, in which LIVELY, Senior Circuit Judge, joined. KENNEDY, Circuit Judge (pp. 623-24), delivered a separate dissenting opinion.

DAVID A. NELSON, Circuit Judge.

This matter comes before us on a petition for review of an order in which the Board of Immigration Appeals reversed an immigration judge's grant of asylum. The Board held that the petitioners were not eligible for asylum because they did not qualify as "refugees." We conclude as a matter of law that the petitioners did qualify as refugees, and we shall therefore grant the petition for review.


The petitioners, Vaso Perkovic and his sister, Djela Perkovic, are Yugoslavian citizens of ethnic Albanian descent. They left Yugoslavia in 1986 and entered the United States without inspection on September 26 of that year. An order to show cause was issued on October 1, 1986, charging them with deportability under Sec. 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2). The Perkovics conceded deportability at their deportation hearing, but requested asylum under Sec. 208(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1158(a). They also requested withholding of deportation under Sec. 243(h) of the Act, 8 U.S.C. Sec. 1253(h).

The Perkovics presented evidence that they had been active in a movement promoting civil rights in Yugoslavia for ethnic Albanians. Vaso testified that, while a university student at Titograd, he publicly opposed the government and participated in demonstrations in favor of Albanian civil rights. In Titograd and in his hometown of Luhar, Montenegro, 1 he said, he manufactured Albanian national flags and pro-Albanian posters for public display. He secretly posted these signs and flags in public places at night, removing Yugoslav signs and flags. He also helped to organize Albanian students into a group dedicated to the promotion of Albanian civil rights.

On November 25, 1985, Vaso testified, he was arrested and taken to the Titograd police station. He said that he was questioned all night by three different shifts of interrogators. Every time he gave a response that the questioner deemed unsatisfactory, he was beaten. By the conclusion of his interrogation, he was unable to walk.

The inquisitors asked him about his political activities with other Albanians, confronting him with Albanian political signs that had been posted around the town. They demanded to know whether Vaso had made and posted the signs. Fearing for his life, Vaso told the questioners that he had not made the signs, although, in fact, he had.

Djela testified that in January of 1986 the police performed a warrantless search of the house in Luhar where she and Vaso lived with their parents. The police found an Albanian flag and cassette recordings of Albanian ethnic music in Djela's room, whereupon they confiscated these items, arrested Djela, and took her to the police station. She was interrogated overnight and released the next day. She testified that she feared that she would be imprisoned if she returned to Yugoslavia, because the authorities would believe that she had assisted her brother in his political activities.

Vaso was subjected to ongoing surveillance by the Yugoslav police subsequent to his interrogation and beating. In April of 1986 he was again arrested, detained overnight, and beaten. He was questioned on this occasion too about his activities to promote Albanian civil rights, and the authorities made statements that Vaso understood as threats against his life if he continued these activities. Vaso testified that he expected to be imprisoned if he returned to Yugoslavia.

Since their arrival in the United States, according to the petitioners, they have been active in Albanian emigre groups and have engaged in protests against the Yugoslav government's treatment of ethnic Albanians. Prenk Camaj, an Albanian Catholic priest and one-time Yugoslav refugee, testified that the petitioners had joined his church in Detroit and had been active in promoting Albanian civil rights in Yugoslavia, both before and after their departure from that country. Father Camaj testified that the Yugoslav government actively engaged in suppression of Albanian political and civil rights groups and that it had criminalized a broad range of expression of political opinion and manifestations of Albanian culture. 2

Evidence adduced at the deportation hearing further showed that Yugoslav law permitted prosecution of Yugoslav citizens for engaging in political activity outside of Yugoslavia. Expression of political opinions hostile to the Yugoslav government and association with dissident emigre groups were outlawed. A letter from the U.S. Department of State stated that "membership in groups considered by Yugoslav authorities to be hostile to Yugoslavia has been grounds for prosecution of individuals in Yugoslavia." The State Department also reported that it was likely that the Yugoslav government made an effort to inform itself about the activities of emigres in the United States, and that it was possible that the Yugoslav government was aware of the petitioners' political activities in the United States. A State Department report on human rights practices stated that a U.S. citizen of Yugoslav descent had been arrested while visiting Yugoslavia and had been charged with participating in an anti-Yugoslav-government demonstration in Washington, D.C., and with joining "a hostile organization" in Detroit. This "hostile organization" apparently was Father Camaj's emigre group.

The petitioners also presented evidence that various members of their family had been persecuted by the Yugoslav government over the last forty years for engaging in political activity in support of Albanian civil rights. Three members of the petitioners' family have been admitted to the United States as refugees in the past.

The immigration judge who presided at the hearing concluded that the petitioners should be granted asylum. Finding the Perkovics' testimony credible, he concluded that their promotion of Albanian civil rights constituted "a legitimate expression of political opinion." Based on their past experiences of surveillance, detention, and physical abuse by the Yugoslav authorities, he further concluded that the petitioners had reasonable grounds to fear that they would be persecuted on account of their political opinions if they returned to Yugoslavia. The immigration judge determined that the granting of passports to the petitioners by the Yugoslav government did not necessitate a finding that they had not been persecuted, nor did the fact that Vaso had been a state-supported student at the University of Titograd. The immigration judge noted that the petitioners "had a comfortable existence in Yugoslavia," and said that there was no evidence that they had left their native land for economic reasons. Ordering that the petitioners be granted asylum for a period of one year under 8 C.F.R. Sec. 208.10(e) (1987), the immigration judge did not address the Perkovics' application for withholding of deportation.

The INS appealed the decision of the immigration judge to the Board of Immigration Appeals. In an order dated December 2, 1992, the Board reversed the decision and remanded the case. The immigration judge subsequently entered an order designating Yugoslavia as the destination of deportation and granting the petitioners the privilege of voluntary departure. The instant petition for review followed.


Before considering the merits of the Perkovics' petition, we must decide whether we are possessed of jurisdiction over this matter. The INS raised the issue for the first time at oral argument, after which supplemental briefs were received from both sides. The agency contends first that there is no final order for us to review, and, second, that the Perkovics failed to exhaust their administrative remedies.

Only "final orders of deportation" can be brought to this court for judicial review under Sec. 106 of the Immigration and Nationality Act. 8 U.S.C. Sec. 1105a(a). An "order of deportation" becomes "final" upon

"dismissal of an appeal by the Board of Immigration Appeals, upon waiver of appeal, or upon expiration of the time allotted for an appeal when no appeal is taken; or, if such an order is issued by the Board or approved by the Board upon certification, it shall be final as of the date of the Board's decision." 8 C.F.R. Sec. 243.1 (1994).

An "order of deportation" includes more than just the piece of paper authorizing the government to take custody of the alien and transport him beyond our frontiers. The term extends to any denial of discretionary relief during a deportation proceeding, where such relief, if granted, would foreclose deportation. Denials of applications for withholding of deportation or for asylum, like denials of applications for suspension of deportation, qualify as "order[s] of deportation" that may be judicially reviewed. INS v. Chadha, 462 U.S. 919, 937-39, 103 S.Ct. 2764, 2777-78, 77 L.Ed.2d 317 (1983); Foti v. INS, 375 U.S. 217, 222-31, 84 S.Ct. 306, 310-15, 11 L.Ed.2d 281 (1963); Carvajal-Munoz v. INS, 743 F.2d 562, 566-67 (...

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