Milosevic v. Secretary Homeland , 116 F. App'x 353 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-24-2004
Milosevic v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1159
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"Milosevic v. Secretary Homeland" (2004). 2004 Decisions. Paper 118.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-1159
SLOBODAN MILOSEVIC;
ROBIN MILOSEVIC
v.
THOM AS RIDGE, SECRETARY, U.S.
DEPARTMENT OF HOMELAND SECURITY
Slobodan Milosevic,
Appellant
On appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No.: 03-CV-0993
District Judge: The Honorable W illiam W. Caldwell
Submitted pursuant to LAR 34.1(a)
November 19, 2004
Before: ROTH and SMITH, Circuit Judges,
and DEBEVOISE,* District Judge
(Filed: November 24, 2004)
OPINION OF THE COURT
*
The Honorable Dickinson R. Debevoise, Senior United States District Judge for the
District of New Jersey, sitting by designation.
SMITH, Circuit Judge.
Petitioner Slobodan Milosevic 1 appeals from the District Court’s judgment
denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Appellate
jurisdiction exists under 28 U.S.C. §§ 1291 and 2253(a). We exercise de novo review of
“the District Court’s denial of habeas corpus relief and its interpretation of the applicable
statutes.” Gerbier v. Holmes, 280 F.3d 297, 302 (3d Cir. 2002).
The District Court’s Memorandum thoroughly set forth the facts, and as we write
only for the parties, we need not fully recite them here. See Milosevic v. Ridge, 301
F.Supp.2d 337 (M.D. Pa. 2003). It is sufficient to note that Milosevic’s application for
asylum and withholding of removal was denied by the Board of Immigration Appeals
(“BIA”) on August 21, 2002. He was granted a thirty day period in which to depart
voluntarily, and was specifically notified that failure to do so would render him ineligible
for certain relief under the Immigration and Nationality Act (“INA”) for a period of ten
years. See 8 U.S.C. § 1229c (d). Instead of heeding this notice, Milosevic allowed his
departure date to pass. Almost two months later, he filed a timely motion to reopen,
presumably in hopes of obtaining an adjustment of status in light of his recent marriage.
At some point thereafter, Milosevic was detained by the Bureau of Citizenship and
1
Cognizant that his name is familiar to many, petitioner advised, and we repeat, that he
“is not related in any way, either politically or by blood, to the former President of
Yugoslavia, now being tried for war crimes and crimes against humanity before the
International Court of Justice at the Hague, Netherlands.” Petitioner’s brief at 3 n.1.
2
Immigration Services,2 prompting him to file a petition for habeas relief under 28 U.S.C.
§ 2241. M ilosevic asserted that his timely motion to reopen tolled his voluntary departure
deadline, thereby rendering the statutory bar to obtaining further relief under the INA
inapplicable. Recognizing that his position was inconsistent with a ruling by the BIA in
In re Shaar, 21 I. & N. Dec. 541 (BIA 1996), Milosevic argued that the BIA’s position
that tolling was unavailable violated his rights to due process and equal protection.
In a well-reasoned memorandum, the District Judge rejected Milosevic’s
arguments. The District Judge concluded that tolling was not applicable because
Milosevic’s deadline for voluntary departure had already expired when he filed his
motion to reopen. For that reason, the Court determined that it did not need to decide
Milosevic’s constitutional challenges.
Milosevic contends that the District Court erred. We disagree, and for
substantially the reasons stated by the District Judge we will affirm. Our conclusion is
consistent with our recent holding in Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 280 (3d
Cir. 2004). There, we held that “because Congress has not provided statutory authority
for appellate courts to reinstate or extend the voluntary departure period prescribed by an
IJ or the BIA, this Court lacks jurisdiction to reinstate Reynoso’s voluntary departure
period.” We observed that “[w]hether the relief sought . . . is characterized as a
2
The Bureau of Citizenship and Immigration Services is part of the Department of
Homeland Security. 6 U.S.C. § 271 (Supp. 2004). The functions of the former
Commissioner of Immigration and Naturalization were transferred to the Bureau under
the Homeland Security Act of 2002. Id.3
‘reinstatement and extension’ of the voluntary departure period or as a ‘tolling,’ the effect
is the same. The INA is clear that this type of relief may only be sought from the district
director.” Id. at 283 (citation omitted). Accordingly, we will affirm the judgment of the
District Court denying Milosevic’s § 2241 petition.