Useinovic v. I.N.S., 01-3339.

• Decision Date: 27 December 2002
• Docket Number: No. 01-3339.,01-3339.
• Citation: 313 F.3d 1025
• Parties: Tahir USEINOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1025

313 F.3d 1025

Tahir USEINOVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 01-3339.

United States Court of Appeals, Seventh Circuit.

Argued September 4, 2002.

Decided December 27, 2002.

Edwin T. Gania (argued), Chicago, IL, for Petitioner.

George P. Katsivalis, INS, Chicago, IL, Jennifer A. Parker (argued), DOJ, Civ. Div., Immigration Litigation, Washington, DC, for INS.

Before FLAUM, Chief Judge, and CUDAHY and KANNE, Circuit Judges.

CUDAHY, Circuit Judge.

Tahir Useinovic, a Yugoslavian, seeks asylum in the United States. An Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) both have found that Useinovic is ineligible for asylum because he can show neither past persecution nor a well-founded fear of future persecution. He petitions us to reverse the BIA's findings or to remand his case to the IJ so that he can seek suspension of deportation under the Nicaraguan Adjustment and Central American Relief Act (NACARA). We affirm the decision of the BIA.

I.

Tahir Useinovic is a 41-year-old Albanian Muslim native of the city of Bar, in the Republic of Montenegro portion of the Federal Republic of Yugoslavia (Yugoslavia).¹ He entered the United States legally as a visitor on May 15, 1990. Useinovic's wife, Ismeta Useinovic, to whom he has been married since 1987, joined him on May 19, 1992. They had a child born in the United States in 1994.

Useinovic applied for asylum to the Immigration and Naturalization Service (INS) and was interviewed by the INS on April 9, 1992.² In his application for asylum, Useinovic claimed that "[he] was mistreated every time [he] practiced [his] religion," and that "[b]ecause [he] was involved in demonstrations against the government of Communist Yugoslavia, [he] was detain [sic], jailed, beaten and then fired from [his] farm job." Finally, he asserted that if he were "forced to return to Yugoslavia, [he] will definitely be detained and either go to jail or [be] forced into the Yugoslavian Serbian war." Administrative Record (A.R.) at 380. Useinovic was issued a Notice of Intent to Deny his application (NOID) on February 28, 1995, and was ultimately denied asylum on April 11, 1995.

The INS issued an Order to Show Cause to Useinovic on March 27, 1995, charging him with deportability under then-section 241(a)(1)(C)(i) of the Immigration and Nationality Act (INA), for having overstayed his nonimmigrant tourist visa. See 8 U.S.C. § 1251(a)(1)(C)(i), transferred to § 1227(a)(1)(C)(i). At his hearing before the IJ on March 20, 1996, Useinovic conceded his deportability and renewed his request for asylum under 8 U.S.C. § 1158. He claimed "refugee" status under section 101(a)(42) of the INA as grounds for eligibility for asylum, asserting past persecution and a well-founded fear of future persecution based on his Albanian ethnicity, Islamic religious faith and anti-government political opinions and actions.³

Useinovic was the only witness at his hearing before the IJ. Based on his testimony and the few documents supporting his two applications for asylum, it is very difficult for this court to construct a seam-less, accurate and consistent timeline of Useinovic's experiences in Yugoslavia that accounts for the events he claims support his well-founded fear of persecution. What we can determine from his testimony and documentation is as follows. Sometime before or around 1977, Useinovic undertook his compulsory service in the military. Because he was an only child supporting his mother since his father's death, he was supposed to be eligible for shortened service of only 12 months. Instead, he served 15 months. Useinovic testified generally that this extension of time was punishment for his Islamic beliefs. He also claimed specifically that during his time in the army, in 1977, an officer approached him about joining the Communist Party. Useinovic testified that upon his refusal, the officer told him he "would have a lot of problems afterwards," and that Useinovic "believe[d] in something that did not exist." A.R. at 69. Presumably the officer was referring to Useinovic's religious beliefs.

Useinovic also claimed that difficulties in his work were relevant to his request for asylum.⁴ At some time after his military service, working either as a crane operator, or on a farm, Useinovic was again asked to join the Communist Party and again refused, but he did not claim any adverse consequences from this refusal. In 1989 and 1990, Useinovic participated in the organization of five labor strikes.⁵ During his testimony, Useinovic recounted that he and some colleagues learned that two of their friends had been suspended from work for refusing a transfer to work that "they've never done before." A.R. at 85. Useinovic and colleagues on his shift felt they would also be asked to transfer between jobs in a similar fashion, and decided to start a strike. Ultimately, five days of strikes resulted, with the last one involving 1,600 workers. A.R. at 85. Useinovic testified that these demonstrations which he organized resulted in his eventually being fired from his position. He claimed that he was told to take a leave of absence because there was less work to be done at his job site. Useinovic came to the United States shortly thereafter "just for a visit," but received notice within a month that he had been fired. A.R. at 67-68.

Useinovic also testified that he faced persecution based on his Islamic beliefs. In addition to the comments of the military officer and to the extended military service noted above, he claimed that he generally faced problems because his cousin was a hadja, a leader within the Islamic community — a circumstance which caused changes in the attitudes of friends and coworkers. Although Useinovic admitted that he had never been arrested or mistreated by the police, he did testify that sometime around 1989-90 he had a fight over his Islamic faith with a coworker, which had scared him sufficiently that he did not go to work for "a couple of days." A.R. at 71, 73, 78, 82.

Finally, Useinovic also testified that he feared persecution if he returned to Yugoslavia based on a home invasion suffered by his mother in June of 1994. A translation of a police report indicates that during the night of June 11, 1994, two or more men broke into Useinovic's mother's house, tied her up and blindfolded her and stole money and jewelry. A.R. at 100. In his testimony, Useinovic claimed the invaders asked his mother, "[W]here is your son? When is he going to come back?" A.R. at 74. They told her that if he returned, they would harm him, and if she tried to escape her restraints, they would "do the same things [they] did in Bosnia." A.R. at 74, 76. Useinovic claimed that he later learned from a neighbor that the robbers had been sent by the local police. A.R. at 75.

In an oral decision at the hearing, the IJ denied Useinovic's request for asylum and granted him voluntary departure in lieu of deportation. Useinovic, the IJ found, was a credible witness. However, even taking as true the events described by Useinovic, he had not met his burden of proof to show eligibility for asylum. A.R. at 43. The judge found that Useinovic had presented no specific evidence that he had been denied any opportunity to practice his religion, and the specific remarks aimed at him did not rise to the level of persecution. Nothing about Useinovic's protest activities was political, religious or ethnic in nature; they were labor-related and they could not support a claim of past persecution. The IJ further found that his refusal to join the Communist Party on the two occasions he had been asked to do so had had no serious repercussions. Finally, the judge found that the home invasion of his mother's house, four years after Useinovic left Yugoslavia, was a criminally motivated act, not a political or religious one.

Useinovic appealed to the BIA. The BIA denied his appeal on August 7, 2001. The BIA found that the events described by Useinovic did not rise to the level of persecution under the INA. Further, taking judicial notice of the changed country conditions in Yugoslavia along with its findings concerning the alleged past events, the BIA found that Useinovic could not demonstrate an objectively reasonable, well-founded fear of persecution. A.R. at 4. This petition for review timely followed.

II.

A.

The BIA's findings regarding asylum eligibility are factual findings that we review under the substantial evidence standard. Ambati v. Reno, 233 F.3d 1054, 1059 (7th Cir.2000). We are required to affirm the BIA's decision if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole." Karapetian v. INS, 162 F.3d 933, 936 (7th Cir.1998) (quotations omitted). We will reject the BIA's findings only if "the evidence is `so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.'" Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

Useinovic was placed in deportation proceedings by the INS's March 27, 1995, Order to Show Cause. Because deportation proceedings began before April 1, 1997, the 1996 Amendments to the INA under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009 (IIRIRA), which substantially altered deportation procedures (and associated descriptive terminology⁶), do not apply to Useinovic's action. See, e.g., Buzdygan v. INS, 259 F.3d 891, 892-93 (7th Cir.2001). Instead, the transitional rules in section 309(c) of the IIRIRA and the non-superseded sections of the INA apply, and, as a result, this case continues to be characterized as a deportation proceeding and request for asylum. Id.

The INA gives to the Attorney General the discretionary power to grant asylum to an alien who qualifies as a "refugee" under 8 U.S.C. § 1101(a)(42). 8 U.S.C. § 1158(b)(1). Under § 1101(a)(42) a...