Pelinkovic v. Ashcroft

• Citation: 366 F.3d 532
• Decision Date: 28 April 2004
• Docket Number: No. 02-3065.,02-3065.
• Parties: Rizaja PELINKOVIC, Sanija Pelinkovic, and Svebor Pelinkovic, Petitioners, v. John D. ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

366 F.3d 532

Rizaja PELINKOVIC, Sanija Pelinkovic, and Svebor Pelinkovic, Petitioners, v. John D. ASHCROFT, Attorney General of the United States, Respondent.

No. 02-3065.

United States Court of Appeals, Seventh Circuit.

Argued December 10, 2003.

Decided April 28, 2004.

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Mary L. Sfasciotti (Argued), Chicago, IL, M. Jocelyn Lopez-Wright, Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Petitioners.

George P. Katsivalis, Department of Homeland Security, Office of the District Counsel, Chicago, IL, Jamie M. Dowd (Argued), Department of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondents.

Before EASTERBROOK, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

I. Background

Rizaja Pelinkovic applied for asylum in 1995. His wife, Sanija, and his son, Svebor, made derivative claims under 8 U.S.C. § 1153(d). The Pelinkovics are Muslims and ethnic Albanians from the city of Bar in Montenegro, a part of the former Yugoslavia. They fled their home for the United States in February of 1992 due to Rizaja's fear that the military would forcibly reactivate him and send him to Croatia to fight in a war in which he did not believe. The family also complained of generalized discrimination, mistreatment, and economic hardship based on their Muslim faith and Albanian ancestry.

Prior to the Pelinkovics' departure, Yugoslavia consisted of autonomous provinces, including Serbia, Montenegro, Croatia, Bosnia and Herzegovina, Macedonia, and Slovenia. Capric v. Ashcroft, 355 F.3d 1075, 1082 (7th Cir.2004) (describing in detail the Balkan political landscape). Under the rule of Serbian president Slobodan Milosevic, many of the provinces seceded, including Croatia. Croatia's secession resulted in armed conflict with Serbia and, by association, Montenegro. It was this civil war with Croatia from which the Pelinkovics fled. Serbia and Montenegro later joined in April of 1992 to form the Federal Republic of Yugoslavia ("FRY"). See id.

The immigration judge hearing the Pelinkovics' case determined that Rizaja's fear of forced military service or punishment for failure to perform such service was unsupported. The judge reiterated the long-accepted position that a country may require military service of its citizens. He also noted that according to the State Department, FRY citizens avoiding compulsory military service were not pursued, harassed, or arrested. The fact that Rizaja's brother resided in Bar with similar military service obligations which he had heretofore avoided also cut against Rizaja's claim that he would be persecuted upon his return to Montenegro.

The immigration judge found no other basis on which to grant asylum, noting that the generally poor country conditions cited by the Pelinkovics affected the entire population and that there was not enough evidence in the record to support granting them asylum based solely on their religious and ethnic minority status.

On appeal, the Board of Immigration Appeals ("BIA") upheld the immigration judge's determination. We affirmed the BIA's May 5, 1997 decision in an unpublished order dated February 17, 1998.

The Pelinkovics then filed two petitions requesting the BIA to reopen their case. The first petition, filed in September of 1998, was based on changed country conditions in the FRY. In late 1998, Milosevic was still in power and had begun military action in Kosovo (a province within Serbia), which was struggling for independence. See Capric, 355 F.3d at 1082. The majority of Kosovars were Muslim and of ethnic Albanian descent, like the Pelinkovics. Montenegro, although still unified with Serbia in the FRY, was critical of Milosevic's policies toward Kosovo and his brutal police and military campaign aimed at the ethnic Albanian separatists. See id. Relations between Serbia and Montenegro were strained, with predictions of civil war.

In his petition to reopen based on changed country conditions, Rizaja reiterated his concern that if deported to Montenegro, he, along with his son, Svebor, who was now of military age, would be forced by Serbia to fight in Kosovo against fellow Albanians. He stressed that because of Milosevic's campaign against ethnic Albanians in Kosovo and the weakness of the Montenegrin government, conditions for ethnic Albanians in Montenegro had also deteriorated. In support of his petition, he attached his affidavit, a military summons dated March 25, 1998, and numerous news reports about the continuing destabilization of the Balkans and isolated instances of violence against ethnic Albanians.

The second petition, filed in April of 1999, was based on Congress's enactment of the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), § 2242 of the Foreign Affairs Reform and Restructuring Act of 1998, Pub.L. No. 105-277, 112 Stat. 2681, 2681-821. The CAT was made judicially enforceable through 8 C.F.R. §§ 208.16(c) and 208.18(b)(2). See Oforji v. Ashcroft, 354 F.3d 609, 614-15 (7th Cir.2003). The Pelinkovics asked the BIA to remand their case to the immigration judge to permit them all to apply for relief under the CAT. Because of ever-worsening conditions in Montenegro, they urged that they could present credible claims that each of them would be tortured upon their return. Specifically, they cited mounting strife between Serbia and Montenegro and alleged that civil war was imminent, in which case Montenegrin ethnic Albanians would likely face the same atrocities as the Kosovars. The Pelinkovics supported this petition with their affidavits and additional news stories on the mounting tension between Serbia and Montenegro. They also included articles on NATO's bombing of Milosevic's forces, which began in March of 1999, in response to his incursion into Kosovo.

The BIA denied both petitions on July 18, 2002. As to the September 1998 motion to reopen based on changed country conditions, it found that the evidence presented by the Pelinkovics merely demonstrated "escalating conditions" that had no direct effect on Rizaja's asylum claim. The BIA stated that the Pelinkovics failed to convince the Board that there was a reasonable possibility they would be persecuted by Serbian nationalists because of their Albanian ethnicity. The BIA also reiterated its position that a government has the right to require military service and enforce such a requirement with reasonable penalties. As to the April 1999 CAT claim, the BIA found that none of the evidence presented established that any of the Pelinkovics would be subject to torture upon their return home.

The Pelinkovics now appeal the BIA's decisions not to reopen their case based on changed country conditions or the CAT. We affirm the decisions of the BIA and deny the Pelinkovics' petition for review.

II. Analysis

We review the BIA's decision not to reopen an asylum claim under the highly deferential abuse of discretion standard. 8 C.F.R. § 1003.2(a); Dandan v. Ashcroft, 339 F.3d 567, 575 (7th Cir.2003). Motions to reopen are "strongly disfavored." Selimi v. Ashcroft, 360 F.3d 736, 739 (7th Cir.2004) (citing INS v. Doherty, 502 U.S. 314, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)).

The Supreme Court has identified three independent grounds upon which the BIA can deny a motion to reopen: "(1) `failure to establish a prima facie case for the relief sought;' (2) `failure to introduce previously unavailable, material evidence;' and (3) `a determination that even if these requirements were satisfied, the movant would not be entitled to the discretionary grant of relief which he sought.'" Mansour v. INS, 230 F.3d 902, 907 (7th Cir.2000) (quoting Doherty, 502 U.S. at 323, 112 S.Ct. 719). We will uphold the BIA's decisions to deny the Pelinkovics' motions to reopen "`unless [they were] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis such as invidious discrimination against a particular race or group.'" Mansour, 230 F.3d at 907 (quoting Wijeratne v. INS, 961 F.2d 1344, 1348 (7th Cir.1992)).

A. Motion to Reopen Based on Changed Country Conditions

The BIA refused to reopen the Pelinkovics' asylum application due to changed country conditions because the evidence presented with the September 1998 petition did not establish prima facie eligibility for asylum or withholding of deportation. Aliens claiming asylum bear the burden of showing they were subject to persecution in their country of origin or have a well-founded fear of future persecution upon their return home on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A); Capric, 355 F.3d at 1084. To succeed in establishing a prima facie case, a petitioner "must present specific facts demonstrating that he has ... good reason to believe that he will be singled out for persecution." Petrovic v. INS, 198 F.3d 1034, 1037 (7th Cir.2000); see also 8 C.F.R. § 208.13(b)(2)(i). In other words, the Pelinkovics needed to present evidence that Rizaja individually would be subject to persecution upon return home based on changed country conditions in Montenegro.

A petitioner can also attempt to establish a prima facie case by presenting "a pattern and practice of persecution of an identifiable group, to which he belongs, such that his fear [of persecution] is reasonable." Capric, 355 F.3d at 1094 (quoting 8 C.F.R. § 208.13(b)(2)(iii)). To meet this standard, the Pelinkovics needed to show that Rizaja would be subject to persecution per se because of his ethnic Albanian or Muslim status.

The Pelinkovics based their motion to reopen because of changed country conditions on two separate grounds — eligibility for military service and generalized discriminatory conditions. We will discuss each in turn.

1. Military Service

The BIA determined that Rizaja's renewed fear that if he returned...