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The U.S. Court of Appeals for the Second Circuit has recognized two exceptions to the general rules that compulsory military service in a foreign country cannot support an asylum claim based on a well-founded fear of persecution. Joining other circuits that have considered the issue, the Second Circuit said a lower court failed to recognize that compulsory service in the Yugoslavian army was likely to force an ethnic Albanian asylum applicant to participate in military campaigns that had been condemned by the international community as “contrary to the basic rules of human conduct.” Nonetheless, the court’s ruling in Islami v. Gonzales , 03-40095, refused to review a Board of Immigration Appeals decision upholding an immigration judge’s refusal to grant Elrem Islami’s request for asylum, withholding of removal and protection under the Convention Against Torture. The decision will be published Thursday. Mr. Islami is a former resident of Kosovo who came to the United States in 1999 and applied for asylum and withholding of removal based on his persecution by ethnic Serbs who had control of the Yugoslavian government and military. He fled Kosovo in 1998 out of fear that being drafted into the military would expose him to physical abuse by ethnic Serbs and fear that he would be forced to take part in military campaigns directed at his fellow Muslims and ethnic Albanians. When the denial of his application by an immigration judge was summarily upheld by the Board of Immigration Appeals, he turned to the Second Circuit, where a panel of Judges Guido Calabresi, Robert Katzmann and Barrington D. Parker Jr. decided the case. The immigration judge had decided that compulsory military service was not a basis for claiming persecution, a finding Mr. Islami challenged on appeal. He also claimed the immigration judge erred by concluding that conditions in Kosovo had dramatically improved and that incidents of persecution against ethnic Albanians had been reduced significantly. Judge Calabresi said that an applicant for asylum has to show that he or she is a refugee who has “suffered past persecution on account of race, religion, nationality, membership in a particular social group, or political opinion, or has a well-founded fear of persecution” based on one of these five factors. And to qualify under the Convention Against Torture, the judge said, an alien has to show it is more likely than not that he would be tortured if removed from the United States to his country of origin. If that showing is made, the alien may not be removed from the United States. Judge Calabresi noted that “typically, compulsory military service does not provide asylum seekers with adequate cause for claiming persecution.” But some circuit courts, including the First and Seventh, he said, have recognized two exceptions to this rule � where a refusal to serve in the military leads to “disproportionately excessive penalties” based on one of the five factors, or where the asylum applicant is fleeing to avoid punishment for refusal to serve in a military that has been “condemned by the international community.” Lower Threshold “Here, the IJ’s [immigration judge's] finding that Islami was unlikely to receive disproportionately excessive penalties simply because he was an ethic Albanian was supported by substantial evidence,” Judge Calabresi said. “But, the IJ erred in failing to recognize that service in the Yugoslavian army would likely require Islami’s participation in military campaigns widely” condemned by the international community. “In this respect, we adopt the aforementioned exceptions to the general rule against compulsory military service providing a basis for a persecution claim,” he said. “Moreover, we hold that for those individuals who seek to avoid serving in a military whose brutal and unlawful campaigns are directed at members of their own race, religion, nationality or social or political group, the requirements for stating a persecution claim are met at a significantly lower threshold of military wrongdoing than would be required if the objections are simply a matter of conscience.” However, while Mr. Islami’s claims based on fear of retribution for refusing to accept conscription “clearly rose to the level of past persecution,” Judge Calabresi said, his “prospective fears” were “not at all related to institutionalized persecution from the national military.” Instead, the judge said, they “center on alleged scattered incidents of continued harassment and abuse of ethic Albanians.” The government, the court found, had “easily met” its burden of showing that conditions had changed by presenting “copious evidence that nationalistic Serb domination of Kosovo has ended.” And because the immigration judge’s conclusion was supported by substantial evidence, the court said Mr. Islami’s claim must fail. Harry A. DeMell represented Mr. Islami. Middle District of Pennsylvania Assistant U.S. Attorney Stephen R. Cerutti II, represented the government. � Mark Hamblett can be reached at [email protected] .

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