United States Court of Appeals
For the Seventh Circuit
IMMIGRATION AND NATURALIZATION SERVICE,
Petition for Review of an Order
of the Board of Immigration Appeals
A72 671 697
ARGUED NOVEMBER 29, 2001--DECIDED January 11, 2002
Before COFFEY, EASTERBROOK and RIPPLE,
RIPPLE, Circuit Judge. Petitioner Bajram
Begzatowski seeks review of an adverse
decision of the Board of Immigration
Appeals (the "BIA" or "Board") denying
his requests for asylum and withholding
of deportation./1 For the reasons set
forth in the following opinion, we grant
the petition for review, reverse the
judgment of the BIA and remand for
Mr. Begzatowski is an ethnic Albanian
from Kicevo, in the Former Yugoslav
Republic of Macedonia ("Macedonia"). He
attended school in Kicevo until the
eighth grade. At that time, all of the
Albanian schools were closed. Mr.
Begzatowski then moved to Switzerland and
lived with an uncle. He returned to
Yugoslavia in November 1990, and shortly
thereafter was inducted into the
Mr. Begzatowski painted a grim picture
of his military experiences. Albanians
were segregated from other soldiers;
their barracks were small and
overcrowded. They were not given regular
access to bathing facilities and went
without showers for over a month. During
basic training, Albanian soldiers had to
rise earlier than the Serbians in their
unit, they were not issued bullets nor
were they given training on a firing
According to Mr. Begzatowski's
testimony, Albanian soldiers suffered
from more than just inadequate facilities
and training. Serbian officers would wake
the Albanian soldiers in the middle of
the night and threaten them with harm if
they did not follow orders. These were
not idle threats; the officers physically
assaulted the Albanian soldiers, but left
the Serbian soldiers alone. The
Yugoslavian army did not issue bullets to
the Albanian soldiers for use in battle;
Serbian soldiers, however, were provided
with ammunition. Albanians also were
deprived of shovels to use to dig
themselves in and get out of harm's way.
Finally, the Albanians were forced to
precede the Serbian soldiers into battle.
To ensure that Albanian soldiers
cooperated, Serbian soldiers followed at
a distance of two to three meters with
their guns drawn.
After enduring this treatment for
several months, Mr. Begzatowski
deserted,/2 went into hiding and later
fled the country. Mr. Begzatowski
eventually entered the United States by
way of Mexico. Shortly after he arrived,
he filed an administrative application
B. Administrative Proceedings
On March 10, 1994, an Order to Show
Cause was issued and charged Mr.
Begzatowski with deportability. At
his deportation hearing, Mr. Begzatowski
conceded deportability, but requested
that the Immigration Judge ("IJ") grant
him asylum or withholding of deportation.
After a hearing, the IJ found Mr.
Begzatowski's testimony credible in
almost all respects./3 He also noted
that the discrimination described by Mr.
Begzatowski had been documented by
reputable organizations. However, the IJ
determined that the degree of
"discrimination" Mr. Begzatowski endured
did "not rise to the level necessary to
be considered persecution." R.48.
More than five years after the IJ issued
his decision, a split panel of the BIA
affirmed. The majority found Mr.
Begzatowski's testimony "credible in its
entirety." R.3. It specifically noted
that Mr. Begzatowski "routinely suffered
physical mistreatment and was put in
harm's way on account of his ethnic and
religious background." Id. However,
relying on this court's decision in
Meghani v. INS, 236 F.3d 843 (7th Cir.
2001), the BIA stated that "'unpleasant
and even dangerous conditions do not
necessarily rise to the level of persecution.'"
R.3 (quoting Meghani, 236 F.3d at 847
(internal quotation marks and citations
omitted)). Therefore, like the IJ, it
determined that "without more, we cannot
conclude that the treatment suffered by
the respondent rises to the level of
The dissenting member of the BIA stated
that he believed that Mr. Begzatowski's
testimony established past persecution on
the basis of his ethnic background. He
further stated that there was not
sufficient evidence in the record to
determine if the presumptive fear of
future persecution had been rebutted. For
that reason, he stated, he would remand
the matter to the IJ for additional
Mr. Begzatowski timely appealed the
adverse decision of the BIA.
A. Standard of Review
We review the BIA's asylum determination
under the substantial evidence test. See
Petrovic v. INS, 198 F.3d 1034, 1037 (7th
Cir. 2000). We shall disturb the BIA's
findings "only if the record lacks
substantial evidence to support its
factual conclusions." Malek v. INS, 198
F.3d 1016, 1021 (7th Cir. 2000). However,
we review the BIA's legal analysis de
novo. See Marquez v. INS, 105 F.3d 374,
378 (7th Cir. 1997).
B. Past Persecution
Mr. Begzatowski contests the BIA's
finding that his experiences in the
former Yugoslavia, and specifically in
the Yugoslavian army, did not rise to the
level of persecution. Specifically, he
points to the fact that he was sent into
battle without bullets and suffered other
abuses while in military service. We
evaluate Mr. Begzatowski's claim below.
To prove that he is a "refugee" within
the meaning of the Immigration and
Nationality Act ("INA"), 8 U.S.C. sec.
1101(a)(42), and therefore entitled to
asylum, Mr. Begzatowski "must come
forward with evidence either of a well-
founded fear of future persecution or of
past persecution. If an alien establishes
past persecution, there is a rebuttable
presumption that he also has a well-
founded fear of future persecution and
therefor should be granted asylum."
Ambati v. Reno, 233 F.3d 1054, 1059-60
(7th Cir. 2000). "Although there is no
statutory definition of persecution, we
have described it as punishment or the
infliction of harm for political,
religious, or other reasons that this
country does not recognize as
legitimate." Roman v. INS, 233 F.3d 1027,
1034 (7th Cir. 2001) (internal quotation
marks and citations omitted).
"Persecution encompasses more than
threats to life or freedom; non-life
threatening violence and physical abuse
also fall within this category." Tamas-
Mercea v. Reno, 222 F.3d 417, 424 (7th
Cir. 2000). However, to sustain an asylum
application, the conduct "must rise above
mere harassment." Roman, 233 F.3d at
1034. Types of actions that might cross
the line from harassment to persecution
include: "detention, arrest,
interrogation, prosecution, imprisonment,
illegal searches, confiscation of
property, surveillance, beatings, or
torture." Mitev v. INS, 67 F.3d 1325,
1330 (7th Cir. 1995).
As stated above, in assessing an asylum
application, we owe deference to the
factual findings of the BIA. In the
present action, the BIA credited Mr.
Begzatowski's testimony concerning the
harms that he suffered in the Yugoslavian
military./5 Specifically, the BIA
accepted that Mr. Begzatowski was
deprived of bathing facilities, denied
adequate military training, experienced
physical abuse by the Serbian officers
and was sent to the front lines of battle
without either bullets or a shovel.
Furthermore, the BIA did not question
that Mr. Begzatowski's mistreatment was a
result of his Albanian ethnicity.
Consequently, the only issue before us is
whether the events described by Mr.
Begzatowski constitute persecution for
purposes of the INA.
This court has defined persecution as
"punishment or the infliction of harm for
political, religious, or other reasons
that this country does not recognize as
legitimate." Roman, 233 F.3d at 1034
(internal quotation marks and citations
omitted). We believe that the
mistreatment endured by Mr. Begzatowski
clearly falls within this category. Mr.
Begzatowski described a series of actions
by the Yugoslavian army meant to
humiliate and eliminate Albanian
soldiers. Albanian soldiers were not
treated like their Serbian counterparts;
they were segregated, physically abused,
deprived of bathing facilities and denied
training. Far more importantly, they were
forced into battle without ammunition and
were deprived of other implements, such
as shovels, that were important to their
survival. We believe that these actions
cannot be seen as anything but
"punishment" or "infliction of harm."
Furthermore, these are not merely petty
abuses that we would expect the BIA to
excuse or ignore. The Albanian soldiers'
only purpose, it appears, was to provide
a human shield for Serbian soldiers.
These actions rise above the level of
"mere harassment" and constitute
The BIA does offer some explanation why
it believed that Mr. Begzatowski's
experiences did not constitute
persecution. First, it states that
Meghani v. INS, 236 F.3d 843, 847 (7th
Cir. 2001), stands for the proposition
that even dangerous conditions do not
necessarily rise to the level of
persecution. However, Meghani did not
address the situation presented here--a
segment of the population being forced
into life-threatening situations on the
basis of their ethnicity. Put in context,
the quote from Meghani on which the INS
relies addresses a very different
situation; in that case, we stated:
"[C]onditions of political upheaval which
affect the populace as a whole or in
large part are generally insufficient to
establish eligibility for asylum."
Indeed, we have "recognized the hard
truth that unpleasant and even dangerous
conditions do not necessarily rise to the
level of persecution."
Id. (quoting Mitev, 67 F.3d at 1330-31).
In other words, if war, famine, political
violence or other dangerous conditions
affect an entire nation, those conditions
cannot establish an individual claim for
asylum. In the present case, however, the
undisputed evidence established that the
Yugoslavian government singled out an
ethnic group for abuse.
In addition, the BIA seemed to focus on
Mr. Begzatowski's lack of permanent
injury as a basis for denying his asylum
application. Mr. Begzatowski, it stated,
"did not suggest that he suffered any
harm as a result of the treatment or the
situations that he was subjected to."
R.3. However, we previously have rejected
attempts by the BIA to impose on asylum
applicants the additional burden of
establishing permanent or serious
injuries as a result of their
persecution. See Asani v. INS, 154 F.3d
719, 722-23 (7th Cir. 1998)./6 We see
no reason to revisit the standard.
C. Presumption of Future Persecution
Because Mr. Begzatowski has established
past persecution on the basis of his
ethnicity, there is a rebuttable
presumption that he also has a well-
founded fear of future persecution
necessary for a grant of asylum. See
Ambati, 233 F.3d at 1060. The burden then
"shifts to the immigration authorities to
prove [he] has no well-founded fear of
further persecution." Galina v. INS, 213
F.3d 955, 957 (7th Cir. 2000).
Specifically, "the presumption may be
overcome by evidence indicating that the
alien no longer is in danger of being
persecuted again due to changed
conditions in the home country." Asani,
154 F.3d at 722 (citing 8 C.F.R. sec.
The BIA need not wait for the INS to
proffer evidence of changed country
conditions. We previously have recognized
the authority of the BIA to take
"official notice of uncontroverted facts
concerning political conditions in asylum
seekers' home countries." Kaczmarczyk v.
INS, 933 F.2d 588, 593 (7th Cir. 1991).
However, in doing so, the BIA must treat
sources of current information,
especially State Department country
reports, "with a healthy
skepticism,rather than, as is its
tendency, as Holy Writ." Galina, 213 F.3d
The INS argues that the BIA engaged in
this analysis and determined, based on
the current State Department country
report, that the situation in Macedonia
had improved to such a point as to remove
any fear that Mr. Begzatowski might be
persecuted upon his return. We do not
believe that this is a fair reading of
the BIA's opinion.
The BIA did not find that Mr.
Begzatowski had established past
persecution. Therefore, it did not shift
the burden to the INS to come forward
with evidence of changed country
conditions, nor did it consider sua
sponte whether those conditions had
changed sufficiently to diffuse Mr.
Begzatowski's well-founded fear of future
persecution. Having found no past
persecution, the BIA focused only on Mr.
Begzatowski's actions since his departure
from Macedonia to determine whether he
had a well-founded fear of future
persecution. It stated:
The respondent claims to have a well-
founded fear of persecution because of
his participation in an Albanian
nationalist group in the United States
and because his participation in that
group is known to the Macedonian
government. In order to determine whether
that basis for the respondent's fear does
in fact provide an objective basis to
fear persecution in Macedonia, we have
examined the documentation of record, as
well as the 1999 Country Reports on Human
Rights Practices . . . . Based upon the
information contained in that report
which reflects changed country
circumstances since the respondent's
departure from his country of origin, we
cannot conclude that he has a well-
founded fear of persecution in Macedonia.
R.4 (emphasis added). The BIA addressed
only the issue of whether Mr. Begzatowski
likely would be persecuted for
participating in pro-Albanian rallies in
the United States. This issue has little,
if any, bearing on whether the current
State Department country report provides
sufficient detailed information to rebut
the presumption of future persecution
arising from Mr. Begzatowski's
experiences in the Yugoslavian army.
Because the BIA did not consider whether
the country conditions in Macedonia rebut
the presumption that Mr. Begzatowski will
suffer future persecution in that
country, we remand the case to the BIA
for consideration of this issue.
For the foregoing reasons, the petition
for review is granted, and the judgment
of the BIA is reversed and remanded for
further proceedings consistent with this
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED
/1 The application in this case was filed prior to
April 1, 1997, the effective date of the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996, Pub.L. 104-208, 110 Stat. 3009, and
therefore, as did the Board, we employ the termi-
nology of the former statute.
/2 Friends of Mr. Begzatowski also deserted; howev-
er, they were found, jailed and returned to the
/3 The IJ stated: "With respect to the respondent's
credibility, while the respondent has testified
to a battle in which he was sent to fight without
any bullets, that experience does not raise any
questions in my mind. However, the respondent did
indicate that he was sent to the battle front
while Serbian soldiers were a few meters behind
him and the respondent was engaged in this battle
for a period of approximately two to three months
without any bullets and to his knowledge, no
Serbian soldiers were killed while Albanians
were. I can credit the possibility that for
discriminatory and persecution purposes soldiers
could be denied bullets, but the fact that the
respondent was sent to the battle front for two
to three months without any bullets and without
being killed or shot raises credibility questions
in my mind. Other than this issue, I essentially
would credit the testimony of the respondent."
/4 The BIA also determined that Mr. Begzatowski did
not have a well-founded fear of future persecu-
tion based on his participation in pro-Albanian
rallies while in the United States. Mr. Begzatow-
ski does not take issue with this portion of the
/5 In its brief, the INS argues that Mr. Begzatowski
is constrained by the credibility determinations
of the IJ because those determinations were not
identified as a basis for his appeal to the BIA.
We disagree. We believe that Mr. Begzatowski's
notice of appeal more than adequately apprised
the Board of his lack of faith in the factual
findings of the IJ. His notice states: "The
Immigration Judge arbitrarily, capriciously and
incorrectly concluded that the Respondent hadn't
established prejudice at the hands of the perti-
nent government authority sufficient to establish
his 'eligibility' for the relief being sought, in
light of the evidence and testimony offered of
Record clearly establishing the same." R.35. The
BIA is not bound by the credibility determina-
tions of the IJ; it may review the record and
make its own assessments. See Hazime v. INS, 17
F.3d 136, 140 (6th Cir. 1993) (stating that "'the
Board is not required to defer to an immigration
judge's findings of fact or conclusions of law in
a deportation/waiver case, and may if it chooses
to do so, review the record de novo'" (internal
citations omitted)); Charlesworth v. United
States INS, 966 F.2d 1323, 1325 (9th Cir. 1992)
("The Board is not required to defer to the
immigration judge's findings and conclusions.").
Moreover, absent the BIA adopting the findings of
the IJ--which clearly did not occur here--we
review the determinations, including the credi-
bility determinations, of the BIA, not the IJ.
See Gonzalez v. INS, 77 F.3d 1015, 1023 (7th Cir.
/6 In Asani v. INS, 154 F.3d 719 (7th Cir. 1998), we
[T]he BIA apparently believed that Asani was not
subject to past persecution because he had not
"suffered any physical or psychological harm"
from his mistreatment by the Yugoslavian authori-
ties and because he did not receive "serious
injuries" when he was beaten by the police.
However, this is not the standard recognized by
this Court. While the Immigration Act does not
provide a definition for the term "persecution,"
we have defined it as "'punishment' or 'the
infliction of harm' which is administered on
account of . . . race, religion, nationality,
group membership, or political opinion . . . ."
Id. at 723 (internal citations omitted). Because
the BIA applied an incorrect and more stringent
standard to Asani's application, we remanded the
case to the BIA.
Share this page
Bookmark this page
The leading immigration law publisher - over 50000 pages of free information!
© Copyright 1995- American Immigration LLC, ILW.COM