Ivezaj v. I.N.S.

• Decision Date: 28 May 1996
• Docket Number: No. 94-3898,94-3898
• Parties: 44 Fed. R. Evid. Serv. 1230 Anton IVEZAJ and Ljena Doljevic, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 215

84 F.3d 215

44 Fed. R. Evid. Serv. 1230

Anton IVEZAJ and Ljena Doljevic, Petitioners-Appellants, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 94-3898.

United States Court of Appeals, Sixth Circuit.

Submitted Oct. 3, 1995.

Decided May 28, 1996.

George P. Mann (briefed), Farmington Hills, MI, for Petitioners.

Norah Ascoli Schwarz, Pauline C. Terrelonge (briefed), U.S. Department of Justice, Immigration Litigation, Civil Division, Washington, DC, Edmund A. Sargus, Jr., U.S Attorney, Office of the U.S. Attorney, Columbus, OH, for Respondent.

Before: JONES and BOGGS, Circuit Judges; and COFFMAN, District Judge. ^*

BOGGS, Circuit Judge.

Anton Ivezaj and Ljena Doljevic, husband and wife, appeal from a determination by the Board of Immigration Appeals (BIA) that the couple is not entitled to asylum or withholding of deportation. The BIA had affirmed the decision of an Immigration Judge (IJ) who granted Ivezaj and Doljevic the privilege of voluntary departure after denying their application for asylum and withholding of deportation. For the reasons given below, we affirm the BIA's decision.

I.

Anton Ivezaj, age 29, and Ljena Doljevic, age 23, were citizens of the former Yugoslavia when they departed from Yugoslavia on January 18, 1987, bound for Mexico City. The couple crossed into California near Tijuana, and then flew directly to Detroit, where they were eventually discovered by agents of the Immigration and Naturalization Service (INS).

Ivezaj and Doljevic are Roman Catholics of Albanian descent. They lived in the Yugoslav republic of Montenegro, which is still part of the remaining Yugoslav federation. Montenegro is in southern Yugoslavia, north of Albania, northwest of the former Yugoslavian republic of Macedonia and west of the Kosovo region in Serbia. Serbia is the core of what remains of the Yugoslav federation. Ethnic and religious conflicts underlying the war raging in Bosnia-Herzegovina had threatened to spill into the two former Yugoslav republics that have large numbers of ethnic Albanians: Montenegro and Macedonia. ¹ Kosovo is a region where the Serbs lost a major battle to invading Turks 600 years ago, and is viewed by Serbs as the birthplace of Serb national identity. Land of the South Slavs, Nat'l Geographic, Aug. 1990, at 106. However, Kosovo's population is now 90% Albanian and only 10% Serb. Christine Spolar, Kosovo's Albanians Assert Nationalism; Serbian Leaders Vow to Retain Control, Wash. Post, Dec. 29, 1992, at A10. Muslim Albanians in Kosovo have been subjected to horrible persecution by the Serbs--they have been killed, beaten, raped, tortured, and politically oppressed. Dep't of State, 103d Cong., 2d Sess., Country Reports on Human Rights Practices for 1993 1038-45 (J.Comm.Print 1994). Repression of Albanians in Montenegro does not appear to be as great, although it exists. Id. at 1038-39. The Serbian persecution of Montenegrins also focuses on Muslims. Id. at 1040-41. There is no evidence of persecution of Catholics in Montenegro, although the Serbs, who are Orthodox, have persecuted Hungarian and Croatian Catholics in Vojvodina, another region in the former Yugoslavia. Id. at 1046.

Before coming to the United States, Ivezaj and Doljevic lived in the mountains of Montenegro on a farm. Some of their reason for coming to the United States were economic--Ivezaj's father is a legal resident of the United States, who had told them of the economic opportunities available here. There is no evidence that Ivezaj or Doljevic were ever persecuted in Montenegro. They do not belong to any political groups. Ivezaj's brother, however, had once been jailed overnight by the Serbian Secret Police for discussing the political situation in Kosovo. It is unclear from the record, but it seems as if one of Ivezaj's cousins had a friend in the Secret Police who prevailed upon that organization to release Ivezaj's brother.

Ivezaj and Doljevic were the equivalent of common law husband and wife in Montenegro. They simply began living together in Montenegro and consummated their marriage. They failed to register it, however, because they refused to take a communist loyalty oath that was required at the time. They also feared getting married in a church. They allege no facts sufficient to support any claim that their fear of a communist loyalty oath has any current significance.

On May 21, 1990, the INS issued a show cause order as to why Ivezaj and Doljevic, who were now living in Detroit, should not be deported. Ivezaj and Doljevic conceded deportability, but requested asylum. Requests for asylum are also deemed requests for withholding of deportation under 8 U.S.C § 1253(h) and 8 C.F.R. § 208.3(b). An IJ at the INS conducted telephonic hearings on July 10, 1990 and September 18, 1990 to determine whether Ivezaj's and Doljevic's requests for asylum or withholding of deportation should be granted. The IJ issued an oral decision on October 25, 1990, denying the request both for asylum and for withholding of deportation.

Ivezaj and Doljevic appealed the adverse determination of the IJ to the BIA, but the BIA affirmed its IJ's decision by order on July 25, 1994. The long delay was apparently the result of Ivezaj's and Doljevic's lack of diligence in pressing their appeal.

II.

Ivezaj and Doljevic claim that the IJ treated them unfairly in the hearing. They allege the IJ was abrupt because he immediately asked the government attorney to state the gravamen of Ivezaj's and Doljevic's arguments for asylum and withholding of deportation, in order to cut to the heart of the matter. They argue the IJ intimidated them by asking yes-or-no questions and cutting them off, making the entire hearing last only 30 minutes. They point to the IJ's statement that he would include newspaper clippings about persecution in Yugoslavia that Ivezaj and Doljevic wanted to enter into the record "for whatever it's worth." They argue these facts lead to the inference that the IJ had already prejudged their case before the hearing had concluded.

Ivezaj's and Doljevic's appeal of the BIA's determination raises five issues: (1) whether this court can take judicial notice of changed conditions in the former Yugoslavia; (2) whether Ivezaj and Doljevic failed to exhaust their administrative remedies, thus barring this appeal; (3) whether Ivezaj's and Doljevic's due process rights were violated by the manner in which the IJ conducted their deportation hearings; (4) whether there is substantial evidence to support the BIA's determination that Ivezaj and Doljevic were not entitled to withholding of deportation; and (5) whether there is substantial evidence to support the BIA's determination that Ivezaj and Doljevic were not entitled to asylum because of a well-founded fear of persecution. We have exclusive jurisdiction under 8 U.S.C. § 1105a(a). We hold that we may take judicial notice of changed conditions in Yugoslavia, that Ivezaj and Doljevic did exhaust their administrative remedies, that substantial evidence supports the BIA determination, and that Ivezaj's and Doljevic's due process rights were not violated. We therefore affirm the BIA's decision.

III. JUDICIAL NOTICE

Ivezaj and Doljevic ask this court to take judicial notice of the material in their brief's appendices, even though the material therein is not part of the record on appeal. The government resists the consideration of such material, citing 8 U.S.C. § 1105a(a)(4), which states that "the petition shall be determined solely upon the administrative record upon which deportation is based...." This statutory provision cannot be interpreted to bar this court from taking judicial notice of changed conditions in a foreign country, however. Cf. Fed.R.Evid. 201 (allowing a court to take judicial notice of facts "not subject to reasonable dispute"; subsection (f) allows judicial notice to occur at any stage of a proceeding); Fed.R.Evid. 1101(a) (stating that the Federal Rules of Evidence govern the courts of appeals). For proper applications of § 1105a(a)(4), see Hazime v. INS, 17 F.3d 136, 138 n. 1 (6th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 331, 130 L.Ed.2d 289 (1994) (§ 1105a(a)(4) precluded alien from claiming on appeal that he did not have a brother in Lebanon when he testified to the contrary before the BIA); Yaldo v. INS, 424 F.2d 501, 503 (6th Cir.1970) (argument that alien's ex-wife was biased against him was not properly directed to the court under § 1105a(a)(4), because this was initially a question for the INS's Special Inquiry Officer (SIO) ²).

The Sixth Circuit consistently takes judicial notice of changed political circumstances in immigration cases. Palushaj v. INS, 25 F.3d 1049, 1994 WL 198169, at * 2 (6th Cir.1994) (unpublished) (taking judicial notice of the persecution of ethnic Albanians in Kosovo); Ivezaj v. INS, 940 F.2d 660, 1991 WL 151157, at * 2 (6th Cir.1991) (unpublished) (same) [Anton Ivezaj does not appear to be a relation to this case's Marko Ivezaj]; Dalou v. INS, 914 F.2d 1494, 1990 WL 140540 (6th Cir.1990) (unpublished per curiam) (taking judicial notice of "recent events unfolding in Iraq and the adjacent Arabian peninsula region"); Dawood-Haio v. INS, 800 F.2d 90, 91 (6th Cir.1986) (taking judicial notice of the Iran-Iraq war). But see Dokic v. INS, 999 F.2d 539, 1993 WL 265166, at * 5 n. 3 (6th Cir.1993) (unpublished per curiam) (refusing to take judicial notice of Amnesty International Reports and newspaper articles "regarding the tense political situation in Yugoslavia which were not part of the administrative record," on the basis of § 1105a(a)(4), although indicating that consideration of these materials would not have influenced the panel's decision). The government's argument that the persecution of Albanians by Serbs should be ignored by this court is thus rejected.

IV. EXHAUSTION

The INS argues that this court has no jurisdiction over this appeal because Ivezaj and Doljevic have failed to...