Stankovic v. I.N.S., 95-3727

• Decision Date: 05 September 1996
• Docket Number: No. 95-3727,95-3727
• Citation: 94 F.3d 1117
• Parties: Rajko STANKOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1117

94 F.3d 1117

Rajko STANKOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 95-3727.

United States Court of Appeals, Seventh Circuit.

Argued May 28, 1996.

Decided Sept. 5, 1996.

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

Michael J. Shepard, Office of the U.S. Atty., Crim. Div., Chicago, IL, Carl H. McIntyre, Jr., Nelda Reyna (argued), Dept. of Justice, Office of Immigration Litigation, Washington, DC, Janet Reno, U.S. Atty. Gen., Office of the U.S. Atty. Gen., Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, David M. McConnell, Stephen W. Funk, Marion E. Guyton, Dept. of Justice, Civ. Div., Immigration Litigation, Washington, DC, David J. Kline, Dept. of Justice, Office of Immigration, Washington, DC, for respondent.

Before POSNER, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.

CUDAHY, Circuit Judge.

When threatened with deportation for overstaying his visa, Rajko Stankovic applied for asylum in the United States. He claimed that he had fled his homeland, Serbia, because of political persecution and that this persecution would be renewed if he were deported there. An immigration judge did not believe his assertions of past persecution and therefore denied the application. The Board of Immigration Appeals affirmed this decision, but Stankovic contends that the affirmance is incongruent with the judge's decision, and he asks us to overturn the Board's decision. Because we conclude that the Board has failed to meet minimal standards for rational decision-making, we will grant Stankovic's request.

Stankovic was admitted to the United States as a visitor for pleasure in 1988, and his visa was good for one year. In 1994, when immigration officials learned that Stankovic had stayed beyond the limit of his visa, they instituted deportation proceedings. Stankovic responded by applying for asylum. When an alien resists deportation in this manner, his application is treated as both a request for asylum and as a request for the withholding of deportation. 8 C.F.R. § 208.3(b). These two kinds of requests require similar factual showings. To prevail in an application for asylum, the applicant must show that he has a well-founded fear of persecution. See 8 U.S.C. § 1158(a). Such a fear can be demonstrated in either of two ways: by showing past persecution, a showing that creates a presumption of a well-founded fear; or by showing that a reasonable person in the applicant's situation would fear persecution. If the applicant attempts to establish a well-founded fear by showing past persecution, the government may rebut his evidence by showing that conditions in the applicant's former country have changed since the earlier persecution occurred. 8 C.F.R. § 208.13(b)(1)(i). The application for withholding of deportation also requires a showing about persecution, but that showing is more difficult to make than the one required for an asylum application. To be eligible for the withholding of deportation, the applicant must show a clear probability of persecution, not just a well-founded fear of it. See 8 C.F.R. § 208.16; see also Balazoski v. INS, 932 F.2d 638, 640 (7th Cir.1991). Given the relationship between these required showings, if an applicant cannot prevail in his request for asylum, he cannot prevail in his request for the withholding of deportation.

Stankovic tried to make these showings by relying on his own testimony about his past experience in his native country. This testimony is, in broad outlines, as follows. Stankovic comes from Belgrade, in what is now the Serbian Republic. He asserts that, between 1985 and 1988, when Belgrade and Serbia were part of Yugoslavia, he participated in anti-communist political activities, following the leadership of a university professor known for having liberal views. As Stankovic has it, Yugoslavian authorities did not persecute the professor because he was too venerable; but they did persecute his followers, including Stankovic. Stankovic reports that he was arrested and beaten three times during the period of his political activity and that, at the end of his last encounter with the police, he was advised to leave the country. He did so, travelling to the United States in 1988 on a one-year visa. After the visa expired, Stankovic remained in Chicago because he feared a renewal of persecution on his return. This fear persisted even after the division of Yugoslavia because Stankovic noticed that the new "republican" bosses in Serbia were the same people who had been the old communist bosses.

Telling this story was, in a sense, the first necessary step in Stankovic's case. If the immigration judge had believed his account, Stankovic would have established past persecution, thereby creating a presumption that his future persecution was likely. Unless the INS rebutted this presumption, Stankovic's asylum petition would have...