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Ivanka Stanojkova, Et v. Eric H. Holder

July 14, 2011


Petition for Review of a Decision of the Board of Immigration Appeals. Nos. A095-930-601 & A095-930-602

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

ARGUED JUNE 14, 2011

Before POSNER, ROVNER, and WOOD, Circuit Judges.

One of the nations that emerged from the breakup of Yugoslavia was Macedonia. Ethnically it is mostly Slavic, but about a quarter of the population is Albanian. Albanian extremists began an insurrection in January 2001; it petered out after Macedonia agreed, in the "Ohrid Framework Agreement," signed in August, to grant greater rights to the Albanian minority. See, e.g., Julie Kim, "Macedonia: Country Back-ground and Recent Conflict" (Congressional Research Service, CRS Report for Congress, March 28, 2002), php?study=M acedoniaઋꞶ벾֧⒂먮鷟骝 Recentઉ�✭ (visited June 29, 2011). Some violence persisted into the fall, and both sides accused the other of human rights violations. A State Department country report for 2002, entitled "Macedonia, the Former Yugoslav Republic of," March 31, 2003, rls/hrrpt/2002/18379.htm (visited June 29, 2011), recounts extensive human rights violations by government forces, including a paramilitary police unit known as the "Lions."

The petitioners, Gjorgji Naumov and his wife, Ivanka Stanojkova, are Macedonian Slavs. In 2001 Naumov was drafted into the Macedonian Army. He refused to report for duty, because he disapproved of the government's effort to suppress Albanian demands for greater rights; he thought the demands justified.

On July 2, 2002, when Naumov and his wife, who had just learned she was pregnant, were living with his parents, three men broke into the home. It was midnight and they were armed, masked, and dressed in black. They rendered the parents unconscious with a chemical spray. One of the assailants held a gun to Naumov's head and explained that he and his companions had broken into the Naumov home because Naumov and his wife were "against the Macedonians" and "betrayers of Macedonia" and Naumov "did not participate in the war" (that is, the suppression of the Albanians' insurrec- tion). Another of the assailants ripped open the wife's pajama top and fondled her breasts. He told her he could do to her whatever he wanted to do. He touched and grabbed her "all over her body" as she cried. When her husband told the assailants that his wife was pregnant, one of them replied that he was not "man enough to have Macedonian kids." Naumov tried to defend his wife but his attacker beat him on the head and back with his gun, causing bruises and swelling. When his wife's assailant tried to rip off her pajama bottoms she screamed very loudly, whereupon all three attackers left-though not before taking the Naumovs' money and jewelry. She was afraid she would lose the baby, and visited her doctor the next day; he found nothing wrong, and the pregnancy proceeded normally.

The police-whom Naumov had called as soon as the attackers left-didn't arrive until six hours later. They told him the assailants were "Lions," the implication being that the ordinary police, the police who had come in response to Naumov's call, couldn't protect the Naumovs because the Lions were fellow police, presum-ably more influential than ordinary police because of their paramilitary character. So two days after the attack the Naumovs fled the country. Eventually they came to the United States, but without a visa. Removal proceedings were instituted. The couple asked for asylum and other relief, but the immigration judge denied all relief and ordered them removed to Macedonia. The Board of Immigration Appeals affirmed in a perfunctory opinion by a "panel" consisting of one member of the Board.

The petitioners missed their deadline for seeking asylum, but remain eligible for withholding of removal and for deferral of removal on account of torture, although they do not press the torture claim, so we'll ignore it.

Withholding of removal (8 U.S.C. § 1231(b)(3)) requires a determination that the applicant (in this case applicants) will more likely than not be subjected to persecution if removed from the United States. INS v. CardozaFonseca, 480 U.S. 421, 430 (1987); Toure v. Holder, 624 F.3d 422, 428 (7th Cir. 2010); Quao Lin Dong v. U.S. Attorney General, 638 F.3d 223, 228 (3d Cir. 2011). A finding of past persecution creates a rebuttable presumption of future persecution. 8 C.F.R. §§ 208.16(b)(1)(i), 1208.16(b)(1)(i). The Naumovs rely on the presumption.

The immigration judge, seconded by the Board member, ruled that the presumption was inapplicable because, they concluded, the Naumovs had not been persecuted. The immigration judge began his analysis by expressing doubt that Naumov's refusal to report for military duty had been politically motivated. Why that would matter is unclear; the Lions were angry that he had refused to fight the Albanians-why he had refused would not have interested them. In any event the judge's reasoning was garbled. He said:

It is the understanding of this Judge that Gjorgji Naumov refused to report, in part, because he indicated that he did not believe in the mission of the army at the time. He indicated that he was not in- terested in going to war. However, it is not entirely clear what Mr. Naumov was reporting to. Mr. Naumov did not indicate at the time that individuals were being forced to fight against other countries. If Mr. Naumov did not want to bear arms in support of the Macedonian government to quell any uprising by ethnic Albanians, it is not entirely clear to this Judge. However, there is no evidence in the record to show that Macedonia, back in 2001, was conducting any type of human rights abuses or atrocities, including any genocide. There were ethnic disturbances, however, after having reviewed the respondent's testimony and considered the evidence in this case, it is the assessment of this Judge that the government of Macedonia had a right to have him report to military service.

The statement that there is no evidence of human rights abuses by the Macedonian army in 2001 ignores the State Department's country report, though the report was not contradicted. (The member of the Board of Im-migration Appeals who reviewed the judge's decision missed the error, glaring though it was.) What the immigration judge meant when he said "it is not entirely clear what Mr. Naumov was reporting to" we can't fathom; nor his reference to Naumov's "being forced to fight against other countries." The Board member made no attempt at clarification.

As for the Lions, the immigration judge resorted to the kind of warped logic that mars so many opinions of immigration judges and members of the Board of Immigra- tion Appeals, by saying that if the police were in cahoots with the Lions "it would defy logic for them to come to the [Naumovs'] home at 6:00 a.m. in the morning following the attack and investigate the crime." No one had suggested that the attack was pursuant to a conspiracy between the local police and the Lions; the claim was that the authorities were not going to apprehend the attackers or protect the Naumovs because the ordinary police had no authority over the Lions.

Although the immigration judge said that "conclusions raised by Mr. Naumov that his refusal to be conscripted into the military a second time resulted directly in him and his wife being the victim of a home invasion, is [sic] not credible," the judge had previously remarked noncommittally that "eventually, according to [Naumov's wife], the testimony came back to [Naumov's] purportedly being an individual who refused to report for military service." (No "purported" about it; no one has questioned that he had refused to report.) The only sense we can make of this muddy sentence is that ...

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