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Begzatowski v. Immigration and Naturalization Service

January 11, 2002

BAJRAM BEGZATOWSKI, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals A72 671 697

Before Coffey, Easterbrook and Ripple, Circuit Judges.

The opinion of the court was delivered by: Ripple, Circuit Judge.

ARGUED NOVEMBER 29, 2001

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.*fn1 For the reasons set forth in the following opinion, we grant the petition for review, reverse the judgment of the BIA and remand for further consideration.

I. BACKGROUND

A. Facts

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 Yugoslavian army.

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 range.

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,*fn2 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 for asylum.

B. Administrative Proceedings

1.

On March 10, 1994, an Order to Show Cause was issued and charged Mr. Begzatowski with deportability. At hisdeportation 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.*fn3 He also noted that the discrimination described by Mr. Begzatowski had been documented by reputable organizations. However, the IJ determined that ...


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