                           In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

No. 03-3646
DRAGAN MILJKOVIC and DIVNA MILJKOVIC,
                                                     Petitioners,
                              v.

JOHN D. ASHCROFT,
                                                     Respondent.

                       ____________
               On Petition for Review of an Order
              of the Board of Immigration Appeals.
                      Nos. A 70 674 795, 796.
                       ____________
        ARGUED JUNE 15, 2004—DECIDED JULY 22, 2004
                       ____________



  Before POSNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  POSNER, Circuit Judge. Dragan Miljkovic asks us to reverse
an order by the Board of Immigration Appeals denying him
asylum and directing that he be deported to Yugoslavia (re-
cently renamed “Serbia and Montenegro”). His wife’s claim
for asylum is derivative from his; see our earlier opinion,
366 F.3d 580 (7th Cir. 2004).
  Miljkovic was born in Croatia, which at the time was part
of Yugoslavia, and although both his parents were origi-
nally from Serbia and moved back to Serbia and he grew up
2                                                  No. 03-3646

there, he claims without contradiction to be perceived by
Serbians to be Croatian because he was born in Croatia and
speaks Serbo-Croatian with a Croatian accent. As an adult
in Serbia he participated in demonstrations against the
Milosevic regime. In retaliation he was demoted by his
employer, the national airline, and later was fired; his
supervisor explained that the airline “would not feed Croats
in the future.” In June of 1991, Croatia seceded from
Yugoslavia, precipitating a war between the two countries
that raged throughout the year. In November, at the height
of the war, Miljkovic received a draft notice. According to
his uncontradicted testimony, draft notices were sent only to
persons who were either opposed to the Milosevic regime or
had been born in a part of Yugoslavia other than Serbia;
Miljkovic satisfied both criteria. Upon receiving the notice
he fled to the United States and applied for asylum. He
presented evidence from a human-rights group and a
qualified expert on Yugoslavia that the regime had made a
practice of dealing with its opponents by sending them to
fight against Croatia and that members of ethnic groups to
which Serbia (the dominant entity in Yugoslavia) was
hostile, which of course included Croatians, were targeted
for hazardous military duties.
   Regarding Miljkovic’s claim that he fled to avoid persecu-
tion as a consequence of being drafted into the Yugoslav
army, the immigration judge stated only that “persecution
for failure to serve in the military may be established in
those rare cases where a disproportionately severe punish-
ment would result on account of one or more of the statutorily
enumerated grounds or where the alien as a result of military
service required by his government would necessarily be
required to engage in inhuman conduct condemned by the
international community as contrary to the basic rules of
human conduct. There has, however, been no such show-
ing in this record” (citation omitted). The Board of Immigration
Appeals affirmed without opinion.
No. 03-3646                                                     3

   The immigration judge missed the boat. The issue was not
whether Miljkovic would have been punished with dispro-
portionate severity had he defied the draft notice and been
arrested for evading military service. It was not whether he
would have been required to engage in “inhuman conduct.”
The issue (and there is no contention that he failed to
present it to the immigration judge and the Board of Immi-
gration Appeals) was whether he had received a draft notice
because he was deemed a Croatian and an opponent of
Milosevic and whether if drafted he would have been
assigned to hazardous military duties. The government
argues that Miljkovic is complaining only about “discrimi-
nation,” not persecution. Since the immigration judge did
not mention the issue, central though it was to Miljkovic’s
claim of asylum, of whether picking on members of a hated
minority to perform hazardous military duties is persecu-
tion, we could affirm on the basis of the government’s argu-
ment only if the immigration judge would have committed
an abuse of discretion had he found that, no, it was not
merely discrimination; it was persecution. On the contrary,
we held in Begzatowski v. INS, 278 F.3d 665, 670 (7th Cir.
2002), a case not cited by the government, that sending
members of a hated ethnic minority into battle without
ammunition was persecution. Cf. Pelinkovic v. Ashcroft, 366
F.3d 532, 537-38 (7th Cir. 2004); Vujisic v. INS, 224 F.3d 578,
581 (7th Cir. 2000), Melkonian v. Ashcroft, 320 F.3d 1061, 1068-69
(9th Cir. 2002). It was a different minority, Albanians, though
the same persecutor, the Milosevic regime, and although the
record is silent on whether the regime also sent Croations into
battle without ammunition, it would hardly be surprising if
it did; cannon fodder is cannon fodder, even when armed.
In any event, picking on an ethnic minority for hazardous
military duty goes well beyond mere “discrimination,” even
if they are given ammunition. There are plenty of hazardous
military duties, such as disarming munitions, where having
4                                                 No. 03-3646

a loaded gun does you no good at all. When discrimination
reaches the level of physical violence or threats of violence,
it becomes persecution. Duarte de Guinac v. INS, 179 F.3d
1156, 1161-62 (9th Cir. 1999).
  Of course, since Miljkovic fled upon receiving the draft
notice, he never did serve in the army and so was not
exposed to the hazards of military duty. But as the govern-
ment acknowledged at argument, a person can still be a
victim of persecution even if he manages to elude his
persecutors. A Jew who succeeded in escaping from Ger-
many on the eve of being deported to an extermination
camp would still have been counted as a victim of Nazi
persecution. Hengan v. INS, 79 F.3d 60, 63 (7th Cir. 1996).
Being driven out of one’s country is another crossing of the
line that separates mere discrimination from persecution.
  The government argues that even if Miljkovic was a
victim of persecution, since Milosevic is gone and Serbia is
not at war with anyone, it is unlikely that Miljkovic will be
persecuted if he is sent back. The argument may well be
correct but it is made in the wrong forum. Once an applicant
for asylum establishes that he has been a victim of persecu-
tion, the burden shifts to the government to convince the
immigration judge that, nevertheless, because of changed
country conditions the applicant has no well-founded fear
of being persecuted should he return. Capric v. Ashcroft, 355
F.3d 1075, 1084 (7th Cir. 2004); Tawadrus v. Ashcroft, 364 F.3d
1099, 1103 (9th Cir. 2004). The immigration judge, because
he ruled that Miljkovic had not been persecuted, did not
reach the question whether Miljkovic had a well-founded
fear of being persecuted if he is sent back to Serbia. In his
opening brief in this court, Miljkovic contended that
supporters of Milosevic are back in the saddle again. The
government’s only response is that Miljkovic could have
presented evidence of changed country conditions to the
No. 03-3646                                                   5

immigration judge. But quite apart from the fact that at the
time of the alleged re-emergence of Serb nationalists in 2003
the immigration judge had already issued his decision
denying asylum to Miljkovic, the burden was on the
government, if Miljkovic succeeded in proving that he had
been persecuted, to show that he wouldn’t be persecuted if
he were to be removed. There undoubtedly is residual
Serbian hostility to Croatians, perhaps especially to Croatian
“draft dodgers,” and though our own research does not
reveal any official retaliation against them, it is not an issue
for us to decide. The evidence is not so clear cut that we
could take judicial notice that Miljkovic will not be perse-
cuted if he returns. Compare Korniejew v. Ashcroft, 371 F.3d
377, 387 n.10 (7th Cir. 2004). This is a matter for consider-
ation on remand; and so in arguing that we should deny the
petition for review on the basis of a ground not considered
by the agency, the Department of Justice is once again
violating the doctrine of SEC v. Chenery Corp., 318 U.S. 80,
93-95 (1943), which forbids the lawyers for an administra-
tive agency to defend the agency’s decision on a ground
different from that stated or at least discernible in the
decision itself. Mengistu v. Ashcroft, 355 F.3d 1044, 1046 (7th
Cir. 2004).
  The petition for review is granted, the order of removal
vacated, and the case remanded to the Board of Immigration
Appeals for further proceedings consistent with this
opinion.
6                                            No. 03-3646

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—7-22-04
