                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2005

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Precedential or Non-Precedential: Precedential

Docket No. 03-4193




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                                      PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 03-4193


              ZELJKO PARIPOVIC

                                    Petitioner

                         v.

 *ALBERTO R. GONZALES, ATTORNEY GENERAL
     OF THE UNITED STATES OF AMERICA,

                                    Respondent

         * Substituted pursuant to Rule 43c, F.R.A.P.


      On Appeal from an Order entered before
        The Board of Immigration Appeals
               (No. A72-780-152)


            Argued December 13, 2004

Before: AMBRO, VAN ANTWERPEN and STAPLETON,
                 Circuit Judges
             (Opinion filed August 12, 2005 )

Sunit K. Joshi, Esquire (Argued)
Sokol Braha, Esquire
Joshi & Associates, P.C.
225 Broadway, Suite 705
New York, NY 10007

      Attorneys for Petitioner

Peter D. Keisler
  Assistant Attorney General
Civil Division
Richard M. Evans
  Assistant Director
Douglas Ginsburg, Esquire
John D. Williams, Esquire
David E. Dauenheimer, Esquire (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044

      Attorneys for Respondent




                OPINION OF THE COURT



                                 2
AMBRO, Circuit Judge

        Zeljko Paripovic (“Paripovic”) petitions for review of an
order of the Board of Immigration Appeals (“BIA”) affirming
the denial by an Immigration Judge (“IJ”) of his application for
asylum and withholding of deportation. We deny the petition
(except as to the designation of Croatia as the alternate country
for deportation). In so doing, we decide what is for us an issue
of first impression – the meaning of “last habitually resided”
under 8 U.S.C. § 1101(a)(42) for a “stateless” individual.

             I.   Facts and Procedural History

       Paripovic is an ethnic Serb born in Croatia in 1964.
Although he holds a birth certificate naming Croatia as his
birthplace, Paripovic conceded before the IJ that he was
rendered stateless by the dissolution of the former Yugoslavia
in 1992, and much of the parties’ dispute is centered on whether
his claims should be analyzed with Croatia or Serbia as the
frame of reference.1

       Turning first to his claims related to persecution in




       1
       The Republic of Croatia declared independence from the
former Yugoslavia in June of 1991.

                               3
Croatia 2 , Paripovic testified before the IJ that in October 1990
he was caught in a police round-up of Serbian men and boys.
The police detained him in a camp for one month, where he and
others were “torture[d],” “harassed,” and beaten.
Approximately eleven months later, Croatian soldiers came to
Paripovic’s village and told the Serbs to “leave the country.”
Fearing that the ruling government was in the process of
carrying out the objective of making the country “pure
Croatian,” Paripovic and his parents fled to Serbia in August
1991. At some point during their flight, Paripovic and his
mother were separated from his father. (They never saw nor
heard from him again.)

        In Serbia, Paripovic and his mother lived in an old
schoolhouse that served as part of a refugee camp. Although
conditions were poor, there is no indication that Paripovic was
beaten, tortured, or threatened. He was free to leave the camp
at any time, but he had “no place to go.” When military police
began recruiting refugees to fight in Croatia, he fled Serbia in


       2
        Two of those claims can be dealt with summarily.
Paripovic argues in his brief that he is entitled to a humanitarian
grant of asylum based on the severity of his past persecution
alone. At oral argument, counsel agreed that this claim is not
properly before us, as it was not raised before the agency. See
Abdulrahman v. Ashcroft, 330 F.3d 587, 594 (3d Cir. 2003). He
also agreed that no claim under the Convention Against Torture
is before us.

                                4
December 1993 to avoid being conscripted.

        Paripovic entered the United States at Puerto Rico
without inspection in January 1994. Within days he was placed
in deportation proceedings. Conceding deportability, Paripovic
filed an application for asylum and withholding of deportation.
The IJ denied his application, and Paripovic appealed to the
BIA. Without discussing the merits of the appeal, the BIA
remanded the matter to the Immigration Court in December
2000 because portions of the transcript were missing (or never
made).

        On remand, Paripovic’s case was transferred to the
Immigration Court in Newark, New Jersey. At a hearing in
April 2001, the IJ decided, with Paripovic’s consent, to examine
his claims anew. The IJ set a hearing date for June 20, 2001, but
on that date Paripovic requested a continuance. The IJ granted
it and advised Paripovic that if he intended to call a witness to
testify about current conditions in Croatia and Serbia, that
witness should be an expert. The case was continued several
times more, ultimately being heard in January 2002.

        At that hearing, Paripovic asked again for an adjournment
of the proceedings because the expert witness he intended to call
was in Bosnia. The IJ denied the request. Turning to the merits,
the IJ found that Paripovic was generally credible. The IJ
agreed with Paripovic that the treatment of Serbs in Croatia was
“discriminatory” and in many cases “involved acts of

                               5
persecution.” This credibility finding notwithstanding, the IJ
determined that Paripovic was not a refugee. In making this
determination, because Paripovic was a stateless individual, the
IJ inquired about the country in which he had “last habitually
resided” to determine whether he would face persecution in that
location, 8 U.S.C. § 1101(a)(42)(A), and determined that Serbia
was that country.

        Because Paripovic’s objection to being returned to Serbia
was that he might be drafted to fight in a civil war and there was
no longer ongoing conflict, his objection was no longer valid to
the IJ, who concluded that Paripovic had no legitimate fear of
persecution or torture in Serbia. The IJ issued a deportation
order designating Serbia as the primary deportation country and
Croatia as the alternate.3




       3
        At oral argument, counsel for the Government conceded
that the alternate designation of Croatia was in error. With
respect to persecution in Croatia, the IJ made no formal
findings, but “agree[d] that the treatment of Serbs in Croatia . .
. in many cases involves actions of persecution. The Court is
inclined to believe the testimony of [Paripovic] overall in terms
of his experiences in Croatia.” Because there is no indication at
this time that Paripovic will be deported to Croatia, we do not
remand for consideration of this issue, but will grant his petition
insofar as it seeks to vacate the alternate designation of Croatia.


                                6
       The BIA dismissed Paripovic’s appeal in September
2003. It concluded that his contention that the IJ erred in not
granting the continuance was “without merit” (as the expert
witness could have provided testimony in the form of an
affidavit), and it otherwise adopted the IJ’s decision.

                  II.    Standard of Review

        Because Paripovic’s deportation proceedings began prior
to April 1, 1997, our jurisdiction arises from the former
Immigration and Nationality Act (“INA”) § 106, 8 U.S.C.
§ 1105a, and is governed by the transitional rules of § 309(c) of
the Illegal Immigration Reform and Immigrant Responsibility
Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009
(Sept. 30, 1996).

        In a slightly different context, we have concluded that the
determination of habitual residence is a mixed question of law
and fact. See Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir. 2003)
(determining a child’s “habitual residence” under the Hague
Convention on the Civil Aspects of International Child
Abduction by reviewing the district court’s conclusion as a
mixed question of law and fact). Although in Najjar v. Ashcroft,
257 F.3d 1262, 1294 (11th Cir. 2001), the Court reviewed the
agency’s last habitual residence determination based on the
substantial evidence standard, no question of statutory
interpretation was presented and the dispute was strictly based
on the factual findings. Because the last habitual residence issue

                                7
can be resolved in our case only by both determining the facts of
the case and deciding what the applicable law means, we review
the determination under a mixed standard of review. Review of
the BIA’s legal conclusions is de novo, with appropriate
deference to the agency’s interpretation of the underlying statute
in accordance with administrative law principles. Abdulai, 239
F.3d 542, 551-52 (3d Cir. 2001).4             Regarding factual


       4
          It is well-settled that the BIA’s interpretation and
application of immigration law are subject to deference under
the principles of Chevron U.S.A., Inc. v. Natural Resource
Defense Council, Inc., 467 U.S. 837, 842-43 (1984). See Tineo
v. Ashcroft, 350 F.3d 382, 396 (3d Cir. 2003) (citing INS v.
Aguirre-Aguirre, 526 U.S. 415, 424 (1999)). The issue of
whether deference may be due here is complicated slightly by
the consideration that the BIA did not include a statement
explaining its interpretation of § 1101(a)(42)(A). Rather, citing
Matter of Burbano, 20 I.&N. Dec. 872, 874 (BIA 1994), it
expressly adopted the IJ’s decision. See Tchoukhrova v.
Gonzales, 404 F.3d 1181, 1188 (9th Cir. 2005) (explaining that
“[w]hen the BIA does not express any disagreement with any
part of the immigration judge’s decision, but instead cites
Burbano, the BIA adopts his decision in its entirety.”); Gishta
v. Gonzales, 404 F.3d 972, 980 (6th Cir. 2005) (explaining that
citation of [Burbano] . . . does not mean that the [BIA] did not
exercise its independent review authority over the case, but
rather . . . [it] adopts or affirms the immigration judge’s decision
when it is “in agreement with the reasoning and result of that
decision” (quoting Burbano, 20 I. & N. Dec. at 874)).

                                 8
        When the BIA has affirmed without opinion the decision
of the IJ under 8 C.F.R. § 1003.1(e)(4)(ii), we have previously
doubted whether its affirmance is entitled to deference. See
Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d Cir. 2004) (“[I]t
would seem to be, at the very least, an open question as to
whether an IJ’s decision affirmed through the streamlining
process would be entitled to Chevron deference. . . . [D]eferring
to the reasoning of an IJ from which the BIA would be free to
depart in other cases would seem highly problematic.”). A
Burbano affirmance, however, significantly differs from a
streamlining decision under 8 C.F.R. § 1003.1(e)(4)(ii), which
“approves the result reached in the decision below[, but] does
not necessarily imply approval of all of the reasoning of that
decision.” In Burbano, the BIA concluded that its

       independent review authority does not preclude
       [it] from adopting or affirming a decision of the
       immigration judge, in whole or in part, when we
       are in agreement with the reasoning and result of
       that decision. In this situation, the Board’s final
       decision may be rendered in a summary fashion;
       however, such summary treatment of a case does
       not mean that we have conducted an abbreviated
       review of the record or have failed to exercise our
       own discretion.

Burbano, 20 I. & N. Dec. at 874 (emphasis added). Given that
the BIA has indicated that its analysis has not been truncated,
and approves both the IJ’s reasoning as well as the result, the

                               9
determinations, we affirm findings of fact supported by
substantial evidence. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d
Cir. 2001). We are thus bound by the administrative findings of
fact unless a reasonable adjudicator would be compelled to
arrive at a contrary conclusion. 8 U.S.C. § 1252(b)(4)(B); see
also Abdille, 242 F.3d at 483.

                        III.   Analysis

               A.     Last Habitual Residence

        “A grant of asylum allows an otherwise-removable alien
to stay in the United States.” Abdulai, 239 F.3d at 545. “Subject
to numerous exceptions not implicated in this case, the Attorney
General may grant asylum to an alien he determines to be a
refugee.” Id. (internal citation omitted). A “refugee” is defined
as

       any 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 protection of, that country because of


decision is entitled to deference.


                               10
      persecution or a well-founded fear of persecution
      on account of race, religion, nationality,
      membership in a particular social group, or
      political opinion.

8 U.S.C. § 1101(a)(42) (emphasis added). Paripovic argued
below—and the IJ accepted—that Paripovic is a “stateless”
individual. He strenuously argues that the IJ should have
determined that he last habitually resided in Croatia.

      The IJ reasoned:

      In this case the Court determines that the
      respondent last habitually resided in Serbia. He
      resided in Serbia from August of 1991 to
      December of 1993.          The Immigration and
      Nationality Act defines the concept of residence
      and it states the “term residence means the place
      of general abode; the place of general abode of a
      person means his principal, actual dwelling place
      in fact, without regard to intent.” Particularly
      relevant there in this definition is the issue of
      intent. The respondent may well not have
      intended to stay in a refugee camp his whole life,
      but the Court feels that the amount of time he
      spent there makes it fairly clear that his last place
      of habitual residence was Serbia.



                               11
Under Chevron, we must determine whether “the statute is silent
or ambiguous with respect to the specific issue,” and, if so,
“whether the agency’s answer is based on a permissible
construction of the statute.” Chevron, 467 U.S. at 843; see also
Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir. 2005). Here, the
INA states that an individual’s refugee status shall be
determined “in the case of a person having no nationality” by his
or her relationship with the “country in which such person last
habitually resided,” § 1101(a)(42), but it nowhere clarifies the
meaning of “last habitually resided.” Given the silence as to the
meaning on this specific issue, we consider whether the answer
is based on a permissible construction of the statute.

       Though “last habitually resided” is undefined, the INA
does define the term “residence” as “the place of general abode;
the place of general abode of a person means his principal,
actual dwelling place in fact, without regard to intent,” 8 U.S.C.
§ 1101(a)(33); cf. 8 C.F.R. § 214.7(4)(i) (defining “habitual
residence” for determining citizenship of the territories and
possessions of the United States as the “place of general abode
or a principal, actual dwelling place of a continuing or lasting
nature”). It was for this reason that the IJ concluded that
Paripovic’s intent was irrelevant to the analysis. Paripovic
argues that it was not his choice to live in Serbia, and therefore
it should not be deemed to be his place of last habitual
residence. This argument, however, essentially replaces the
notion of “intent” with the concept of “choice.” They are too
similar to provide a basis for concluding that the IJ, given due

                               12
deference, erred in his analysis.

        Although the IJ does not expressly define “habitual,” his
reasoning makes clear that he understood this term to relate to
the “amount of time [Paripovic] spent there.” “Habitual” may
be defined as “established by long use” or “usual.” See Chen v.
Mayflower Transit, Inc., 315 F. Supp. 2d 886, 911 n.22 (N.D.
Ill. 2004) (citing The American Heritage College Dictionary 609
(3d ed. 2000) (defining “habitual” as, inter alia, “[e]stablished
by long use; usual”)). Thus it was permissible (if not necessary)
for the IJ to consider the duration of time that Paripovic lived in
Serbia.

        Having concluded that the IJ’s interpretation of the
statute was permissible, we next consider whether his factual
findings were supported by substantial evidence. There is no
dispute that Paripovic resided in Serbia for more than two years
in a permanent (or at least semi-permanent) dwelling. These
facts are sufficient given our narrow standard of review.

       Lastly, Paripovic argues that the fact that he lived in
Serbia under duress negates the “habitual” finding. There is no
evidence, however, that he was prevented from leaving Serbia,
and as a result we cannot say we are compelled to reach a
contrary conclusion.      Thus, the last habitual residence
determination by the IJ is supported by substantial evidence.




                                13
                  B.    Persecution in Serbia

        Because the IJ properly determined that Serbia is
Paripovic’s country of last habitual residence, we analyze his
asylum and withholding of deportation claims as they relate to
that country. To establish eligibility for asylum on the basis of
past persecution, an applicant must show, inter alia, an incident
(or incidents) that rise to the level of persecution or a well-
founded fear of future persecution. Abdulrahman v. Ashcroft,
330 F.3d 587, 592 (3d Cir. 2003); 8 U.S.C. § 1101(a)(42)(A).
Turning first to past persecution, Paripovic contends that the
efforts of the military police to conscript him to fight in Croatia
is such persecution, but we have explained that it is “generally
accepted ‘that a sovereign nation enjoys the right to enforce its
laws of conscription, and that penalties for evasion are not
considered persecution.’” Lukwago v. Ashcroft, 329 F.3d 157,
168-69 (3d Cir. 2003) (quoting M.A. v. INS, 899 F.2d 304, 312
(4th Cir. 1990) (en banc)); see also Ambartsoumian v. Ashcroft,
388 F.3d 85, 93 (3d Cir. 2004) (“[C]conscription by a sovereign
nation cannot constitute persecution under 8 U.S.C. §
1101(a)(42)).

         In addition, though Paripovic argued before the IJ and
BIA that Serbia may forcibly remove him to Croatia, there is
little evidence in the record to support this argument, and in any
event there is contrary evidence on which the IJ relied. He also
determined that the draft was no longer in effect, and this
determination has not been challenged before us. Thus, the

                                14
conclusion that Paripovic neither was persecuted nor has a well-
founded fear of persecution in Serbia is supported by substantial
evidence. Moreover, because he failed to establish eligibility for
asylum, Paripovic necessarily also failed to meet the more
stringent standard for showing a “clear probability of
persecution” to be eligible for withholding of deportation.
Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir., 2004)
(quoting INS v. Stevic, 467 U.S. 407, 420 n.13 (1984).5




       5
         At the January 2002 hearing (at which time his case had
been pending for approximately eight years), the IJ denied
Paripovic’s last-minute request for continuance due to his
expert’s unavailability.      In view of the multiple prior
continuances, the fact that the IJ had advised Paripovic about the
desirability of expert testimony, and the lack of any explanation
for why counsel had failed to raise the expert’s unavailability
prior to the day of the hearing when he seemingly should have
known to do so, we cannot say that the refusal to continue the
hearing violated Paripovic’s right to procedural due process.
Cf. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003)
(holding that denial of counsel’s request for continuance and
then proceeding with asylum hearing without counsel, where
counsel requested continuance only two days before hearing
and failed to explain his absence, was not an abuse of
discretion).


                               15
                        *   *   *    *   *

         Accordingly, we grant Paripovic’s petition to the extent
that it seeks to vacate the designation of Croatia as the alternate
country for deportation, and deny the petition in all other
respects.




                                16
