1

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.
 

1The former Yugoslavia has since split into several

different countries, including Croatia, Slovenia, and BosniaHerzegovina. 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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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
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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. EliasZacarias, 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.