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BICAJ v. ASHCROFT

June 11, 2003

NEXHMEDIN BICAJ, PETITIONER, AGAINST JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES, IMMIGRATION AND NATURALIZATION SERVICE, BY ITS DISTRICT DIRECTOR OF THE NEW YORK DISTRICT, BOARD OF IMMIGRATION APPEALS EXECUTIVE OFFICE FOR IMMIGRATION REVIEW, RESPONDENTS.


The opinion of the court was delivered by: Robert W. Sweet, Senior District Judge

OPINION

Petitioner Nexhmedin Bicaj ("Bicaj") has moved pursuant to Title 28, U.S.C. § 2241, to seek review of a decision by the Board of Immigration Appeals and the Immigration Judge denying Petitioner's application for political asylum and seeking to deport him forthwith. For the reasons set forth below, the motion is denied.

Prior Proceedings

On June 3, 1991, Bicaj, a native and citizen of Kosovo, attempted to enter the United States at John F. Kennedy International Airport ("JFK") in New York. Bicaj was in possession of a valid Yugoslavian passport and a fraudulent United States passport. On June 3, 1991, the INS served Bicaj with a Form I-22 "Notice to Applicant for Admission for Hearing Before Immigration Judge" advising him that he appeared to be inadmissible to the United States pursuant to: (1) section 212(a)6 (6)(C) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(C), because he appeared to have willfully misrepresented a material fact in order to gain admission into the United States; (2) section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I) (1990), as an immigrant not in possession of a valid unexpired immigrant visa; and (3) section 212(a)(7)(B) of the INA, 8 U.S.C. § 1182(a)(7)(B) (1990), as a non-immigrant not in possession of a valid unexpired non-immigrant visa.

On July 16, 1991, Bicaj submitted an application for asylum and withholding of removal in which he alleged that he would be subject to persecution in Kosovo as an ethnic Albanian.

On August 14, 1991, Bicaj's exclusion proceedings commenced before an immigration judge ("IJ") in New York City. Bicaj, through counsel, conceded that he is excludable as charged, pursuant to 8 U.S.C. § 1182(a)(7)(A)(i)(I) and (a)(7)(B). On July 17, 1992 the INS withdrew the charge that Bicaj was inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C), and the IJ set a date for hearing Bicaj's application for asylum.

On April 23, 1993, Bicaj testified as the sole witness in support of his application for asylum. Bicaj testified that he is an Albanian Muslim from Kosovo and alleged that Albanian Muslims were "ill-treated" in Yugoslavia. Bicaj alleged that on November 28, 1988, the police arrested him on suspicion of celebrating Albanian Flag Day and detained him for twenty-four hours. Bicaj admitted that this was the only time he had any problems with the police and that he was never detained or arrested by the authorities at any time.

Bicaj testified that he feared he would be drafted to fight in the Serbian army, and that if he refused, he might be killed. After serving in the Yugoslav army from 1988 to 1989, Bicaj was discharged from military service. Bicaj alleged that in May 1989, he received a notice in the mail ordering him to report for further military service, but he did not report. Bicaj admitted that he was never sent another notice and that although he did not leave Yugoslavia until June 1991, no action was taken against him for his failure to comply with the draft notice. Bicaj claimed that he avoided the army "because I kept changing places, I never stayed home, because if they would get a hold of me, that they would force me to stay."

Bicaj left Yugoslavia with a legally issued passport, which he obtained sometime in 1989. Bicaj claimed that he could not remember the month in which the passport was issued, but admitted that he had previously stated in his asylum application that it was issued on August 15, 1989.

Bicaj testified that his family no longer worked in Kosovo because the police closed the family-run cafeteria in 1989 or 1990. Bicaj's mother, five brothers and five sister still live in Kosovo. Bicaj admitted that non of his sisters or brothers have ever been arrested in Kosovo and that his brothers had not been drafted.

On April 20, 1993, the IJ issued an oral decision in which he found Bicaj excludable from the United States and ineligible for asylum and withholding of deportation. The IJ found that Bicaj had not established that he suffered from past persecution based on the one incident where he was detained for twenty-four hours on Albanian Flag Day. The IJ rejected Bicaj's claim that he is eligible for asylum based solely on his status as an Albanian Muslim from Kosovo because he did not set forth any evidence that he would be treated differently than the rest of Albanian Muslims in Kosovo.

The IJ also found that Bicaj did not establish a well-founded fear of persecution based on his fear of being drafted to serve in the Yugoslavian military. The IJ noted that Bicaj left Yugoslavia with a legally issued passport, and that "[i]f the government of Yugoslavia is interested in taking any adverse action, he would have been stopped at the airport before he departed from Yugoslavia." The IJ further noted that several members of Bicaj's family remain in Yugoslavia and have never been arrested. The IJ further emphasized that Bicaj's three oldest brothers, who had also served in the Yugoslav army, were not called back to serve. Finally, the IJ rejected Bicaj's claim that he would be forced to serve in the army as overly speculative. Accordingly, the IJ found that Bicaj had failed to establish a well-founded fear of persecution to warrant a grant of asylum or withholding of removal.

On April 22, 1993, Bicaj appealed the IJ's decision to the Board of Immigration Appeals ("BIA") arguing that the IJ erred in finding that he was not eligible for asylum because he could not show that his situation differed from other Albanian Muslims. In addition, Bicaj asserted that his unwillingness to serve in the Serbian Army "makes a good claim of persecution based on political opinion," and that he and his family were denied a livelihood when their business was shut down by the Yugoslav police.

On September 28, 1999, the BIA issued a decision dismissing Bicaj's appeal. The BIA affirmed the IJ's decision that Bicaj's twenty-four hour detention did not rise to the level of persecution within the meaning of the INA. With regard to Bicaj's claim of future persecution, the BIA took administrative notice of the significant changes that had taken place in Kosovo since Bicaj's exclusion hearing. "With the entry of NATO forces into ...


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