                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-24-2004

Milosevic v. Secretary Homeland
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1159




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"Milosevic v. Secretary Homeland" (2004). 2004 Decisions. Paper 118.
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                                                            NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 04-1159

                             SLOBODAN MILOSEVIC;
                               ROBIN MILOSEVIC

                                             v.

                       THOM AS RIDGE, SECRETARY, U.S.
                    DEPARTMENT OF HOMELAND SECURITY

                                     Slobodan Milosevic,

                                              Appellant


                    On appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             District Court No.: 03-CV-0993
                  District Judge: The Honorable W illiam W. Caldwell


                          Submitted pursuant to LAR 34.1(a)
                                 November 19, 2004


                     Before: ROTH and SMITH, Circuit Judges,
                         and DEBEVOISE,* District Judge

                              (Filed: November 24, 2004)


                             OPINION OF THE COURT




  *
   The Honorable Dickinson R. Debevoise, Senior United States District Judge for the
District of New Jersey, sitting by designation.
SMITH, Circuit Judge.

       Petitioner Slobodan Milosevic 1 appeals from the District Court’s judgment

denying his petition for a writ of habeas corpus under 28 U.S.C. § 2241. Appellate

jurisdiction exists under 28 U.S.C. §§ 1291 and 2253(a). We exercise de novo review of

“the District Court’s denial of habeas corpus relief and its interpretation of the applicable

statutes.” Gerbier v. Holmes, 280 F.3d 297, 302 (3d Cir. 2002).

       The District Court’s Memorandum thoroughly set forth the facts, and as we write

only for the parties, we need not fully recite them here. See Milosevic v. Ridge, 301

F.Supp.2d 337 (M.D. Pa. 2003). It is sufficient to note that Milosevic’s application for

asylum and withholding of removal was denied by the Board of Immigration Appeals

(“BIA”) on August 21, 2002. He was granted a thirty day period in which to depart

voluntarily, and was specifically notified that failure to do so would render him ineligible

for certain relief under the Immigration and Nationality Act (“INA”) for a period of ten

years. See 8 U.S.C. § 1229c (d). Instead of heeding this notice, Milosevic allowed his

departure date to pass. Almost two months later, he filed a timely motion to reopen,

presumably in hopes of obtaining an adjustment of status in light of his recent marriage.

       At some point thereafter, Milosevic was detained by the Bureau of Citizenship and




  1
    Cognizant that his name is familiar to many, petitioner advised, and we repeat, that he
“is not related in any way, either politically or by blood, to the former President of
Yugoslavia, now being tried for war crimes and crimes against humanity before the
International Court of Justice at the Hague, Netherlands.” Petitioner’s brief at 3 n.1.

                                              2
Immigration Services,2 prompting him to file a petition for habeas relief under 28 U.S.C.

§ 2241. M ilosevic asserted that his timely motion to reopen tolled his voluntary departure

deadline, thereby rendering the statutory bar to obtaining further relief under the INA

inapplicable. Recognizing that his position was inconsistent with a ruling by the BIA in

In re Shaar, 21 I. & N. Dec. 541 (BIA 1996), Milosevic argued that the BIA’s position

that tolling was unavailable violated his rights to due process and equal protection.

       In a well-reasoned memorandum, the District Judge rejected Milosevic’s

arguments. The District Judge concluded that tolling was not applicable because

Milosevic’s deadline for voluntary departure had already expired when he filed his

motion to reopen. For that reason, the Court determined that it did not need to decide

Milosevic’s constitutional challenges.

       Milosevic contends that the District Court erred. We disagree, and for

substantially the reasons stated by the District Judge we will affirm. Our conclusion is

consistent with our recent holding in Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 280 (3d

Cir. 2004). There, we held that “because Congress has not provided statutory authority

for appellate courts to reinstate or extend the voluntary departure period prescribed by an

IJ or the BIA, this Court lacks jurisdiction to reinstate Reynoso’s voluntary departure

period.” We observed that “[w]hether the relief sought . . . is characterized as a

  2
    The Bureau of Citizenship and Immigration Services is part of the Department of
Homeland Security. 6 U.S.C. § 271 (Supp. 2004). The functions of the former
Commissioner of Immigration and Naturalization were transferred to the Bureau under
the Homeland Security Act of 2002. Id.

                                             3
‘reinstatement and extension’ of the voluntary departure period or as a ‘tolling,’ the effect

is the same. The INA is clear that this type of relief may only be sought from the district

director.” Id. at 283 (citation omitted). Accordingly, we will affirm the judgment of the

District Court denying Milosevic’s § 2241 petition.
