Useinovic, Tahir v. INS

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3339

TAHIR USEINOVIC,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

____________

Petition for Review of an Order

of the Board of Immigration Appeals.

____________

ARGUED SEPTEMBER 4, 2002—DECIDED DECEMBER 27, 2002

____________

Before FLAUM, Chief Judge, and CUDAHY and KANNE,

Circuit Judges.

CUDAHY, Circuit Judge. Tahir Useinovic, a Yugoslavian,

seeks asylum in the United States. An Immigration

Judge (IJ) and the Board of Immigration Appeals (BIA)

both have found that Useinovic is ineligible for asylum

because he can show neither past persecution nor a well-

founded fear of future persecution. He petitions us to

reverse the BIA’s findings or to remand his case to the IJ

so that he can seek suspension of deportation under the

Nicaraguan Adjustment and Central American Relief Act

(NACARA). We affirm the decision of the BIA.

2 No. 01-3339

I.

Tahir Useinovic is a 41-year-old Albanian Muslim native

of the city of Bar, in the Republic of Montenegro portion

of the Federal Republic of Yugoslavia (Yugoslavia).1 He

entered the United States legally as a visitor on May 15,

1990. Useinovic’s wife, Ismeta Useinovic, to whom he

has been married since 1987, joined him on May 19, 1992.

They had a child born in the United States in 1994.

Useinovic applied for asylum to the Immigration and

Naturalization Service (INS) and was interviewed by

the INS on April 9, 1992.2 In his application for asylum,

Useinovic claimed that “[he] was mistreated every time

[he] practiced [his] religion,” and that “[b]ecause [he] was

involved in demonstrations against the government of

1

The Republic of Montenegro is (for the moment) one of the

two constituent republics (along with Serbia) of Yugoslavia. With

the victory of pro-independence parties in the October 2002

elections, Montenegro’s continued participation in the Federal

Republic of Yugoslavia is very much in doubt.

2

It is not entirely clear from the Administrative Record when

exactly Useinovic applied for asylum for the first time. There is

no date of application on the sheet recording his first interview.

Useinovic claims he applied on March 20, 1991. Pet. Br. at 11. The

Record does contain an application with what appears to be

Useinovic’s signature and a date that could be March 20, 1991

(but it also appears that it could be March 20, 1996). Administra-

tive Record (A.R.) at 413. However, there are three contradictory

indications: 1) the form on which this signature appears is a

form revised on November 16, 1994, 2) the date stamped on

the first page of the application shows its receipt on December

22, 1995 and 3) the signature occurs in a signature block designed

for signing during the asylum application interview, not in an

application date signature block. However, Respondent admits

that Useinovic applied for asylum before December 31, 1991,

Resp. Br. at 20, and a resolution of this issue is unnecessary

for our ultimate disposition.

No. 01-3339 3

Communist Yugoslavia, [he] was detain [sic], jailed, beaten

and then fired from [his] farm job.” Finally, he asserted

that if he were “forced to return to Yugoslavia, [he] will

definitely be detained and either go to jail or [be] forced

into the Yugoslavian Serbian war.” Administrative Re-

cord (A.R.) at 380. Useinovic was issued a Notice of In-

tent to Deny his application (NOID) on February 28, 1995,

and was ultimately denied asylum on April 11, 1995.

The INS issued an Order to Show Cause to Useinovic

on March 27, 1995, charging him with deportability un-

der then-section 241(a)(1)(C)(i) of the Immigration and

Nationality Act (INA), for having overstayed his nonim-

migrant tourist visa. See 8 U.S.C. § 1251(a)(1)(C)(i), trans-

ferred to § 1227(a)(1)(C)(i). At his hearing before the IJ

on March 20, 1996, Useinovic conceded his deportabil-

ity and renewed his request for asylum under 8 U.S.C.

§ 1158. He claimed “refugee” status under section 101(a)(42)

of the INA as grounds for eligibility for asylum, asserting

past persecution and a well-founded fear of future perse-

cution based on his Albanian ethnicity, Islamic religious

faith and anti-government political opinions and actions.3

Useinovic was the only witness at his hearing before the

IJ. Based on his testimony and the few documents sup-

porting his two applications for asylum, it is very difficult

3

The relevant part of INA § 101(a)(42), codified at 8 U.S.C.

§ 1101(a)(42)(A), states that a refugee includes

[A]ny person who is outside any country of such person’s

nationality or, in the case of a person having no nationality,

is outside any country in which such person last habitually

resided, and who is unable or unwilling to return to, and

is unable or unwilling to avail himself or herself of the pro-

tection of, that 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 . . . .

4 No. 01-3339

for this court to construct a seamless, accurate and consis-

tent timeline of Useinovic’s experiences in Yugoslavia that

accounts for the events he claims support his well-founded

fear of persecution. What we can determine from his tes-

timony and documentation is as follows. Sometime before

or around 1977, Useinovic undertook his compulsory ser-

vice in the military. Because he was an only child sup-

porting his mother since his father’s death, he was sup-

posed to be eligible for shortened service of only 12 months.

Instead, he served 15 months. Useinovic testified gen-

erally that this extension of time was punishment for

his Islamic beliefs. He also claimed specifically that dur-

ing his time in the army, in 1977, an officer approached

him about joining the Communist Party. Useinovic tes-

tified that upon his refusal, the officer told him he “would

have a lot of problems afterwards,” and that Useinovic

“believe[d] in something that did not exist.” A.R. at 69.

Presumably the officer was referring to Useinovic’s reli-

gious beliefs.

Useinovic also claimed that difficulties in his work were

relevant to his request for asylum.4 At some time after his

4

A review of the Administrative Record suggests that most of

Useinovic’s claims of work-related incidents occurred after his

military service. However, there are indications that some

problems, not specifically elucidated, occurred during a period

of employment prior to military service. Useinovic’s immigration

documents detail his last year of schooling as the 1969-1970 school

year, after which he graduated from a Yugoslavian analog to an

American high school. And Useinovic is also clear in testifying

that his military service occurred around 1977. The Record also

shows that Useinovic described general employment difficulties

after having “graduated school” (A.R. at 69), thereby indicating

that he did work between school and military service and that

he experienced some problems then. But there are no specific

incidents for this period alleged to support his application for

(continued...)

No. 01-3339 5

military service, working either as a crane operator, or

on a farm, Useinovic was again asked to join the Commu-

nist Party and again refused, but he did not claim any

adverse consequences from this refusal. In 1989 and 1990,

Useinovic participated in the organization of five labor

strikes.5 During his testimony, Useinovic recounted that

he and some colleagues learned that two of their friends

had been suspended from work for refusing a transfer

to work that “they’ve never done before.” A.R. at 85.

Useinovic and colleagues on his shift felt they would also

be asked to transfer between jobs in a similar fashion,

and decided to start a strike. Ultimately, five days of

strikes resulted, with the last one involving 1,600 workers.

A.R. at 85. Useinovic testified that these demonstrations

which he organized resulted in his eventually being fired

from his position. He claimed that he was told to take a

leave of absence because there was less work to be done

at his job site. Useinovic came to the United States short-

ly thereafter “just for a visit,” but received notice within

a month that he had been fired. A.R. at 67-68.

Useinovic also testified that he faced persecution based

on his Islamic beliefs. In addition to the comments of

the military officer and to the extended military service

noted above, he claimed that he generally faced prob-

lems because his cousin was a hadja, a leader within the

4

(...continued)

asylum, nor are any such incidents expressly described in the

Record. Useinovic’s testimony concerning specific requests to

join the Communist Party refers to the officer’s request as the

“first time,” indicating that the work-related incidents we analyze

above occurred subsequent to his military service. A.R. at 69.

5

Useinovic’s testimony implies that these strikes were related

to his work as a crane operator; immediately before his testimony

discussing the strikes he testified that he had “no problems” at

his farm job. A.R. at 72.

6 No. 01-3339

Islamic community—a circumstance which caused changes

in the attitudes of friends and coworkers. Although

Useinovic admitted that he had never been arrested or

mistreated by the police, he did testify that sometime

around 1989-90 he had a fight over his Islamic faith with

a coworker, which had scared him sufficiently that he

did not go to work for “a couple of days.” A.R. at 71, 73,

78, 82.

Finally, Useinovic also testified that he feared persecu-

tion if he returned to Yugoslavia based on a home inva-

sion suffered by his mother in June of 1994. A translation

of a police report indicates that during the night of June

11, 1994, two or more men broke into Useinovic’s mother’s

house, tied her up and blindfolded her and stole money

and jewelry. A.R. at 100. In his testimony, Useinovic

claimed the invaders asked his mother, “[W]here is your

son? When is he going to come back?” A.R. at 74. They

told her that if he returned, they would harm him, and if

she tried to escape her restraints, they would “do the

same things [they] did in Bosnia.” A.R. at 74, 76. Useinovic

claimed that he later learned from a neighbor that the

robbers had been sent by the local police. A.R. at 75.

In an oral decision at the hearing, the IJ denied

Useinovic’s request for asylum and granted him voluntary

departure in lieu of deportation. Useinovic, the IJ found,

was a credible witness. However, even taking as true

the events described by Useinovic, he had not met his

burden of proof to show eligibility for asylum. A.R. at 43.

The judge found that Useinovic had presented no specific

evidence that he had been denied any opportunity to

practice his religion, and the specific remarks aimed

at him did not rise to the level of persecution. Nothing

about Useinovic’s protest activities was political, religious

or ethnic in nature; they were labor-related and they

could not support a claim of past persecution. The IJ

further found that his refusal to join the Communist Party

No. 01-3339 7

on the two occasions he had been asked to do so had had

no serious repercussions. Finally, the judge found that

the home invasion of his mother’s house, four years af-

ter Useinovic left Yugoslavia, was a criminally motivated

act, not a political or religious one.

Useinovic appealed to the BIA. The BIA denied his ap-

peal on August 7, 2001. The BIA found that the events

described by Useinovic did not rise to the level of persecu-

tion under the INA. Further, taking judicial notice of

the changed country conditions in Yugoslavia along with

its findings concerning the alleged past events, the BIA

found that Useinovic could not demonstrate an objective-

ly reasonable, well-founded fear of persecution. A.R. at 4.

This petition for review timely followed.

II.

A.

The BIA’s findings regarding asylum eligibility are

factual findings that we review under the substantial

evidence standard. Ambati v. Reno, 233 F.3d 1054, 1059

(7th Cir. 2000). We are required to affirm the BIA’s deci-

sion if it is supported by “reasonable, substantial, and

probative evidence on the record considered as a whole.”

Karapetian v. INS, 162 F.3d 933, 936 (7th Cir. 1998)

(quotations omitted). We will reject the BIA’s findings

only if “the evidence is ‘so compelling that no reason-

able factfinder could fail to find the requisite fear of per-

secution.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478,

484 (1992)).

Useinovic was placed in deportation proceedings by

the INS’s March 27, 1995, Order to Show Cause. Because

deportation proceedings began before April 1, 1997, the

1996 Amendments to the INA under the Illegal Immigra-

tion Reform and Immigrant Responsibility Act of 1996, Pub.

8 No. 01-3339

L. No. 104-208, 110 Stat. 3009 (IIRIRA), which substan-

tially altered deportation procedures (and associated

descriptive terminology6), do not apply to Useinovic’s ac-

tion. See, e.g., Buzdygan v. INS, 259 F.3d 891, 892-93

(7th Cir. 2001). Instead, the transitional rules in section

309(c) of the IIRIRA and the non-superseded sections of

the INA apply, and, as a result, this case continues to be

characterized as a deportation proceeding and request

for asylum. Id.

The INA gives to the Attorney General the discretion-

ary power to grant asylum to an alien who qualifies

as a “refugee” under 8 U.S.C. § 1101(a)(42). 8 U.S.C.

§ 1158(b)(1). Under § 1101(a)(42) a person becomes eligi-

ble for “refugee” status by showing either past persecu-

tion or a well-founded fear of future persecution if re-

turned to her prior country of residence. Useinovic does

not appeal the BIA’s finding that the events he alleges

do not rise to the level of past persecution. Instead, he

claims on appeal that he has a well-founded fear of per-

secution if returned to Yugoslavia on account of his Alba-

nian ethnicity, Islamic religion and anti-government

political opinions. A well-founded fear of persecution re-

quires specific, detailed facts showing 1) a genuine (subjec-

tive) fear of persecution upon return to the petitioner’s

home country, and 2) that the petitioner’s fear is objec-

tively reasonable. Toptchev v. INS, 295 F.3d 714, 720 (7th

Cir. 2002); Cuevas v. INS, 43 F.3d 1167, 1170 (7th Cir.

1995) (requiring that “a reasonable person in the appli-

cant’s circumstances would fear persecution if returned”).

6

For example, under the IIRIRA, the INS no longer serves

an “Order to Show Cause,” but rather a “Notice to Appear.” De-

portation proceedings are now called “removal proceedings.”

Asylum is still asylum, but suspension of deportation is now

called “cancellation of removal.” See 8 U.S.C. §§ 1229, 1229a,

1229b.

No. 01-3339 9

B.

We first must dispose of Useinovic’s claim that the BIA

improperly took administrative notice of changed country

conditions (as reported by the State Department) in Yugo-

slavia in making its determination. Our precedents make

clear that the BIA may take administrative notice of

changed country conditions in its determinations of eligi-

bility for asylum. Petrovic v. INS, 198 F.3d 1034, 1038

(7th Cir. 2000) (affirming the BIA’s administrative notice

of changed country conditions in Yugoslavia and Croatia);

Kaczmarczyk v. INS, 933 F.2d 588, 593-94 (7th Cir. 1991)

(validating the BIA’s administrative notice of the change

of government in Poland, rendering unlikely the possibil-

ity that Solidarity members would be persecuted upon re-

turn to Poland). However, the BIA cannot “blindly apply”

a noticed fact to deny automatically the asylum applica-

tions of that country’s citizens. Kaczmarczyk, 933 F.2d

at 594. The BIA must still engage in an individualized

review of the applicant’s case. Petrovic, 198 F.3d at 1038.

The BIA did engage in an individualized review of

Useinovic’s case. First, the situation recognized by the

BIA’s notice shows that the government Useinovic lived

under in Yugoslavia, as well as the one he claimed to

fear in his applications for asylum, was no longer in

power—in fact the character of the government was com-

pletely different with both the overthrow of Communism

and the removal of the Milosevic regime. Second, the

remainder of the BIA’s opinion is replete with individual-

ized analysis of Useinovic’s claims based on the hearing

before, and the decision of, the IJ. The BIA carefully

and succinctly contrasts the claims of Useinovic with

his resulting testimony. For example, Useinovic claimed

threats, verbal abuse, physical abuse and arrest based

on his ethnicity and religion, but his testimony was that

he had never been physically abused, arrested or jailed

by the police or anyone else. A.R. at 3. This, and the

10 No. 01-3339

analysis that follows, was highly particularized to

Useinovic’s individual circumstances. The BIA’s use of

administrative notice was proper.

C.

Useinovic next claims that both the IJ and the BIA

considered only the issue of past persecution and failed

to consider a well-founded fear of future persecution as

grounds for asylum eligibility. Because a well-founded

fear of persecution was alleged and argued by Useinovic,

and is a statutory ground for refugee status and eligibil-

ity for asylum, Useinovic argues that the failure of the

IJ and BIA to consider such grounds requires reversal.

Even if the IJ and BIA decisions can be read as reflecting

consideration of a well-founded fear of future persecution,

Useinovic further argues that their decisions “cursorily

concluded” that such a fear was not objectively reason-

able without adequate discussion of the factors leading

to this conclusion. Pet. Br. at 7.

Even a cursory examination of the record makes clear

that the IJ did render a decision on Useinovic’s alleged well-

founded fear of future persecution and found it to be un-

reasonable. A.R. at 41. The IJ, after outlining the reason-

able person standard for establishing a well-founded fear

of persecution, describes Useinovic’s “claim of a fear of

persecution,” and details the past racial and religious

incidents Useinovic alleged to support this claim. Further,

the IJ goes on to to describe how Useinovic fears that he

will face persecution for his organization of strikes and

opposition to the government, evidenced, according to

Useinovic, by the attack on his mother. A.R. at 42. There-

fore, as an initial matter it is clear that the IJ did, in fact,

make a determination with respect to Useinovic’s claim of

a fear of future persecution. Similarly, even Useinovic’s

own brief ultimately acknowledges that the BIA did, in

No. 01-3339 11

fact, make a determination on both grounds—past persecu-

tion and a well-founded fear of persecution. Pet. Br. at 7

(“While the BIA cursorily concluded that the appellant

did not demonstrate a reasonable possibility of suffering

persecution . . . .”).

In the alternative, Useinovic claims that the BIA did

not adequately explain its conclusion that he lacked an

objectively reasonable fear of future persecution. The BIA,

claims Useinovic, merely recounted the past incidents

alleged by Useinovic. This claim fails as well. Useinovic

appears to be trying to avoid the deferential substantial

evidence standard of review by characterizing the BIA’s

conclusion as one of legal error, that is, incorrectly inter-

preting the INA. But he is, in reality, challenging the

sufficiency of the evidence supporting the BIA’s findings

with respect to his fear of persecution—an appeal which

actually invokes the substantial evidence standard. To

that end, we must first examine the BIA’s use of past

incidents in its determination that there was no reason-

able fear of future persecution. Then, after evaluating

the BIA’s mode of decision, we will examine the remain-

ing challenge to the sufficiency of the evidence support-

ing the BIA’s determination.

First, the use of past incidents to frame a determina-

tion of a well-founded fear of future persecution is not

only routine, but highly probative. This approach is one

of the principal ways of demonstrating the existence of

a well-founded fear of persecution, because the existence

of past incidents of persecution creates a rebuttable pre-

sumption of future persecution. See Yadegar-Sargis v. INS,

297 F.3d 596, 601 (7th Cir. 2002). However, past events

forming the central basis for a petitioner’s claim of a fear

of future persecution may, in some circumstances, be

found insufficient or irrelevant and unable to support

eligibility for asylum. See Ambati, 233 F.3d at 1060-61

(examining alleged incidents of past persecution in deter-

12 No. 01-3339

mining whether petitioner had an objectively reasonable

fear of future persecution); Petrovic, 198 F.3d at 1037-38

(finding no well-founded fear of persecution based on

examination of evidence of past incidents and considera-

tion of changed country conditions).

During his hearing before the IJ, Useinovic, when

originally asked why he feared persecution, began recount-

ing the list of alleged acts of past persecution that we

have detailed. At the end of his testimony, Useinovic

was asked again what he thought would happen if he

went back to Yugoslavia. A.R. at 86. He responded, “Judg-

ing by all that has happened in the past, which I de-

scribed here in the [c]ourtroom, I don’t believe anything

good could happen to me there.” Id. Useinovic’s claim of

a fear of future persecution centered around the incidents

he alleged from the past. The BIA’s analysis of his claim

of a fear of persecution was, therefore, inevitably centered

around an examination of these past incidents.

However, even given the focus of Useinovic’s claim upon

past incidents in his life, the BIA did not, as Useinovic

claims, limit its examination only to those past incidents.

As already explained, very early in its opinion the BIA

took administrative notice that Yugoslavia had under-

gone significant change in the eleven years since Useinovic

left. A.R. at 3. Not only was the Communist regime that

ruled when Useinovic emigrated no longer in power, but

the dictatorial regime of Slobodan Milosevic had been

replaced. Id. Therefore, the BIA’s analysis of Useinovic’s

fear of persecution involved a consideration both of past

incidents of alleged persecution and of changed country

conditions within Yugoslavia. This was a sound and prop-

er procedure for adjudicating Useinovic’s claim.

So, ultimately we are left with a simple attack on the

substantiality of the evidence considered by the BIA,

which fails as well. There is substantial evidence support-

No. 01-3339 13

ing the BIA’s decision, and a reasonable factfinder could

find that there is not a well-founded fear of persecution.

The BIA found that it was unlikely, eleven years and two

regime changes later, that anyone in a position of power

would remember Useinovic’s activities or be motivated

by those activities to persecute Useinovic. A.R. at 3.

Useinovic testified that he was never arrested, beaten or

jailed by the police. A.R. at 73, 82. Useinovic’s testimony

also shows that his anti-government activities consisted

of refusing to join the Communist Party twice (resulting

in no major consequences for him) and organizing labor

strikes, which can be characterized, based on Useinovic’s

testimony, as involving labor issues rather than political

questions. A.R. at 85 (testifying that the strikes origi-

nated as a protest against job transfers to jobs for which

he and his colleagues were untrained). The only act of

colorably political or religious retribution Useinovic could

cite was the extension of his army service by 3 months. A

reasonable factfinder could conclude that no reasonable

person would fear persecution based upon these events,

particularly in light of the changed country conditions.

Useinovic did not suffer severe consequences for his ac-

tions at the time he acted, and the passage of time

since these activities only lessened the likelihood he

would face any persecution. The robbery of his mother

years after he left the country does not alter this conclu-

sion. This home invasion appears from the evidence, as

the BIA noted, to have been motivated by criminal inclina-

tions, not political retaliation. Useinovic has only hear-

say within hearsay to indicate that the police may

have been involved in the robbery, and slight evidence

to indicate that the robbery was primarily aimed at him

personally and not at his mother’s valuables.

As to his religion, Useinovic testified that he was not

active in his faith. A.R. at 70. The source of his problem

appears from the evidence to have been not his own faith

14 No. 01-3339

but his relationship to his cousin, a local hadja. Other than

isolated verbal confrontations, Useinovic presented no

evidence that he had been targeted based on his religious

beliefs, and no evidence that he would be so targeted upon

his return.

In conclusion, there exists in the record substantial

evidence supporting the BIA’s determination that no rea-

sonable person in Useinovic’s position would fear perse-

cution.

D.

Finally, Useinovic requests that we remand his case to

the IJ so that he can seek relief under the Nicaraguan

Adjustment and Central American Relief Act (NACARA),

Pub. L. No. 105-100, 111 Stat. 2160, Title II, §§ 201 et seq.

(1997). This request for relief points to a tortuous legisla-

tive trail that, at its end, reveals a simple outcome:

Useinovic has pursued this remedy at the wrong time

and in the wrong place.

To begin, Useinovic is requesting this court to remand

his case to the IJ so that he can apply for suspension of

deportation. This remedy would be added to the present

appeal’s application for asylum. The suspension of deporta-

tion was a form of discretionary relief from the Attorney

General authorized by section 244 of the INA.7 8 U.S.C.

§ 1254, repealed by IIRIRA § 308(b)(7). To be eligible

for suspension of deportation, an applicant needed to

have been continuously physically present in the United

7

This court has already issued a far more comprehensive

exegesis on the legislative path from INA § 244 through the

IIRIRA and on to the NACARA, and its consequent effects, to

which interested readers should refer for more information. See

Angel-Ramos v. Reno, 227 F.3d 942, 944-47 (7th Cir. 2000)

No. 01-3339 15

States for seven years, to have been a person of “good

moral character” during that period and to have estab-

lished that deportation would result in “extreme hardship.”

INA § 244. With the passage of the IIRIRA, Congress

tightened eligibility for suspension of deportation, now

called “cancellation of removal.” Specifically, convictions

of certain crimes precluded eligibility, the duration of

the required continuous physical presence was lengthened

to 10 years and the clock on an applicant’s continuous

physical presence was stopped the moment the INS

served a Notice to Appear (the new incarnation of what

was previously referred to as an Order to Show Cause).

IIRIRA § 304(a)(3) (amending the INA to add, inter alia,

§ 240A(b)(1) & (d), codified at 8 U.S.C. § 1229b(b)(1) & (d)).

The stopping of the clock on continuous physical pres-

ence by a Notice to Appear (referred to as the “stop time”

provision of the IIRIRA) was a significant change in the

law because, previously, aliens involved in deportation

proceedings that were significantly delayed often accumu-

lated sufficient “continuous physical presence” to qualify

for a suspension of deportation. Under the IIRIRA, the

onset of removal proceedings froze an alien’s eligibility

for cancellation of removal, regardless of any subsequent

delay. The IIRIRA’s transitional rules (as modified by

the NACARA), referred to above, made clear that indi-

viduals like Useinovic, who were placed in deportation

proceedings before the enactment of the IIRIRA (and

were thus not proceeding under the provisions of the

IIRIRA generally), still faced the stop time provisions

of new INA § 240A(d)(1) & (2).8 See NACARA § 203(a)(1)

8

One of the intricacies of this process (explained in more detail

in Angel-Ramos) is the manner in which the IIRIRA’s transitional

rules muddied the eligibility requirements for a suspension of

deportation for those in a transitional position—i.e., those in

(continued...)

16 No. 01-3339

(amending IIRIRA § 309(c)(5)). The result? An Order to

Show Cause issued even before the IIRIRA took effect

stopped the clock for the accumulation of any further

continuous physical presence during an alien’s deporta-

tion proceedings and froze an alien’s eligibility for suspen-

sion of deportation in the same way that a Notice to Ap-

pear freezes eligibility for cancellation of removal.

However, the NACARA giveth as well as taketh away.

The NACARA turned off the IIRIRA transitional rules’

restrictions for certain individuals and left them within

the INA § 244 criteria that were in place before the

IIRIRA. See NACARA § 203(a)(1) (amending IIRIRA to

add § 309(c)(5)); 8 C.F.R. § 3.43. Among such individuals

are those aliens who entered the country on or before

December 31, 1990, applied for asylum on or before

December 31, 1991 and whose country of origin had

been a signatory to the Warsaw Pact, including Yugo-

slavia. See NACARA § 203(a)(1) (amending IIRIRA to

add § 309(c)(5)(C)(i)(V)); 8 C.F.R. § 3.43(d)(4)(iii).

So where are we? Useinovic, a Yugoslavian national who

entered the United States before December 31, 1990, and

who, according to Useinovic, applied for asylum before

8

(...continued)

deportation proceedings before the IIRIRA went into effect, but

whose cases were still pending after it went into effect. The

problem was that the IIRIRA’s transitional rules’ restrictions

on the continuous physical presence requirement, the “stop time”

provisions, referred only to a “Notice to Appear,” which was

a term of art not in use for those people in deportation proceed-

ings before the IIRIRA, like Useinovic. See IIRIRA § 309(c)(5).

Such individuals had been served with an Order to Show Cause.

The NACARA clarified this by sweeping into the IIRIRA’s stop

time restrictions those individuals served with an Order to Show

Cause, whose deportation proceedings and applications for

suspension of deportation were still pending. See NACARA

§ 203(a)(1), amending IIRIRA § 309(c)(5).

No. 01-3339 17

December 31, 1991, received an Order to Show Cause prior

to the enactment of the IIRIRA. He is, therefore, very

possibly someone to whom the stop time provisions of

the IIRIRA do not apply, and his continuous physical

presence time continued to accumulate even after the

receipt of his Order to Show Cause. Now what? Stepping

back in time to the end of 1997, and the enactment of

the NACARA, what would a person in Mr. Useinovic’s

position have done to seek relief? The NACARA § 203(c)

provided that, with its passage, any individual eligible

for relief under its provisions could file a motion to re-

open deportation proceedings and apply for suspension

of deportation.9 Section 203(c) also directed the Attorney

General to specify a time frame during which newly eligi-

ble individuals could file motions to reopen based on

the NACARA. Within the limitations of the NACARA, the

Attorney General promulgated regulations requiring

that motions to reopen under the NACARA be filed no

later than September 11, 1998, with the corresponding

application for suspension of deportation to follow no

later than November 18, 1999. 8 C.F.R. § 3.43(e).

Here is where the facts begin to turn against Mr.

Useinovic. He has never filed a motion to reopen his

deportation proceedings and to seek relief under the

9

This was significant for a person in Useinovic’s position. The IJ

had rendered a final decision on his petition on March 20, 1996.

Under 8 C.F.R. § 3.23, Useinovic had 90 days to file a motion

to reopen his proceedings before the IJ. By the time the NACARA

was enacted, this window for filing was closed. Only the

NACARA’s special provisions would have given him, and those

similarly situated, an avenue for relief. See Motion To Reopen:

Suspension of Deportation and Cancellation of Removal, 64 Fed.

Reg. 13663, 13666 (March 22, 1999) (“[NACARA § 203] made

special provisions to permit a certain group of people who would

otherwise be prevented by statute and regulation to submit a

motion to reopen.”).

18 No. 01-3339

NACARA. This appears to be fatal to Useinovic’s claim.

First, Useinovic raises his alleged eligibility for relief

under the NACARA for the first time before this court. But

before this court could consider such a claim, Useinovic

would have first had to present it to the BIA and to ex-

haust his administrative remedies. Absent such exhaus-

tion, this court would lack jurisdiction to hear Useinovic’s

claims. 8 U.S.C. § 1105a(d), repealed by IIRIRA § 306(b);10

see Toptchev, 295 F.3d at 721. This was an issue that

Useinovic clearly could have brought to the attention of

the BIA. Second, even if this court were able to consider

Useinovic’s request (transforming it into a direct request

for NACARA relief), we would find him ineligible. He failed

to apply for relief within the time mandated by the stat-

ute and the Attorney General’s regulations. See NACARA

§ 203(c) (requiring the application period for relief to

begin no later than 60 days after the NACARA’s enact-

ment and to extend for not more than 240 days). Looking

only to the mandate of the statute, the opening date

for application would have been, at the latest, January 18,

1998, and the last date on which a motion to reopen

could have been filed under the statute would have been

September 15, 1998. Useinovic not only failed to meet

the deadline of the Attorney General’s regulations, he

also did not meet this statutorily set deadline. Because

he has not exhausted his administrative remedies and,

alternatively, has failed to meet the NACARA’s deadlines,

he can find no relief under the NACARA from this court.

III.

The BIA’s decision was supported by substantial evidence,

and its use of administrative notice of changed country

10

The principle of administrative exhaustion was preserved in

the IIRIRA § 306(a)(2), codified at 8 U.S.C. § 1252(d).

No. 01-3339 19

conditions was proper. Useinovic cannot seek suspension

of deportation under the NACARA by raising that issue

for the first time before this court. Not only has he failed

to exhaust his administrative remedies, but such an ap-

plication is untimely. The decision of the Board of Im-

migration Appeals is, therefore, AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-27-02