Pelinkovic, Rizaja v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3065
RIZAJA PELINKOVIC, SANIJA PELINKOVIC,
and SVEBOR PELINKOVIC,
Petitioners,
v.
JOHN D. ASHCROFT, Attorney General of
the United States,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals
Nos. A72 678 113, A72 678 112, and A72 678 111.
____________
ARGUED DECEMBER 10, 2003—DECIDED APRIL 28, 2004
____________
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
2 No. 02-3065
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, mis-
treatment, 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 unsup-
ported. 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 obli-
gations 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 con-
No. 02-3065 3
ditions cited by the Pelinkovics affected the entire popula-
tion 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”) up-
held 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 con-
ditions 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 be-
tween Serbia and Montenegro were strained, with predic-
tions of civil war.
In his petition to reopen based on changed country con-
ditions, 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, condi-
tions for ethnic Albanians in Montenegro had also deterio-
rated. 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.
4 No. 02-3065
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 108.18(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 pre-
sented established that any of the Pelinkovics would be
subject to torture upon their return home.
No. 02-3065 5
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 (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). We will uphold the BIA’s deci-
sions to deny the Pelinkovics’ motions to reopen “ ‘unless
[they were] made without a rational explanation, inexplica-
bly 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
6 No. 02-3065
not establish prima facie eligibility for asylum or with-
holding 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 discrimina-
tory conditions. We will discuss each in turn.
1. Military Service
The BIA determined that Rizaja’s renewed fear that if he
returned home to Montenegro he and his son would be
forced to fight in another war in which they did not believe,
or be punished for not doing so, did not overcome the FRY’s
right to require military service from its citizens and to
No. 02-3065 7
enforce that right with reasonable penalties. Thus, the BIA
reasoned, Rizaja and Svebor’s eligibility for military service
did not amount to persecution.
First, the Pelinkovics argue that this determination was
patently wrong and unreasonable because the war in
Kosovo, unlike the Croatian war from which they originally
fled, was targeted at ethnic Albanians. Specifically, Rizaja
predicted that if forcibly conscripted into the military, he
and his son would be ordered to take part in human rights
abuses against ethnic-Albanian Kosovars and be asked to
kill fellow Albanians leading the revolt. We understand him
to oppose such activities based on his shared ethnic heri-
tage with the Kosovars.
We have previously acknowledged that “in some cases,
refusal to enter the army may render one a refugee if for
instance, the reason for refusal is a ‘genuine political,
religious or moral conviction or for valid reasons of con-
science.’ ” Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000)
(quoting the Handbook on Procedures and Criteria for
Determining Refugee Status, United Nations High
Commissioner for Refugees ¶ 170 (Geneva 1979)). Yet,
Rizaja failed to present evidence that if he or his son were
forcibly conscripted into the FRY military they, as indivi-
duals, would be forced to serve in Kosovo and commit the
acts to which they morally objected.
Rather, the general evidence submitted paints a picture
of strong Montenegrin resistance to sending its citizens
to fight in Kosovo. Several articles provided by the
Pelinkovics with their petition report the Montenegrin
Assembly’s demand that Montenegrin conscripts be re-
leased from service in Kosovo and returned to stations in
Montenegro, with one article noting that only fifteen
percent of Montenegrin conscripts were even deployed in
Kosovo. Indeed, the evidence creates some question as to
whether ethnic Albanians were desirable army conscripts
8 No. 02-3065
at all. A news report by the British Broadcasting Corpora-
tion (“BBC”) states that it asked FRY military leaders why
ethnic Albanians were not serving in the army. The BBC
characterizes the response received as a “typical military-
style answer,” which was, “[i]t is not we who decided that
they should not serve, and you know very well who did.”
(A.R. at 136.) The BBC’s article squares with a 1997 State
Department report noting that the FRY was generally
unenthusiastic about arming ethnic minorities. See Capric,
355 F.3d at 1094. Further, although Rizaja states in his
affidavit in support of the petition to reopen that army
conscripts who refuse an order to shoot a fellow Albanian
are themselves shot on sight, there is nothing in the record
to support this allegation.
Second, aside from their moral convictions against the
war, the Pelinkovics urge that the BIA should have gleaned
from the evidence presented in their petition to reopen that
“military service was itself a staging area for persecution”
of ethnic Albanian males. Rizaja swore in his affidavit
attached to the petition that “[t]here have been credible
reports of the murder of Albanian solders [sic], as shown by
the exhibits I have attached to this petition.” (A.R. at 81, ¶
9.) Yet, out of the twenty-seven news articles provided by
the Pelinkovics, only one murder of a single ethnic-Albanian
soldier is reported. The circumstances surrounding his
death are not discussed, but are decried by an ethnic-
Albanian Montenegrin political party as evidence that the
FRY military “is clearly conducting a policy of expulsion, ill-
treatment, harassment and stage-managed crimes.” (A.R.
at 141.) Except for this one self-interested statement by a
political party, no neutral source backs up the Pelinkovics’
claim.
Third, the Pelinkovics argue that Rizaja and Svebor will
be punished for avoiding military service, entitling them to
asylum. We recognize that if the “ ‘military action with
No. 02-3065 9
which an individual does not want to be associated, is
condemned by the international community as contrary to
basic rules of human conduct, punishment for desertion or
draft evasion could . . . in itself be regarded as persecution.’
”
Vujisic, 224 F.3d at 581 (again quoting the Handbook on
Procedures and Criteria for Determining Refugee Status, ¶
171). It is beyond question that the Kosovar conflict which
the Pelinkovics sought to avoid was condemned by the
international community as contrary to basic rules of
human conduct. Id. at 582 (noting the continued condemna-
tion of Yugoslavia’s campaign in Kosovo, as evidenced by
NATO bombings). Yet, the Pelinkovics failed to provide the
BIA with evidence that if Rizaja and Svebor refused to obey
the summons to serve, they would be subject to punish-
ment.
Instead, the record documents exhibit only lukewarm,
sporadic attempts by the military to punish draft dodgers.
According to the single article submitted by the Pelinkovics
discussing the army’s attempt to punish those
Montenegrins avoiding military service, the number sought
to be prosecuted was listed as “more than thirty,” but only
two “showed up” in court over two days—one ethnic Serb
and one ethnic Albanian. They were both promptly fined,
but not imprisoned. Although the article speaks of progres-
sively worse punishment for those who avoid appearing in
court and continue to refuse to answer the call, no other
articles report pursuit or harassment of draft dodgers.
Further, the article fails to confirm the Pelinkovics’ claim,
made exclusively in their briefs, that ethnic Albanians
received more severe treatment for draft evasion than did
those of Serbian descent.
Based on the lack of evidence supporting the Pelinkovics’
claim that Rizaja and Svebor’s eligibility for military service
in the Kosovar conflict rises to the level of persecution, we
find that the BIA did not abuse its discretion in denying the
petition to reopen on that ground. The BIA rationally
concluded that the FRY retained the right to call upon its
10 No. 02-3065
citizens to serve in the military and to punish them propor-
tionally when they refused. In the case of the Pelinkovics,
based on the evidence presented, they failed to show that,
if conscripted, they would serve in Kosovo or, if they chose
to avoid military service, they would be punished for such
avoidance. They also failed to provide prima facie evidence,
either individually or on a per se basis, that ethnic Alba-
nians were treated more harshly within the military or as
draft dodgers.
We note that the Pelinkovics’ case is distinguishable from
Vujisic v. INS, 224 F.3d 578 (7th Cir. 1997) and
Begzatowski v. INS, 278 F.3d 665 (7th Cir. 2002) on which
petitioners heavily rely. In Vujisic and Begzatowski both,
we reversed the BIA’s denial of the petitioners’ asylum
applications that presented evidence of Yugoslav military
abuses directed individually at the petitioners because of
ethnicity, and did so under a slightly less deferential
standard of review than that applicable here. See 224 F.3d
at 581 (reviewing the BIA’s decision to deny the petitioner’s
asylum application under the substantial evidence test);
278 F.3d at 668 (same).
Vujisic was a Slovenian ethnic Serb who ignored Yugoslav
military reactivation orders in 1991 because of his objec-
tions to the invasion into Slovenia. 224 F.3d at 579. While
previously serving in the military, he was beaten and
accused of being a spy because of his Slovenian origins. Id.Importantly, he was able to show fear of future persecution
should he rejoin the military based upon the treatment of
his father, also in the Yugoslav military. According to
Vujisic, after he failed to appear for service, his father was
arrested, questioned about his son’s whereabouts, and
dishonorably discharged without pension benefits. Id. at
581. We held that his experiences while in the military and
his family’s plight after his failure to obey reactivation
orders showed that the “Serbian officials singled out Vujisic
for persecution above that of other draftees, deserters and
Slovenian sympathizers . . . .” Id.No. 02-3065 11
Begzatowski was an ethnic Albanian from Macedonia who
deserted the Yugoslav military in 1990 after experiencing
discriminatory treatment including segregation, lack of
access to bathing facilities, lack of training, physical
assaults and threats, and being used as a human shield in
battle. 278 F.3d at 667. We reversed the BIA’s determina-
tion that Begzatowski did not experience past persecution
based on his military experience because he provided
evidence that he, as an ethnic Albanian, had been singled
out for abuse. Id. at 670.
Again, Rizaja made no such showing that changed
country conditions would result in his or his son’s persecu-
tion by the FRY military upon their return home. The BIA’s
decision to deny reopening of the Pelinkovics’ asylum claim
on that ground was appropriate.
2. Generalized discrimination
Separate from their concerns about military service, the
Pelinkovics also alleged in their petition to reopen based on
changed country conditions that Milosevic’s campaign
against the ethnic-Albanian Kosovar insurgents subjected
them, as ethnic-Albanian Montenegrins, to a credible fear
of persecution upon their return home. The BIA determined
that on the record before it, the Pelinkovics succeeded in
only illuminating escalating civil strife. The BIA stated that
it remained unpersuaded that the Pelinkovics would face
persecution by Serbian nationalists based on their ethnic-
Albanian heritage. Again, we find that the BIA did not
abuse its discretion in refusing to reopen the Pelinkovics’
case on these grounds.
The majority of the articles submitted by the Pelinkovics
outline Montenegro’s disagreement with Milosevic’s brutal
attempts to suppress the Kosovar separatists and the
resulting political schism between Serbia and Montenegro,
foreshadowing civil war. The civil unrest reported by the
12 No. 02-3065
Pelinkovics affected all Montenegrins equally, regardless of
ethnicity. We note, as we have many times before, that
crisis conditions common to all citizens of the affected
country do not present a prima facie case warranting re-
opening of an asylum claim. See Capric, 355 F.3d at 1084(“However, generalized conditions of hardship which affect
entire populations do not rise to the level of persecution.”);
Bradvica v. INS, 128 F.3d 1009, 1013 (7th Cir. 1997)
(noting that the generalized conditions of strife in Bosnia-
Herzegovina did not support a claim of asylum because they
did not show that the petitioner would be singled out for
persecution); Sivaainkaran v. INS, 972 F.2d 161, 165 (7th
Cir. 1992) (“[C]onditions of political upheaval which affect
the populace as a whole or in large part are generally
insufficient to establish eligibility for asylum.”). The
Pelinkovics had to show more.
To that end, the Pelinkovics argue, weakly, that because
of their membership in a persecuted minority class,
they are per se eligible for asylum. See 8 C.F.R.
§ 208.13(b)(2)(iii). Their evidence in support of this prop-
osition includes articles describing abuses perpetrated by
police against ethnic Albanians in Kosovo, not in
Montenegro, the Pelinkovics’ home. In Capric v. Ashcroft,
we recently rejected the petitioners’ claim that they were
per se eligible for asylum based on their religion and
ethnicity. 355 F.3d at 1094-95. The Caprics, like the
Pelinkovics, hailed from Bar, Montenegro and were Mus-
lims and ethnic Albanians. The Caprics, like the
Pelinkovics, based their asylum claim on the pattern of
persecution and ethnic cleansing directed against Kosovar
ethnic Albanians, who were struggling for independence
from Serbia. After distinguishing the treatment between
Montenegrin and Kosovar ethnic Albanians, we held that
the “evidence does not show that this was an ‘extreme
situation’ in which ethnic Albanians were subject to a
pattern and practice of persecution in Montenegro.” Id. at
1095. The same is true here.
No. 02-3065 13
Because the Pelinkovics cannot make a case that they
would be per se subject to persecution based on their
Muslim religion and ethnic-Albanian ancestry, they needed
to come forward with evidence that they individually would
be subject to religious/ethnic persecution upon their return
home, which they did not do. See 8 C.F.R. § 208.13(b)(2)(i).
We have held in numerous cases involving applicants
fleeing the war-torn Balkans that “fear of general condi-
tions of ethnic persecution common to all members of an
ethnic minority does not constitute the well-founded fear
required by statute.” Petrovic, 198 F.3d at 1037 (collecting
cases); Selimi, 360 F.3d at 740-41, (denying Macedonian
ethnic Albanians’ petitions to reopen for failing to show that
they would be individually targeted for persecution, instead
stating generalized fear based on their membership in an
ethnic minority); see also Sivaainkaran, 972 F.2d at 165(noting that the petitioner’s homeland, Sri Lanka, “like so
many countries across the globe, is locked in a seemingly
intractable ethnic civil war,” but that such a sad state of
political turmoil “does not permit the judiciary to stretch
the definition of ‘refugee’ to cover sympathetic, yet statuto-
rily ineligible, asylum applicants”).
The BIA rationally determined that based on the evidence
presented with their petition to reopen, the Pelinkovics did
not establish a prima facie case that they would be perse-
cuted in Montenegro because of their ethnic minority
status. The petition to reopen was properly denied.
We pause here to note that, as a final summation, the
Pelinkovics broadly argue that based on what the world
knows now of the heinous war crimes committed by
Milosevic during the Kosovo campaign, the BIA should have
viewed their moral objections to military service and their
fear of persecution based on ethnicity more charitably. Yet,
we take judicial notice that the Montenegro to which the
Pelinkovics will return is much different from the one they
left in 1992. See, e.g., Medhin v. Ashcroft, 350 F.3d 685, 690
14 No. 02-3065
(7th Cir. 2003) (taking judicial notice of the State Depart-
ment’s current country report on Ethiopia); Dobrota v. INS,
195 F.3d 970, 973 (7th Cir. 1999) (taking judicial notice of
the State Department’s most recent country report on
Romania).
The situation in the Balkans has improved dramatically.
As of today, Milosevic is out of power and on trial in The
Hague. The FRY has been dissolved and is renamed “Serbia
and Montenegro.” Kosovo, still technically a part of the new
Serbia and Montenegro, is a United Nations protectorate.
Although living conditions remain difficult because of years
of civil war and economic sanctions, and sporadic ethnic
clashes still occur, the State Department notes continued
improvement, along with few human rights abuses, includ-
ing a negligible amount against Muslims of Albanian
descent. See United States Department of State, Back-
ground Note: Serbia and Montenegro (Jan. 2004), available
at http://www.state.gov/ r/pa/ei/bn/ 5388pf.htm; United
States Department of State, Country Reports on Human
Rights Practices-2003: Serbia and Montenegro (Feb. 25,
2 0 0 4 ) , a v a i l a b l e a t h t t p : / /
www.state.gov/g/drl/rls/hrrpt/2003/ 27874pf.htm.
The country conditions in Serbia and Montenegro, which,
after a decade of strife, have finally changed for the better,
are yet another reason to uphold the BIA’s decision not to
reopen their asylum claim. See Dobrota, 195 F.3d at 974
(affirming the BIA’s denial of aliens’ asylum application
because current country conditions reflected no threat to
the petitioners).
B. Motion to Reopen Based on the Convention
Against Torture
We also find that the BIA did not abuse its discretion in
determining that the Pelinkovics could not state a prima
facie case under the CAT. “An applicant has the burden of
No. 02-3065 15
proof to establish that it is more likely than not that he or
she would be tortured if removed to the proposed country of
removal.” Mansour, 230 F.3d at 907. “Torture,” under the
CAT, is defined as:
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or her or a
third person information or a confession, punishing him
or her for an act he or she or a third person has commit-
ted or is suspected of having committed, or intimidating
or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such
pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official
or other person acting in an official capacity.
8 C.F.R. § 208.18(a)(1); see also 8 C.F.R. § 208.18(a)(4) (de-
fining under what circumstances “mental pain or suffering”
may constitute torture). According to the BIA, the
Pelinkovics’ motion to reopen and attached evidence failed
to show that any of them would be subject to “torture” as
that term is defined in the federal regulations. We agree.
The Pelinkovics premise their CAT claim, filed in April of
1999, on what appeared to be Montenegro’s imminent civil
war with Serbia. The Pelinkovics reasoned that because
Serbia demonstrated a pattern of human rights abuses
against ethnic Albanians in its Kosovar campaign, it would
continue that practice against ethnic Albanians in any
armed conflict with Montenegro. Their petition states:
As shown by the articles attached hereto, on or about
April 3, 1999, President Slobodan Milosevic fired eight
Serbian generals stationed in Montenegro and replaced
them with hard-line loyalist[s]. That there is incipient
concern on the part of the United States that this action
will precipitate a civil war between Montenegro and
16 No. 02-3065
Serbia and will result in the commission of atrocities
and torture against ethnic Albanians residing in
Montenegro.
(A.R. 16, ¶ 5); see also (A.R. 21, ¶¶ 4, 6) (“I and my family
face substantial risk of torture by the Serbian army. In the
event of final control of the government of Montenegro by
Serbia, the Serbian army will engage in the torture and
wholesale slaughter of Albanians, particular[ly] adult
males. . . . This slaughter is now occurring in Kosovo.”).
As with the similar claims made in support of their
motion to reopen based on changed country conditions, the
Pelinkovics’ failure to make a particularized showing that
any of them would more likely than not be subject to torture
upon their return, as differentiated from the general risk
shared by all ethnic Albanians in Montenegro, dooms their
case. See Tarawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir.
2003) (denying a Sierra Leone petitioner’s CAT claim
despite evidence that the government at the time of his
application committed widespread human rights abuses,
including arbitrary killing of civilians, because those
statements “alone are insufficient to demonstrate that it is
more likely than not that a particular civilian, in this case
Tarawally, will be tortured by [the government] if returned
to Sierra Leone.”). Indeed, it was impossible for the
Pelinkovics to make such a showing, as the events they
feared were prospective—possible civil war with Serbia,
possibly resulting in the same ethnic cleansing directed at
ethnic Albanians as in other Milosevic campaigns. Thank-
fully, those possibilities did not come to pass.
III. Conclusion
The BIA did not abuse its discretion in denying the
Pelinkovics’ two petitions to reopen their asylum claims.
We, therefore, DENY the Pelinkovics’ petition for review.
No. 02-3065 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-28-04