9th Circuit: IJ And BIA’s Denial Of Asylum To Serbian Victims Of Ethnic Cleansing Not Supported By Evidence

IMMIGRATION LAW & POLICY

Asylum, Refugee, and Other
Protected Statuses

9th circuit: IJ and BIA’s denial of asylum to Serbian victims of ethnic cleansing not supported by evidence
Immigrants' Rights Update, Vol. 18, No. 4, June 18, 2004

The U.S. Court of Appeals for the Ninth Circuit recently found an immigration judge’s decision that two elderly Serbian applicants for asylum had failed to establish that they had suffered past persecution or that they had a well-founded fear of future persecution to be unsupported by substantial evidence. The court also found that though the Serbian couple possibly could relocate safely in their country of citizenship, Bosnia-Herzegovina, somewhere other than their hometown, it would not only be unreasonable, but “exceptionally harsh,” to require them to do so, given their advanced age and the facts that they lost all their possessions when they fled their home, that they would have no means of supporting themselves, and that no other members of their family now reside in Bosnia-Herzegovina.

The couple, Damjan and Danica Knezevic (approximately ages 75 and 66, respectively), appealed to the Ninth Circuit after the Board of Immigration Appeals summarily affirmed, without issuing an opinion, the immigration judge’s denial of their joint application for asylum and withholding of deportation.

Fearing for their lives, the Knezevics fled their hometown of Drvar in 1995 when the advancing Croat army began to shell it, because within the region it was common knowledge that the Croats intended to “ethnically cleanse” the areas that came under their control. They ran away on foot, taking with them only whatever personal things they managed to pack in ten minutes into two bags each. The Croats’ shelling and bombing destroyed the Knezevics’ restaurant and their house; and the occupiers stole whatever the couple left behind that was salvageable. Having fled Drvar, the couple feared that if they returned to the Croation and Muslim Federation–controlled city, they would be persecuted or even killed. They also were afraid to relocate to a Serbian-held part of Bosnia-Herzegovina, Mr. Knezevic testified, because they were convinced that there would be no reliable protection for them there, either; plus they lacked the resources to do so.

The Knezevics entered the U.S. on visitor visas on July 6, 1996, and shortly thereafter applied affirmatively for asylum, claiming that they had suffered past persecution on account of their Serbian ethnicity and that they feared, should they be forced to return to Bosnia-Herzegovina, future persecution by Croats, also on account of their ethnicity. In Jan. 1997 the Immigration and Naturalization Service issued the couple an Order to Show Cause, charging them with being deportable for overstaying their visitor visas. The immigration judge found them deportable and denied their application for asylum and withholding of deportation at a hearing on Nov. 19, 1997. The government did not rebut any of the testimony or evidence the Knezevics presented, and neither the IJ nor the BIA found Mr. Knezevic’s testimony to be not credible. The BIA summarily affirmed the IJ’s decision on June 28, 2002.

In rejecting the couple’s application, the IJ found that they were “displaced persons” and not “refugees,” because they presented no evidence that they had been singled out for persecution or that their family had been specifically threatened on account of any of the legal grounds for being granted asylum—persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. In finding the IJ’s decision deficient, the Ninth Circuit pointed out that the judge was mistaken in requiring the Knezevics to prove that the persecution they experienced in the past was “particularized,” since this is not a requirement of the law.

According to the court’s decision:

Further, the IJ’s reasoning misses the critical distinction between persons displaced by the inevitable ravages of war (e.g., the bombing of London by the German Luftwaffe during World War II), and those fleeing from hostile forces motivated by a desire to kill each and every member of the group (e.g., the destruction of the Jewish neighborhoods on the Eastern front of Europe by the Einsatzgruppen, who followed the German Wehrmacht in WWII). In the first example, although the German armed forces intended to conquer and occupy London, they did not intend to kill every Londoner. In the latter example, the Nazi detachments did intend to kill every Jew, which made the persecution individual to each Jewish resident of an area invaded by the Nazis. The latter is persecution “on account of” a protected status, while the former is not. The record before us compels the conclusion that the town of Drvar was specifically targeted for bombing, invasion, occupation, and ethnic cleansing of Serbs by Croats.

The fact that the Knezevics hometown was targeted for ethnic cleansing strengthens their claim that they suffered persecution, the court found.

Furthermore, the court found the Knezevics claim that they feared future persecution should they be forced to return to Drvar to be “objectively well-founded,” based on the evidence they presented and Mr. Knezevic’s testimony. The couple did not need to prove that they would be singled out for persecution should they return to Drvar, “because they proved a practice of persecution against Serbs in the region” of Drvar, the court said. Because they are Serbs who would be returning to a Croat-dominated area, the Knezevics “need not prove they will be individually targeted” for persecution, since their situation then would be comparable to that of “the Jews in Nazi-occupied lands” during World War II.

The court also found that, given the Knezevics’ advanced age and other factors, it would be unreasonable to return them to someplace in Bosnia-Herzegovina other than their hometown. The court took note of Mr. Knezevic’s testimony that during World War II his family provided significant help to British and American military personnel by providing them shelter in their home when the Allies were helping Marshal Tito’s forces resist the Nazis and Nazi-aligned Croat forces. Their family’s history of having assisted in the earlier resistance to Croat aggression could possibly make the Knezevics even more vulnerable than other Serbs to persecution should they be returned to their home country, the court found.

The court remanded the Knezevics case to the BIA with the expectation that the BIA will reconsider their application for asylum and withholding of deportation, and make a determination about the reasonableness of requiring them to return to some part of Bosnia-Herzegovina other than their hometown.

Knezevic v. Ashcroft, 2004 U.S. App. LEXIS 10162, No. 02-72384 (9th Cir. May 24, 2004).