Selgeka v. Carroll

• Citation: 184 F.3d 337
• Decision Date: 04 June 1998
• Docket Number: No. 97-7250,RESPONDENTS-APPELLEES,PETITIONER-APPELLANT,97-7250
• Parties: (4th Cir. 1999) BESNIK SELGEKA,, v. WILLIAM CARROLL, DISTRICT DIRECTOR OF THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE FOR THE ARLINGTON DISTRICT; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 337

184 F.3d 337 (4th Cir. 1999)

BESNIK SELGEKA, PETITIONER-APPELLANT, v. WILLIAM CARROLL, DISTRICT DIRECTOR OF THE UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE FOR THE ARLINGTON DISTRICT; DORIS MEISSNER, COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE; JANET RENO, ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENTS-APPELLEES.

No. 97-7250

U.S. Court of Appeals, Fourth Circuit

Argued: June 4, 1998

Decided June 7, 1999

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Chief District Judge. (CA-97-133-A) [Copyrighted Material Omitted] ARGUED: Edmund Jason Albert, Covington & Burling, Washington, D.C., for Appellant. Brenda Elaine Ellison, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

ON Brief: Patricia A. Barald, Jonathan M. Cohen, Covington & Burling, Washington, D.C., for Appellant. Frank W. Hunger, Assistant Attorney General, David V. Bernal, Assistant Director, Office of Immigration Litigation, Civil Division, United States Department OF Justice, Washington, D.c., for Appellees.

Before Ervin and Luttig, Circuit Judges, and Butzner, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge Butzner wrote the majority opinion, in which Judge Ervin joined. Judge Luttig wrote a Dissenting opinion.

OPINION

Butzner, Senior Circuit Judge

Besnik Selgeka, a stowaway, appeals the district court's denial of his petition for writ of habeas corpus. In his petition he challenges the denial of a full and fair opportunity to present his claim for asylum. He seeks to have his asylum application heard by an immigration Judge instead of an INS asylum officer who merely conducted an informal interview. In support of his claim he relies on statutory grounds and the Due Process Clause of the Fifth Amendment. The district court decided that the Board of Immigration Appeals (BIA) properly affirmed the denial of Selgeka's application for asylum and withholding of deportation. The government contends that this court lacks jurisdiction over Selgeka's appeal. We hold that we have jurisdiction, vacate the district court's judgment and the BIA decision, and remand this case to the appellees for a hearing before an immigration Judge.

I.

Selgeka is an ethnic Albanian who is a native of the province of Kosovo. In January 1996, fearing persecution and conscription in the Serbian Army, he fled Kosovo and stowed away on a ship bound for the United States. Upon arriving in the United States, Selgeka orally applied for asylum with the Immigration and Naturalization Service (INS). Selgeka does not speak English, but with the help of a representative from Catholic Charities he later filed a written application for asylum in which he stated in part:

"I fear persecution if I return to Kosova....[T]he Serbs put the Albanians in the front lines, and the Albanians are not sure if they are killed by the Bosnians in the front or the Ser[b]ians behind them.... The Serbs have commi[t]ted horrible acts which I do not believe in.... To be forced to serve in the army is against my political beliefs."

Selgeka also stated that ethnic Albanians are punished more severely than other draft evaders. His brother was drafted and killed under unknown circumstances. His father, a vocal advocate for Albanians, was shot and left to die.

The atrocities by the Serbian government in Kosovo have been well documented:

"There were approximately 2,400 cases of arbitrary arrests of Albanians by Serbian authorities, and thousands more sum moned for "informative talks." Many of these individuals were beaten by the police.... Serbian police continued to raid Albanian villages, conduct indiscriminate and brutal house raids... and arbitrarily arrest and imprison individu als. Excessive force and torture during detention were often reported."

Human Rights Watch, Human Rights Watch World Report 1996, 250-51 (1996). Needless to say, the State Department considers the conditions poor. For example, the Department of State country report declared that "[w]hile the law prohibits torture, police routinely beat people severely when holding them under detention or stopping them at police checkpoints, especially targeting ethnic Albanians in Kosovo." App. 171.

Selgeka's application for asylum was referred to an asylum officer, not a Judge, who conducted an interview and denied the application on June 18, 1996. The asylum officer made an "adverse credibility" finding and decided that Selgeka was

"unable to offer more than very generalized details about the problems the Kosovar Albanians have been experiencing under [the] Serbian government over the past few years... [and Selgeka's] contention that Kosovar Albanians are forc ibly recruited into the Yugoslav army to fight in Bosnia is not supported by independent sources."

App. 136. No court reporter was present, and a transcript was not made. Instead, the asylum officer condensed the four-hour interview into a nine-page handwritten report.

Reviewing the asylum officer's "adverse credibility finding," the BIA stated that Selgeka's "testimony is consistent, logical, and supported by the corroborative evidence submitted in rebuttal of the director's notice of intent to deny." App. 102.

The BIA emphasized, however, that a government has the right to require military service and to enforce this requirement with reasonable penalties. To this well-established ground for denying asylum there are two exceptions:

"(1) the alien would be associated with a military whose acts are condemned by the international community as contrary to the basic rules of human conduct, or (2) refusal to serve in the military results not in normal draft evasion penalties, but rather in disproportionately severe punishment on account of one of the five grounds enumerated in section 1101(a)(42)(A) of the Refugee Act."

M.A. v. United States INS, 899 F.2d 304, 312 (4th Cir. 1990) (en banc). Selgeka offered evidence concerning the especially harsh treatment that ethnic Albanians who refused to serve in the military received, but the BIA found it insufficient to establish Selgeka's asylum eligibility. It denied Selgeka's application for asylum on October 22, 1996.

Selgeka sought a writ of habeas corpus in the United States District Court for the Eastern District of Virginia to assert his claim that he was denied due process because an asylum officer interviewed him instead of allowing him a hearing before an immigration Judge. The district court denied Selgeka's habeas petition on June 9, 1997, holding he had waived his constitutional due process claim by not raising it before the BIA and because the BIA's opinion was supported by substantial evidence. Based on 8 U.S.C. § 1323(d), the district court also concluded that a stowaway was not entitled to a hearing before an immigration Judge.

II.

Selgeka relies on 28 U.S.C. §§ 2241 (habeas corpus) and 1331 (federal question) for jurisdiction. In the district court, the government, responding to Selgeka's petition for writ of habeas corpus, stated that the court had jurisdiction to review this case pursuant to 28 U.S.C. § 1331. Apparently because of the government's representation, the district court did not discuss jurisdiction. Be that as it may, courts can consider subject matter jurisdiction whenever raised. United States v. White, 139 F.3d 998, 999-1000 (4th Cir. 1998).

The government now contends that Selgeka's appeal should be dismissed because the Immigration and Nationality Act (INA), 8 U.S.C. § 1252(g), as amended by section 306(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-612, deprives both this court and the district court of jurisdiction to hear Selgeka's case. Specifically, the government relies on a clause that authorizes the Attorney General to adjudicate cases. The amended Act provides:

"Except as provided in this section and notwithstanding any other provision of law, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to com mence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter."

8 U.S.C. § 1252(g).

The IIRIRA did not take effect until April 1, 1997, and the transitional rules of the IIRIRA preclude it from applying to pending cases, such as Selgeka's. IIRIRA § 309(c). Section 306(c)(1), however, carves out an exception to the transitional rules by providing that section 1252(g) applies to all past, pending, and future cases.

We held this case in abeyance pending the decision of Reno v. American-Arab Anti-Discrimination Committee, 119 S. Ct. 936 (1999) (AADC II), which dismissed a claim of allegedly selective prosecution brought by resident aliens against the Attorney General.

The Court did not decide the question whether section 1252(g) precludes judicial review of habeas claims but noted that the courts of appeals disagree on the point. Id. at 942 n.7. None of the lower court cases cited by the Supreme Court dealt with an asylum claim. Nevertheless, the Court's interpretation of section 1252(g) in AADC II is instructive. The Court rejected the notion that section 1252(g) "covers the universe of deportation claims." 119 S. Ct. at 943. It concluded instead that section 1252(g) "applies only to three discrete actions that the Attorney General may take: her `decision or action' to `commence proceedings, adjudicate cases, or execute removal orders.'" (emphasis in original). Id. In significantly narrowing the coverage of section 1252(g), the Court reasoned that Congress intended to protect discretionary decisions of the Executive from judicial review in the context of the Attorney General's decision to "abandon the endeavor... for humanitarian reasons or simply for its...