Mudric v. Attorney General of U.S., 05-2913.

• Citation: 469 F.3d 94
• Decision Date: 24 November 2006
• Docket Number: No. 05-2913.,05-2913.
• Parties: Goran MUDRIC, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

469 F.3d 94

Goran MUDRIC, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent.

No. 05-2913.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) September 13, 2006.

Filed November 24, 2006.

Christina L. Harding, Gallagher, Malloy & Georges, Philadelphia, PA, Attorney for Petitioner.

Sonya F. Lawrence, Office of United States Attorney, Philadelphia, PA, Attorney for Respondent.

Before FUENTES, FISHER and McKAY,^* Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Goran Mudric petitions for review of the legality of his pending deportation. In support of his petition, Mudric alleges his Fifth Amendment right to procedural due process was violated by undue Immigration and Naturalization Service ("INS")¹ delays in processing certain applications related to his case. Mudric also argues that the Government should be estopped from removing him because he was prevented from obtaining lawful status as a result of the Government's own undue delay. Finally, Mudric claims procedural due process violations occurred in the course of his asylum hearing. For the reasons stated below, we will deny the petition.

I.

Mudric, an ethnic Serb and native and citizen of the former Yugoslavia, entered the United States without inspection at or near Detroit, Michigan on February 27, 1992. Mudric's mother, Ljiljiana Mudric-Meolic, was already residing in the United States at that time, having acquired conditional permanent resident status through her marriage in 1990 to a United States citizen.² Mudric formally applied for asylum in 1993 and approximately four years later, on January 24, 1997, INS issued a notice of intent to deny the request for asylum.

Hearings before an Immigration Judge on the subject of Mudric's deportation were held in August of 1997 and February of 1998.³ At the February 1998 hearing, Mudric testified that he had served in the former Yugoslavian army from 1986 to 1987 and claimed he had suffered persecution at that time because of a relationship he had with a Muslim woman. As evidence of that persecution, Mudric described one incident in which he was hit in the head with a gun by an officer. After that incident, Mudric was allegedly told by friends that he was a "marked man." Mudric offered no further explanation or evidence of persecution. After completing his service in the army, Mudric returned to his home city of Belgrade and eventually became engaged to the unnamed Muslim woman. However, Mudric and the woman never married and the relationship ended when Mudric left for the United States in 1992.

Mudric further testified that he was called back for active service in the army in 1991, at the time of the Yugoslavian Civil War. He only served for two weeks before deserting. When asked why he deserted the army, Mudric replied "I was scared. I was scared. I didn't like it to kill nobody else. Always they teach us and hatred starting too much." When asked whether he had ever expressed any opposition to serving in the army, Mudric testified that he had told only one other fellow soldier, whose reaction he described as "not pleased." When asked what would have happened if he had not deserted the army in 1991, Mudric stated, in effect, he would have to kill or be killed. When asked what would happen if he were forced to return to Serbia, Mudric expressed a fear that he would be punished. Mudric did not specify exactly why and how he would be punished, but speculated that "what I'm, uh, hearing, what I'm seeing now it's Mafia, government, they, they punish a lot of people."

Although an index listing three witnesses prepared to testify at the hearing on Mudric's behalf had been filed by Mudric's attorney, two of those witnesses were not present at the proceedings. Those witnesses were Mudric's mother and a friend. At the beginning of the proceedings, the IJ indicated to counsel for Mudric that he believed their testimony would have little probative value because they were not experts and obviously partial to Mudric's claims. Additionally, he noted that competent evidence was already in the record as to the country conditions in Serbia. At the end of Mudric's testimony, the IJ concluded that Mudric's case was ripe for adjudication even without the testimony of witnesses. He stated that witnesses would have little to contribute to the case because "the facts [were] pretty clear." The IJ explained that he would not be granting Mudric's request for reasons set forth in a written decision. That decision reflected the IJ's belief that Mudric's testimony lacked credibility and was completely in conflict with the objective evidence in the record.

The IJ's decision was affirmed without opinion by the Board of Immigration Appeals ("BIA") on June 4, 2002, and Mudric was granted thirty days to depart voluntarily. Mudric failed to adhere to the BIA's order and was taken into custody by INS on July 16, 2002. Mudric retained new counsel and filed in this Court a petition for review of his order of removal. That petition was dismissed as untimely on April 9, 2003. While the untimely petition for review remained pending, Mudric filed a habeas corpus petition pursuant to 28 U.S.C. § 2241 in the United States District Court for the Eastern District of Pennsylvania as well as a motion for an order to show cause and a motion for stay of removal. The District Court issued an order staying Mudric's removal and requiring his release from custody. However, without taking any substantive action on the § 2241 petition, the District Court converted and transferred it to this Court for treatment as a petition for review, as mandated by the REAL ID Act of 2005 ("REAL ID Act"), Pub.L. No. 109-13, 119 Stat. 231, Div. B, Title I, § 106(c) (May 11, 2005). See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.2005).

II.

The REAL ID Act confers on this Court jurisdiction to review constitutional claims and questions of law raised in a converted and transferred petition for review of an order of removal. 8 U.S.C. § 1252(a)(2)(D); see Bonhometre, 414 F.3d at 446. Although Mudric's habeas corpus petition has been converted to a petition for review, our standard of review remains the same. Jordon v. Att'y Gen., 424 F.3d 320, 327-28 (3d Cir.2005). We review de novo constitutional claims and questions of law, including application of law to undisputed facts or adjudicated facts, raised in the initial petition for habeas corpus relief. Kamara v. Att'y Gen., 420 F.3d 202, 211 (3d Cir.2005). In a petition for review, we examine factual and discretionary determinations made by an IJ in adjudicating asylum requests under the familiar substantial evidence standard. Dia v. Ashcroft, 353 F.3d 228, 247-48 (3d Cir.2003). That is, an IJ's decision to deny a request for asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole . . . and can be reversed only if the evidence presented by [petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see also Abdille v. Ashcroft, 242 F.3d 477, 484 (3d Cir.2001) ("The [IJ's] finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it.").

Normally, we have jurisdiction over an alien's claims only where the alien has raised and exhausted his or her administrative remedies as to that claim. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). However, due process claims are generally exempt from the exhaustion requirement because the BIA does not have jurisdiction to adjudicate constitutional issues. Sewak v. INS, 900 F.2d 667, 670 (3d Cir.1990). Thus we review de novo the question of whether Mudric's procedural due process rights have been violated. Bonhometre, 414 F.3d at 446.

III.

Turning to the merits of the petition, Mudric alleges that INS delays in the consideration and processing of his asylum claim and his mother's permanent resident alien application prevented him from receiving a grant of asylum and an adjustment to lawful status via his mother. He alleges that conditions in his native Serbia had changed in the approximately four years between the time when he first filed his application for asylum and the time when it was considered by INS. Had his asylum claim been considered before these unspecified changes, Mudric reasons, he would have been entitled to a grant of asylum. In a similar fashion, Mudric argues that his mother, Mudric-Meolic, was prevented from filing an alien relative petition on behalf of Mudric because of an INS delay of eight years in processing her petition to remove conditions on her permanent residence. Mudric suggests in the first instance that these INS delays in themselves worked a violation of due process and mandate the reopening of his removal proceedings. In addition, Mudric argues that the INS delays constitute affirmative government misconduct giving rise to a claim for equitable estoppel against the Government. These claims are entirely without merit.

Mudric fails to discern the discretionary nature of both asylum and adjustment of status determinations. While an alien may be eligible for a grant of asylum or an adjustment of status under the immigration laws, he is not entitled to such benefits as a constitutional matter. There is no constitutional right to asylum per se. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.2001). An alien seeking admission to the United States through asylum "requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." Marincas v. Lewis, 92 F.3d 195, 203 (3d Cir.1996) (quoting Landon v. Plasencia, 459 U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21 (1982)); see also INS v. Yang, 519 U.S. 26, 30, 117 S.Ct. 350, 136 L.Ed.2d 288 (1996) ("[T]he...