# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued January 27, 2009

Decided March 20, 2009

Before

RICHARD A. POSNER, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 08

‐ 3059

JADRANKO TOMAS, et al.,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent. Petition for Review of an Order of the

Board of Immigration Appeals.

Nos. A28 211 284, A98 730 970,

A98 730 971

O R D E R

Jadranko Tomas, a Serbian Christian and citizen of Bosnia

‐ Herzegovina,

applied—with his wife and child as derivative beneficiaries—for asylum, withholding of

removal, and protection under the Convention Against Torture. Tomas claims that he was

persecuted on account of political opinion by the local police and members of a Serbian

‐

nationalist crime ring. The immigration judge (“IJ”) denied the applications and the Board

of Immigration Appeals (“Board”) affirmed. Because the IJ’s conclusions are not supported

by substantial evidence, we grant the petition for review and remand the case for further

proceedings. 

### NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 08

‐ 3059 Page 2

Background

Before coming to the United States, Tomas lived in Prijedor, a town in northwest

Bosnia

‐ Herzegovina with a majority Serbian population. Beginning in April 2001, he

operated a nightclub, at which he welcomed patrons from the town’s various ethnic groups.

Tomas testified that most of his clients were Croats and Muslims, and he saw no reason not

to serve them; he is a businessman, not a nationalist, he said, and any client “was equally a

good client.” This business approach, however, was rare; according to Tomas, his was the

only club in town that admitted patrons on a non

‐ discriminatory basis. Tomas testified that

business went smoothly for the first year, and the club quickly became Prijedor’s most

popular night spot.

Tomas’s troubles began in May 2002 when the Milakovics, a local organized

‐ crime

family, took an interest in the club. The Milakovics owned nightclubs and brothels in

Prijedor, and engaged in prostitution, human trafficking, and racketeering. The family

patriarch, Milorad Milakovic, is well

‐ documented as a notorious slave trafficker, and Tomas

testified that he exercised “control of the whole city including judiciary, police and

legislation.”

Tomas’s history with the Milakovics dated back to the Bosnian War. According to

Tomas, Milorad’s son Sasa was a right

‐ hand man to the notorious Serbian paramilitary

leader Željko Ražnatovi ć (widely known as “Arkan”), and Sasa forcibly conscripted Tomas

into the Serbian militia in February 1992. But Tomas refused to bear arms because he

thought the war was “fratricidal and meaningless,” and so was forced to perform manual

labor along with imprisoned Muslims, Croats, and other Serbs who refused to fight. Tomas

was so opposed to the war that he eventually defected and escaped to Serbia, where he

remained for approximately a year and a half, waiting for the fighting to end.

In May 2002, Tomas testified, thirteen masked policemen raided his nightclub,

searched the patrons, and forced them all to leave, costing him significant profits. At the

time, he said, he believed the police were legitimately searching for someone or something.

But the next day, three large men came to the nightclub on behalf of Sasa Milakovic to offer

“protection” from future police raids, causing Tomas to believe that the previous night’s

raid was staged by Sasa Milakovic.

Nevertheless, Tomas declined to hire Sasa Milakovic’s goons for “protection,” so the

following weekend, they returned and trashed the nightclub. When Tomas reported this to

the police, the superintendent told him that they were “powerless to do anything” because

Milorad Milakovic was one of the most influential people in Prijedor, and advised TomasNo. 08

‐ 3059 Page 3

that it was in his best interest to concede to the Milakovics’ demands. Tomas finally

conceded a month later, in June 2002, after the men had slashed his tires and trashed his bar

again; he hired two of them as “security guards,” work for which he was forced to pay five

times the regular rate. Tomas testified that the Milakovics then became regulars at the club,

and would drink, break glasses, and leave without paying. One night, he said, Sasa

Milakovic’s intoxicated brother opened fire at the ceiling, but when Tomas called the police,

they “entered, stood there for a few minutes, and left” without investigating.

Tomas testified that in October 2002, Sasa Milakovic called him and demanded that

he double the amount Tomas was paying his “security guards.” When Tomas said he could

not afford it, Milakovic threatened to kill him. Later that night, police arrived at the

nightclub, planted drugs on Tomas, and then arrested him for drug possession. They tied

him to a chair, punched him, and called him derogatory names. They detained Tomas

overnight, but then released him without explanation, reaffirming his belief that the police

were in collusion with the Milakovics.

In February 2003, Tomas testified, five of Sasa Milakovic’s men arrived at the club,

kidnapped him, and brought him to what Tomas described as a “private prison” in the

family’s hotel/brothel. The men tied Tomas to a chair, beat him, and extinguished cigarettes

on him. Sasa Milakovic eventually arrived, spat on Tomas, called him a “Serbian traitor,”

derided him for allowing Muslims and Croats into his nightclub, and told him that he

would kill him “like all the other traitors who were on good terms with Muslims and Croats

during the war.” Milakovic demanded that Tomas pay him 30,000 Bosnian marks (the

equivalent of about U.S. $20,000), threatening that if Tomas did not pay, he would kill him

and harm his pregnant wife. Tomas paid the money but fled to Serbia several days later,

leaving his manager in control of the nightclub. Tomas testified that before he left town, he

anonymously reported the Milakovic family and the corruption of the Prijedor police to

Stabilization Force (“SFOR”), a NATO

‐ led multinational force tasked with upholding the

Bosnian peace agreement.

Three months later, in May 2003, Milorad Milakovic was arrested and pleaded guilty

to charges of organized crime, human trafficking, and prostitution. Other members of the

family, including Sasa, were also charged but went into hiding and at the time of Tomas’s

removal hearing remained at large. Milorad Milakovic reportedly escaped from prison in

August 2007 but it is unclear from the record whether he was ever caught.

Tomas testified that in January 2004, his manager called him in Serbia and informed

him that Sasa Milakovic’s right

‐ hand man, Drago Tintor, had come to the club with a

message: Milakovic knew that Tomas had reported him to SFOR, and threatened that heNo. 08

‐ 3059 Page 4

would “never live” if he returned to Prijedor. The manager ran the club in Tomas’s absence

until October 2004, when Tintor forcibly took it over with the help of the local police.

Tomas has not received any profits from the business since.

Tomas, his wife, and their daughter entered the United States on tourist visas in

March 2004, and filed for asylum in February 2005, claiming that Tomas had been

persecuted by the Milakovics and the local police because of his political opinion. The IJ

denied the applications. He credited Tomas’s testimony but found that the harms he

suffered were not sufficiently severe to rise to the level of persecution. Further, because the

Bosnian government is currently prosecuting the Milakovics for trafficking and other

crimes, the IJ found that Tomas had not established that the alleged persecution was

perpetrated by the government or forces it was unable or unwilling to control. And in any

event, the IJ found, Tomas failed to establish that the alleged persecution was on account of

political opinion. According to the IJ, opening up a business to all ethnic groups was not a

political act. For the same reasons, the IJ found that Tomas does not have a well

‐ founded

fear of persecution. The Board agreed in a summary affirmance.

Analysis

Where, as here, the Board summarily adopts the IJ’s decision, we review the IJ’s

decision for substantial evidence and will overturn it only if the record compels such a

result. Haxhiu v. Mukasey

, 519 F.3d 685, 689

‐ 90 (7th Cir. 2008). To succeed on his asylum

claim, Tomas was required to demonstrate that he is unable or unwilling to return to

Bosnia

‐ Herzegovina because of past persecution or a well

‐ founded fear of future

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); Bejko v. Gonzales

, 468 F.3d 482, 484

(7th Cir. 2006). Establishing past persecution entitles Tomas to a rebuttable presumption of

a well

‐ founded fear of future persecution. Hernandez

‐ Baena v. Gonzales

, 417 F.3d 720, 723

(7th Cir. 2005).

Persecution may include such actions as “detention, arrest, interrogation,

prosecution, imprisonment, illegal searches, confiscation of property, surveillance, beatings,

or torture.” Soumahoro v. Gonzales

, 415 F.3d 732, 737 (7th Cir. 2005). In determining whether

the record compels a finding of past persecution, we do not evaluate the applicant’s claims

against a “generic checklist.” Irasoc v. Mukasey

, 522 F.3d 727, 730 (7th Cir. 2008). Rather, we

consider the frequency and severity of the harm and, if multiple incidents of persecution are

alleged, we evaluate whether the combined sequence of experiences rises to the level of

persecution. Id; Cecaj v. Gonzales

, 440 F.3d 897, 899 (7th Cir. 2006). “Mere harassment” is

insufficient, but a person need not endure multiple beatings and physical torment toNo. 08

‐ 3059 Page 5

establish persecution. Gomes v. Gonzales

, 473 F.3d 746, 754 (7th Cir. 2007). And while

threats are not persecution per se, they may qualify as persecution “in the most extreme

circumstances, such as where they are of a most immediate or menacing nature,” Bejko

, 468

F.3d at 486, or where they cause the applicant to “abandon lawful political or religious

associations or beliefs,” Gomes

, 473 F.3d at 753 (internal quotations omitted).

Tomas bases his past persecution claim on the following experiences: (1) financial

harm, including lost profits, extortion payments, and an approximately $20,000 “fine” to

Milakovic; (2) property damage at his nightclub; (3) the October 2002 false arrest and

overnight detention during which police punched him and called him derogatory names;

and (4) the February 2003 kidnapping at gunpoint by Milakovic’s henchmen during which

they beat him, spat on him, extinguished cigarettes on him, derided him for being a

“Serbian traitor,” and threatened to kill him and his pregnant wife.

In deciding whether Tomas suffered past persecution, the IJ evaluated each

experience in turn and concluded that none rose to the level of persecution. We may

assume, for the sake of argument, that in isolation none of Tomas’s experiences rose to the

level of persecution. But that is not the proper standard; we have repeatedly cautioned

immigration judges against addressing incidents of persecution in isolation rather than

considering their cumulative significance. See Jiang v. Gonzales

, 485 F.3d 992, 997 (7th Cir.

2007); Tchemkou v. Gonzales

, 495 F.3d 785, 790

‐ 91 (7th Cir. 2007); Bejko

, 468 F.3d at 486; Cecaj

,

440 F.3d at 899. According to testimony the IJ credited, Tomas suffered a campaign of

intimidation and terror that intensified over a nine

‐ month period until he so feared for his

life and the safety of his pregnant wife that he abandoned his business and fled town.

Because the IJ evaluated each incident in isolation instead of assessing whether Tomas’s

experiences cumulatively constitute past persecution, his conclusion is not supported by

substantial evidence. See Jiang

, 485 F.3d at 997 (reversing agency’s finding of no persecution

where IJ focused on one detention and minor beating but failed to consider petitioner’s

testimony about his entire sequence of experiences); Gomes

, 473 F.3d at 754 (holding that

evidence compelled finding of persecution where sequence of events included harassment,

one serious beating, and a home invasion during which perpetrators set fire to the

petitioner’s curtains, pushed him and his wife to the ground, threatened him with a large

knife, stole personal belongings, and threatened to kill him).

We are also troubled by the IJ’s finding that Tomas failed to demonstrate that he was

persecuted by the government of Bosnia

‐ Herzegovina or forces it was unable or unwilling

to control. See Hor v. Gonzales

, 421 F.3d 497, 501

‐ 02 (7th Cir. 2005). The IJ concluded

abruptly that Tomas’s evidence “completely fails in meeting this burden of proof,” but

Tomas provided ample evidence of police complicity in Sasa Milakovic’s actions.No. 08

‐ 3059 Page 6

According to testimony the IJ credited, police officers raided Tomas’s club in May 2002, and

planted drugs on and falsely arrested him in October 2002, both times acting under orders

from Milakovic. Further, the police superintendent admitted that he was powerless to help

Tomas because Milorad Milakovic was one of the most influential men in town, and

advised Tomas to concede to Sasa Milakovic’s demands. If this did not convince the IJ that

the government was unable or unwilling to control the Milakovics, it is difficult to imagine

what would. See Hor

, 421 F.3d at 499, 502 (holding that actions of terrorists could be

attributed to government where authorities told petitioner they could not protect him and

advised him to “be extra cautious and keep a low profile”); Guchshenkov v. Ashcroft

, 366 F.3d

554, 557

‐ 58 (7th Cir. 2004) (holding that thug violence could be attributed to government

where police responded to petitioner’s complaint by saying, “We have more important

things to take care of”); Andriasian v. INS

, 180 F.3d 1033, 1037, 1042

‐ 43 (9th Cir. 1999)

(holding that persecution could be attributed to government where police responded to

petitioner’s assault complaint with indifference and advised him to “get out of [town]” if he

wanted to save his family’s lives). Although the government of Bosnia

‐ Herzegovina did

eventually indict the Milakovics and many of their subordinates for human trafficking, this

belated prosecution on wholly unrelated charges does not cure the government’s past

complicity in Tomas’s persecution. See Agbor v. Gonzales

, 487 F.3d 499, 504 (7th Cir. 2007)

(“We do not think that as soon as a government pledges to end a persecutory practice, the

individuals still suffering from the vestiges of that practice automatically cease to be entitled

to protection.”).

We turn next to the IJ’s conclusion that Tomas did not establish persecution on

account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). According to the IJ, “Yes, the

extortionists were Serbian nationalists who didn’t like the fact that [Tomas] operated a

business for everyone, but that does not come close to establishing persecution on account

of a political opinion.” But in reaching this conclusion, the IJ completely overlooked the

doctrines of mixed motives and imputed political opinion. Although it is clear that

Milakovic’s actions were partially motivated by the prospect of economic gain, this did not

preclude Tomas from establishing eligibility for asylum; persecutors often have multiple

motives, and an asylum applicant need demonstrate only that his persecutor was motivated

in part by a protected ground. Gjerazi v. Gonzales

, 435 F.3d 800, 812 (7th Cir. 2006).

Tomas did admit that his decision to operate a non

‐ discriminatory business was

financial, not political (as he wrote in his asylum application, Muslims and Croats, who

comprised half his clientele, were “normal paying customers like everyone else and a source

of my income”). But even in the absence of an actual political opinion, Tomas needed to

show only that Milakovic, rightly or wrongly, perceived him as a political opponent and

harmed him, at least in part, for that reason. See Hamdan v. Mukasey

, 528 F.3d 986, 992 (7thNo. 08

‐ 3059 Page 7

Cir. 2008); Nakibuka v. Gonzales

, 421 F.3d 473, 478 (7th Cir. 2005). The IJ completely ignored

Tomas’s testimony that Milakovic decried him as a “Serbian traitor” for letting Muslims and

Croats into his nightclub, and threatened to kill him “like all the other traitors who were on

good terms with Muslims and Croats during the war.” In light of Tomas’s refusal to bear

arms during the Bosnian War and his decision to operate the only non

‐ discriminatory

nightclub in Prijedor in spite of the ongoing ethnic tension there, these comments reflect that

Milakovic attributed to Tomas an anti

‐ nationalist political stance and was motivated at least

in part by that attributed opinion. Because the IJ ignored the possibility that Milakovic was

partly motivated by an imputed political opinion, he failed to provide a “well

‐ reasoned,

documented, and complete analysis that engages the evidence,” and his conclusions

therefore are not supported by substantial evidence. See Gjerazi

, 435 F.3d at 813; see also

Mohideen v. Gonzales

, 416 F.3d 567, 571 (7th Cir. 2005) (remanding where Board ignored

evidence supporting mixed

‐ motive aspect of petitioner’s claim).

Once an asylum applicant establishes past persecution, the burden shifts to the

government to establish that the applicant lacks a well

‐ founded fear of future persecution.

8 C.F.R. § 208.13(b)(1); Cecaj

, 440 F.3d at 900. The IJ concluded that, because the government

of Bosnia

‐ Herzegovina is prosecuting the Milakovics, Tomas does not have a well

‐ founded

fear of persecution. In so concluding, the IJ ignored evidence that Sasa Milakovic had

evaded the Bosnian authorities and had continued to issue death threats against Tomas

while on the lam. But, in any event, the IJ placed the burden on the wrong party; because

Tomas had established that he was persecuted in the past, it was the government’s burden

to establish that persecution is unlikely to recur if Tomas returns to Bosnia

‐ Herzegovina.

See Balliu v. Gonzales

, 467 F.3d 609, 612 (7th Cir. 2006).

Accordingly, we GRANT the petition for review, VACATE the removal order, and

REMAND for further proceedings consistent with this opinion.