Kovacevic v. Ashcroft

108 F. App'x 332
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 19, 2004
DocketNo. 03-3354
StatusPublished

This text of 108 F. App'x 332 (Kovacevic v. Ashcroft) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kovacevic v. Ashcroft, 108 F. App'x 332 (6th Cir. 2004).

Opinion

ORDER

Radan Kovacevic petitions for judicial review of an order by the Board of Immigration Appeals (BIA) which dismissed his appeal of an immigration judge’s (IJ) determination that he was subject to removal despite his applications for asylum, the withholding of removal, and relief under the United Nations Convention Against Torture. The parties have waived oral argument and the panel unanimously agrees that oral argument is not needed in this case. Fed. R.App. P. 34(a).

Kovacevic is a native and citizen of the former Republic of Yugoslavia, now known as Serbia and Montinegro, who entered the United States without authorization on October 6, 2000. The Immigration and Naturalization Service (INS) initiated removal proceedings against Kovacevic alleging that he had entered this country illegally. Kovacevic conceded removability and applied for asylum, the withholding of removal, and relief under the Convention Against Torture.

After a hearing, the IJ denied all of Kovacevic’s applications on January 15, 2002. The BIA adopted the IJ’s findings and dismissed Kovacevic’s administrative appeal on February 12,2003.

Kovacevic filed a timely petition for judicial review on March 6, 2003. On appeal, Kovacevic argues that the BIA’s streamlined procedure in reviewing the IJ’s decision violated his due process rights, that the IJ misinterpreted the definition of persecution, that the IJ disregarded and distorted substantial evidence supporting the asylum application, and that the IJ abused her discretion in denying his request for asylum and withholding of removal.

The resolution of an asylum request involves a two-part inquiry. Mikhailevitch v. INS, 146 F.3d 384, 389 (6th Cir.1998). Kovacevic must show not only that he is a refugee, but also that his application merits a favorable exercise of administrative discretion. See id. The IJ did not reach the discretionary step here, as Kovacevic did not meet his burden of showing that he is a refugee. A “refugee” is defined as an alien 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.” 8 U.S.C. § 1101(a)(42)(A); accord INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). A petition for judicial review should not be granted unless the evidence is so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution. Koliada v. INS, 259 F.3d 482, 486 (6th Cir.2001).

[334]*334An asylum application is also treated as an application for the withholding of removal. Mikhailevitch, 146 F.3d at 391. However, the burden of proving eligibility for asylum is less than the burden of proving entitlement to withholding. Id. Thus, the failure to show that Kovacevic is eligible for asylum will also show that he is not entitled to the withholding of removal. See id.

Kovacevic’s challenge to the BIA’s streamlined procedure on due process grounds is without merit. Kovacevic’s argument was rejected by this court in Denko v. INS, 351 F.3d 717 (6th Cir.2003). In Denko, the court found that the summary affirmance rule which renders the IJ’s decision the final agency order did not violate an individual’s due process rights. Id. at 727-32. As the court has specifically rejected the constitutional argument presented by Kovacevic, there is no ground to review the BIA’s decision on this issue.

The record does not compel the rejection of the IJ’s finding that Kovacevic does not have a well-founded fear of future persecution. The State Department’s country reports show that Kovacevic has no reasonable basis to fear his return to the Federal Republic of Yugoslavia. The IJ did not find that Kovacevic was entitled to a presumption of future persecution. The record supports the IJ’s decision that the Federal Republic of Yugoslavia has experienced significant political improvements since Kovacevic’s departure. See Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir.1995). In reaching her decision, the IJ noted that, while in Yugoslavia, Kovacevic was able to continue his employment as a police officer; there was no evidence that Kovacevic could not relocate within the Republic of Montenegro; and the evidence did not support a finding that Kovacevic was tortured in the past or that Serbians are singled out for torture by the government.

The IJ’s finding that Kovacevic did not present a credible claim for relief is supported by substantial evidence. The IJ’s credibility findings are entitled to substantial deference. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir.1992).

Kovacevic’s claims are based on his theory that he was singled-out for mistreatment in his job as a police officer because he refused to align himself with his “pro-Milosevic” superiors and that he refused to obey his superiors’ orders to beat people. Significant inconsistencies in Kovacevic’s testimony, his asylum application, and the proffered documentary evidence undermine the veracity of Kovacevic’s claims.

Kovacevic testified that: he was fired from his position as a police officer in Montenegro when he arrested a person who, as it turned out, worked for the police; he was transferred to the federal police force in Belgrade because of his refusal to follow his superiors’ orders to beat people; and he was fired from his post in Belgrade and then discharged from his position in Montenegro because his superiors did not want him working on the police force. This testimony, however, was inconsistent with other portions of Kovacevic’s testimony and the documentary evidence that Kovacevic proffered in support of his claims.

After initially stating that he was fired following an incident when he stopped and arrested an individual who worked for the police, Kovacevic indicated that he was suspended for a period of time, and that he resumed his duties as a police officer after being sanctioned and docked fifty percent of his pay for three months following his return to work. Kovacevic was not fired from his job.

[335]*335While Kovacevic testified that he was transferred to a federal police post in Belgrade because of his refusal to follow his superiors’ orders, the documentary evidence that Kovacevic proffered in support of his story does not support this claim. A May 2000 letter indicates that Kovacevic, along with several other individuals, was assigned to work with the Federal Ministry of Internal Affairs on a temporary, one-year basis, for the express purpose of providing assistance to the federal police brigade.

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