Friday, July 22, 2011

Withholding of Removal, Macedonia Stanojkova v. Holder (7th Cir. 2011)

No. 10-3327 Decision Date: July 14, 2011 Petition granted (PDF)

Record failed to support Bd.'s denial of application for withholding of removal by aliens (native of Macedonia) alleging that they were persecuted by members of paramilitary police in native country because of their sympathetic views of Albanian minority within native country. While Bd. believed that aliens' 10-minute confrontation with paramilitary police was insufficient to establish persecution claim, evidence was sufficient where: (1) alien claimed that police entered his home, rendered his parents unconscious, held gun to his head, and sexually assaulted his pregnant wife while accusing him of being against Macedonia; and (2) actual police were unwilling to arrest assailants. On remand, though, Bd. may consider improved conditions in Macedonia when evaluating alien's claim.

In Stanojkova v. Holder, 2011 WL 2725850 (7th Cir. 2011), the U.S. Court of Appeals for the Seventh Circuit granted a petition for review filed by a Macedonian couple who claimed that they were victimized by rogue police officers, called “Lions,” on account of the male petitioner's refusal to report for duty with the Macedonia army due to his disapproval with his country's suppression of the Albanian minority. In remanding the matter back to the BIA to reassess whether the petitioners qualified for withholding of removal, the court took issue with the IJ's and the Board's prior determination that the mistreatment that they suffered, including a sexual assault of the wife-petitioner, constituted mere harassment as opposed to persecution. The court also pointed out that changed country conditions and the risk of future persecution were not addressed by the IJ or the Board in their prior deliberations, so those issues remained for consideration on remand.

Judge Richard Posner, writing for the court's three-judge panel, started his opinion by providing the historical context and demographics, noting that Macedonia emerged as a country after the breakup of Yugoslavia and is mostly Slavic with about a quarter of the population being of Albanian ethnicity. He observed that Albanian extremists began an insurrection in January 2001, but it “petered out” after the “Ohrid Framework Agreement” was negotiated in August 2001 to grant greater rights to the Albanian minority. During that time period, the male petitioner declined to report for military duty. Consequently, in 2002 three armed and masked men broke into the petitioners' home. They rendered the male petitioner's parents unconscious with a chemical spray and then proceeded to menace the male petitioner with a gun to his head, accusing him of being a “betrayer of Macedonians” for not participating in the war (against the Albanian minority). One of the assailants sexually assaulted his wife, who was pregnant at the time, and when the husband intervened, he was beaten on his head and back with a gun. The attackers left because of the wife's loud screams, and no actual rape occurred. Upon reporting this incident to the police, the petitioners were informed that the assailants were “Lions,” i.e., paramilitary police officers, with an implication that “ordinary” officers would not be able to afford protection. Consequently, the petitioners left their country.

They eventually came to the U.S. but without visas. In removal proceedings, they asked for asylum and related relief, but the IJ denied any relief, and the BIA, in a single-member decision, perfunctorily affirmed the IJ's removal order. As explained by Judge Posner, the petitioners missed the one-year filing deadline to be considered for asylum but remained eligible for withholding of removal (under INA § 241(b)(3) [8 USCA § 1231(b)(3)]. They did not press a CAT claim before the court. He further explained that to obtain withholding requires a demonstration that the applicant will more likely than not be subjected to persecution if removed from the U.S. and that a finding of past persecution creates a rebuttable presumption of future persecution pursuant to 8 CFR § 1208.16(b)(1)(i). He pointed out that the IJ, seconded by the BIA, ruled that the presumption was inapplicable because of their conclusion that the petitioners had not been persecuted.

Judge Posner described the IJ's decision as “garbled” on the issue of political motivation and criticized the IJ's statement that there was no evidence of human rights abuses by the Macedonian army in 2001 as ignoring the State Department's Country Report. He noted that the Board member found that the petitioners were credible but reasoned that the harm that they suffered during the home invasion did not rise to the level of persecution. He observed that neither the Board member nor the IJ made any effort to specify the amount of harm required to rise to the level of persecution and intimated that the court could not find a useful definition of persecution by the Board or the courts, although the importance of distinguishing between harassment and persecution has been noted. He remarked that “in terms of outcome the cases are all over the lot” and cited to an article by Jaya Ramji-Nogales et al., “Refugee Roulette: Disparities in Asylum Adjudication and Proposals for Reform” (2009), documenting this phenomenon. He referred to the Board's attempted definition of persecution in Matter of Acosta, 19 I. & N. Dec. 211 (B.I.A. 1985), as “harm or suffering that is inflicted upon an individual for possessing a belief or characteristic a persecutor seeks to overcome.” However, he described this definition as “vacuous with regard to the minimum amount of harm required.” He lamented the fact that “responsibility on this point of law has, by default, devolved on the courts, yet only provisionally - only until the Board assumes the responsibility - to try to create some minimum coherence in the adjudication of claims of persecution, as [the Seventh Circuit has] tried to do in the [instant]opinion.” He suggested that, in light of the current situation in Macedonia, there may well be less than a 50% probability that the petitioners would be persecuted if returned to Macedonia, which is the ultimate issue in a withholding case, but that this was a matter to be addressed by the Board or the IJ on remand.

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