Mudric v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

11-24-2006

Mudric v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-2913

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation

"Mudric v. Atty Gen USA" (2006). 2006 Decisions. Paper 138.

http://digitalcommons.law.villanova.edu/thirdcircuit_2006/138

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 05-2913

GORAN MUDRIC,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A70 576 099)

Immigration Judge Craig DeBernardis

Initially Docketed as an Appeal from EDPA No. 02-cv-08279

Prior to the Enactment of the Real ID Act of 2005

Submitted Under Third Circuit LAR 34.1(a)

September 13, 2006

Before: FUENTES, FISHER and McKAY,* Circuit Judges.

(Filed November 24, 2006)

Christina L. Harding

Gallagher, Malloy & Georges

1760 Market Street, Suite 1100

Philadelphia, PA 19103

Attorney for Petitioner

Sonya F. Lawrence

Office of United States Attorney

615 Chestnut Street

Philadelphia, PA 19106

Attorney for Respondent

OPINION OF THE COURT

FISHER, Circuit Judge.

Goran Mudric petitions for review of the legality of his

pending deportation. In support of his petition, Mudric alleges

his Fifth Amendment right to procedural due process was

violated by undue Immigration and Naturalization Service

*

The Honorable Monroe G. McKay, United States Circuit

Judge for the Tenth Circuit, sitting by designation.

2

(“INS”)1 delays in processing certain applications related to his

case. Mudric also argues that the Government should be

estopped from removing him because he was prevented from

obtaining lawful status as a result of the Government’s own

undue delay. Finally, Mudric claims procedural due process

violations occurred in the course of his asylum hearing. For the

reasons stated below, we will deny the petition.

I.

Mudric, an ethnic Serb and native and citizen of the

former Yugoslavia, entered the United States without inspection

at or near Detroit, Michigan on February 27, 1992. Mudric’s

mother, Ljiljiana Mudric-Meolic, was already residing in the

United States at that time, having acquired conditional

permanent resident status through her marriage in 1990 to a

United States citizen.2 Mudric formally applied for asylum in

1

As a result of the Homeland Security Act of 2002,

Pub.L. No. 107-296, 116 Stat. 2135 (2002), the Immigration and

Naturalization Service has ceased to exist as an agency within

the United States Department of Justice. Its enforcement

functions now reside in the Bureau of Immigration and Customs

Enforcement (BICE) within the Department of Homeland

Security. See also Vente v. Gonzales, 415 F.3d 296, 299 n.1 (3d

Cir. 2005).

2

On September 24, 1992, Mudric-Meolic filed a petition

to remove conditions on her permanent residence. INS

approved this application on May 9, 2000. At present,

Mudric-Meolic is a naturalized U.S. citizen.

3

1993 and approximately four years later, on January 24, 1997,

INS issued a notice of intent to deny the request for asylum.

Hearings before an Immigration Judge on the subject of

Mudric’s deportation were held in August of 1997 and February

of 1998.3 At the February 1998 hearing, Mudric testified that he

had served in the former Yugoslavian army from 1986 to 1987

and claimed he had suffered persecution at that time because of

a relationship he had with a Muslim woman. As evidence of

that persecution, Mudric described one incident in which he was

hit in the head with a gun by an officer. After that incident,

Mudric was allegedly told by friends that he was a “marked

man.” Mudric offered no further explanation or evidence of

persecution. After completing his service in the army, Mudric

returned to his home city of Belgrade and eventually became

engaged to the unnamed Muslim woman. However, Mudric and

the woman never married and the relationship ended when

Mudric left for the United States in 1992.

Mudric further testified that he was called back for active

service in the army in 1991, at the time of the Yugoslavian Civil

War. He only served for two weeks before deserting. When

asked why he deserted the army, Mudric replied “I was scared.

I was scared. I didn’t like it to kill nobody else. Always they

3

At the August 1997 hearing it was established that

Mudric had entered without inspection and was therefore subject

to deportation. Mudric then renewed his request for asylum.

Because Mudric had not provided a full statement of his claim

for asylum, the IJ rescheduled a hearing on that matter for

February 1998.

4

teach us and hatred starting too much.” When asked whether he

had ever expressed any opposition to serving in the army,

Mudric testified that he had told only one other fellow soldier,

whose reaction he described as “not pleased.” When asked what

would have happened if he had not deserted the army in 1991,

Mudric stated, in effect, he would have to kill or be killed.

When asked what would happen if he were forced to return to

Serbia, Mudric expressed a fear that he would be punished.

Mudric did not specify exactly why and how he would be

punished, but speculated that “what I’m, uh, hearing, what I’m

seeing now it’s Mafia, government, they, they punish a lot of

people.”

Although an index listing three witnesses prepared to

testify at the hearing on Mudric’s behalf had been filed by

Mudric’s attorney, two of those witnesses were not present at

the proceedings. Those witnesses were Mudric’s mother and a

friend. At the beginning of the proceedings, the IJ indicated to

counsel for Mudric that he believed their testimony would have

little probative value because they were not experts and

obviously partial to Mudric’s claims. Additionally, he noted

that competent evidence was already in the record as to the

country conditions in Serbia. At the end of Mudric’s testimony,

the IJ concluded that Mudric’s case was ripe for adjudication

even without the testimony of witnesses. He stated that

witnesses would have little to contribute to the case because “the

facts [were] pretty clear.” The IJ explained that he would not be

granting Mudric’s request for reasons set forth in a written

decision. That decision reflected the IJ’s belief that Mudric’s

testimony lacked credibility and was completely in conflict with

the objective evidence in the record.

5

The IJ’s decision was affirmed without opinion by the

Board of Immigration Appeals (“BIA”) on June 4, 2002, and

Mudric was granted thirty days to depart voluntarily. Mudric

failed to adhere to the BIA’s order and was taken into custody

by INS on July 16, 2002. Mudric retained new counsel and filed

in this Court a petition for review of his order of removal. That

petition was dismissed as untimely on April 9, 2003. While the

untimely petition for review remained pending, Mudric filed a

habeas corpus petition pursuant to 28 U.S.C. § 2241 in the

United States District Court for the Eastern District of

Pennsylvania as well as a motion for an order to show cause and

a motion for stay of removal. The District Court issued an order

staying Mudric’s removal and requiring his release from

custody. However, without taking any substantive action on the

§ 2241 petition, the District Court converted and transferred it

to this Court for treatment as a petition for review, as mandated

by the REAL ID Act of 2005 (“REAL ID Act”), Pub.L. No.

109-13, 119 Stat. 231, Div. B, Title I, § 106(c) (May 11, 2005).

See Bonhometre v. Gonzales, 414 F.3d 442, 445-46 (3d Cir.

2005).

II.

The REAL ID Act confers on this Court jurisdiction to

review constitutional claims and questions of law raised in a

converted and transferred petition for review of an order of

removal. 8 U.S.C. § 1252(a)(2)(D); see Bonhometre, 414 F.3d

at 446. Although Mudric’s habeas corpus petition has been

converted to a petition for review, our standard of review

remains the same. Jordon v. Att’y Gen., 424 F.3d 320, 327-28

(3d Cir. 2005). We review de novo constitutional claims and

6

questions of law, including application of law to undisputed

facts or adjudicated facts, raised in the initial petition for habeas

corpus relief. Kamara v. Att’y Gen., 420 F.3d 202, 211 (3d Cir.

2005). In a petition for review, we examine factual and

discretionary determinations made by an IJ in adjudicating

asylum requests under the familiar substantial evidence

standard. Dia v. Ashcroft, 353 F.3d 228, 247-48 (3d Cir. 2003).

That is, an IJ’s decision to deny a request for asylum must be

upheld if “supported by reasonable, substantial, and probative

evidence on the record considered as a whole . . . and can be

reversed only if the evidence presented by [petitioner] was 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); see also Abdille v. Ashcroft, 242 F.3d

477, 484 (3d Cir. 2001) (“The [IJ’s] finding must be upheld

unless the evidence not only supports a contrary conclusion, but

compels it.”).

Normally, we have jurisdiction over an alien’s claims

only where the alien has raised and exhausted his or her

administrative remedies as to that claim. Abdulrahman v.

Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003). However, due

process claims are generally exempt from the exhaustion

requirement because the BIA does not have jurisdiction to

adjudicate constitutional issues. Sewak v. INS, 900 F.2d 667,

670 (3d Cir. 1990). Thus we review de novo the question of

whether Mudric’s procedural due process rights have been

violated. Bonhometre, 414 F.3d at 446.

III.

7

Turning to the merits of the petition, Mudric alleges that

INS delays in the consideration and processing of his asylum

claim and his mother’s permanent resident alien application

prevented him from receiving a grant of asylum and an

adjustment to lawful status via his mother. He alleges that

conditions in his native Serbia had changed in the approximately

four years between the time when he first filed his application

for asylum and the time when it was considered by INS. Had

his asylum claim been considered before these unspecified

changes, Mudric reasons, he would have been entitled to a grant

of asylum. In a similar fashion, Mudric argues that his mother,

Mudric-Meolic, was prevented from filing an alien relative

petition on behalf of Mudric because of an INS delay of eight

years in processing her petition to remove conditions on her

permanent residence. Mudric suggests in the first instance that

these INS delays in themselves worked a violation of due

process and mandate the reopening of his removal proceedings.

In addition, Mudric argues that the INS delays constitute

affirmative government misconduct giving rise to a claim for

equitable estoppel against the Government. These claims are

entirely without merit.

Mudric fails to discern the discretionary nature of both

asylum and adjustment of status determinations. While an alien

may be eligible for a grant of asylum or an adjustment of status

under the immigration laws, he is not entitled to such benefits as

a constitutional matter. There is no constitutional right to

asylum per se. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir.

2001). An alien seeking admission to the United States through

asylum “requests a privilege and has no constitutional rights

regarding his application, for the power to admit or exclude

8

aliens is a sovereign prerogative.” Marincas v. Lewis, 92 F.3d

195, 203 (3d Cir. 1996) (quoting Landon v. Plasencia, 459 U.S.

21, 32 (1982)); see also INS v. Yang, 519 U.S. 26, 30 (1996)

(“[T]he Attorney General’s suspension of deportation . . . [is]

‘an act of grace’ which is accorded pursuant to her ‘unfettered

discretion.’”) (citations omitted); Ameeriar v. INS, 438 F.2d

1028, 1030 (3d Cir. 1971) (“Adjustment of status is [] a matter

of administrative grace, not mere statutory availability.”).

Given the discretionary nature of immigration benefits,

Mudric’s INS delay-as-due process violation claim must fail at

the threshold. It is axiomatic that a cognizable liberty or

property interest must exist in the first instance for a procedural

due process claim to lie. See Board of Regents of State Colls. v.

Roth, 408 U.S. 564, 569 (1972). Furthermore, “to have a

property interest in a benefit, a person clearly must have more

than an abstract need or desire for it. He must have more than

a unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.” Id. at 577. Of course,

“[p]roperty interests . . . are not created by the Constitution,” id.,

and the Supreme Court has recognized that constitutionally

protected liberty or property interests may spring from positive

rules of law, enacted by the state or federal government and

creating a substantive entitlement in a particular government

benefit. See, e.g., Connecticut Bd. of Pardons v. Dumschat, 452

U.S. 458, 463 (1976) (“[A] state-created right can, in some

circumstances, beget yet other rights to procedures essential to

the realization of the parent right.”).

Nevertheless, the various discretionary privileges and

benefits conferred on aliens by our federal immigration laws do

9

not vest in aliens a constitutional right to have their immigration

matters adjudicated in the most expeditious manner possible.

See id. (“A constitutional entitlement cannot be created . . .

merely because a wholly and expressly discretionary state

privilege has been granted generously in the past.”); INS v.

Miranda, 459 U.S. 14, 18 (1982) (“Both the number of

applications received by the INS and the need to investigate

their validity may make it difficult for the agency to process an

application as promptly as desirable.”).

In making a request for immigration benefits, “aliens

only have those statutory rights granted by Congress,”

Marincas, 92 F.3d at 203, and no federal statute or regulation

prescribes a hard-and-fast deadline for acting upon immigration

applications and petitions, such as the ones in this case,

submitted to the various agencies that administer our

immigration laws. See Cordoba v. McElroy, 78 F. Supp. 2d

240, 244 (S.D.N.Y. 2000). No constitutional injury occurred

from the INS delays in this case because Mudric simply had no

due process entitlement to the wholly discretionary benefits of

which he and his mother were allegedly deprived, much less a

constitutional right to have them doled out as quickly as he

desired.

Mudric’s claim for equitable estoppel is also without

merit. While we acknowledge that the doctrine of equitable

estoppel can apply to the government in the immigration

context, see DiPeppe v. Quarantillo, 337 F.3d 326, 335 (3d Cir.

2003), to prevail on such a claim, Mudric must establish (1) a

misrepresentation; (2) upon which he reasonably relied; (3) to

his detriment; and (4) affirmative misconduct. Id. In this case,

10

Mudric has alleged nothing more than an INS delay in the

processing of his asylum claim and his mother’s application to

remove conditions on her residence.

While this delay may be unfortunate, even “unjustified”

as Mudric alleges, mere delay does not constitute “affirmative

misconduct” on the part of the Government. See Miranda, 459

U.S. at 19 (“Proof only that the Government failed to process

promptly an application falls far short of establishing such

conduct.”).4 Even assuming arguendo that the Government was

negligent in not processing Mudric and his mother’s

immigration applications in a more expeditious fashion, such

negligence would still not constitute affirmative misconduct.

See INS v. Hibi, 414 U.S. 5, 8 (1973) (“As a general rule laches

or neglect of duty on the part of the Government is no defense

to a suit by it to enforce a public right or protect a public interest

. . . .”). As Mudric has failed to present any evidence of

affirmative misconduct on the part of the Government, his claim

for equitable estoppel must fail.

Turning next to Mudric’s ineffective assistance of

counsel claim, we note at the outset that the BIA denied

Mudric’s motion to reopen in part because he failed to document

compliance with the threshold requirements set forth in Matter

of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988), for bringing an

4

It should be noted that in Miranda, one of the primary

cases relied upon by Mudric in support of his equitable estoppel

claim, the Court rejected a claim of affirmative misconduct

involving the INS’s “unreasonable delay” in processing a visa

application. 459 U.S. 14.

11

ineffective assistance claim. We have “generally agree[d] that

the BIA’s three-prong test [set forth in Lozada] is not an abuse

of the Board’s wide ranging discretion.” Lu v. Ashcroft, 259

F.3d 127, 133 (3d Cir. 2001). Pursuant to Lu, we will affirm the

BIA’s denial of the motion to reopen for failure to comply with

the procedural requirements of Lozada.

Finally, Mudric challenges the IJ’s denial of his asylum

request, describing the IJ’s decision as “arbitrary and

capricious” and a “violation of due process.” Draping his claims

in the language of procedural due process, Mudric invites this

Court to regard his asylum challenge as one of constitutional

dimensions. Due process, however, only guarantees an alien in

asylum proceedings the opportunity to be heard “at a meaningful

time and in a meaningful manner.” Abdulai, 239 F.3d at 549

(quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). More

specifically, it entitled Mudric to (1) fact finding produced to the

IJ or BIA and disclosed to him; (2) the ability to make

arguments on his own behalf; and (3) an individualized

determination of his interests. Id. The record reflects that the

fact finding by the IJ in this case was disclosed to Mudric and

that he had the opportunity to make arguments on his own

behalf. In addition, the decision of the IJ in this case constituted

an individualized determination. Due process requires no more.

See id. at 550 (“[T]he question for due process purposes is not

whether the [IJ] reached the correct decision; rather it is simply

whether the [IJ] made an individualized determination of [the

alien’s] interest. . . .”).

It is apparent that Mudric’s denial of asylum claim,

stripped of the trappings of due process, is in fact a challenge to

12

the factual and discretionary determinations made by the IJ in

adjudicating the asylum claim. Normally, there would be no

question that we have jurisdiction to review such a claim on

direct petition for review under 8 U.S.C. § 1252. See, e.g., Gao

v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir. 2002); Dia, 353 F.3d

at 247. However, the jurisdictional analysis in this case is

somewhat more complicated because of the case’s atypical

procedural posture.5 The Government challenges our

longstanding authority to review factual and discretionary

determinations made by an IJ in relation to asylum claims. It

argues the REAL ID Act and our holding in Sukwanputra v.

Gonzales, 434 F.3d 627 (3d Cir. 2006), precludes us from

exercising jurisdiction over any factual and discretionary

determinations made in relation to asylum claims, whether the

claims are presented pursuant to a direct petition for review or

5

As previously noted, supra Part I, Mudric filed a petition

for review that was dismissed by this Court as untimely. The

petition for review now before us is a converted and transferred

habeas petition restating the same claims asserted in the time-

barred petition for review. Bearing in mind the judicial review

amendments of the REAL ID Act were enacted “to streamline

what the Congress saw as uncertain and piecemeal review of

orders of removal, divided between the district courts (habeas

corpus) and the courts of appeals (petitions for review),”

Bonhometre, 414 F.3d at 446, we look with disfavor on and do

not condone what appears to be in this case an attempt to get

more than “one bite at the apple.” Id. Because of the finite

number of cases transferred to us under the REAL ID Act, we

do not consider whether this second Petition for Review is

properly before us.

13

pursuant to transfer/conversion of a habeas petition. Such a

claim is overly broad, as the following discussion makes clear.

In Sukwanputra, we examined 8 U.S.C. § 1158, which

governs asylum requests, in light of jurisdictional modifications

made by the REAL ID Act. The petitioner had failed to file a

timely (within one year) petition for asylum. Under

§ 1158(a)(2)(D), a tardy application may only be considered if

the alien demonstrates to the satisfaction of the Attorney

General that an exception is warranted because of changed or

extraordinary circumstances. The petitioner challenged the IJ’s

determination that he did not qualify for an exception to the

one-year filing deadline. However, § 1158(a)(3) provides “[n]o

court shall have jurisdiction to review any determination of the

Attorney General under paragraph § 1158(a)(2).”

In determining whether we had jurisdiction to consider

the petitioner’s challenge, we noted that the REAL ID Act, by

adding 8 U.S.C. § 1252(a)(2)(D), had restored our jurisdiction

to hear constitutional claims and questions of law in a criminal

alien’s petition for review, but that all other

jurisdiction-stripping provisions of the INA remained intact,

including § 1158(a)(3). Therefore, we concluded that “despite

the changes of the REAL ID Act, 8 U.S.C. § 1158(a)(3)

continues to divest the court of appeals of jurisdiction to review

a decision regarding whether an alien established changed or

extraordinary circumstances that would excuse his untimely

filing.” Id. at 635. Sukwanputra thus stands for the limited

proposition that we continue to lack jurisdiction to review a

purely factual determination made by the BIA that exceptional

or changed circumstances do not exist under § 1158(a)(2)(D) to

14

justify waiving the § 1158(a)(2)(B) one year time limit for

making asylum requests.6

Because Mudric’s denial of asylum challenge is not a

challenge to an exceptional or changed circumstances

determination under § 1158(a)(2)(D), we retain jurisdiction to

review it under 8 U.S.C. § 1252. See, e.g., Gao v. Ashcroft, 299

F.3d 266, 272 (3d Cir. 2002); Dia, 353 F.3d at 247. Where the

BIA summarily affirms the findings of the IJ, we review the IJ’s

decision directly. Konan v. Att’y Gen., 432 F.3d 497, 500 (3d

Cir. 2005). Applying the substantial evidence standard, we must

uphold the IJ’s determination that Mudric was not eligible for

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

probative evidence on the record considered as a whole.” Dia,

353 F.3d at 248. When an IJ denies an asylum claim based in

part on an adverse credibility determination, as the IJ did in

Mudric’s case, we review that determination to ensure that it

“was appropriately based on inconsistent statements,

contradictory evidences, and inherently improbable testimony

. . . in view of the background evidence on country conditions.”

Id. at 249.

The IJ found that Mudric’s testimony conflicted with the

objective evidence on the record. Specifically, the IJ found

6

It would be peculiar and entirely inconsistent for us to

conclude that Sukwanputra stands for the proposition that we

lack jurisdiction to review the adverse credibility determinations

in the instant case, as in Sukwanputra itself we proceeded to

review adverse credibility determinations made by the IJ for

substantial evidence. 434 F.3d at 636-37.

15

Mudric’s testimony that he was a “marked man” because of his

past relationship with a Muslim woman lacked credibility as

country reports relied on by the IJ indicated that consorting

between different ethnic groups was quite common in the former

Yugoslavia in the years before the civil war.7 In addition, the IJ

found there was no credible basis for Mudric’s assertions that he

feared persecution for his alleged moral opposition to the civil

war and serving in the military. In support of this finding, the

IJ cited Mudric’s failure to seek an exemption from service

based on his moral convictions, which was available when

Mudric served in the military. He also noted Mudric’s failure to

provide any evidence that he had previously ever expressed any

sentiments against the war or serving in the military.

The IJ concluded that Mudric’s fear of returning to Serbia

arose from his desertion from the army. In turn, the IJ found

that the weight of the evidence suggested Mudric had deserted

the army not because he was morally opposed to war, but rather

to avoid danger to his life. As support for this conclusion, the

IJ pointed to the fact that Mudric had presented no evidence of

any opposition to service in the military in the past or evidence

7

In reciting the evidence supporting the IJ’s decision, we

find this particular detail troublesome. As religious, as well as

ethnic, hatred was at the center of the terrible civil conflict in the

former Yugoslavia, the possibility of persecution based on an

interfaith relationship before, during, and after the civil war

should probably have been explored more extensively by the IJ.

Nevertheless, there is still enough support for the IJ’s decision

such that we could not reverse it under our limited standard of

review.

16

that he expressed any substantial anti-war sentiments while in

Serbia. Based on these adverse credibility determinations, the

IJ concluded that Mudric had failed to demonstrate that he faced

a reasonable possibility of persecution on account of his race,

religion, nationality, membership in a political group, or

political opinion if he was returned to Serbia and thus denied his

asylum request.8

It is clear the IJ’s adverse credibility determinations in

this case were not “arbitrary and conjectural in nature,” Dia, 353

F.3d at 250, but supported by “specific and cogent reason[s].”

Gao, 299 F.3d at 275. They were based not on speculation, but

on objective evidence in the record. Such findings are entitled

to deference and as the IJ’s decision in this case was supported

by reasonable, substantial, and probative evidence on the record

considered as a whole, we must uphold it.

For the foregoing reasons, the petition will be denied.

8

Because Mudric failed to meet the eligibility

requirements for asylum he could not meet the more stringent

applicable standard for withholding of removal. See Janusiak

v. INS, 947 F.2d 46, 47 (3d Cir. 1991).

17