Jahic v. Atty Gen USA , 142 F. App'x 125 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-2-2005
Jahic v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3726
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3726
SEAD JAHIC; SELMA JAHIC; AMAR JAHIC,
Petitioners
v.
ALBERTO GONZALES,* Attorney General
of the United States,
Respondent
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Agency Nos. A71-873-466, A71-873-467
and A71-873-468
Submitted Under Third Circuit LAR 34.1(a)
June 29, 2005
Before: ROTH, RENDELL, and BARRY, Circuit Judges
(Opinion Filed: August 2, 2005)
OPINION
*
Attorney General Alberto Gonzales has been substituted for former Attorney General John
Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
BARRY, Circuit Judge
Petitioners Sead and Selma Jahic, a married couple, and their minor son, Amar
Jahic, are natives of Bosnia.1 The family fled Bosnia during the war in 1992, and, after a
brief stay in Germany, arrived in the United States in May, 1992. The Jahics presented
themselves to customs officials upon their arrival at Newark airport, and were placed into
exclusion proceedings.2 In July, 1992, the Jahics submitted an application for asylum.
Shortly thereafter, the Attorney General added Bosnia-Herzegovina to the Temporary
Protected Status Program (“TPS”). Based on this action, on August 28, 1992, the
Immigration Judge (“IJ”) administratively closed the Jahics’ immigration case “to afford
the [Jahics] an opportunity to apply and be considered for Temporary Protected Status.”
Appendix (“App.”) 20; Administrative Record (“A.R.”) 318-319.
For reasons that are not entirely clear, the Jahics’ attorney never pursued an
application for TPS, although the Jahics assumed that he had done so. Nonetheless, they
remained in the United States and received authorization for employment here. In 2002,
they were denied an extension of their employment authorization because their case had
been administratively closed by the IJ, and there was no application currently pending.
1
The three Jahics’ cases have been consolidated. In 1995, the Jahics had a second
child, Amina Jahic, who was born in New York and is an American citizen.
2
The Jahics entered the United States using fraudulent visas they had procured in
Germany. Although the IJ found that the Jahics were aware that these visas were not
legitimate, this issue was not material to IJ’s disposition of the case, because the Jahics
had conceded that they were excludable aliens.
2
Id.3
Thus, in May, 2002, the Jahics filed a motion to reopen removal proceedings, and,
in November, they again filed applications for political asylum. At a calendar hearing in
November, they sought a continuance in order to obtain a “repapering” from the
Immigration and Naturalization Service (“INS”).4 If granted, the “repapering” would
terminate the exclusion proceedings and permit the Jahics to file an application for
cancellation of removal. As discussed below, this technical change in the type of
immigration proceedings would allow the Jahics to apply for discretionary relief from
removal.
At the Jahics’ request, the IJ continued the case for six months. At a subsequent
hearing in April, 2003, the Jahics again moved for a continuance, this time on the ground
that the INS had not yet responded to their repapering request. The IJ denied the request
for a further continuance, and, after a hearing, denied the Jahics’ application for asylum.
3
Although none of the parties attempts to explain the reason for this change in the
Jahics’ employment authorization, it seems likely that it was a result of the removal of
Bosnia from Temporary Protected Status as of February 10, 2001. See 65 Fed. Reg.
52789, 52791 (Aug. 30, 2000) (noting that “stay of removal and eligibility for
employment authorization due to the designation of Bosnia-Herzegovina for TPS will no
longer be available.”).
4
On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department
of Homeland Security ("DHS"), abolished the INS, and transferred its functions to the
new department. Because this case was initiated while the INS was still in existence, this
opinion refers to the agency as the INS.
3
The BIA affirmed, and this appeal followed.5 We will grant the petition for review.
On appeal, the Jahics make two arguments. First, they argue that their due process
rights were violated when they were denied the opportunity to pursue repapering.
Second, they argue that their application for asylum should have been granted on the
merits.
The second argument is easily rejected. At the hearing before the IJ, the Jahics
testified regarding their experiences during the 1992 war. As Bosnian Muslims, the
Jahics were harassed, and Sead was subject to brief periods of detention and
interrogation. In addition, the Jahic home was destroyed during the fighting, although the
IJ found that this incident “appeared to be part of the civil fighting in Bosnia, and not
really directed against” the Jahics specifically. App. 124. When the Jahics arrived in the
United States in 1992, a State Department advisory concluded that Sean Jahic had “good
reason to fear for his safety” in Bosnia. App. 18. Nonetheless, during the Jahics’ asylum
hearing in 2003, the IJ noted that the 2003 State Department reports “make clear that the
situation [in Bosnia] has improved drastically and substantially.” App. 125.
Mr. Jahic testified that if forced to return to Bosnia, “[t]here’s [a] very good
chance we [will] get killed, threatened, can be woman raped or some – you know, you
can’t protect yourself.” App. 101. Nonetheless, although testifying that he feared
reprisals for his refusal to serve in the military during the war, he conceded that an
5
We granted the Jahics’ motion for stay of removal pending appeal.
4
amnesty had been granted to those who had refused to serve, and stated that “maybe they
don’t want to threaten me or bring me in the jail or something but I, I’m not sure I can
find a job. I can live life, you know, like everybody else.” App. 101. Moreover, both
Mr. and Mrs. Jahic acknowledged on cross-examination that they each had siblings
currently living unharmed in Bosnia. Under these circumstances, the IJ correctly
determined that the Jahics do not have a well-founded fear of future persecution in
Bosnia.
The argument regarding “repapering” is more complex. At the time the Jahics
entered the United States, the Immigration and Naturalization Act (“INA”) contained a
provision entitled “suspension of deportation,” which vested the Attorney General with
discretion to suspend deportation if the alien met three criteria: (1) continuous physical
presence in the United States for seven years; (2) good moral character; and (3)
deportation would result in extreme hardship to the alien or a member of the alien’s
immediate family.6 See 8 U.S.C. § 1254(a)(1) (1995) (repealed 1996).
6
Section 1254(a)(1) provided in relevant part as follows:
the Attorney General may, in his discretion, suspend
deportation and adjust the status to that of an alien lawfully
admitted for permanent residence, in the case of an alien . . .
who applies to the Attorney General for suspension of
deportation and is deportable under any law of the United
States . . . ; has been physically present in the United States
for a continuous period of not less than seven years
immediately preceding the date of such application, and
proves that during all of such period he was and is a person of
good moral character; and is a person whose deportation
5
Although the Jahics at least arguably satisfy these criteria, they were ineligible to
apply for suspension of deportation because, under the pre-1996 INA, aliens in exclusion
proceedings were not entitled to suspension of deportation. Patel v. McElroy, 143 F.3d
56 (2d Cir. 1998); see also Fieran v. INS, 268 F.3d 340 (6th Cir. 2001).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(“IIRIRA”) amended the INA to combine the previously separate “deportation” and
“exclusion” proceedings into a unified “removal” proceeding, and replaced the
“suspension of deportation” provision with a new form of relief known as “cancellation
of removal.” See Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d Cir. 2000). As relevant
here, the criteria for “cancellation of removal” remained the same as for “suspension of
deportation.” See 8 U.S.C. § 1229b(1) (2005). Thus, under IIRIRA, the Jahics would be
eligible to apply for cancellation of removal.
The parties and the IJ assumed that the Jahics’ application was subject to the pre-
IIRIRA statutory scheme. Thus, the parties and the IJ focused on the issue of whether the
Jahics could apply for “repapering,” a procedure whereby an alien in proceedings under
the pre-IIRIRA regime could seek to have his or her proceedings administratively closed
and then reopened under the IIRIRA regime.
The repapering issue, however, is no longer relevant to the Jahics’ case. On May
would, in the opinion of the Attorney General, result in
extreme hardship to the alien or to his spouse, parent, or child,
who is a citizen of the United States or an alien lawfully
admitted for permanent residence.
6
11, 2005, after the parties had submitted briefs in this case, Congress enacted the Real ID
Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 311. Section 106(d) of the Real ID
Act provides, in relevant part, as follows:
Transitional Rule Cases...A petition for review filed under former section
106(a) of the Immigration and Nationality Act (as in effect before its repeal
by section 306(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1252 note)) shall be treated as if it had
been filed as a petition for review under section 242 of the Immigration and
Nationality Act (8 U.S.C. 1252), as amended by this section.
8 U.S.C. § 1252 (2005) (note).
We asked the parties to address the impact of the Real ID Act upon this case. As
an initial matter, the language quoted above demonstrates Congress’ intent to rescind the
transitional rule which had been in place for all pending appeals. As such, this provision
of the Real ID Act necessarily applies retroactively to all cases currently on appeal,
including this one. Thus, the Jahics’ claims must be treated as if they had been filed
under IIRIRA. Based on the above-quoted language, the Government argues that we lack
jurisdiction to review a denial of a motion for a continuance, because IIRIRA divests this
court of jurisdiction over such issues. See 8 U.S.C. § 1252(a)(2)(B)(ii).7
We need not delve into this question, however, because the very provision of the
7
The Government acknowledges, however, that there is a split of authority on this
question. Compare Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004) (holding
that IIRIRA divests courts of appeals of jurisdiction to review IJ’s discretionary denial of
continuance); Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004) (same); with
Zhoa v. Gonzales, 404 F.3d 295, 303, n.6 (5th Cir. 2005) (rejecting Onyinkwa holding);
Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004) (holding that courts of appeals
have jurisdiction to review IJ’s denial of continuance under some circumstances).
7
Real ID Act upon which the Government relies also moots the Jahics’ need for a
continuance. The IJ and the BIA analyzed the Jahics’ petition under pre-IIRIRA law,
which contained the distinction between exclusion and deportation. As noted above,
however, we must now treat the petition as if it had been filed under IIRIRA. Under
IIRIRA, the Jahics are entitled to apply for cancellation of removal, and have no need to
seek a continuance to obtain repapering. We will, therefore, grant the petition for review
and remand for consideration of the Jahics’ application for cancellation of removal under
IIRIRA.
8