                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4298




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                                      NOT PRECEDENTIAL
     IN THE UNITED STATE COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                 _______________

                      No: 06-4298
                    _______________

                DZEVAT LJUBANOVIC,

                               Petitioner


                              v.

              ATTORNEY GENERAL USA,

                            Respondent
                    _______________

    Petition for Review of an Order of the United States
    Department of Justice Board of Immigration Appeals
                   (BIA No. A95-461-907)
              Immigration Judge Annie S. Garcy
                     _______________

        Submitted Under Third Circuit LAR 34.1(a)
                    March 4, 2008

Before: BARRY, JORDAN, and HARDIMAN, Circuit Judges.

                  (Filed: March 20, 2008)
                     _______________

                OPINION OF THE COURT
                    _______________
JORDAN, Circuit Judge.

         Dzevat Ljubanovic petitions for review of a decision by the Board of Immigration

Appeals (“BIA”) denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Because we conclude that we

lack jurisdiction to review Ljubanovic’s claims,1 we will dismiss the petition for review.

I.       Background

         Ljubanovic entered the United States on May 17, 2001. He filed an application for

asylum, withholding of removal, and protection under the CAT in May 2002. On the

application, Ljubanovic listed his nationality as Yugoslavian and his ethnicity as

Albanian. As a matter of course, the application was forwarded to the Department of

State for comment. In September 2004, following the formation of Serbia-Montenegro

from portions of the former Yugoslavia, Ljubanovic filed a second supplemental

application for relief. Unlike his first application, the second was not forwarded to the

Department of State for comment.

         In affidavits attached to his applications, Ljubanovic stated that the police arrested

him in 1991 because he was an ethnic Albanian, held him for twenty-four hours, and beat

him severely. He also stated that, beginning in 1992, the Yugoslavian military police

attempted to conscript him to fight in Kosovo against other ethnic Albanians. According



     1
    We review questions of our own jurisdiction de novo. Alaka v. Attorney General,
456 F.3d 88, 94 n.8 (3d Cir. 2006) (citations omitted).


                                                2
to Ljubanovic, he managed to avoid the military police until 1998, when they caught him

and forced him to serve in the Yugoslavian army. Ljubanovic claimed that, prior to

inducting him into the army, the military imprisoned him for several days, beat him, and

threatened him with death. He alleged that the military then released him from prison,

inducted him into the army, and forced him to perform hard labor. Ljubanovic further

claimed that after eleven months of service, a friend, who is also Albanian, overheard

officers planning to kill both of them because of their ethnicity. Ljubanovic stated that

his friend stole a military stamp used to indicate when a draftee’s term of service was

completed, and he and his friend used the stamp to alter their military documents and then

escaped. Ljubanovic’s affidavits explained that he did not want to leave the United States

because he feared that, if repatriated, he would be arrested as a deserter and persecuted

and tortured by the police.

       On March 31, 2005, the Immigration Judge ("IJ") held a hearing on Ljubanovic’s

applications. Ljubanovic was present and represented by counsel. At the hearing, he

testified in accordance with his affidavits. The IJ denied all Ljubanovic’s claims for

relief. Ljubanovic filed a timely appeal to the BIA, which summarily affirmed the IJ’s

decision.2 He then filed a timely petition for review with this Court.




  2
     “Ordinarily, [we] review decisions of the ... [BIA] and not those of an IJ. When the
BIA does not render its own opinion, however, and either defers or adopts the opinion of
the IJ, [we] must then review the decision of the IJ.” Gao v. Ashcroft, 299 F.3d 266, 271
(3d Cir. 2002) (citing Abdulai v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001)).

                                             3
II.       Discussion

          In his petition for review, Ljubanovic argues that the IJ committed two legal errors

which require a remand. First, he argues that the IJ was required to send his supplemental

asylum application to the Department of State for comment under 8 C.F.R. § 208.11(a),

which provides that “[t]he Service shall forward to the Department of State a copy of

each completed application it receives.” Second, he argues that the IJ applied an

inappropriately high standard of proof to his CAT claim.3 According to Ljubanovic, he

need not, as the IJ required, show that his torturer was “either a public official of his

government or, in the alternative, someone working basically under some kind of official

edict or some kind of sanctioned policy that the government has that results in such

torture.” (Pet. Br. at 12 (citing Appx. at 55).) Instead, he argues that under our decision

in Silva-Rengifo v. Attorney General, 473 F.3d 58 (3d Cir. 2007), he need only show that

“government officials remain[ed] willfully blind to torturous conduct and breach[ed] their

legal responsibility to prevent it.” (Pet. Br. at 15 (quoting Silva-Regnifo, 473 F.3d at 70).)

          We lack jurisdiction to address either of Ljubanovic’s arguments. Ljubanovic did

not raise with the BIA his argument that the IJ was required to send his supplemental

application for relief to the Department of State for comment. In addition, although he

referred very generally to the legal standards governing CAT claims in his argument



      3
    Ljubanovic does not challenge the IJ’s disposition of his asylum and withholding of
removal claims in his brief. Therefore, we will deem those claims waived. Alaka, 456
F.3d at 94.

                                                4
before the BIA, he did not refer in any way to his present contention that the IJ applied an

incorrect legal standard to his CAT claim. We lack jurisdiction to address arguments in a

petition for review which were not exhausted before the BIA.4 8 U.S.C. § 1252(d)(1) (“A

court may review a final order of removal only if the alien has exhausted all

administrative remedies available to the alien as of right ... .”); see also Abdulrahman v.

Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003) (holding that we do not have jurisdiction to

review arguments not raised before the BIA because they are unexhausted).

       Accordingly, we will dismiss the petition for review.




  4
     In its brief, the government contends that Ljubanovic’s argument that the IJ was
required to send his second application to the Department of State for comment lies
outside our jurisdiction because Ljubanovic did not raise it before the BIA. However,
despite Ljubanovic’s failure to raise his CAT argument before the BIA, the government
addresses that argument on the merits. We conclude that both claims lie outside our
jurisdiction because the government’s failure to raise a jurisdictional challenge cannot
waive a jurisdictional defect. Morel v. INS, 144 F.3d 248, 251 n.3 (3d Cir. 1998)
(explaining that “a party does not waive [a jurisdictional defect] by failing to challenge
jurisdiction early in the proceedings....[A] court, including an appellate court, will raise
lack of subject-matter jurisdiction on its own motion.”) (citations omitted).


                                              5
