Ademi v. I.N.S.

• Decision Date: 03 August 1994
• Docket Number: Nos. 92-3234,93-3230,s. 92-3234
• Citation: 31 F.3d 517
• Parties: Nebi ADEMI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 517

31 F.3d 517

Nebi ADEMI, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 92-3234, 93-3230.

United States Court of Appeals, Seventh Circuit.

Argued March 28, 1994.

Decided Aug. 3, 1994.

Michael A. Grochowiak (argued), Sklodowski, Franklin, Puchalski & Reimer, Melvyn E. Stein, Chicago, IL, for petitioner.

James G. Hoofnagle, Jr., Michael J. Shepard, Asst. U.S. Attys., Chicago, IL, Janet Reno, U.S. Atty. Gen., Frank W. Hunger, Washington, DC, Samuel Der-Yeghiayan, I.N.S., Chicago, IL, William J. Howard (argued), David J. Kline, Dept. of Justice, Office of Immigration Litigation, Washington, DC, for respondent in No. 92-3234.

James G. Hoofnagle, Jr., Asst. U.S. Atty., Chicago, IL, Richard L. Thornburg, U.S. Atty. Gen., Washington, DC, A.D. Moyer, Samuel Der-Yeghiayan, Roger Piper, I.N.S., James B. Burns, Office of the U.S. Atty., Chicago, IL, William J. Howard (argued), David J. Kline, Dept. of Justice, Office of Immigration Litigation, Washington, DC, for respondent in No. 93-3230.

Before CUDAHY and RIPPLE, Circuit Judges, and PLUNKETT, District Judge. ^*

CUDAHY, Circuit Judge.

Ademi petitions for review of decisions of the Board of Immigration Appeals (BIA) denying the reopening of his asylum request and ordering his deportation. We affirm.

I.

Ademi is an Albanian Muslim from Macedonia, an independent republic that was part of the former Yugoslavia. He entered West Germany in 1972, where he worked and was granted refugee status, and then returned to Yugoslavia four years later in order to marry and raise a family. In 1984, fearing imprisonment because of his pro-Albanian activities, he left Macedonia where his wife and four children continue to reside, and entered Austria. Ademi returned legally to Yugoslavia on one occasion and returned secretly three times. He travelled next to Bulgaria, Turkey, Iran, Greece and West Germany. While in West Germany, he applied for a refugee visa to the United States, but his application was denied. ¹

Ademi entered the United States near El Paso on May 12, 1986 without the required immigration inspection and was apprehended by the Immigration and Naturalization Service (INS), which commenced deportation proceedings. Ademi conceded his deportability but sought asylum or, in the alternative, voluntary departure. Three days later, the immigration judge (IJ) ordered him to file an asylum application. Ademi, however failed to do so, and the judge ordered him deported.

On August 19, 1986, Ademi moved to reopen his deportation proceedings, and the motion was granted. ² On June 8, 1987, however, the IJ denied Ademi's asylum request but allowed him six months to depart voluntarily. Ademi then appealed the IJ's decision to the BIA. He claimed asylum based upon police harassment with his taxi and restaurant businesses. Ademi also testified regarding his membership in several Albanian nationalist organizations, on account of which he claimed to have been arrested and beaten. Finally, Ademi moved to introduce background material to bolster his asylum request.

On August 19, 1992 the BIA affirmed the IJ's decision and dismissed Ademi's appeal. The BIA held that Ademi failed to establish a well-founded fear of persecution, and thus did not satisfy the statutory requirements to gain refugee status. First, the BIA found that the police may have interrogated Ademi to discover information about the groups he supported rather than to single him out personally for his political beliefs. ³ See INS v. Elias-Zacarias, --- U.S. ----, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Second, the BIA noted Ademi's lack of corroborating evidence and that his testimony and that of his witnesses was vague and conclusory. As a result, it concluded "that the respondent's claims may be exaggerated or unfounded." Moreover, the BIA determined that Ademi had not shown that he had suffered persecution in the past so severe that it warranted a discretionary grant of asylum. See Skalak v. INS, 944 F.2d 364, 365 (7th Cir.1991). In affirming the IJ, the BIA also denied Ademi's motion to introduce background documentation, holding that the materials were neither new nor material. The BIA found that Ademi had been given a fair opportunity to introduce background evidence during his hearing before the immigration judge. Nor did he adequately raise by motion the argument that changed conditions in the former Yugoslavia required a different result. The BIA also affirmed the IJ's grant of voluntary departure, allowing Ademi thirty additional days to leave voluntarily plus any extension that might be granted by the INS district director. Just before the end of the voluntary departure period, Ademi filed with this court a petition for review of the August 1992 BIA decision. Several days later, he filed with the district director a request for an extension of the voluntary departure period. The district director denied the extension request.

On January 21, 1993, Ademi filed a motion to reopen with the BIA, and this court granted the parties' joint motion to hold the appeal in abeyance. But the BIA on July 15, 1993 denied Ademi's motion to reopen. The BIA rejected Ademi's claim that conditions for ethnic Albanians in Macedonia were worse in 1993 than they had been in 1986, when Ademi first applied for asylum. "If anything," the BIA stated, "the present conditions in Macedonia are better for ethnic Albanian Muslims." Certified Administrative Record (CAR) 4. The BIA also redesignated Macedonia as the country of deportation in order to eliminate any ambiguity regarding the place of deportation. The issue here is unique since between June 8, 1987 (when the IJ ordered Ademi deported to Yugoslavia) and July 15, 1993 (when the BIA ordered redesignation) the former Yugoslavia ceased to exist.

Ademi then filed a petition for review of the July 15, 1993 BIA decision. The court then consolidated the two petitions which sought review of the BIA decisions (that of August 19, 1992 and that of July 15, 1993). Ademi argues here that (1) the BIA erred by neglecting to take administrative notice of conditions hostile to Muslims in the former Yugoslavia; (2) the BIA should not have redesignated Macedonia as the country of Ademi's deportation; and (3) the BIA should have granted an extension of his voluntary departure period.

II.

A. Official Notice

Ademi argues that the BIA is required to take administrative notice whenever political circumstances in the home country change during the course of an asylum seeker's immigration proceeding. He argues that, in this case, the BIA failed to take notice of circumstances hostile to Muslims in the former Yugoslavia, thereby depriving him of his right to due process. He bases these arguments on Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991), in which the BIA considered the conditions prevailing in post-Communist Poland in denying the petitioner's asylum request. Ademi's is sort of a "sauce for the goose is sauce for the gander" approach. If political circumstances change, they should be recognized--whether the change favors the INS view or that of the applicant.

But Ademi's position is incorrect for two reasons. First, we held in Kaczmarczyk that the BIA may take administrative notice of changed conditions but is not required to do so. 933 F.2d at 594 (the BIA "may take official notice of uncontroverted facts concerning political conditions in asylum seekers' home countries.") (emphasis added). Second, in our view, the BIA did not disregard the changed facts and circumstances in the former Yugoslavia. It noted that the state of affairs in the former Yugoslav federation was "in flux" and "extremely uncertain." ⁴ CAR 98 n. 1, citing Zulbeari v. INS, 963 F.2d at 999. ⁵

In any event, this court need not consider whether official notice is required because Ademi never raised this issue with the BIA. An alien must exhaust the administrative remedies available to him as of right before an order of deportation will be reviewed by the court. Immigration and Nationality Act (INA) Sec. 106(c), 8 U.S.C. Sec. 1105a(c); see Zulbeari, 963 F.2d at 1001 n. 2. Five years elapsed between the immigration judge's decision in 1987 and the BIA's decision in 1992. Ademi had a fair opportunity during that time to introduce the issue of administrative notice. Because he waived this issue before the BIA, Ademi is precluded from doing so now.

B. Redesignation of Country of Deportation

Ademi contends that the BIA erred in redesignating Macedonia as the country of deportation because, he claims, only the IJ can exercise such authority. Ademi misreads the applicable statutes and regulations. According to the regulations, the alien is given the first opportunity to designate the country of deportation; the IJ will specify the place of deportation only if the country designated by the alien declines to accept him. 8 C.F.R. Sec. 242.17(c)(1) (1993). Neither the statute nor the regulations specifies what happens if the IJ's designation fails. However the Immigration and Nationality Act authorizes the Attorney General to specify the country to which the alien will be sent. 8 U.S.C. Sec. 1253(a); Osmani v. INS, 14 F.3d at 15. ⁶ Further, the regulations indicate that the Attorney General has generally delegated to the BIA such discretion and authority as is appropriate and necessary for the disposition of the case. 8 C.F.R. Sec. 3.1(d) (1993). The power to redesignate is circumscribed by the same statutory factors that guide the Attorney General's other determinations. 8 U.S.C. Sec. 1253(a); see also Osmani, 14 F.3d at 15 (failure to redesignate the result of protracted proceedings; BIA should consider redesignating); Akrap v. INS, 8 F.3d 426, 431 (7th Cir.1993) (petitioner requested BIA to change country of deportation from Yugoslavia to Croatia, and BIA redesignated).

In essence, Ademi asks this court to derive a requirement from ...