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


11-3-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4382




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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT




                        No. 04-4382


                     SULO RUGOVAC
                  a/k/a SULJA RUGOVAC
                  a/k/a SULJO RUGOVAC

                       Sulo Rugovac,

                                                Petitioner

                              v.

                 ATTORNEY GENERAL
                OF THE UNITED STATES,

                                                Respondent


        On petition for review of a decision and order
            of the Board of Immigration Appeals
                   (BIA No. A74-881-682)


         Submitted under Third Circuit LAR 34.1(a)
                     October 28, 2005

BEFORE: SLOVITER, FISHER and GREENBERG, Circuit Judges

                 (Filed: November 3, 2005)


                OPINION OF THE COURT
GREENBERG, Circuit Judge.

       This matter comes on before this court on a petition for review of a decision and

order of the Board of Immigration Appeals (“BIA”) dated October 26, 2004. The

petitioner, Sulo Rugovac, a native of Serbia and Montenegro, entered the United States

on March 20, 1997, without valid entry documents. Consequently, on March 21, 1997,

the former Immigration and Naturalization Service executed a notice to him to appear as

he was removable as an alien who had sought to enter the United States with fraudulent

documents in violation of section 212(a)(6)(C)(i) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. § 1182(a)(6)(c)(i), and also failed to possess either a valid immigrant

visa or a valid unexpired travel document in violation of section 212(a)(7)(A)(i)(I) of the

INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I).1

       At the ensuing hearing, Rugovac admitted the allegations against him, but sought

asylum and withholding of removal. The immigration judge on March 30, 1998, denied

his application, following which Rugovac appealed to the BIA, which dismissed his

appeal on December 6, 2002. Rugovac did not file a petition for review with this court at

that time.

       Instead, almost one and one half years later on June 1, 2004, Rugovac moved



   1
    When the proceedings in this case originated, the Immigration and Naturalization
Service, as an independent agency within the Department of Justice, administered the
enforcement functions of the Immigration and Nationality Act. It ceased to exist,
however, as an agency on March 1, 2003, and Congress transferred the INA’s
enforcement to the Department of Homeland Security.

                                             2
before the BIA to reopen his immigration proceedings, predicating his argument on

changed country conditions. See 8 C.F.R. § 1003.2(c)(3)(ii)(2005). He also contended

that the original decision in his case had been wrong. The BIA summarily rejected the

latter contention on the grounds that its first decision was administratively final, id. §

1003.1(d)(7)(2005), and that Rugovac had not filed a timely motion to reconsider its

decision, id. § 1003.2(b)(2)(2005).

       The BIA also rejected the changed country conditions contention as it viewed

Rugovac’s motion as being “based on the same set of facts as presented in his initial

asylum application.” It pointed out that Rugovac had “not provided any corroborating

evidence, such as affidavits from friends or family members or evidence that others

similarly situation in his native country would be persecuted on account of the protected

ground.” The BIA went on to explain that Rugovac had “not shown that the government

persecutes, rather than prosecutes military draft dodgers.” This point was particularly

significant as Rugovac objects to joining the military in his native country and seeks to

remain in this country to circumvent that duty. Following the BIA’s decision and order,

Rugovac filed his petition for review with this court.

       Rugovac raises two contentions in these proceedings:

       I. The BIA abused its discretion in determining that recent conditions in
       Serbia and Montenegro did not warrant reopening on the basis of
       circumstances that had arisen subsequent to the previous hearing.

       II. The BIA denied [him] his fifth amendment right to due process when it
       took administrative notice of country conditions without giving [him] an

                                               3
       opportunity to rebut it.

       After our consideration of this matter, we have found that there is substantial

evidence supporting the BIA’s conclusions. Thus, the BIA did not abuse its discretion in

denying the motion. Rugovac’s burden in these proceedings is high to the extent that he

challenges the BIA’s factual findings as we must uphold the BIA’s factual determinations

unless “any reasonable adjudicator would be compelled to conclude to the contrary.”

INA § 242(b)(4)(B), 8 U.S.C. § 1252(b)(4)(B); see Gao v. Ashcroft, 299 F.3d 266, 271

(3d Cir. 2002). We cannot conclude that his showing meets this standard. While we will

not summarize all of the evidence, we point out that an Amnesty International report

indicates that persons in Serbia and Montenegro who seek to perform civilian rather than

military service frequently are sent to psychiatrists who generally deem them unfit for

military service.2 Indeed, insofar as Amnesty International is aware, Serbia and

Montenegro tried only seven persons in 2002 for refusing to enter service as

conscientious objectors and only three received prison sentences. Such treatment hardly

is indicative of persecution.

       Finally we reject Rugovac’s due process contentions predicated on the BIA having

administratively noticed the State Department’s 2003 country report for Serbia and

Montenegro. The information from State Department country reports is very important,

   2
    We note that even though Rugovac claims to be a conscientious objector with respect
to military service, the extent of his objection to such service apparently is limited as he
indicates that he “did not want to kill his Albanian and Muslim brethren.” Petitioner’s br.
at 11.

                                             4
see Berishaj v. Ashcroft, 378 F.3d 314, 328-32 (3d Cir. 2004), and 8 C.F.R. §

1003.1(d)(3)(iv)(2005) is broad enough to allow the BIA to take administrative notice of

the reports as they are official documents. In view of the regulation and the

administrative practice in removal cases, Rugovac should have anticipated that the BIA

might take notice of the country report.3

       For the foregoing reasons, the petition for review will be denied.




   3
    We are not concerned here with a situation in which a court of appeals considers an
updated country report that had not been available to the BIA in which event we have
indicated that an “asylum claimant should have the opportunity to challenge the updated
country report that the government would rely on.” Berishaj, 378 F.3d at 330.

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