Viollca Brucaj v. John D. Ashcroft

Citations: 381 F.3d 602; 2004 U.S. App. LEXIS 17738; 2004 WL 1858372Docket: 03-3645

Court: Court of Appeals for the Seventh Circuit; August 20, 2004; Federal Appellate Court

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Viollca Brucaj, an ethnic Albanian from Kosovo, petitions for review of the Board of Immigration Appeals' (BIA) denial of her asylum request. After witnessing violence against her family by Serbian soldiers in April 1999, including her brutal gang-rape, she was left unconscious and later found by a family in Albania. With assistance from her brother Pjerin, she obtained a U.S. passport and fled to the United States in October 1999, where she was detained by immigration officials. Brucaj has not heard from her parents since the incident and is uncertain about the fate of her brother Ardjian, who joined the Kosovo Liberation Army. Upon arrival, she conceded to having entered the U.S. through fraud and sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The court grants her petition, reverses the BIA's decision, and remands for further proceedings.

Ms. Brucaj and Pjerin provided testimony at her asylum hearing regarding events in 1999 during the Milosevic regime's ethnic cleansing campaign, which led to widespread civilian casualties in Yugoslavia. The Government submitted a 2000 State Department Country Report indicating that after NATO's intervention, the UN Interim Administrative Mission in Kosovo (UNMIK) began to establish civil authority, although interethnic tensions persisted. The report highlighted that while over 150,000 Kosovar Albanians returned to Kosovo, few ethnic Serbs did, and violence increasingly targeted Serbs.

The Immigration Judge (IJ) denied Ms. Brucaj's asylum claim, acknowledging her past persecution but determining that changed country conditions rebutted her presumption of future persecution. The IJ noted the removal of Milosevic from power and the establishment of a new government, thus concluding she did not meet the standard for asylum or withholding of removal. Although Ms. Brucaj sought asylum on humanitarian grounds, the IJ did not address this argument.

Upon appeal, the Board of Immigration Appeals (BIA) affirmed the IJ's decision, agreeing that while Ms. Brucaj had experienced past persecution, the changed conditions negated the presumption of future persecution. The BIA also considered her humanitarian claim but found insufficient evidence of severe psychological harm if she returned to Yugoslavia.

The analysis established that the BIA's opinion supplemented the IJ's, and the asylum determination would be reviewed under the substantial evidence test, allowing for overturning the decision only if the record overwhelmingly supported a contrary outcome.

To qualify for asylum under the Immigration and Nationality Act, Ms. Brucaj must demonstrate she is a refugee, which can be established through evidence of past persecution. If she demonstrates this, a rebuttable presumption arises that she has a well-founded fear of future persecution. The Government can counter this presumption by proving, by a preponderance of the evidence, a fundamental change in circumstances that diminishes her fear of persecution in her home country.

In this case, both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) acknowledged that Ms. Brucaj experienced past persecution, thus granting her the presumption of future persecution. However, the IJ determined that the Government successfully rebutted this presumption by showing a fundamental change in the regime, specifically the removal of Milosevic, who was responsible for the ethnic cleansing of Albanians in Kosovo. With the new government in place, the IJ concluded that Ms. Brucaj was unlikely to face future persecution based on her ethnicity.

Substantial evidence supports the IJ's conclusion, including a 2000 Country Report detailing the dismantling of Milosevic's regime, although it noted ongoing interethnic violence, primarily directed at Serbs, without confirmed reports of killings of Albanians by Yugoslav or Serbian forces in Kosovo.

Ms. Brucaj did not contest the sufficiency of the evidence supporting the IJ's and BIA's decisions but argued that the BIA should have considered developments since the Country Report, specifically the resurgence of hard-line Serb nationalists in June 2003 and the assassination of Serbian Prime Minister Zoran Djindjic in March 2003, which she believes impacts her asylum claim.

The Government contended that the BIA's decision was appropriate as these events did not indicate a change in the treatment of Albanians in Kosovo, emphasizing that since mid-1999, Kosovo has been under UN civil authority, separate from Serbia's government, and has maintained the same administrative conditions as at the time of the IJ's ruling.

In asylum cases, the applicant must provide evidence of changed country conditions to the Board of Immigration Appeals (BIA) when filing a motion to reopen. The BIA is not required to take administrative notice of recent country reports without such evidence. In Ms. Brucaj's case, her citation of a BBC News timeline does not substantiate her claim of increased violence against ethnic Albanians following political changes in the former Yugoslavia. The timeline fails to show a direct link between these events and potential harm to Ms. Brucaj in Kosovo, which is under UN administration. Therefore, the BIA's conclusion that country conditions have improved and that Ms. Brucaj is unlikely to face future persecution stands.

Additionally, even if the government can rebut the presumption of future persecution due to a regime change, the Attorney General retains discretion to grant humanitarian asylum for individuals who have experienced severe persecution. This concept stems from the BIA's decision in Matter of Chen, which recognized that past persecution might warrant asylum regardless of the likelihood of future threats. Humanitarian asylum is codified at 8 C.F.R. § 1208.13(b)(1)(iii), allowing applicants to demonstrate significant reasons for their unwillingness to return based on the severity of their past persecution. To qualify, an applicant must show that their past experiences were so severe that repatriation would be inhumane.

The BIA requires applicants to demonstrate "severe harm" and "long-lasting effects" to qualify for humanitarian asylum, as established in Matter of N-M-A, 22 I. N. Dec. 312 (BIA 1998). If this threshold is met, the IJ or BIA considers various discretionary factors unrelated to the applicant's refugee status, such as age, health, and family ties. Ms. Brucaj does not dispute the BIA's discretion to deny her asylum but argues that the justification for her denial was inadequate. She contends that the BIA's explanation lacked the necessary rationality and failed to clarify why her circumstances did not warrant humanitarian asylum. The BIA concluded that she did not provide objective evidence of psychological harm, which was necessary to meet the required threshold. Consequently, the BIA did not need to evaluate other humanitarian factors. The BIA’s brief statement on Ms. Brucaj's claim was overly succinct, merely paraphrasing regulatory language without sufficient analysis. The court emphasized that the BIA must adequately consider and articulate its decision on humanitarian claims to allow for effective judicial review. The BIA's rejection of Ms. Brucaj's claim could be interpreted as a failure to present objective medical or psychological evidence of lasting effects from past persecution, although the original case law does not specify the types of evidence required for such claims.

Regulations do not limit the types of evidence that can demonstrate an asylum applicant's compelling reasons for not returning to their country, as stated in 8 C.F.R. § 1208.13(b)(1)(iii)(A). Specifically, § 1208.13(a) indicates that credible testimony from the applicant may suffice to meet the burden of proof for asylum eligibility without the need for corroborative objective or expert evidence. There is no precedent or regulatory requirement mandating such evidence for a humanitarian asylum claim.

The Board of Immigration Appeals (BIA) may have dismissed Ms. Brucaj's claim on the grounds that her experiences, including severe rape and neglect, were not considered sufficiently "atrocious" to warrant humanitarian asylum. Should this reasoning underlie the BIA's denial, further clarification is required regarding how her situation materially differs from similar cases where asylum was granted, especially in light of documented severe psychological effects from rape comparable to those experienced by torture victims.

Alternatively, the BIA might have doubted that Ms. Brucaj would suffer psychological harm upon her return to Yugoslavia, a position that raises concerns about a lack of sensitivity to the trauma she described in her testimony. Ms. Brucaj expressed ongoing psychological distress and feelings of safety with her brother in the U.S., suggesting significant emotional repercussions from her past experiences.

The BIA's brief explanation for denying her claim lacks the necessary detail to understand its rationale fully. It appears the BIA may have imposed undue barriers to her claim that are unsupported by law or precedent. Therefore, the court grants Ms. Brucaj's petition, reverses the BIA's judgment, and remands the case for further clarification on the basis of the denial of her humanitarian asylum claim.

Kosovo is identified as a province in Serbia, part of the Federal Republic of Yugoslavia (Serbia-Montenegro). At the time of the events, Ms. Brucaj was twenty-one years old. The Immigration Judge (IJ) dismissed her claim for relief under the Convention Against Torture (CAT), determining it was not likely that she would be tortured upon removal due to a change in regime. The IJ noted sporadic violence under the new government but stated it was not attributable to governmental action or acquiescence, as required by 8 C.F.R. § 208.18(a)(1).

The Board found that Ms. Brucaj did not demonstrate eligibility for asylum based on her membership in a particular social group. She failed to provide evidence of a reasonable possibility or clear probability of being kidnapped or trafficked for prostitution if she returned to Kosovo. The report highlighted limited actions resembling those under Milosevic, specifically efforts by Kosovar Serbs to expel Albanians from northern Mitrovica, with no similar incidents reported in Ms. Brucaj's hometown of Kline.

Additionally, the IJ did not consider the possibility of humanitarian relief. Ms. Brucaj did not argue her CAT claim in her opening brief, resulting in a waiver of that claim. Although she raised a fear of future persecution based on being a young single woman in Kosovo and/or Albania during administrative proceedings, she similarly failed to address this claim before the court, leading to its waiver as well.