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


8-2-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3726




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 04-3726


                     SEAD JAHIC; SELMA JAHIC; AMAR JAHIC,
                                            Petitioners
                                       v.

                       ALBERTO GONZALES,* Attorney General
                               of the United States,
                                                Respondent


                     PETITION FOR REVIEW OF AN ORDER OF
                     THE BOARD OF IMMIGRATION APPEALS
                       Agency Nos. A71-873-466, A71-873-467
                                 and A71-873-468


                       Submitted Under Third Circuit LAR 34.1(a)
                                    June 29, 2005


                Before: ROTH, RENDELL, and BARRY, Circuit Judges


                             (Opinion Filed: August 2, 2005)


                                         OPINION




   *
   Attorney General Alberto Gonzales has been substituted for former Attorney General John
Ashcroft, the original respondent in this case, pursuant to Fed. R. App. P. 43(c).
BARRY, Circuit Judge

       Petitioners Sead and Selma Jahic, a married couple, and their minor son, Amar

Jahic, are natives of Bosnia.1 The family fled Bosnia during the war in 1992, and, after a

brief stay in Germany, arrived in the United States in May, 1992. The Jahics presented

themselves to customs officials upon their arrival at Newark airport, and were placed into

exclusion proceedings.2 In July, 1992, the Jahics submitted an application for asylum.

Shortly thereafter, the Attorney General added Bosnia-Herzegovina to the Temporary

Protected Status Program (“TPS”). Based on this action, on August 28, 1992, the

Immigration Judge (“IJ”) administratively closed the Jahics’ immigration case “to afford

the [Jahics] an opportunity to apply and be considered for Temporary Protected Status.”

Appendix (“App.”) 20; Administrative Record (“A.R.”) 318-319.

       For reasons that are not entirely clear, the Jahics’ attorney never pursued an

application for TPS, although the Jahics assumed that he had done so. Nonetheless, they

remained in the United States and received authorization for employment here. In 2002,

they were denied an extension of their employment authorization because their case had

been administratively closed by the IJ, and there was no application currently pending.



   1
    The three Jahics’ cases have been consolidated. In 1995, the Jahics had a second
child, Amina Jahic, who was born in New York and is an American citizen.
   2
    The Jahics entered the United States using fraudulent visas they had procured in
Germany. Although the IJ found that the Jahics were aware that these visas were not
legitimate, this issue was not material to IJ’s disposition of the case, because the Jahics
had conceded that they were excludable aliens.

                                              2
Id.3

       Thus, in May, 2002, the Jahics filed a motion to reopen removal proceedings, and,

in November, they again filed applications for political asylum. At a calendar hearing in

November, they sought a continuance in order to obtain a “repapering” from the

Immigration and Naturalization Service (“INS”).4 If granted, the “repapering” would

terminate the exclusion proceedings and permit the Jahics to file an application for

cancellation of removal. As discussed below, this technical change in the type of

immigration proceedings would allow the Jahics to apply for discretionary relief from

removal.

       At the Jahics’ request, the IJ continued the case for six months. At a subsequent

hearing in April, 2003, the Jahics again moved for a continuance, this time on the ground

that the INS had not yet responded to their repapering request. The IJ denied the request

for a further continuance, and, after a hearing, denied the Jahics’ application for asylum.




   3
    Although none of the parties attempts to explain the reason for this change in the
Jahics’ employment authorization, it seems likely that it was a result of the removal of
Bosnia from Temporary Protected Status as of February 10, 2001. See 65 Fed. Reg.
52789, 52791 (Aug. 30, 2000) (noting that “stay of removal and eligibility for
employment authorization due to the designation of Bosnia-Herzegovina for TPS will no
longer be available.”).
   4
    On November 25, 2002, President Bush signed into law the Homeland Security Act of
2002 (“HSA”), Pub. L. No. 107-296, 116 Stat. 2125. The HSA created a new Department
of Homeland Security ("DHS"), abolished the INS, and transferred its functions to the
new department. Because this case was initiated while the INS was still in existence, this
opinion refers to the agency as the INS.

                                             3
The BIA affirmed, and this appeal followed.5 We will grant the petition for review.

          On appeal, the Jahics make two arguments. First, they argue that their due process

rights were violated when they were denied the opportunity to pursue repapering.

Second, they argue that their application for asylum should have been granted on the

merits.

          The second argument is easily rejected. At the hearing before the IJ, the Jahics

testified regarding their experiences during the 1992 war. As Bosnian Muslims, the

Jahics were harassed, and Sead was subject to brief periods of detention and

interrogation. In addition, the Jahic home was destroyed during the fighting, although the

IJ found that this incident “appeared to be part of the civil fighting in Bosnia, and not

really directed against” the Jahics specifically. App. 124. When the Jahics arrived in the

United States in 1992, a State Department advisory concluded that Sean Jahic had “good

reason to fear for his safety” in Bosnia. App. 18. Nonetheless, during the Jahics’ asylum

hearing in 2003, the IJ noted that the 2003 State Department reports “make clear that the

situation [in Bosnia] has improved drastically and substantially.” App. 125.

          Mr. Jahic testified that if forced to return to Bosnia, “[t]here’s [a] very good

chance we [will] get killed, threatened, can be woman raped or some – you know, you

can’t protect yourself.” App. 101. Nonetheless, although testifying that he feared

reprisals for his refusal to serve in the military during the war, he conceded that an



   5
       We granted the Jahics’ motion for stay of removal pending appeal.

                                                 4
amnesty had been granted to those who had refused to serve, and stated that “maybe they

don’t want to threaten me or bring me in the jail or something but I, I’m not sure I can

find a job. I can live life, you know, like everybody else.” App. 101. Moreover, both

Mr. and Mrs. Jahic acknowledged on cross-examination that they each had siblings

currently living unharmed in Bosnia. Under these circumstances, the IJ correctly

determined that the Jahics do not have a well-founded fear of future persecution in

Bosnia.

        The argument regarding “repapering” is more complex. At the time the Jahics

entered the United States, the Immigration and Naturalization Act (“INA”) contained a

provision entitled “suspension of deportation,” which vested the Attorney General with

discretion to suspend deportation if the alien met three criteria: (1) continuous physical

presence in the United States for seven years; (2) good moral character; and (3)

deportation would result in extreme hardship to the alien or a member of the alien’s

immediate family.6 See 8 U.S.C. § 1254(a)(1) (1995) (repealed 1996).

   6
       Section 1254(a)(1) provided in relevant part as follows:

               the Attorney General may, in his discretion, suspend
               deportation and adjust the status to that of an alien lawfully
               admitted for permanent residence, in the case of an alien . . .
               who applies to the Attorney General for suspension of
               deportation and is deportable under any law of the United
               States . . . ; has been physically present in the United States
               for a continuous period of not less than seven years
               immediately preceding the date of such application, and
               proves that during all of such period he was and is a person of
               good moral character; and is a person whose deportation

                                              5
       Although the Jahics at least arguably satisfy these criteria, they were ineligible to

apply for suspension of deportation because, under the pre-1996 INA, aliens in exclusion

proceedings were not entitled to suspension of deportation. Patel v. McElroy, 143 F.3d

56 (2d Cir. 1998); see also Fieran v. INS, 268 F.3d 340 (6th Cir. 2001).

       The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”) amended the INA to combine the previously separate “deportation” and

“exclusion” proceedings into a unified “removal” proceeding, and replaced the

“suspension of deportation” provision with a new form of relief known as “cancellation

of removal.” See Rojas-Reyes v. INS, 235 F.3d 115, 120 (2d Cir. 2000). As relevant

here, the criteria for “cancellation of removal” remained the same as for “suspension of

deportation.” See 8 U.S.C. § 1229b(1) (2005). Thus, under IIRIRA, the Jahics would be

eligible to apply for cancellation of removal.

       The parties and the IJ assumed that the Jahics’ application was subject to the pre-

IIRIRA statutory scheme. Thus, the parties and the IJ focused on the issue of whether the

Jahics could apply for “repapering,” a procedure whereby an alien in proceedings under

the pre-IIRIRA regime could seek to have his or her proceedings administratively closed

and then reopened under the IIRIRA regime.

       The repapering issue, however, is no longer relevant to the Jahics’ case. On May


              would, in the opinion of the Attorney General, result in
              extreme hardship to the alien or to his spouse, parent, or child,
              who is a citizen of the United States or an alien lawfully
              admitted for permanent residence.

                                              6
11, 2005, after the parties had submitted briefs in this case, Congress enacted the Real ID

Act of 2005, Pub. L. No. 109-13, Div. B, 119 Stat. 311. Section 106(d) of the Real ID

Act provides, in relevant part, as follows:

       Transitional Rule Cases...A petition for review filed under former section
       106(a) of the Immigration and Nationality Act (as in effect before its repeal
       by section 306(b) of the Illegal Immigration Reform and Immigrant
       Responsibility Act of 1996 (8 U.S.C. 1252 note)) shall be treated as if it had
       been filed as a petition for review under section 242 of the Immigration and
       Nationality Act (8 U.S.C. 1252), as amended by this section.

8 U.S.C. § 1252 (2005) (note).

       We asked the parties to address the impact of the Real ID Act upon this case. As

an initial matter, the language quoted above demonstrates Congress’ intent to rescind the

transitional rule which had been in place for all pending appeals. As such, this provision

of the Real ID Act necessarily applies retroactively to all cases currently on appeal,

including this one. Thus, the Jahics’ claims must be treated as if they had been filed

under IIRIRA. Based on the above-quoted language, the Government argues that we lack

jurisdiction to review a denial of a motion for a continuance, because IIRIRA divests this

court of jurisdiction over such issues. See 8 U.S.C. § 1252(a)(2)(B)(ii).7

       We need not delve into this question, however, because the very provision of the

   7
    The Government acknowledges, however, that there is a split of authority on this
question. Compare Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004) (holding
that IIRIRA divests courts of appeals of jurisdiction to review IJ’s discretionary denial of
continuance); Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004) (same); with
Zhoa v. Gonzales, 404 F.3d 295, 303, n.6 (5th Cir. 2005) (rejecting Onyinkwa holding);
Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004) (holding that courts of appeals
have jurisdiction to review IJ’s denial of continuance under some circumstances).

                                              7
Real ID Act upon which the Government relies also moots the Jahics’ need for a

continuance. The IJ and the BIA analyzed the Jahics’ petition under pre-IIRIRA law,

which contained the distinction between exclusion and deportation. As noted above,

however, we must now treat the petition as if it had been filed under IIRIRA. Under

IIRIRA, the Jahics are entitled to apply for cancellation of removal, and have no need to

seek a continuance to obtain repapering. We will, therefore, grant the petition for review

and remand for consideration of the Jahics’ application for cancellation of removal under

IIRIRA.




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