         10-1987-ag                                                                     BIA
         Skrelja v. Holder                                                        Elstein, IJ
                                                                               A095 429 678
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of April, two thousand twelve.
 5
 6       PRESENT:
 7                JON O. NEWMAN,
 8                RALPH K. WINTER,
 9                ROSEMARY S. POOLER,
10                    Circuit Judges.
11       _________________________________________
12
13       DJERDJA SKRELJA,
14                Petitioner,
15
16                           v.                                 10-1987-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _______________________________________
22
23       FOR PETITIONER:               Linda C. Flanagan, New York, New
24                                     York.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Daniel E. Goldman, Senior
28                                     Litigation Counsel; Matthew A.
29                                     Spurlock, Trial Attorney, United
30                                     States Department of Justice, Office
31                                     of Immigration Litigation,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED, that the petition for review

 4   is DENIED.

 5       Djerdja Skrelja, a native and citizen of the former

 6   Yugoslavia, seeks review of an April 22, 2010, order of the

 7   BIA denying his motion to reconsider, and affirming the

 8   April 30, 2008, decision of Immigration Judge (“IJ”) Annette

 9   S. Elstein, which designated the Republic of Montenegro as

10   the country of removal, and of the August 15, 2007, BIA

11   order affirming the IJ’s July 21, 2005, denial of his

12   application for asylum, withholding of removal and relief

13   under the Convention Against Torture (“CAT”).   In re Djerdja

14   Skrelja, No. A095 429 678 (B.I.A. Apr. 22, 2010), aff’g No.

15   A095 429 678 (Immig. Ct. N.Y. City Apr. 30, 2008); In re

16   Djerdja Skrelja, No. A095 429 678 (B.I.A. Aug. 15, 2007),

17   aff’g No. A095 429 678 (Immig. Ct. N.Y. City July 21, 2005).

18   We assume the parties’ familiarity with the underlying facts

19   and procedural history in this case.

20       Under the circumstances of this case, we have reviewed

21   the decisions of the IJ as supplemented by the BIA.     See Yan

22   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

23   applicable standards of review are well-established.     See

                                  2
 1   8 U.S.C. § 1252(b)(4)(B); see also Salimatou Bah v. Mukasey,

 2   529 F.3d 99, 110 (2d Cir. 2008); Manzur v. DHS, 494 F.3d

 3   281, 289 (2d Cir. 2007).

 4   I.   Country of Removal

 5        We review the agency’s designation of a country of

 6   removal for abuse of discretion.       See Linnas v. INS, 790

 7   F.2d 1024, 1031 (2d Cir. 1986).       The agency did not abuse

 8   its discretion in ordering Skrelja removed to Montenegro.

 9   When, as in this case, an alien declines to designate a

10   country of removal, the Attorney General is authorized to

11   remove him to a country of which he is a “subject, national,

12   or citizen.”   8 U.S.C. §§ 1231(b)(2)(A), (D).      Skrelja

13   declined to designate a country of removal, and he is not

14   clearly a subject, national, or citizen of any country, as

15   his country of citizenship, Yugoslavia, no longer exists.

16   Where an alien is not removable under 8 U.S.C.

17   §§ 1231(b)(2)(A) or (D), the Attorney General is authorized

18   to remove the alien to any of the following countries:

19          (I) The country from which the alien was admitted
20          to the United States.
21
22          (ii) The country in which is located the foreign
23          port from which the alien left for the United
24          States or for a foreign territory contiguous to
25          the United States.
26

                                       3
 1         (iii) A country in which the alien resided before
 2         the alien entered the country from which the alien
 3         entered the United States.
 4
 5         (iv) The country in which the alien was born.
 6
 7         (v) The country that had sovereignty over the
 8         alien’s birthplace when the alien was born.
 9
10         (vi) The country in which the alien’s birthplace
11         is located when the alien is ordered removed.
12
13         (vii) If impracticable, inadvisable, or impossible
14         to remove the alien to each country described
15         [above], another country whose government will
16         accept the alien into that country.
17
18   8 U.S.C. § 1231(b)(2)(E).   Skrelja indicated in his asylum

19   application, and testified before the IJ, that he was born

20   in Bar, Montenegro.   Consequently, the agency’s designation

21   of Montenegro as the country of removal was not an abuse of

22   discretion, and Skrelja’s argument that he is not clearly a

23   citizen of Montenegro is not dispositive, as an alien need

24   not be a citizen of a country to be removed to that country.

25   See 8 U.S.C. § 1231(b)(2)(E)(vi); Linnas, 790 F.2d at 1031;

26   see also Jama v. ICE, 543 U.S. 335, 341-42 (2005).

27   II. Asylum and Withholding of Removal

28       Skrelja argues that he was persecuted when he was

29   forced to join the military and witness the murder of

30   civilians, and that this persecution was on account of his

31   Albanian ethnicity.   However, compulsory military service

                                   4
 1   alone generally does not provide asylum seekers with

 2   adequate cause for claiming persecution.   See Islami v.

 3   Gonzales, 412 F.3d 391, 396 (2d Cir. 2005).   Furthermore,

 4   the agency did not err in collectively addressing the

 5   harassment described by Skrelja and finding that it was

 6   insufficiently severe to constitute persecution.     See

 7   Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 341 (2d

 8   Cir. 2006)(to constitute persecution, harm must be

 9   sufficiently severe, rising above “mere harassment”).

10   Skrelja’s experiences, while unfortunate, were similar to

11   that which might be experienced by any combat soldier, and,

12   to the extent Skrelja was treated differently because of his

13   ethnicity, the differing treatment constituted only

14   discrimination, and did not amount to persecution.     See id.

15       Skrelja also claims a well-founded fear of future

16   persecution, based on his decision to flee Yugoslavia in

17   1998, rather than face conscription and serve in the army

18   again.   While refusing to serve in a military campaign

19   “widely condemned by the international community as contrary

20   to the basic rules of human conduct” may provide a basis for

21   asylum, country conditions have fundamentally changed in

22   Montenegro such that Skrelja cannot establish a well-founded

23   fear of return to that country.   See Islami, 412 F.3d at
                                   5
 1   396-98 (internal quotation marks omitted).     As shown in the

 2   record, Montenegro is now an independent country, and the

 3   former Serbia Montenegro, even prior to Montenegro’s

 4   independence, had granted amnesty to draft evaders.

 5   Furthermore, record evidence indicates that in the current

 6   Montenegro, ethnic Albanians participate in the political

 7   process and have seats set aside by law in the Assembly.

 8       As a result, country conditions have fundamentally

 9   changed in Montenegro such that Skrelja cannot establish a

10   well-founded fear of return to that country.     See id.

11   Because Skrelja was unable to show the objective likelihood

12   of persecution needed to make out an asylum claim, he was

13   necessarily unable to meet the higher standard required to

14   succeed on a claim for withholding of removal.     See Paul v.

15   Gonzales, 444 F.3d 148, 156 (2d Cir. 2006); Gomez v. INS,

16   947 F.2d 660, 665 (2d Cir. 1991).

17       For the foregoing reasons, the petition for review is

18   DENIED.   As we have completed our review, the pending motion

19   for a stay of removal in this petition is DISMISSED as moot.

20                               FOR THE COURT:
21                               Catherine O’Hagan Wolfe, Clerk
22
23




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