Alibasic v. Mukasey
| Decision Date | 17 October 2008 |
| Docket Number | Docket No. 06-4046-ag. |
| Citation | 547 F.3d 78 |
| Parties | Bajram ALIBASIC, Petitioner, v. Michael B. MUKASEY, Attorney General,<SMALL><SUP>1</SUP></SMALL> Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Michael P. DiRaimondo (Marialaina L. Masi, Mary Elizabeth Delli-Pizzi, and Stacy A. Huber, on the brief), DiRaimondo & Masi, LLP, Melville, NY, for Petitioner.
P. Michael Truman, Trial Attorney, Office of Immigration Litigation (Michelle Gorden LaTour, Assistant Director, R. Alexander Goring, Trial Attorney, Peter D. Keisler, Acting Attorney General, on the brief), U.S. Department of Justice, Washington, D.C., for Respondent.
We are asked on this appeal to review the August 3, 2006, decision of the Board of Immigration Appeals ("the BIA") which vacated the December 13, 2004, oral decision of Immigration Judge Margaret McManus ("the IJ"), of the United States Immigration Court, granting Bajram Alibasic's application for asylum under Section 208 of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1158. In re Alibasic, No. A77 542 877 (BIA Aug. 3, 2006), vacating, No. A77 542 877 (Immig. Ct. New York City Dec. 13, 2004). In light of the Government's motion to dismiss Alibasic's petition for review, however, we must first consider whether we have jurisdiction to review the BIA's decision.
Alibasic's request for asylum arises from the extraordinarily violent disintegration of the former Yugoslavia.3 According to the testimony he gave, through an interpreter, to the IJ, and to supporting documents he submitted to the Immigration Court, Alibasic is an Albanian Muslim, born on January 1, 1976, in Tivar, Montenegro, Yugoslavia. (JA 192; 563)4 He left Yugoslavia on June 6, 1998, and traveled by way of Russia, Cuba, and Canada to arrive in the United States within two weeks. (JA 193-94; 571) At the time of his testimony, at least three of his siblings were resident in the United States, with one brother having been granted asylum. (JA 192-93; 316) Alibasic received a Notice to Appear, dated November, 15, 1999, charging him with being a removable alien pursuant to INA Section 212(a)(6)(A)(i). (JA 589) On January 12, 1999, Alibasic filed a Form I-589, Application for Asylum and for Withholding of Removal, and sought relief pursuant to Article 3 of the United Nations Convention Against Torture ("CAT"). (JA 563-73)
Alibasic told the IJ that he left his native country for the following reason:
Because we're Albanians, we are a minority and the Serbs have mistreated us. And because of the Army, I had to go to Army. And as Albanian, Albanians who are mistreated in the Army. (JA 194)
Alibasic expressed his desire for asylum more fully in a statement attached to his revised Form I-589, dated January 9, 2004:
I came to the United States ... to seek political asylum because as an Ethnic Albanian Muslim Albanian [sic] living in Montenegro, I have suffered mistreatment, discrimination, and humiliation from the Serbian government, Serbian soldiers, and Serbian people. My family and I were not able to have a normal life in Serbia-Montenegro; instead we lived under continuous fear of the racial persecution.
* * *
... I was involved in the peaceful protests and demonstrations that the Albanian[s] organized in order to raise their voice against the discriminative politic[s] of the Serbian government. We demonstrated for the human rights of the Albanians, freedom of speech in our language, and freedom of our religion. The Serbian police applied violence to interrupt these protests. They used tear gas, and beat the participants violently. Once a Serbian officer caught me and beat me right on the side of the street.... My problems with the government started in May 1998, when I received a draft notice to join the Yugoslavian army. The notice stated that I had to appear on May 28, 1998 to be drafted in the army. I rejected this notice because I knew that ... the Serbian army was heading for a crackdown in Kosovo, and I did not want to be part of this army that would conduct crimes on my people.... I did not respond to the draft notice. Instead, I left my house and went to hide in my friends['] and relatives' houses....
After I left Montenegro, my parents told me that the Military Police had asked them many times about my whereabouts. The police had threatened my parents.... On October 2, 2002, my family received another notice for me to join the army. I was summoned to appear on October 23, 2002, to be drafted in the army. Since I did not appear, the Military Police went to my house and asked my parents.... The police had insulted and threatened my father. They had told him that I had no place in Montenegro because I never responded to the authorities['] summons. They warned my parents that the only place waiting for me was the prison. My parents were very scared and upset and immediately noticed me. They advised me to do everything possible to stay [in the United States] and never go back in Montenegro. (JA 306-08)
As already noted, the IJ issued an oral decision on Alibasic's application on December 13, 2004. Finding Alibasic's testimony to be "credible," the IJ yet held that he was not "eligible for asylum currently based on the fact that he is still refusing to go into the military because I do not find that there is evidence that he will be persecuted because of his past failure to go into the military." (JA 156, 161) In fact, the IJ concluded, "[t]here is no evidence that the military is currently engaged in human rights abuses as they clearly were in the past." (JA 160) Further, the IJ reviewed a State Department report, released on February 25, 2004, entitled "Serbia and Montenegro: Country Reports on Human Rights Practices" ("the 2004 Country Report"), and found it to be equivocal with respect to its implications for Alibasic's application. Specifically, the IJ found that while the 2004 Country Report "talks about the government generally respecting human rights of citizens ... there are still incidents of societal violence and discrimination against religious minorities, which [Alibasic] is." (JA 162) In addition, the IJ examined background materials submitted by Alibasic in support of his application, including one article, published in April 2004, but not specifically identified by the IJ, which discussed "backsliding in Serbia ... including rapid deterioration in relations between Serbs and the major ethnic minorities including torching of mosques [and] desecration of cemeteries." (JA 163) The IJ then ruled as follows:
[A]lthough there ha[ve] been some improvements, I think that it can get worse again very quickly as indicated by the article.... So hopefully that will not happen but I think that [Alibasic], based on the current conditions in Serbia Montenegro, based on the fact that he was beaten in the past and did experience some problems in the past, separate and apart from being called to the military, I think [he] can demonstrate a well-founded fear of persecution ... and for that reason I think he is eligible for asylum. (JA 163)
The Government filed a timely appeal of the IJ's decision. (JA 150-52) In its decision, dated August 3, 2006, the BIA did not take issue with the IJ's finding that Alibasic had testified credibly, and it assumed for the sake of argument that the IJ had correctly found that Alibasic had demonstrated that he had been subjected to persecution prior to his leaving Serbia and Montenegro. (JA 113) The BIA nevertheless vacated the IJ's grant of asylum based upon a review of the 2004 Country Report that differs markedly from the IJ's summation of the same document. Specifically, the BIA found that the 2004 Country Report
reflects that Serbia and Montenegro has undergone some fundamental changes since [Alibasic's] departure in May of 1998. The Country Report indicates that the regime of Slobodan Milosevic is no longer in power, the country is now policed by a Multi-Ethnic Police Force that includes ethnic Albanians, and the evidence reflects a gradual improvement of the conditions in Serbia and Montenegro. Although [Alibasic] claims he was persecuted as an ethnic Muslim Albanian, the Country Report indicates that the government generally respects its citizen's human rights, and the Deputy Minister for the Protection of the Rights of National Minorities in Montenegro indicated that there was "little ethnic violence in Montenegro during the war era" and that Montenegro's minority communities are a "respected part of a multi-ethnic state." (JA 113-14; citations omitted)
The BIA went on to note its (JA 114; citation omitted) The BIA concluded as follows:
[W]e find that the presumption of future persecution has been overcome and [Alibasic] has not demonstrated a well-founded fear of future persecution in Serbia and Montenegro on account of a protected ground.... Since [Alibasic] has failed to satisfy the lower burden of proof required for asylum, he has also failed to satisfy the higher, clear probability standard of eligibility required for withholding of removal.
Finally, after a review of the record of proceedings, we find that there is no support for the conclusion that [Alibasic] has been or would likely be tortured by or with the acquiescence of a government official in Serbia and Montenegro. Therefore, [Alibasic] is not eligible for relief under [CAT].
Accordingly, the following order shall be entered.
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