Toward a More Individualized Assessment of Changed Country Conditions for Kosovar Asylum-Seekers

Kosovo declared its independence on February 17, 2008, becoming the newest independent state in Europe. Media outlets worldwide widely covered the lead up to its independence and included coverage of crimes against humanity, ethnic cleansing, and the intervention of NATO in 1999 to stop the atrocities. While many Kosovars originally sought asylum in the United States on the basis of persecution at the hands of the Milosevic government, in the years that followed, many Kosovars sought asylum on a new basis. These new asylum claims were complex, and included two independent (although related) forms of past persecution. The first was the original, well-known case of persecution on account of the crimes committed by the Serbian government. The second claim, significantly less covered by media outlets and largely unknown to those outside of Kosovo, involved post-NATO intervention persecution at the hands of Albanian extremists (former Kosovo Liberation Army (KLA) fighters). The KLA persecution included political intimidation, interrogations, beatings, and killings of pacifist Kosovar Albanians who did not participate in the Kosovo war. Despite the numerous asylum applications that tell stories of horrendous treatment, many Kosovar asylum-seekers have had difficulty obtaining asylum in the United States.Many claims of these Kosovar asylum applicants fail to establish a well-founded fear of future persecution. Although claims of past persecution are often found credible, Department of Homeland Security attorneys have often succeeded in rebutting the presumption of a well-founded fear of future persecution through evidence of “changed country conditions.” The evidence most often used to show “changed country conditions” are U.S. Department of State Reports on Human Rights Practices for the particular country. This evidence is often applied generally and mechanically, without an individualized assessment of how the purported changed country conditions affect the asylum eligibility of the applicant. With Kosovo’s declaration of independence, Kosovar asylum applicants run the risk of having their claims for asylum denied on a general assessment of Kosovo’s “changed” status. Part I of this Note provides general background on the Kosovo situation, including accounts of the Milosevic Serb government’s crimes prior to and during the Kosovo war, the NATO intervention and Kosovo’s supervision under the United Nations’ Interim Administration Mission in Kosovo (UNMIK), and an account of continued conditions in Kosovo since Kosovo’s independence on February 17, 2008. Part II provides background on asylum law, particularly what the INA requires of asylum applicants to qualify for refugee status, and attain asylum in the United States. Part II also provides an explanation of the jurisprudence of “changed country conditions.” Part III introduces the asylum claims of typical Kosovar asylum-seekers by examining the facts as they appear in several typical circuit court decisions. These facts include the applicants’ claims of persecution by the Serb military, as well as persecution by ethnic Albanian extremist members of the KLA. Part IV provides examples of the holdings of these asylum tribunals, and focuses on how the Immigration Judges, Board of Immigration Appeals and the Circuit Courts applied the purported “changed country conditions” to particular cases, as well as why these decisions were wrong. In Part V, I argue that a mechanical application of U.S. State Department reports in determining “changed country conditions” is the wrong approach when assessing the complex claims of Kosovar asylum-seekers. While U.S. State Department reports are often used as the only available evidence of country conditions, in the case of Kosovo these reports are not fully accurate and misstate the actual conditions in Kosovo. This part also compares the Kosovar claims to those of Albanian asylum-seekers that feared the communists. In Part VI, I argue that adjudicators should use a new framework for analyzing asylum claims of Kosovar asylum-seekers, and advocate for a framework that pits the evidence of past persecution at the hands of Albanian extremists against the U.S. Department of State reports in determining whether Kosovo’s conditions have changed meaningfully for the particular asylum applicant. Finally, in Part VII, I consider some of the perceived weaknesses of the new framework, and explain why it remains a preferable alternative to the current model.