Marina Palavra, Danijel Palavra, Vlado Palavra, and Brankica Palavra v. Immigration and Naturalization Service

287 F.3d 690, 2002 U.S. App. LEXIS 7106, 2002 WL 575770
CourtCourt of Appeals for the Eighth Circuit
DecidedApril 18, 2002
Docket01-1849
StatusPublished
Cited by31 cases

This text of 287 F.3d 690 (Marina Palavra, Danijel Palavra, Vlado Palavra, and Brankica Palavra v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marina Palavra, Danijel Palavra, Vlado Palavra, and Brankica Palavra v. Immigration and Naturalization Service, 287 F.3d 690, 2002 U.S. App. LEXIS 7106, 2002 WL 575770 (8th Cir. 2002).

Opinions

RICHARD S. ARNOLD, Circuit Judge.

This is a deportation1 case. The Board of Immigration Appeals has ordered the petitioners, Vlado Palavra and his family (his wife, Marina, his daughter, Brankica, and his son, Danijel), deported to Croatia. In addition, the Board refused to consider petitioners’ applications for asylum from Bosnia-Herzegovina. The Palavras lived in Bosnia before coming to the United States. They entered this country in 1995 on passports issued by the government of Croatia and on visas issued by the United States Consul in Croatia, as nonimmigrant visitors for pleasure for a limited amount of time. They stayed beyond the time prescribed. In 1996 deportation proceedings were begun. Petitioners conceded that they were deportable, but denied that they were citizens of Croatia. They have claimed asylum from Bosnia, asserting that they had a well-founded fear of persecution in that country if forced to return there. They declined to designate a country of deportation. An immigration judge, noting that the petitioners’ passports from Croatia were indicia of Croatian citizenship, refused to consider their applications for asylum, noting that the government sought to deport them to Croatia, not Bosnia, and that they had expressed no fear of returning to Croatia. Accordingly, the judge granted petitioners’ request for voluntary departure in six months.

Petitioners then asked the immigration judge to reconsider his decision. To their motion they attached an affidavit of the father, Vlado Palavra, attempting to explain how they obtained Croatian passports. The content of this affidavit will be discussed later in this opinion, as relevant. The motion to reconsider was denied.

On appeal to the BIA, the action of the immigration judge was affirmed. The judge’s finding that the Palavras are citizens and nationals of Croatia, the BIA said, was supported by the record. In addition, the BIA concluded that the immigration judge had correctly refused to consider the petitioners’ application for asylum, when the country of deportation was properly designated as Croatia, a country in which they do not claim a well-founded fear of persecution.

Petitioners now seek review in this Court of the decision of the Board of Immigration Appeals. We must affirm the BIA’s findings of fact if they are supported by substantial evidence. Escudero-Corona v. INS, 244 F.3d 608, 612 (8th Cir.2001); 8 U.S.C. § 1105a(a)(4) (1994) (repealed 1996). The factual finding contested here is the finding that petitioners were citizens, nationals, or subjects of Croatia, and not of Bosnia-Herzegovina. In addition, petitioners assert that the Board erred in refusing to consider their request for asylum. The assertion, as we under[692]*692stand it, is that the asylum statute, 8 U.S.C. § 1158(a), requires the Board to consider the petition for asylum, and, in particular, to make a finding as to whether petitioners have a well-founded fear of persecution if forced to return to Bosnia. The Board held, on this point, that it did not have to consider the petition for asylum because the Palavras were to be returned to Croatia, not Bosnia, and there was no claim of persecution in Croatia.

As we have said, petitioners decline to designate a country of deportation. In this situation, the Attorney General is authorized to direct deportation “to any country of which such alien is a subject, national, or citizen if such country is willing to accept him.” 8 U.S.C. § 1253(a) (1994). The Immigration and Naturalization Service argues that the BIA’s finding that petitioners are Croatians is supported by substantial evidence. They point out that petitioners entered this country on Croatian passports. Passports are evidence of citizenship, but they are not conclusive. They “may be overcome by sufficient evidence that the holder of the passport is not a citizen” of the issuing country. Matter of Maccaud, 14 I & N Dec. 429, 431, 1973 WL 29472 (1973). The parties agree that the presumption of citizenship based upon an alien’s possession of a passport from a given country may be overcome by sufficient evidence to the contrary.

The BIA noted, in addition to the Croatian passports, that petitioners obtained visas to travel to the United States by indicating Croatian citizenship and stated on their asylum applications that they were Croatian nationals (except that Mrs. Palavra said she was Bosnian). In addition, petitioners have referred to themselves as Croatian nationals from time to time in the past. The BIA stated that petitioners had presented no evidence to indicate that the passports are invalid “or in some way indicate anything less than full nationality and citizenship.” On this basis, the BIA found that petitioners are Croatian nationals, and that they must be deported to Croatia, where they fear no persecution. The application for asylum from Bosnia, thus, becomes, in a sense, moot. In any event, the Board did not pass on it.

The main question presented is whether the finding of the Boqrd of Immigration Appeals that the Palavras are citizens, nationals, or subjects of Croatia is supported by substantial evidence. Portions of the record support the BIA’s finding. A reading of the BIA’s opinion, however, convinces us that significant parts of the record were not considered. Accordingly, we remand the case to the BIA for reconsideration in conformity with the views expressed in this opinion.

No doubt the use of Croatian passports is evidence in support of the position taken by the BIA. All sides agree, however, that the passports are not conclusive. Their apparent effect — that their holders are citizens of Croatia — can be rebutted by other evidence. The BIA’s opinion states that the Palavras “have presented absolutely no evidence that the passports are not valid or in some way indicate anything less than full nationality and citizenship of Croatia.” In re Vlado Palavra, Nos. A73 411 554, A73 401 939, A73 400 181, A73 400 180, p. 2 (opinion filed March 21, 2001).

Wé can accept that the Croatian passports are “valid,” and that there is no reason to suppose that they are not. There is considerable evidence in this record, however, “indicat[ing] [some]thing less than full nationality and citizenship of Croatia.” The INS itself, in the order to show cause, says that Danijel is a Bosnian citizen. In addition, Mr. Palavra’s affidavit, which was presented to the Immigra[693]*693tion Judge and was in the record before the BIA, explains the issuance of the Croatian passports in some detail. According to the affidavit, which we have no reason to disbelieve at this point, all four of the Palavras were born in and lived in that part of Yugoslavia that is now Bosnia-Herzegovina. The family had lived there at least four generations. None of them had ever lived in Croatia, although they are ethnic Croatians. They wanted to come to the United States to get treatment for an eye condition for their son Danijel. They were not able to obtain passports from the government of Bosnia-Herzegovina because of “the strained situation between the ethnic Croats, which we were and are, and the Bosnian government and the majority ethnic group living in and controlling the Bosnian government ....

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287 F.3d 690, 2002 U.S. App. LEXIS 7106, 2002 WL 575770, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marina-palavra-danijel-palavra-vlado-palavra-and-brankica-palavra-v-ca8-2002.