Rugovac v. Attorney General of the United States ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-3-2005
Rugovac v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4382
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4382
SULO RUGOVAC
a/k/a SULJA RUGOVAC
a/k/a SULJO RUGOVAC
Sulo Rugovac,
Petitioner
v.
ATTORNEY GENERAL
OF THE UNITED STATES,
Respondent
On petition for review of a decision and order
of the Board of Immigration Appeals
(BIA No. A74-881-682)
Submitted under Third Circuit LAR 34.1(a)
October 28, 2005
BEFORE: SLOVITER, FISHER and GREENBERG, Circuit Judges
(Filed: November 3, 2005)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on a petition for review of a decision and
order of the Board of Immigration Appeals (“BIA”) dated October 26, 2004. The
petitioner, Sulo Rugovac, a native of Serbia and Montenegro, entered the United States
on March 20, 1997, without valid entry documents. Consequently, on March 21, 1997,
the former Immigration and Naturalization Service executed a notice to him to appear as
he was removable as an alien who had sought to enter the United States with fraudulent
documents in violation of section 212(a)(6)(C)(i) of the Immigration and Nationality Act
(“INA”), 8 U.S.C. § 1182(a)(6)(c)(i), and also failed to possess either a valid immigrant
visa or a valid unexpired travel document in violation of section 212(a)(7)(A)(i)(I) of the
INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).1
At the ensuing hearing, Rugovac admitted the allegations against him, but sought
asylum and withholding of removal. The immigration judge on March 30, 1998, denied
his application, following which Rugovac appealed to the BIA, which dismissed his
appeal on December 6, 2002. Rugovac did not file a petition for review with this court at
that time.
Instead, almost one and one half years later on June 1, 2004, Rugovac moved
1
When the proceedings in this case originated, the Immigration and Naturalization
Service, as an independent agency within the Department of Justice, administered the
enforcement functions of the Immigration and Nationality Act. It ceased to exist,
however, as an agency on March 1, 2003, and Congress transferred the INA’s
enforcement to the Department of Homeland Security.
2
before the BIA to reopen his immigration proceedings, predicating his argument on
changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii)(2005). He also contended
that the original decision in his case had been wrong. The BIA summarily rejected the
latter contention on the grounds that its first decision was administratively final, id. §
1003.1(d)(7)(2005), and that Rugovac had not filed a timely motion to reconsider its
decision, id. § 1003.2(b)(2)(2005).
The BIA also rejected the changed country conditions contention as it viewed
Rugovac’s motion as being “based on the same set of facts as presented in his initial
asylum application.” It pointed out that Rugovac had “not provided any corroborating
evidence, such as affidavits from friends or family members or evidence that others
similarly situation in his native country would be persecuted on account of the protected
ground.” The BIA went on to explain that Rugovac had “not shown that the government
persecutes, rather than prosecutes military draft dodgers.” This point was particularly
significant as Rugovac objects to joining the military in his native country and seeks to
remain in this country to circumvent that duty. Following the BIA’s decision and order,
Rugovac filed his petition for review with this court.
Rugovac raises two contentions in these proceedings:
I. The BIA abused its discretion in determining that recent conditions in
Serbia and Montenegro did not warrant reopening on the basis of
circumstances that had arisen subsequent to the previous hearing.
II. The BIA denied [him] his fifth amendment right to due process when it
took administrative notice of country conditions without giving [him] an
3
opportunity to rebut it.
After our consideration of this matter, we have found that there is substantial
evidence supporting the BIA’s conclusions. Thus, the BIA did not abuse its discretion in
denying the motion. Rugovac’s burden in these proceedings is high to the extent that he
challenges the BIA’s factual findings as we must uphold the BIA’s factual determinations
unless “any reasonable adjudicator would be compelled to conclude to the contrary.”
INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); see Gao v. Ashcroft, 299 F.3d 266, 271
(3d Cir. 2002). We cannot conclude that his showing meets this standard. While we will
not summarize all of the evidence, we point out that an Amnesty International report
indicates that persons in Serbia and Montenegro who seek to perform civilian rather than
military service frequently are sent to psychiatrists who generally deem them unfit for
military service.2 Indeed, insofar as Amnesty International is aware, Serbia and
Montenegro tried only seven persons in 2002 for refusing to enter service as
conscientious objectors and only three received prison sentences. Such treatment hardly
is indicative of persecution.
Finally we reject Rugovac’s due process contentions predicated on the BIA having
administratively noticed the State Department’s 2003 country report for Serbia and
Montenegro. The information from State Department country reports is very important,
2
We note that even though Rugovac claims to be a conscientious objector with respect
to military service, the extent of his objection to such service apparently is limited as he
indicates that he “did not want to kill his Albanian and Muslim brethren.” Petitioner’s br.
at 11.
4
see Berishaj v. Ashcroft, 378 F.3d 314, 328-32 (3d Cir. 2004), and 8 C.F.R. §
1003.1(d)(3)(iv)(2005) is broad enough to allow the BIA to take administrative notice of
the reports as they are official documents. In view of the regulation and the
administrative practice in removal cases, Rugovac should have anticipated that the BIA
might take notice of the country report.3
For the foregoing reasons, the petition for review will be denied.
3
We are not concerned here with a situation in which a court of appeals considers an
updated country report that had not been available to the BIA in which event we have
indicated that an “asylum claimant should have the opportunity to challenge the updated
country report that the government would rely on.” Berishaj, 378 F.3d at 330.
5