                                                                                                                           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Precedential or Non-Precedential: Precedential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




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                                         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
