Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
3-24-2003
Butkovic v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket 02-2421
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2421
IVICA BRANIMIR BUTKOVIC,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
( No. A17-624-534)
Submitted Under Third Circuit LAR 34.1(a)
January 22, 2003
Before: BECKER, NYGAARD, and AMBRO, Circuit Judges
(Opinion filed : March 24, 2003 )
OPINION
AMBRO, Circuit Judge
The Immigration and Naturalization Service instituted removal proceedings against petitioner
Ivica Branimir Butkovic, who sought asylum and withholding of deportation under Sections 208 and
243(h) of the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1158 and 1253(h). Denied relief
by the Immigration Judge (“IJ”), Butkovic appealed to the Board of Immigration Appeals (“BIA”),
which affirmed the IJ’s decision. Butkovic subsequently filed this petition for review, a petition that we
dismiss.
I. Facts
Butkovic first came to the United States from Italy in 1968 as a political refugee. He obtained
his lawful permanent resident status in 1972. In 1973, he returned to Croatia (then Yugoslavia), his
country of birth, to “act as a lawyer” to protect his property interests. He did not return to the United
States until 1982, at which time an immigration official confiscated his green card, social security
number and exit permit because those documents had expired. He returned to Croatia in 1983. In
1991, Butkovic returned to the United States as a visitor and applied for asylum and withholding of
deportation. In 1995, the INS initiated deportation proceedings because Butkovic had overstayed his
visa.
At a hearing held in August 1996, Butkovic testified that he had suffered persecution in the
former Yugoslavia because of his anti-communist beliefs and that he therefore fears future persecution
in Croatia. He testified that he had been imprisoned on various occasions in 1951, 1967 and 1968.
He testified that he was admitted to a mental institution in 1964 and 1966 for alcoholism and that in
1985, he was declared mentally incompetent by a Yugoslavian court.
After the hearing, the IJ denied Butkovic’s applications and granted voluntary departure. As
noted, Butvokic appealed the IJ’s decision to the BIA, which affirmed the IJ’s conclusion that, even
accepting as true everything that Butkovic had alleged,1 he had not satisfied his burden to show an
objectively reasonable fear of persecution. First, Butkovic had not provided sufficient evidence that the
finding that he was mentally incompetent was motivated by some persecutory intent. Second,
Butkovic’s fear of future persecution on account of his anti-communist beliefs was not objectively
reasonable because the current Croatian government is democratic and allows ownership of private
property.
II. Statutory Framework and Standard of Review
Under Section 208 of the INA, the Attorney General has discretion to grant asylum to an
otherwise deportable alien who qualifies as a refugee. 8 U.S.C. § 1158(a). A refugee is defined by
statute as an individual who cannot return to a country in which he or she resided because of
“persecution or a well-founded fear of persecution on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). The asylum seeker has
the burden of showing both a genuine subjective fear of persecution and an objectively reasonable
possibility of persecution. Li Wu Lin v. INS, 238 F.3d 239, 244 (3d Cir. 2001) (citing INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987)). To be eligible for withholding of deportation, the alien
must establish that it is more likely than not he or she would be subject to persecution if deported. Id.
We review the BIA’s decision to grant or deny asylum for abuse of discretion. Janusiak v.
INS, 947 F.2d 46, 46 (3d Cir. 1991). The factual findings underlying the Board’s denial of asylum are
1
The IJ stated that while it was difficult to assess Butkovic’s credibility, it appeared that
Butkovic genuinely believed his story, and the IJ therefore reviewed his claim on the
merits. The BIA concluded that the IJ had not made an adverse credibility finding and also
reviewed Butkovic’s case on the merits.
reviewed for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under this
deferential standard, we may reverse the Board’s findings “only if the evidence . . . [is] such that a
reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. at 481.
III. Discussion
Butkovic makes several arguments on appeal. First, he claims that the BIA abused its
discretion in concluding that he did not satisfy his burden of proof because he provided credible and
objective testimony and evidence of his past persecution. Second, he argues that the IJ misapplied the
applicable standard concerning corroborating evidence. Finally, he states that the IJ violated his right
to due process by not ordering a competency hearing. We find none of these arguments persuasive.
As for the first argument, we conclude that the BIA did not abuse its discretion in concluding
that Butkovic did not have an objectively reasonable fear of persecution. Butkovic testified about his
past persecution on account of his anti-communist beliefs and submitted country reports in support of
his claim that the current political turmoil in Croatia gives rise to a reasonable fear of future persecution.
The INS introduced evidence to show that while there may be political turmoil in Croatia, the current
government is democratic and allows ownership of private property. We agree with the BIA that the
current political situation in Croatia belies any fear Butkovic might have had of persecution on account
of his anti-communist beliefs.
Butkovic next claims that the BIA erred in holding that his asylum claim is insufficient because
he lacked corroborating evidence. We disagree. The IJ concluded that Butkovic had not provided
sufficient evidence that the Yugoslavian court finding of mental incompetency was motivated by some
persecutory intent. An alien’s own testimony will suffice “where the testimony is believable, consistent
and sufficiently detailed to provide a plausible and coherent account of the basis of the alien’s alleged
fear.” Matter of Dass, 20 I&N Dec. 120 (BIA 1989). Here, Butkovic’s testimony shows only that he
was found mentally incompetent, and that he concluded that the mental incompetency finding was
motivated not by his mental condition but by a desire to punish him for his anti-communist beliefs.
Because a finding of mental incompetency is something that as a general rule is not motivated by
persecutory intent, and because there was evidence before the IJ to suggest that Butkovic was properly
deemed mentally incompetent, we do not think that the IJ erred in requiring some more direct evidence
of persecutory intent.2 Absent that evidence, the mere fact that Butkovic was found mentally
incompetent does not provide a “plausible and coherent” account that he will face persecution on
account of his anti-communist beliefs upon his return to Croatia. Id.
In addition, Butkovic claims that because the BIA did not explicitly enumerate those portions of
his testimony that required corroboration, its decision violated Abdulai v. Ashcroft, 239 F.3d 542, 549
(3d Cir. 2001). In Abdulai, we held that the BIA must identify “what particular aspects of [the
petitioner’s] testimony it would have been reasonable to expect him to have corroborated.” Id. at 549.
We reject Butkovic’s argument. To the extent that the BIA’s statements can be construed as requests
for corroboration, the BIA did explicitly state which portions of Butkovic’s testimony should be
corroborated. It reasoned that “the respondent has not sufficiently explained how being declared to be
mentally incompetent by a court of law constitutes ‘persecution.’ The respondent also has not
sufficiently explained why the current, independent government of Croatia would have any inclination to
persecute the respondent.” Further, the BIA’s statements do not truly constitute a request for
corroboration of Butkovic’s testimony, but rather a request for amplification or clarification of that
2
Butkovic himself notes that his “mental capacity was called into question by both his
legal representative and by the Immigration Judge during proceedings.”
testimony. As explained above, it was reasonable for the BIA to require this additional evidence.
Finally, Butkovic argues that the IJ violated his due process rights by not ordering a
competency hearing because “his mental status may likely have resulted in his lack of appreciation of
the severity of the proceedings and the consequences thereof.” We lack jurisdiction to review this
claim because Butkovic failed to raise this claim in his appeal to the BIA. See Bak v. INS, 682 F.2d
441, 443-44 (3d Cir. 1982).
* * *
For the reasons stated above, we dismiss Butkovic’s petition for review of the
BIA’s decision.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
Thomas L. Ambro
Circuit Judge