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


2-25-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3220




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                                                            NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                    No. 02-3220


                                 DIMO GOLCEV,
                                           Petitioner
                                      v.

                              JOHN ASHCROFT,
                       Attorney General of the United States


                                    No. 02-3221


                               CVETA GOLCEVA,
                                          Petitioner
                                     v.

                              JOHN ASHCROFT,
                       Attorney General of the United States


                       On Petitions for Review of the Orders
                       of the Board of Immigration Appeals
                        (Nos. A73-176-997, A73-169-065)


                    Submitted Under Third Circuit LAR 34.1(a)
                                 June 26, 2003

          Before: SLOVITER, AMBRO, and TUCKER*, Circuit Judges




*   Hon. Petrese B. Tucker, United States District Court for the Eastern District of
    Pennsylvania, sitting by designation.
                                 (Filed: February 25, 2004 )




                                OPINION OF THE COURT


SLOVITER, Circuit Judge.

       Cveta Golceva and her son Dimo Golcev petition for review of orders of the Board

of Immigration Appeals (“BIA”) affirming, without opinion, the Immigration Judge’s

(“IJ”) decision denying their applications for asylum and withholding of deportation.

After consideration of the record, we will deny their petitions for review. Because we

write for the parties, we set forth only the facts relevant to our discussion.

                                               I.

                                      BACKGROUND

       Cveta and Dimo Golcev are natives of Yugoslavia and citizens of The former

Yugoslav Republic of M acedonia. They entered the United States lawfully as visitors in

1993 but overstayed their permission. The INS initiated deportation proceedings in 1996.

With the parties’ consent, their cases were consolidated before the IJ.

       The petitioners have conceded that they remained here longer than permitted and

the IJ found them deportable. They requested asylum, withholding of deportation and

voluntary departure. The IJ denied asylum and withholding of deportation in December

1997 and granted voluntary departure by July 15, 1998. The BIA affirmed the IJ’s

decision, without opinion, in 2002.

                                               2
       At the hearing before the IJ, Cveta Golceva (“Ms. Golceva”) testified that she was

seeking asylum because her neighbors were mostly Albanian Muslims who threatened her

and wanted her to sell her house for a low price. Ms. Golceva testified that she was

attacked one night on the street and that she believes the attacker was one of her Albanian

neighbors. She did not hear the attacker say anything except “now.” She came to the

United States several months later. She still owns her house in Macedonia but is afraid to

return because of the tensions between Albanians and Macedonians.

       The IJ noted that Ms. Golceva did not mention the attack in the initial asylum

application that she filed upon her arrival here but included it in a supplemental

application filed after she consulted with a lawyer. Ms. Golceva submitted a medical

certificate to substantiate her assault, which reflects that she told her treating physician

that the attacker was Albanian, and a police report indicating that the identity of the

attacker is unknown. The IJ questioned the genuineness of the police report because it is

undated and the IJ gave it little, if any, weight. Based upon the medical certificate,

however, the IJ found that M s. Golceva was assaulted on one occasion.

       The IJ concluded that the assault, and Ms. Golceva’s fears as a result of the

assault, are insufficient to establish a well-founded fear of future persecution. Because

Ms. Golceva did not mention the attack in her initial application, the IJ questioned her

credibility. The IJ also explained that because the police were investigating the crime,

Ms. Golceva did not establish that the attacker is a person whom the government is



                                               3
unable or unwilling to control. In addition, the IJ stated that Ms. Golceva submitted no

evidence to support her belief that there is a general condition of persecution against

Christians by the Albanian or Muslim minority in Macedonia. The country report only

reflects that there are tensions between the Macedonians and the Albanians. The IJ stated

that Ms. Golceva had no further problems after she moved to her daughter’s home in

another part of the country.

       The IJ also concluded that Ms. Golceva did not establish past persecution because

there was no convincing testimony that the individual who attacked her was connected

with the neighbors who wanted her to sell her home, or that the assault was based on M s.

Golceva’s political opinion, nationality, race, religion or membership in a particular social

group. The IJ further stated that even if Ms. Golceva were assaulted because she is

Christian, the assault was not severe enough to rise to the level of persecution. In other

words, although Ms. Golceva was the victim of a crime, she did not establish that she was

persecuted.

       The other petitioner, Dimo Golcev, testified that he had difficulties with Albanian

Muslims because he is Christian. He explained that he had oral confrontations with

Albanian Muslims when he was a student, that the Albanians were “taking over the

place” and that they forced people to sell their homes. Admin. Rec. at 116. He testified

that he still has family that lives in Macedonia, and that he was afraid to return there

because he would be drafted into the military and may have to fight in a war. Dimo



                                              4
testified that his father came to the United States in 1985 and that he came here because

his father was here. He did not mention his problems with Albanian Muslims in the

initial asylum application that he filed upon his arrival here but included them in a

supplemental application.

       The IJ concluded that Dimo did not have a well-founded fear of persecution.

Noting that she found Dimo’s testimony “a bit racist” in that he stated that there are

problems in Macedonia because Albanians are coming in and generally trying to have an

identity in the country, the IJ explained that the fact that there is a diverse population in

Macedonia does not support an asylum application. Admin. Rec. at 63. The IJ concluded

that fear of persecution by the minority Albanian population is not a well-founded fear,

and that the historic tensions between the Macedonian and the Albanian populations

referred to in the Department of State report do not establish persecution.

       In regard to his fear of serving in the Macedonian military, the IJ stated that there

have been repeated wars in the area where Dimo is from but that there is no present

conflict, and that there is no evidence that the Macedonian army engages in human rights

violations. The IJ concluded that the fear expressed by Dimo does not support an asylum

claim because a country has a right to conscript its population and conscription is not an

act of persecution. Finally, the IJ found Dimo’s testimony that Albanian Muslims

harassed him too vague to warrant granting asylum, and that there is no evidence of a

pattern or practice of persecution.



                                               5
      Although she denied the applications for asylum and withholding of deportation,

the IJ granted the applications for voluntary departure because the INS did not oppose

them, both Ms. Golceva and Dimo have lived in the United States for a number of years

without any misconduct, they have waited many years for the INS to adjudicate their

applications, and they needed time to make arrangements to leave.

      The BIA affirmed without opinion pursuant to 8 C.F.R. § 3.1(a)(7). Ms. Golceva

and Dimo each filed a petition for review raising the same issues:

             1.     Whether the Immigration Judge erred by denying the
                    petitioner’s application for asylum and for withholding
                    of removal pursuant to sections 208 and 241(b)(3) of
                    the Immigration and Nationality Act, compounded by
                    the decision of the Board of Immigration Appeals
                    affirming the Immigration Judge.

             2.     The Board abused its discretion and violated
                    petitioner’s due process rights by affirming, without
                    opinion, the decision below.


                                            II.

                   JURISDICTION AND STANDARD OF REVIEW

      The BIA had jurisdiction to review the IJ’s decision under 8 C.F.R. § 3.1(b). This

court has jurisdiction pursuant to 8 U.S.C. §§ 1105a, 1252.

      Generally, the court reviews decisions of the BIA. Gao v. Ashcroft, 299 F.3d 266,

271 (3d Cir. 2002). However, when the BIA either defers to or adopts the opinion of the

IJ, the court must review the IJ’s decision. Id. Although the BIA has not adopted the



                                            6
IJ’s decision, its affirmance pursuant to 8 C.F.R. § 3.1(a)(7) makes the IJ’s decision the

final agency decision. Thus, we must review the IJ’s decision.

       We review the IJ’s findings of fact under a substantial evidence standard. Abdille

v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001). Under this standard, the IJ’s findings must

be upheld unless the evidence not only supports a contrary conclusion, but compels it. Id.

at 483-84. The issue of whether the BIA’s decision violated the petitioners’ due process

rights is a legal question that we review de novo. Ezeagwuna v. Ashcroft, 325 F.3d 396,

405 (3d Cir. 2003).

                                             III.

                                       DISCUSSION

       A.    Denial of Asylum and Withholding of Removal

       Section 208(a) of the INA provides that the Attorney General may grant asylum to

an alien he determines is a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8

U.S.C. § 1158(b)(1). A refugee is defined as a person unable or unwilling to return to his

or her country of origin “because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social group, or political

opinion.” § 1101(a)(42)(A). In addition, the Attorney General must withhold removal if

an alien shows a “clear probability” that, upon return to his home country, his “life or

freedom would be threatened” on account of race, religion, nationality, membership in a

particular social group or political opinion. INS v. Stevic, 467 U.S. 407, 411-13 (1983)



                                              7
(internal quotation and citation omitted).

       Petitioners argue that they satisfied the statutory requirements for asylum and

withholding of removal. Although they do not point to any specific testimony in the

record, they contend that they testified in as much detail as possible about their fears from

the mistreatment inflicted upon them by the Albanian Muslims. They contend that their

testimony and the country reports support their applications. Petitioners also argue that

the IJ improperly required that they submit corroborative evidence in addition to their

testimony.

       The IJ’s decision denying Ms. Golceva’s application for asylum and withholding

of deportation is supported by substantial evidence. The IJ reasonably questioned

whether the assault was a credible basis for asylum in light of Ms. Golceva’s failure to

mention the incident in her initial asylum application. In addition, there is no evidence

that the assault was motivated by religion, and the country report does not reflect a pattern

or practice of persecution of Christians by Albanians in M acedonia. M oreover, there is

no support for petitioner’s argument that the IJ improperly required her to provide

corroborating evidence. Instead, the IJ found the evidence she presented was insufficient

to establish past persecution or a well-founded fear of future persecution.

       Similarly, the IJ’s decision denying Dimo’s application for asylum and

withholding of deportation is supported by substantial evidence. Dimo does not claim

past persecution. His earlier disputes with Albanian Muslims are insufficient to establish



                                              8
a well-founded fear of future persecution, as is his fear of serving in the military. A

nation’s requirement that its citizens serve in the military is not persecution. Castillo v.

INS, 951 F.2d 1117, 1122 (9th Cir. 1991). In addition, for the reasons stated above with

respect to Ms. Golceva’s application, Dimo’s arguments that Muslims are engaged in a

pattern or practice of persecution against Christians, and that the IJ improperly required

that he present corroborating evidence, are without merit.

       B.    Due Process Violation

       Petitioners’ argue that the BIA violated their due process rights by affirming,

without opinion, the IJ’s decision. This argument was recently rejected by the en banc

court in Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc), where we upheld the

constitutionality of the streamlining procedure used by the BIA here. We are bound by

that decision.

                                             IV.

                                       CONCLUSION

       For the reasons set forth above, we will deny the petitions for review.

______________________

TO THE CLERK:

       Please file the foregoing opinion.

                                            /s/ Dolores K. Sloviter
                                            Circuit Judge




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