Case Information
*1 Before F LAUM , Chief Judge , and R OVNER and W ILLIAMS , Circuit Judges .
R OVNER , Circuit Judge
. Asylum applicant Genti Balliu fled Kosovo claiming that Serbian officials persecuted him in retaliation for his participation in a pro-Albanian political organization. Because we find that the immigration judge misallocated the burden of demonstrating a well- founded fear of future persecution, we remand to the Board of Immigration Appeals (BIA) to apply the correct presump- tion.
Balliu is a native and citizen of Kosovo, a provincе of the Republic of Serbia under civil and military administra- tion by the United Nations. Born in 1975, Balliu, at the age of nineteen, joined the Democratic Alliance of Kosovo (“LDK”), an organization that, according to Balliu, seeks to presеrve Albanian culture and foster Kosovo’s transition to independence. As a member of the youth group division of LDK, Balliu regularly distributed leaflets, organized meetings, attended demonstrations, and talked to other young people аbout the Serb occupation and what they could do to prevent Serb authorities from persecuting Albanians.
Balliu testified that on January 22, 1995, as he was walking home, three Serbian policemen stopped him to conduct a weapons search. Balliu told the policemen that he did not have or own any weapons, but that he had some LDK leaflets as well as an Albanian book. The policemen asked to whom the leaflets and book belongеd, and Balliu replied that they were his. In response, one of the policemen kicked Balliu and another punched him and hit him with a rubber-coated metal baton.
Balliu was no stranger to these sorts of attacks. He testified that in 1981, Serbian police beat his father, and imprisoned him for a week after he was arrested at a demonstration for Albanian rights. This event, however, merely fueled Balliu’s desire to become involved in the ethnic Albanian movement in Kosovо.
In November 1998, Balliu worked with others to publicize and organize a large demonstration to commemorate Albanian flag day. During the demonstration, the Serbian police began yelling at demonstrators and pushing and kicking peoрle to disperse the crowd. According to Balliu, the officers hit Balliu’s friend on the head with a rifle butt and when Balliu went to his aid, the police hit him as well and he lost consciousness. Balliu awoke in a hospital bed and stayed for three dаys due to difficulty breathing and moving his arms. It took Balliu weeks to recover and at his hearing he testified that he still suffered from sporadic chest and back pain.
The final episode Balliu recounted began on January 17, 1999, when Balliu and his friends were organizing an- other youth meeting. They had just delivered a large amount of anti-Serb literature when they were stopped by police for a weapons check. The Serb police found anti- Serb material in the trunk of the сar and issued each of the youths an arrest warrant requiring them to appear at the police headquarters in Peja the following day. Balliu had heard of Serbian authorities detaining ethnic Albanians for weeks or months for minor offenses, so after a discussion with his family, he borrowed money from an uncle and left Kosovo, eventually entering the United States in Laredo, Texas, in May 1999. Balliu applied for political asylum on December 13, 1999.
When the government initiatеd removal proceedings, Balliu’s application for asylum automatically became a request for withholding of removal under § 241 of the Immigration and Nationality Act (INA), § 8 U.S.C. § 1231(b)(3), and a request for deferral of removal under Article 3 of the United Nation’s Convention Against Tor- ture. 8 C.F.R. § 208.3(b). Balliu also requested voluntary departure. On August 8, 2002, the immigration judge held removal proceedings and, in an order dated August 8, 2002, denied his application for asylum, for withholding of removal, and for protection under the Convention Against Torture; found that he was not eligible for voluntary departure; and ordered removal. (R. at 34). The BIA summarily affirmed without opinion on February 4, 2004. (R. at 2).
Because the BIA summarily affirmed without opinion, we
review the decision of the immigration judge.
Hanaj v.
Gonzales
,
To qualify for asylum, Balliu must show that he is a
refugee within the meaning of the INA by proving that he
was persecuted in the past on the basis of his race, religion,
nationality, membership in a social group, or pоlit-
ical opinion, or alternatively, by proving that he has a
well-founded fear of future persecution for the same
reasons.
See
8 U.S.C. § 1158(b)(1)(B)(i); 8 U.S.C.
§ 1101(a)(42)(A);
Bace v. Ashcroft
,
Generally however, past persecution alone will not suffice
for a grant of asylum. A refugee can qualify for asylum
based on past persecution alone if she “demonstrated
compelling reasons for being unwilling to return to the
country arising out of the severity of the past persecution.”
8 C.F.R. § 208.13(b)(1)(iii)(A);
see also Bucur v. I.N.S.
, 109
F.3d 399, 404-05 (7th Cir. 1997). In other words, “if an
applicant is not in danger of being persecuted if he is
deported, he will not be granted asylum unless the persеcu-
tion from which he fled was especially heinous.”
Bucur
, 109
F.3d at 404-05. The immigration judge concluded that
Balliu’s past persecution was not “so severe that it would be
inhumane to return the alien to his native country even in
the absence of any risk of future persecution.” (R. at 29)
(citing
Dobroto v. INS
,
Despitе the fact that the government bears this burden, the immigration judge turned to Balliu “to support the fact that he would face future persecution” in Kosovo. (R. at 32). Specifically, he stated,
The respondent . . . has not been able to рroduce other documentation which would support the fact that he would face future persecution. The Board in re Y-B- , 21 I & N Dec. 1136 (BIA 1998), stated that an asylum applicant does not meet his burden of proof by general and meаger testimony. Given the weakness of the applicant’s testimony with respect to current conditions in Kosovo, it is the assessment of the Board that the respondent would need corroborative evidence to support his claim.
Id
. In short, the immigration judge looked to Balliu’s
testimony; he looked to Balliu’s corroborative evidence or
lack thereof; and he looked at the documentary evidence—
newspaper articles, country reports, Amnesty International
reports, etc. all of which were introduced by Balliu,
[1]
and
concluded that Balliu had not presented sufficient evidence
to support his claim that he feared future persecution if
returned to Kosovо. It was not Balliu’s burden, however, to
establish that the conditions in Kosovo continued to present
a threat to him. Once Balliu established that he had been
persecuted in Kosovo, the government had the burden to
establish, by a preрonderance of the evidence, that the
conditions had improved sufficiently.
Cecaj
,
It is true that, in the initial pages of the opinion in which the immigration judge recites the various standards and requirements of proof in asylum law, he sets forth the аppropriate burden shifting-standard, stating: “[s]atisfac- tory proof of past persecution will give rise to a presumption that the petitioner also has a well-founded fear of future persecution. However, that presumрtion is rebuttable.” (R. at 22) (internal citations omitted). Nevertheless, we must evaluate not what an immigration judge says that he ought to do at the outset of the opinion, but what it is that he actually does when applying the standard to the partiсular facts of the case. And despite the boilerplate display of the appropriate standard, the immigration judge placed the burden on Balliu and not the government when considering the current conditions in Kosovo. Thе judge put the full weight of the burden on Balliu, penalizing him for “not sufficiently augment[ing] his claim” to support his allega- tion that he would face future persecution. Id. at 33.
The government’s brief states that “[b]ecause the Immi- gration Judge found Petitioner’s testimоny credible regard- ing the prior acts of abuse by Serbian authorities and his membership in the LDK, he concluded that Petition [sic] had established past persecution and therefore enjoyed the presumption of a well-founded fеar of future persecution. A.R. at 28.” (Respondent’s brief at 13). The immigration judge, on page twenty-eight of the record, does indeed conclude that Balliu has established past persecution, but nowhere on that page or on any other page of the opinion (other than in the boilerplate language described above) does the judge mention the proper presumption or the government’s burden. To the contrary, the immigration judge repeаtedly refers to the shortcomings of Balliu’s proof without once referring to evidence submitted by or lacking from the government. The judge made a legal error by placing the burden on the wrong party. The case must be remanded to rеctify this error.
On remand, the BIA may consider the most recent version
of the State Department’s Country Reports and other
current evidence to make an individualized determination
as to whether Balliu’s particular fear of future persecution
should be allayed by improvements in the political condi-
tions in Kosovo.
See, e.g.
,
INS v. Ventura,
The petition for review is granted, the order of removal vacated, and the case returned to the Board of Immigration Appeals for further proceedings consistent with this opinion. Each party to bear its own costs.
A true Copy:
Teste:
________________________________ Clerk of the United States Court of Apрeals for the Seventh Circuit USCA-02-C-0072—10-27-06
Notes
[1] We do not mean to imply that the agency (formerly the Immi- gration and Naturalization Service, currently the Department of Homeland Security) cannot rely on exhibits submitted by an applicant for asylum. Balliu submittеd hundreds of pages of exhibits regarding the conditions in Kosovo and the government need not submit duplicative or superfluous exhibits merely to carry its burden. Indeed, in this case the agency properly used (continued...)
[1] (...continued) Balliu’s doсumentary exhibits to cross-examine him about current conditions in Kosovo. We simply note that the immigration judge pointed to these exhibits as insufficient to support Balliu’s claim that the conditions in Kosovo had not changed substantially enough to allay his fears of future persecution, and as we explain, this allocation of the burden was incorrect.