Kanacevic v. I.N.S.

• Decision Date: 05 May 2006
• Docket Number: Docket No. 04-3878-AG.
• Citation: 448 F.3d 129
• Parties: Besime KANACEVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE<SMALL><SUP>*</SUP></SMALL>, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

448 F.3d 129

Besime KANACEVIC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE^*, Respondent.

Docket No. 04-3878-AG.

United States Court of Appeals, Second Circuit.

Argued: February 10, 2006.

Decided: May 5, 2006.

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Sam Gjoni, Law Office of Sam Gjoni, New York, New York, for Petitioner (on submission).

Scott A. Roetzel, Assistant United States Attorney, District of South Dakota (Michelle G. Tapken, United States Attorney for the District of South Dakota), for Respondent.

Before: JACOBS, WESLEY, and JOHN R. GIBSON,^** Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

Besime Kanacevic, a native and national of Montenegro, petitions for review of the Board of Immigration Appeals' summary order denying her application for political asylum. We conclude that we have jurisdiction over the petition, and we deny review.

On November 16, 1999, at the age of seventeen, Kanacevic arrived in this country at the Los Angeles International Airport, bearing a fraudulent Slovenian passport. At the airport, she was detained and interviewed by United States Immigration officers. With the assistance of an interpreter, she gave a sworn statement in which she said that she had come to the United States in order to marry Brahim Cekoviq, who she said was a Yugoslavian who had a greencard. She said that their parents had arranged the marriage. When asked if she had any fear about being removed from the United States, she said she had no friends "there" and she was afraid to travel alone. When asked if she would be harmed if she were removed from the United States, she said no. She was accompanied by a man from whom she had obtained the false passport, who, she said, "handled everything."

Two years later, on August 3, 2001, she filed an application for asylum, stating that she had been harassed by Serbian soldiers on account of her Albanian ethnicity; she feared the Serbs would harass, rape, or murder her if she returned to Montenegro; and she sought political asylum.

Kanacevic was represented by counsel at the hearing on her asylum application. Kanacevic testified that during the Kosovo war, the unrest had spread into Montenegro. She testified that Serbs came to Montenegro to wage war and that they raped Muslim women, including one of her neighbors. In June of 1999, her family sheltered five Kosovars for three weeks. Serbian soldiers came to her house and took Kanacevic's father and the Kosovars to the police station, where they kept them for two or three hours. Kanacevic said the soldiers beat her father and told him to send the Kosovars away; after that, the Kosovars left. She said that also in June 1999, Serbian police came to her house and said that all Muslim girls had to die. After that incident, she was frightened and hid in her house for about two months. She said the Serbs returned in July and searched her house, but did not find her. She said she left school after one year of high school because classes were not taught in Albanian.

Kanacevic said her father and one sister immigrated to Australia legally in July 1999. After Kanacevic came to the United States in November 1999, the rest of her family—mother, a sister and a brother— were allowed to go to Australia in 2000.

At the conclusion of the hearing, the Immigration Judge found that Kanacevic did not testify truthfully about her reasons for coming to the United States. The IJ based her negative credibility finding on Kanacevic's evasive and unresponsive testimony, details of her testimony that indicated she was not actually concerned about political persecution, and her statement upon arriving here that she came to marry Brahim Cekoviq. The IJ further found that even if Kanacevic's story were true, it would not establish that she had been subjected to past persecution, and that conditions had so improved in Montenegro since the end of the Kosovo war that there was no reason to fear future persecution. Accordingly, the IJ held that Kanacevic was not eligible for asylum. She also concluded that Kanacevic had not met the standards for withholding of removal or relief under the Convention Against Torture.

The Board of Immigration Appeals affirmed the IJ's order summarily. Kanacevic petitions for review of the denial of asylum.

I.

Before proceeding to the merits of Kanacevic's petition for review, we must determine whether we have jurisdiction. Because Kanacevic arrived in this country using a Slovenian passport, she was processed as a participant in the Visa Waiver Program, in which aliens from certain countries, including Slovenia, may visit the United States for 90 days or less without a visa. See 8 U.S.C. § 1187(a)(2000 and Supp. II 2002); 8 C.F.R. § 217.2 (2006). Aliens admitted under this program forfeit any right to challenge their removal, except that they may apply for asylum. 8 U.S.C. § 1187(b); 8 C.F.R. § 217.4(a) (2006); see Wigglesworth v. INS, 319 F.3d 951, 956 (7th Cir.2003); Itaeva v. INS, 314 F.3d 1238, 1239 (10th Cir.2003). Therefore, participants who do apply for asylum are processed in "asylum-only" proceedings. 8 C.F.R. § 208.2(c)(iii) (2006). Unless granted relief in those proceedings, the Visa Waiver applicant can be removed without further proceedings. 8 C.F.R. § 217.4(a)(1) (2006). Kanacevic's asylum application was denied by the BIA in a final order.

We now ask whether the denial of the asylum application was a reviewable order.¹ Under 8 U.S.C. § 1252(a)(1)(2000) we have jurisdiction to review a "final order of removal."² The government contends that because of the truncated rights available to a Visa Waiver Applicant, the denial of the asylum application is in effect a final order of removal because Kanacevic can be removed without further proceedings.

The Eleventh Circuit considered the same question in Nreka v. United States Attorney General, 408 F.3d 1361, 1367 (11th Cir.2005), and concluded, "The denial of an asylum application in a [Visa Waiver Program] proceeding is so closely tied to the removal of the alien that it can be deemed—in conjunction with the referral to the immigration judge—as a final order of removal, subject to § 1252(a)(1)." This reasoning is in line with pre-IIRIRA³ cases holding that denials of asylum applications were reviewable under former section 8 U.S.C. § 1105a(a), the predecessor to current 8 U.S.C. § 1252(a)(1), as "`intimately . . . and immediately associated'" with the final order of deportation. Carvajal-Munoz v. INS, 743 F.2d 562, 566-67 (7th Cir.1984) (reasoning that denial of asylum application in the context of deportation proceedings is intimately and immediately associated with deportation order and therefore reviewable) (quoting Cheng Fan Kwok v. INS, 392 U.S. 206, 217, 88 S.Ct. 1970, 20 L.Ed.2d 1037 (1968)); see Osorio v. INS, 18 F.3d 1017, 1027 (2d Cir.1994) (Court of Appeals has jurisdiction under § 1105a(a) to review asylum determination); Melendez v. United States Dep't of Justice, 926 F.2d 211, 216 (2d Cir.1991) (same); see also INS v. Chadha, 462 U.S. 919, 938-39, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983) (jurisdiction lay under 8 U.S.C. § 1105a(a) to review congressional veto that resulted in deportation order; the term "final orders" includes all matters on which alien's deportation stands or falls); cf. Gottesman v. INS, 33 F.3d 383, 386-87 (4th Cir.1994) (declining to review rescission of adjustment of residency status because "decisions related to a final order of deportation, but not part and parcel of the deportation order itself, are not subject to review under 8 U.S.C. § 1105a(a)"); Young v. United States Dep't of Justice, 759 F.2d 450, 457 (5th Cir.1985) (no jurisdiction to review refusal to reopen bond hearings because such hearings were separate and distinct from deportation proceedings). The courts interpreted the language, "final order of deportation," broadly enough to further the purpose of efficient operation of the deportation process:

An "order of deportation" includes more than just the piece of paper authorizing the government to take custody of the alien and transport him beyond our frontiers. The term extends to any denial of discretionary relief during a deportation proceeding, where such relief, if granted, would foreclose deportation. Denials of applications for withholding of deportation or for asylum, like denials of applications for suspension of deportation, qualify as "order[s] of deportation" that may be judicially reviewed.

Perkovic v. INS, 33 F.3d 615, 618 (6th Cir.1994) (BIA order reversing IJ's grant of asylum and remanding was appealable even though no formal order of deportation had issued).

Although the denial of asylum in a Visa Waiver Program case does not occur in the context of removal proceedings, denial of the asylum application is the functional equivalent of a removal order under the provisions of the Visa Waiver program.⁴ Were we to elevate form over substance by holding that the disposition of asylum-only proceedings does not function as a final order of removal to confer jurisdiction, we would create uncertainty over exactly what procedure a Visa Waiver applicant could pursue in order to obtain review of his or her asylum proceedings in the Courts of Appeals.

Accordingly, we hold that we have jurisdiction over the petition to review.⁵

II.

The Attorney General may grant asylum to an alien who is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b) (2000 and Supp. II 2002). Section 1101(a)(42)(A)(2000) defines "refugee" to include a person outside his own country who is unable or unwilling to return to his country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. The burden of proof is on the alien applying for asylum to establish that he is a refugee. 8 C.F.R. § 208.13(a) (2002). If the applicant's testimony is consistent, detailed and...