                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-27-2006

Djokovic v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2270




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                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                     NO. 06-2270
                                  ________________

                               SKENDER DJOKOVIC,

                                       Petitioner

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                   Respondent
                      ___________________________________

                       On Petition for Review of a Decision of
                          the Board of Immigration Appeals
                           Immigration Judge Annie Garcy
                              (Agency No. A78 203 087)
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                DECEMBER 22, 2006

      BEFORE:       SLOVITER, MCKEE AND AMBRO, CIRCUIT JUDGES

                              (Filed December 27, 2006)

                              _______________________

                                      OPINION
                              _______________________
PER CURIAM

      Skender Djokovic, a native of the former Yugoslavia and a citizen of Serbia-

Montenegro, appeals a final order of removal. We will affirm the order of the Board of

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Immigration Appeals (“BIA”).

       Djokovic came to the United States in 1999 and filed a timely application for

asylum and withholding of removal. The asylum office did not refer Djokovic’s case to

the Immigration Court until 2004, when a notice to appear was issued. At an immigration

hearing, Djokovic conceded, through counsel, that he is removable for being present here

without being admitted or paroled. In addition to asylum and withholding of removal,

Djokovic sought relief under the Convention Against Torture.

       In support of his applications for relief from removal, Djokovic testified that he

was summoned for military duty in 1998. A captain told him that he would be sent to

Kosovo. Djokovic told the captain that he would report for duty but then fled. Djokovic,

who testified that he is Albanian, objected to serving in the military because it was

sending soldiers to Kosovo to kill Albanians. Djokovic lived with his aunt for two

months. During this time, the military police looked for him at his parents’ house. The

police took his parents to a military base and questioned them about his whereabouts.

Djokovic then stayed with a relative in Bosnia for approximately six months. The

military police continued to look for him. Djokovic left Bosnia with the help of

smugglers and ultimately arrived in the United States.

       Djokovic’s parents received a summons for Djokovic to report for military duty in

2004. Djokovic testified that he did not want to serve because the officers who were in

power in 1998 were still in command. Djokovic also stated that he feared that he would

be arrested and harmed if he returned to Serbia-Montenegro because he did not report for

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military duty in 1998. He stated that his relative who returned to attend a funeral was

arrested.

       The Immigration Judge (“IJ”) denied Djokovic’s applications for asylum and

withholding of removal. The IJ concluded that Djokovic evaded any past persecution by

avoiding the draft, and that his additional complaints of harassment based upon his

Albanian ethnicity did not rise to the level of persecution.

       The IJ also ruled that Djokovic did not establish a fear of future persecution based

upon his avoidance of the draft. The IJ recognized that Djokovic could be lawfully

conscripted if removed, but noted that the combat in Kosovo no longer existed, and there

was no evidence that the present military officers would order Djokovic to commit human

rights violations. The IJ stated that Djokovic was not a conscientious objector because he

only opposed the combat in Kosovo. The IJ also recognized that Djokovic could be

prosecuted and imprisoned because he evaded the draft, but found no evidence that he

would be punished more severely than other draft evaders.

       The IJ also ruled that Djokovic did not establish a fear of future persecution based

upon his Albanian ethnicity. The IJ concluded that Djokovic did not establish that he

was, in fact, Albanian. In addition, the IJ stated that the record only established

discrimination against Albanians.1

       The BIA dismissed Djokovic’s appeal. The BIA agreed with the IJ that Djokovic


   1
    The IJ also denied Djokovic relief under the Convention Against Torture. This ruling
is not at issue on appeal.

                                              3
did not establish that he was a conscientious objector. The BIA also agreed,

notwithstanding Djokovic’s credibility, that he did not satisfy his burden of proof.

Finally, the BIA noted that it lacked jurisdiction to consider Djokovic’s claim that his due

process rights were violated based upon the delay in adjudicating his asylum application.

       Djokovic filed a pro se petition for review. We have jurisdiction pursuant to 8

U.S.C. § 1252(a). Djokovic presents four arguments on appeal.

       First, Djokovic contends, as he did before the BIA, that his due process rights were

violated based upon the four-year delay in adjudicating his asylum application, and the

fact that conditions in Serbia-Montenegro changed during that time. Under 8 U.S.C.

§ 1252(g), however, courts lack jurisdiction “to hear any cause or claim by . . . any alien

arising from the decision or action by the Attorney General to commence proceedings,

adjudicate cases, or execute removal orders against any alien under this chapter.”

Because Djokovic’s claim arises out of the decision to commence removal proceedings in

2004, the Government correctly argues that we lack jurisdiction to entertain it. See Reno

v. American-Arab Anti-Discrimination Comm., et al., 525 U.S. 471, 487 (1999) (holding

court lacked jurisdiction over aliens’ claim that the INS selectively enforced the

immigration laws against them); Chapinski v. Ziglar, 278 F.3d 718, 721-22 (7th Cir.

2002) (holding § 1252(g) barred suit seeking to compel the INS to process applications

for lawful permanent residency status).

       Djokovic’s second and third arguments are related. Djokovic contends that the

IJ’s credibility determination was confusing, and resulted in an erroneous requirement

                                             4
that he present corroborating evidence of his Albanian ethnicity. The IJ stated that

Djokovic was credible but not convincing in establishing his ethnicity. The IJ’s

skepticism was based upon the fact that Djokovic did not testify in the Albanian language

at the hearing or speak Albanian at the asylum office.

       We agree with Djokovic that the IJ’s doubts about his ethnicity are unfounded.

Djokovic explained that he spoke Albanian at home in the former Yugoslavia, but he

spoke Serbo-Croatian in school. Djokovic stated that he was more comfortable with the

Serbo-Croatian language because he studied it, and that he spoke Serbo-Croatian with the

uncle with whom he lived in the United States. Djokovic, however, was not prejudiced

by the IJ’s finding because the IJ addressed Djokovic’s claims based upon his Albanian

ethnicity, and correctly concluded that Djokovic did not establish past persecution or a

well-founded fear of future persecution.

       Lastly, Djokovic argues that the IJ erred in concluding that he was not a

conscientious objector. Even if Djokovic could be deemed a conscientious objector, he

would not necessarily be a refugee for purposes of asylum. An alien must establish that

punishment for the failure to serve is on account of the alien’s beliefs, not just the failure

to perform a legal duty. Ilchuk v. Attorney General, 434 F.3d 618, 626 (3d Cir. 2006).

Djokovic has not made such a showing.

       Djokovic appears to argue that he qualifies as a refugee because he did not want to

serve in an army that was known internationally to commit serious human rights abuses.

While other courts have recognized this as a basis for refugee status, see id. at 625, we do

                                               5
not decide whether Djokovic established past persecution because, even if he did, the

changed country conditions in Serbia-Montenegro rebut any presumption of future

persecution. The record establishes that the war in Kosovo has ended, the government

has changed, and there has been “sweeping reform” of the military. A.R. at 359; see also

Islami v. Gonzales, 412 F.3d 391, 398 (2d Cir. 2005) (holding that presumption of future

persecution of an Albanian who fled Yugoslavia to avoid the draft was rebutted by

evidence that the Serb domination of Kosovo has ended).

      Accordingly, we will deny the petition for review.




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