NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 11-1474 _______________
ALIJA JADADIC,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent _______________
On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable William K. Strasser (No. A072-494-586)
_______________
Submitted Under Third Circuit LAR 34.1(a) January 27, 2012 _______________
Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges
(Opinion filed: February 17, 2012) _______________
OPINION _______________
AMBRO, Circuit Judge Alija Jadadic petitions for review of an order by an Immigration Judge (“IJ”),
summarily affirmed by the Board of Immigration Appeals, denying his claims for asylum
and withholding of removal. For the reasons set forth below, we affirm the decision of
the IJ and deny the petition for review.
I.
Jadadic is a native of the former Yugoslavia and a citizen of what is now
Montenegro. He arrived in the United States in 1992 without valid entry documents, and
he was placed in exclusion proceedings. A hearing was scheduled in 1993, but the matter
was administratively closed when he did not appear. In 1996, Jadadic applied for
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture. He stated during the proceedings that he had not received notice of the
1993 hearing.
Fast forward to 2004, when Jadadic’s evidentiary hearing finally took place. In
his testimony and affidavit in support of his relief applications, Jadadic stated that he is
an ethnic Albanian Muslim from Plav, Montenegro. In 1990, he and his parents and two
brothers joined the SDA (the Party of Democratic Action), a party that opposed Slobodan
Milosevic, then President of the Republic of Serbia. Jadadic’s brother was recruited to
serve in Milosevic’s special police, where his superiors forced him to aid in quashing
Muslim demonstrations. When the brother’s term of duty ended, he refused the demand
to re-enlist. The special police responded by jailing him for two months and beating him
while in detention. The brother escaped in February 1992 and fled to the United States,
which ultimately granted him asylum.
2 After Jadadic’s brother escaped, the special police, according to Jadadic,
frequently went to the family’s home in search of him. They would force the family
outside and upend furniture, destroy walls, and ransack the house, ostensibly looking for
weapons. The police also beat Jadadic two or three times, demanding to know the
whereabouts of his brother. Subsequently, Jadadic himself was summoned to report for
duty with the special police. Fearing that he would suffer his brother’s fate and be forced
to kill civilians and Muslims as part of Milosevic’s regime, he fled Yugoslavia and went
to Germany. Later in 1992 he entered the United States from Sweden.
The IJ denied Jadadic’s applications for relief, finding that he had shown neither
past persecution nor a well-founded fear of future persecution “due to the passage of time
and the change of circumstances.” The IJ noted that if the case had been decided earlier,
from the year of Jadadic’s departure through 1998, the outcome might have been
different. However, that was no longer true because the “leadership of Yugoslavia that
was involved in ethnic cleansing has basically been removed from power.” In 2005, the
Board of Immigration Appeals affirmed without opinion. In 2011, the Board reissued its
prior decision, holding that Jadadic had demonstrated that his prior counsel was
ineffective for failing to file a timely petition for review. This petition for review
followed.
II.
The Board of Immigration Appeals had jurisdiction over this case pursuant to 8
C.F.R. § 1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the
Board summarily affirms the IJ’s opinion, “we review the IJ’s decision as the final
3 administrative determination.” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
We treat the IJ’s findings of fact as “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review
questions of law de novo. Totimeh v. Att’y Gen., --- F.3d ---, 2012 WL 89580, at *3 (3d
Cir. Jan. 12, 2012).
III.
Jadadic has applied for asylum and withholding of removal. 1 The Attorney
General or the Secretary of Homeland Security may grant an alien asylum provided that
he is a “refugee” within the meaning of the Immigration and Nationality Act. 8 U.S.C.
§ 1158(b)(1)(A). The definition of “refugee” that applies here is “any person . . . who is
unable or unwilling to return to” his home country “because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1101(a)(42)(A). The applicant bears
the burden of proof to establish that he is a refugee. Id. § 1158(b)(1)(B)(i).
Refugee status may not be based solely on past persecution if the IJ finds, by a
preponderance of the evidence, that “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of persecution in
the applicant’s country of nationality . . . .” 8 C.F.R. § 208.13(b)(1)(i)(A). The
Government bears the burden of proof to demonstrate a change in circumstances in the
1 Before the IJ, Jadadic had also sought relief pursuant to the United Nations Convention Against Torture. However, on appeal, he has not challenged the IJ’s conclusions under the Convention, and thus has waived any argument on that ground. See Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010).
4 applicant’s country. Id. § 208.13(b)(1)(ii). “Even if the presumption of future
persecution is rebutted, an applicant can still be granted asylum if he or she ‘has
demonstrated compelling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution’ or ‘has established that there is a
reasonable possibility that he or she may suffer other serious harm upon removal to that
country.’” Sheriff v. Att’y Gen., 587 F.3d 584, 590 (3d Cir. 2009) (quoting 8 C.F.R.
§ 208.13(b)(1)(iii)).
Whereas a grant of asylum is discretionary, withholding of removal is mandatory.
“[T]he Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). To receive the grant of withholding, the alien must
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________
No. 11-1474 _______________
ALIJA JADADIC,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent _______________
On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable William K. Strasser (No. A072-494-586)
_______________
Submitted Under Third Circuit LAR 34.1(a) January 27, 2012 _______________
Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges
(Opinion filed: February 17, 2012) _______________
OPINION _______________
AMBRO, Circuit Judge Alija Jadadic petitions for review of an order by an Immigration Judge (“IJ”),
summarily affirmed by the Board of Immigration Appeals, denying his claims for asylum
and withholding of removal. For the reasons set forth below, we affirm the decision of
the IJ and deny the petition for review.
I.
Jadadic is a native of the former Yugoslavia and a citizen of what is now
Montenegro. He arrived in the United States in 1992 without valid entry documents, and
he was placed in exclusion proceedings. A hearing was scheduled in 1993, but the matter
was administratively closed when he did not appear. In 1996, Jadadic applied for
asylum, withholding of removal, and protection under the United Nations Convention
Against Torture. He stated during the proceedings that he had not received notice of the
1993 hearing.
Fast forward to 2004, when Jadadic’s evidentiary hearing finally took place. In
his testimony and affidavit in support of his relief applications, Jadadic stated that he is
an ethnic Albanian Muslim from Plav, Montenegro. In 1990, he and his parents and two
brothers joined the SDA (the Party of Democratic Action), a party that opposed Slobodan
Milosevic, then President of the Republic of Serbia. Jadadic’s brother was recruited to
serve in Milosevic’s special police, where his superiors forced him to aid in quashing
Muslim demonstrations. When the brother’s term of duty ended, he refused the demand
to re-enlist. The special police responded by jailing him for two months and beating him
while in detention. The brother escaped in February 1992 and fled to the United States,
which ultimately granted him asylum.
2 After Jadadic’s brother escaped, the special police, according to Jadadic,
frequently went to the family’s home in search of him. They would force the family
outside and upend furniture, destroy walls, and ransack the house, ostensibly looking for
weapons. The police also beat Jadadic two or three times, demanding to know the
whereabouts of his brother. Subsequently, Jadadic himself was summoned to report for
duty with the special police. Fearing that he would suffer his brother’s fate and be forced
to kill civilians and Muslims as part of Milosevic’s regime, he fled Yugoslavia and went
to Germany. Later in 1992 he entered the United States from Sweden.
The IJ denied Jadadic’s applications for relief, finding that he had shown neither
past persecution nor a well-founded fear of future persecution “due to the passage of time
and the change of circumstances.” The IJ noted that if the case had been decided earlier,
from the year of Jadadic’s departure through 1998, the outcome might have been
different. However, that was no longer true because the “leadership of Yugoslavia that
was involved in ethnic cleansing has basically been removed from power.” In 2005, the
Board of Immigration Appeals affirmed without opinion. In 2011, the Board reissued its
prior decision, holding that Jadadic had demonstrated that his prior counsel was
ineffective for failing to file a timely petition for review. This petition for review
followed.
II.
The Board of Immigration Appeals had jurisdiction over this case pursuant to 8
C.F.R. § 1003.1(b)(3). We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the
Board summarily affirms the IJ’s opinion, “we review the IJ’s decision as the final
3 administrative determination.” Huang v. Att’y Gen., 620 F.3d 372, 379 (3d Cir. 2010).
We treat the IJ’s findings of fact as “conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review
questions of law de novo. Totimeh v. Att’y Gen., --- F.3d ---, 2012 WL 89580, at *3 (3d
Cir. Jan. 12, 2012).
III.
Jadadic has applied for asylum and withholding of removal. 1 The Attorney
General or the Secretary of Homeland Security may grant an alien asylum provided that
he is a “refugee” within the meaning of the Immigration and Nationality Act. 8 U.S.C.
§ 1158(b)(1)(A). The definition of “refugee” that applies here is “any person . . . who is
unable or unwilling to return to” his home country “because of persecution or a well-
founded fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1101(a)(42)(A). The applicant bears
the burden of proof to establish that he is a refugee. Id. § 1158(b)(1)(B)(i).
Refugee status may not be based solely on past persecution if the IJ finds, by a
preponderance of the evidence, that “[t]here has been a fundamental change in
circumstances such that the applicant no longer has a well-founded fear of persecution in
the applicant’s country of nationality . . . .” 8 C.F.R. § 208.13(b)(1)(i)(A). The
Government bears the burden of proof to demonstrate a change in circumstances in the
1 Before the IJ, Jadadic had also sought relief pursuant to the United Nations Convention Against Torture. However, on appeal, he has not challenged the IJ’s conclusions under the Convention, and thus has waived any argument on that ground. See Bradley v. Att’y Gen., 603 F.3d 235, 243 n.8 (3d Cir. 2010).
4 applicant’s country. Id. § 208.13(b)(1)(ii). “Even if the presumption of future
persecution is rebutted, an applicant can still be granted asylum if he or she ‘has
demonstrated compelling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution’ or ‘has established that there is a
reasonable possibility that he or she may suffer other serious harm upon removal to that
country.’” Sheriff v. Att’y Gen., 587 F.3d 584, 590 (3d Cir. 2009) (quoting 8 C.F.R.
§ 208.13(b)(1)(iii)).
Whereas a grant of asylum is discretionary, withholding of removal is mandatory.
“[T]he Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the
alien’s race, religion, nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A). To receive the grant of withholding, the alien must
establish a “clear probability” that it is “more likely than not that the alien would be
subject to persecution on one of the specified grounds.” INS v. Stevic, 467 U.S. 407, 429-
30 (1984).
The District Court’s conclusion that Jadadic had not suffered past persecution is
open to question. We, along with our sister Courts of Appeals, have recognized that
“refugee status [may be] based on avoidance of military service . . . ‘if the alien would be
associated with a military whose acts are condemned by the international community as
contrary to the basic rules of human conduct.’” Ilchuk v. Att’y Gen., 434 F.3d 618, 625
(3d Cir. 2006) (quoting M.A. v. INS, 899 F.2d 304, 312 (4th Cir. 1990) (en banc)); see
also Islami v. Gonzales, 412 F.3d 391, 397 (2d Cir. 2005) (holding that this rule “clearly”
5 applies to a Muslim Albanian conscripted into the Milosevic-era Yugoslavian army);
Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004). Jadadic asserts that had he
remained in the former Yugoslavia, he would have been required to commit acts of
violence against his own people. The international community condemned such acts with
a coordinated military campaign and with the first-ever indictment of a sitting head of
state for war crimes.
However, we need not decide whether the threat of compulsory service in the
special police constitutes past persecution in this context. 2 For we believe that the
Government has satisfied its burden of demonstrating a “fundamental change in
circumstances” in Montenegro such that Jadadic no longer faces a well-founded fear of
persecution there. As the IJ recognized, “[t]he leadership of Yugoslavia that was
involved in ethnic cleansing has basically been removed from power. . . . [T]he
government of Yugoslavia has now taken a more orderly course of action.” As we
2 In addition to the threat of conscription, Jadadic cites as evidence of past persecution the searches of his family’s home and beatings of him by police seeking his brother. While we do not condone such acts, they do not rise to the level of past persecution under our law. See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (“While this Court has not yet drawn a precise line concerning where a simple beating ends and persecution begins, our cases suggest that isolated incidents that do not result in serious injury do not rise to the level of persecution.”).
The seeming persecution of Jadadic’s brother likewise is not relevant here. The experience of family members may be relevant, but this is not a case where “there is a high degree of factual similarity between the applicant’s claim and those of his family members, and where his claim of political persecution rests on that very familial relationship.” Cham v. Att’y Gen., 445 F.3d 683, 693 (3d Cir. 2006). Jadadic’s brother allegedly was forced into the special police and imprisoned in deplorable conditions for two months; neither fate befell Jadadic.
6 recognized at the time, the State Department’s 2003 Country Report indicated that in
Montenegro “police occasionally beat suspects during arrest and detention, but there has
been generally improved respect by the police for human rights.” Berishaj v. Ashcroft,
378 F.3d 314, 329 (3d Cir. 2004); see also Prela v. Ashcroft, 394 F.3d 515, 519 (7th Cir.
2005) (“Yugoslavia . . . has undergone significant change since 1999.”). The IJ
incorporated this report into the record and relied on it in his ruling.
Under our law, these general improvements in country conditions are not enough.
“[G]eneral evidence of improved country conditions will not suffice to rebut credible
testimony and other evidence establishing past persecution; evidence of changed country
conditions can successfully rebut the presumption only if it addresses the specific basis
for the alien’s fear of persecution.” Sheriff, 587 F.3d at 591 (emphasis in original) (citing
Berishaj, 378 F.3d at 327-28). Jadadic’s specific fear is that “he would be arrested or
killed by the ‘police’ who are ‘the same people’ who harmed his brother and ‘know that
[his] family was against Milosevic.’” Jadadic Br. at 22 (quoting A.R. at 214, 216).
However, the evidence before us is sufficiently related to Jadadic’s individual fear
to sustain the holding of the IJ. The Montenegro section of the 2003 Country Report
describes “an overall decline in police brutality and other abuses.” There is no indication
that the scattered police beatings were politically motivated, and officers who were
involved were under investigation. Leaders of the Milosevic-era special police had been
indicted by the International Criminal Tribunal for the Former Yugoslavia and transferred
to The Hague. The 2010 Country Report indicates further progress in these areas. See
U.S. Department of State, Montenegro: Country Reports on Human Rights Practices—
7 2010 (Apr. 2011) at 4-5, 11-12; Nbaye v. Att’y Gen., 665 F.3d 57, 59-60 (3d Cir. 2011)
(recognizing Country Reports not in the record for limited purposes). We conclude that
this evidence is not “such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed,” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992),
and thus must affirm on the basis of the IJ’s findings of fact.
Because Jadadic “has not met [his] burden of proof with respect to asylum,” he “is
also not eligible for withholding of removal,” which presents a more demanding standard.
Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 236-37 (3d Cir. 2008). For these reasons,
we must deny Jadadic’s petition for review.