United States Court of Appeals,
Fifth Circuit.
No. 94-40375
Summary Calendar.
Zlatko JUKIC, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Dec. 22, 1994.
Petition for Review of Order from the Board of Immigration Appeals.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Zlatko Jukic (Jukic), a citizen of Croatia, petitions for
review of a final order of deportation by the Board of Immigration
Appeals. We deny review.
I. BACKGROUND
Jukic was born in Yugoslavia. He is a citizen of what now is
known as Croatia. Jukic testified as follows at the hearing held
before the immigration judge. Upon turning 18, he fulfilled
compulsory military service in the Yugoslavian army for one year
and was discharged in June of 1990. In the fall of 1990, Jukic
entered the United States as a non-immigrant visitor for pleasure
with authorization to remain until October 23, 1991. Jukic had
purchased a round-trip plane ticket, intending to return home.
While visiting his uncle in Chicago, his mother (who remained in
Yugoslavia) informed him that she had received a notice recalling
him to duty for the Yugoslavian government.
1
The political situation in Yugoslavia, of course, deteriorated
rapidly after Jukic's departure.1 Jukic did not want to provide
further military service to the then—communist government of
Yugoslavia, and consequently, did not report after receiving the
draft letter.
After hearing the evidence, the immigration judge determined
that Jukic had failed to demonstrate a well-founded fear of
persecution as set forth in the Immigration and Nationality Act.
The Board of Immigration Appeals affirmed the decision of the
immigration judge denying Jukic's request for asylum and
withholding of deportation. Jukic now petitions this Court for
review of the deportation order. He disputes neither that he
remained in the United States beyond the authorized date nor that
he is subject to deportation. Instead, he argues that he was
entitled to asylum and withholding of deportation.
II. ANALYSIS
A. WHETHER JUKIC HAS WAIVED HIS CHALLENGE TO THE BOARD'S DECISION.
The Immigration and Naturalization Service (INS) argues that
Jukic has waived his claim because he challenges the order of the
immigration judge rather than the ruling of the Board of
Immigration Appeals which affirmed the immigration judge's order.
The INS correctly argues that this Court is authorized to review
the order of the Board rather than the order of the immigration
1
The former Yugoslavia has since split into several
different countries, including Croatia, Slovenia, and Bosnia-
Herzegovina. Macedonia has been recognized by the United States
as an independent state. The only two republics that appear to
remain a part of former Yugoslavia are Serbia and Montenegro.
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judge. Castillo-Rodriguez v. I.N.S., 929 F.2d 181, 183 (5th
Cir.1991). "We refuse, however, to allow a mere technicality in
pleading to result in a denial of an opportunity for petitioner to
obtain a decision on the merits." Id. We decline to find that
Jukic has waived his claims and thus, will review them on the
merits. See id. at 184.
B. WHETHER THE BOARD ERRED IN FINDING THAT JUKIC DID NOT QUALIFY
FOR POLITICAL ASYLUM.
Jukic argues that the Board erred in not granting him
political asylum. The Attorney General has the discretion to grant
asylum to "refugees." 8 U.S.C. § 1158(a). The term "refugee" is
statutorily defined as a person who is outside their country and
unable or unwilling to return "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). To prove a "well-founded
fear of persecution," Jukic must show that a reasonable person in
the same circumstances would fear persecution if deported.
Castillo-Rodriguez, 929 F.2d at 184.
The Board's factual finding that an alien is not eligible for
consideration for asylum must be upheld if it is supported by
substantial evidence. Castillo-Rodriguez, 929 F.2d at 184. To
reverse the Board's decision, Jukic must "show that the evidence he
presented was so compelling that no reasonable factfinder could
fail to find the requisite fear of persecution." I.N.S. v. Elias-
Zacarias, 502 U.S. 478, ----, 112 S.Ct. 812, 817, 117 L.Ed.2d 38
(1992). We will not reverse a finding simply because we differ
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with the Board's evaluation of the facts. Castillo-Rodriguez, 929
F.2d at 184. Likewise, we will uphold the Attorney General's
determination whether to grant asylum unless the petitioner shows
that the action was arbitrary, capricious, or an abuse of
discretion. Id.
Jukic argues that he fears persecution in Croatia based on
his political opinion and his membership in a particular social
group. Specifically, he argues that he fears persecution by the
Serbian army based on his political opinion because he previously
served in that army and since then has ignored a draft notice sent
by them. Jukic further argues that he fears persecution by his
people (the Croatians) because he did not return to help defend his
country during the outbreak of the war. As a result of his failure
to return and fight, he contends that the Croatians consider him a
traitor.
At the hearing on August 26, 1993, Jukic testified that it had
been two years since he received the draft notice from the Serbian
army and that he had received no further letters. Moreover, it is
not clear that the Serbian army that sent the draft notice is the
same as the Yugoslavian army in which Jukic previously served. As
the Board of Immigration Appeals found, Jukic made broad
allegations regarding his fears, but did not produce evidence to
substantiate those allegations. There was no showing that the
Croatians would view Jukic as a traitor for his prior compulsory
military service in the former Yugoslavian army. Jukic has failed
to demonstrate that he will be persecuted by either people based on
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his political opinion or social group, "rather than because of his
refusal to fight with them." See Elias-Zacarias, 502 U.S. at ----,
112 S.Ct. at 816.
Having examined the record, we conclude that Jukic failed to
"show that the evidence he presented was so compelling that no
reasonable factfinder could fail to find the requisite fear of
persecution." Id. 502 U.S. at ----, 112 S.Ct. at 817.
Accordingly, the Board's determination that he was not entitled to
asylum must be upheld.
C. WITHHOLDING OF DEPORTATION
Jukic also argues that the Board erred in denying him a
withholding of deportation. See 8 U.S.C. § 1253(h)(1). Pursuant
to § 1253(h)(1), the Attorney General shall not deport an alien if
the alien's life or freedom would be threatened in such country on
account of race, religion, nationality, membership in a social
group, or political opinion. To fall under that provision, the
alien must demonstrate a clear probability of persecution on one of
the enumerated grounds. Castillo-Rodriguez, 929 F.2d at 185. The
showing necessary to prove a clear probability of persecution is
higher than that required to prove a well-founded fear of
persecution under the asylum remedy. Id. Because we have found
that Jukic failed to prove he was entitled to asylum, a fortiori,
he is ineligible for withholding of deportation.
For the foregoing reasons, the petition for review is DENIED.
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