Petrovic v. INS, No. 99-1882

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Before Flaum, Ripple, and Rovner; Flaum; ILANA DIAMOND ROVNER
• Citation: 198 F.3d 1034
• Parties: (7th Cir. 2000) DRAGAN PETROVIC, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT
• Docket Number: No. 99-1882
• Decision Date: 10 January 2000

Page 1034

198 F.3d 1034 (7th Cir. 2000) DRAGAN PETROVIC, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 99-1882 U.S. Court of Appeals, Seventh Circuit Argued November 12, 1999
Decided January 10, 2000

Petition for Review of an Order of the Board of Immigration Appeals No. A72-215-884

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David Rubman (argued), Rubman & Compernolle, Chicago, IL, for Petitioner.

Kristen A. Giuffreda (argued), Department of Justice, Office of Immigration Litigation,

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Washington, DC, Janet Reno, United States Attorney, Washington, DC Samuel Der-Yeghiayan, Immigration & Naturalization Service, Chicago, IL, for Respondent.

Before Flaum, Ripple, and Rovner, Circuit Judges.

Flaum, Circuit Judge.

On September 18, 1992, the Immigration and Naturalization Service (INS) charged Dragan Petrovic with exclusion under the Immigration and Nationality Act. The Immigration Court found Petrovic excludable and ineligible for asylum or withholding of deportation. Petrovic appealed to the Board of Immigration Appeals (BIA), which affirmed the Immigration Court's decision. Petrovic now petitions this Court for review. For the reasons stated below, we affirm the BIA's decision.

Background

Petrovic, an ethnic Serbian raised in Croatia (then a province of Yugoslavia), arrived in the United States in September 1992. Upon arrival, he announced his intention to seek political asylum. The INS District Director commenced exclusion proceedings to determine whether Petrovic was authorized to enter the country under the Immigration and Nationality Act, and the INS allowed him to enter the country temporarily while his asylum application was pending.

In support of his asylum application, Petrovic testified as follows. He was born in 1971 in the town of Otisic, Croatia, formerly part of Yugoslavia. He is an ethnic Serbian of Eastern Orthodox faith. In 1980, Petrovic moved with his family to Solin, where at the time Croatians made up eighty percent of the population and Serbians made up fifteen percent. Petrovic lived in Solin for ten years, until 1990, when he began serving a year-long commitment as a member of the Yugoslav army in Macedonia.

In June 1991, Croatia declared its independence from Yugoslavia. Petrovic alleges that his father and sister, who remained in Solin, became targets of religious and ethnic persecution, including harassment at work by Croatians. Both his father and his sister were ultimately fired from their postal jobs. He further alleges that his father was beaten on a public bus because of his ethnicity and religion and that the police refused to investigate or pursue the incident. In September 1991, Petrovic left the Yugoslav army and returned to Otisic, where his family was residing after moving back from Solin. Soon thereafter, Petrovic joined the Serbian civil defense forces fighting against the Croatian army. Early the following year, the United Nations approved a peace plan, which resulted in the disarming of the Serbian civil defense forces. Petrovic testified that Serbians in the region were increasingly becoming targets of ethnic violence and discrimination, so he fled to the United States. He testified that he could be imprisoned or killed if he returned to Croatia.

Though finding his testimony credible, the Immigration Court, on July 15, 1993, found Petrovic excludable under the Immigration and Nationality Act. The Immigration Court also denied him asylum and withholding of deportation, and it ordered him excluded and deported from the United States. On appeal to the BIA, Petrovic renewed his asylum claim. The BIA dismissed the appeal, finding that Petrovic had failed to demonstrate past persecution or a well-founded fear of persecution as required under applicable immigration law. Petrovic now petitions this Court for review of the BIA's decision, challenging whether its decision was adequately supported by the evidence before it.

Discussion

Congress has a adopted a policy of limited asylum eligibility. Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir. 1992). Under Section 208 of the Immigration and Nationality Act, 8 U.S.C. sec. 1158, the Attorney

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General is authorized to grant asylum to "refugees." Refugee status may only be granted to a person unable or unwilling to return to his country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. sec. 1101(a)(42)(A). To establish the requisite fear of persecution, an applicant must present specific facts demonstrating that he has actually been the victim or persecution or has good reason to believe that he will be singled out for persecution. See Sivaainkaran, 972 F.2d at 163.

"The apparatus [Congress] has created for implementing [asylum] policy rests primarily with immigration judges and the BIA..., and our role is limited to providing deferential review of BIA decisions." Sivaainkaran 972 F.2d at 165. Asylum eligibility "is a factual determination, which we review under the substantial evidence test." Id., at 163. Under this deferential standard, we will reverse the BIA only if the evidence is "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).

In...