Vujisic v. Immigration & Naturalization Service
| Decision Date | 07 August 2000 |
| Docket Number | No. 99-3184,99-3184 |
| Citation | 224 F.3d 578 |
| Parties | (7th Cir. 2000) Radisav Vujisic, Petitioner, v. Immigration and Naturalization Service, Respondent |
| Court | U.S. Court of Appeals — Seventh Circuit |
Petition for Review of an Order of the Board of Immigration Appeals. No. A29 685 361
Before Manion, Kanne and Evans, Circuit Judges.
Petitioner Radisav Vujisic fled his native Yugoslavia in 1991 rather than re-enter the army and fight what he considered to be an unjust civil war against his fellow countrymen. After arriving in the United States via Canada, he applied for asylum and withholding of deportation. An immigration judge rejected the application, and the Board of Immigration Appeals affirmed. Vujisic believes the Board erred as a matter of law in holding that punishment for desertion from military duty can never constitute persecution on account of political opinion. Further, Vujisic contends the Board wrongly took judicial notice of changed country conditions in deciding whether he had a legitimate fear of punishment upon return to his homeland. We reverse the Board's decision.
Vujisic was born in North Gorica, Slovenia, the son of a career Yugoslav military officer. An ethnic Serb, Vujisic lived in Slovenia until he was four years old and moved with his family to a military base in Serbia. At 18, he entered the Yugoslav army for one year of compulsory military service, which he served in Slovenia. At the end of the year, the army discharged him, and he returned home. About five months later, in May 1991, military and police officers took Vujisic in the middle of the night to an army base in Serbia for "military exercises." He was locked in a room with other young men, given army uniforms and blankets and moved to another building, where they were held for several days. During this time, Serbia was invading Slovenia, and the Slovenians were offering armed resistance. Vujisic's military hosts told Vujisic and the other men that the Slovenians were mistreating Yugoslav soldiers, and Vujisic became convinced that he and the others would be sent to fight in Slovenia.
While at the military base, an officer discovered that Vujisic had been born in Slovenia and accused him of being a spy. The other men beat him until another officer stopped them, and he was interrogated about his family and ties to Slovenia. The army released Vujisic and the other men on June 4, 1991, and sent him home. A week later, army officers came to Vujisic's home with reactivation orders, forced their way into the home and knocked his mother to the ground. Vujisic was not home at the time and later managed to flee to a small nearby village. He left the village and moved in with his girlfriend in a larger city, where he thought it would be easier to hide. Eventually, police tracked Vujisic to his girlfriend's residence, but Vujisic escaped over a balcony and began moving from place to place every few days. Vujisic's father was arrested, questioned regarding his son and dishonorably discharged without pension benefits.
Vujisic decided he needed to leave the country and obtained a Canadian visa, ostensibly to play soccer. Somehow unnoticed by Serbian military and police, he left from the Belgrade airport days before it was closed by the government. He lived and played soccer in Canada for several months until his girlfriend joined him there, and they decided to try to enter the United States, where he had family. He entered the United States on August 1, 1992, falsely claiming American citizenship. He pleaded guilty to unlawful entry and applied for asylum as a political refugee under sec. 208 of the Immigration and Nationality Act, or in the alternative, withholding of deportation under sec. 243(h). In his affidavit, Vujisic stated his opposition to the war
I have many Croatian, Muslim and Slovenian friends, and I do not believe in the ethnic cleansing being perpetrated against them in the former Republics of Yugoslavia. My complete inability to assist the Republic of Yugoslavia in this process as a soldier or otherwise will subject me to persecution and possible death if I wish to return to Yugoslavia . . . The Federal Republic of Yugoslavia has committed many violations of human rights during the current war and has been sanctioned by the United [N]ations and I know that my human rights will be violated and I will face persecution if I am returned.
I could not fight and would not fight against these Republics. I could not fight against friends and family who desired nothing but independence and freedom to perpetuate the traditions of their heritage under a democratic form of government, free from the dogma of communism.
The immigration judge denied his application under sec.sec. 208 and 243(h), and on July 29, 1999, the Board affirmed the denial. The Board held that Vujisic failed to prove that he would be subjected to persecution on account of his political beliefs if he were returned to Yugoslavia. It held that "[p]unishment for desertion from a military organization has been found not to constitute persecution on account of political opinion or any of the other enumerated grounds." Matter of Vujisic, No. A29 685 361, *2 . In so holding, the Board found that
[T]here is little indication that the authorities would continue to be concerned about the applicant's political opinion or that they would be inclined to harm him at present on account of his opinion, 7 years after the events in question and after the substantial changes . . . in the former Yugoslavia during the 1990's.
Id. Since the Board believed Vujisic would not suffer persecution disproportionate to the punishment for desertion upon return to his homeland, it affirmed the immigration judge's decision. This appeal followed.
Under sec. 208 of the Immigration and Nationality Act, 8 U.S.C. sec. 1158, the Attorney General may grant asylum to refugees, who are defined as people unable or unwilling to return to their home nation "because of a 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); see INS v. Elias- Zacarias, 502 U.S. 478, 481 (1992). The applicant carries the burden of establishing by presenting specific facts that he has been the victim of persecution or has good reason to believe that he will be singled out for persecution. See Sivaainkaran v. INS, 972 F.2d 161, 163 (7th Cir. 1992). We review the Attorney General's decision, represented here by the Board's disposition of this case, deferentially under the ...
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