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BICAJ v. ASHCROFT

United States District Court, Southern District of New York


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 Kosovo in 199 and the departure of Serb forces, the basis for a fear of persecution there has been greatly reduced."

Bicaj did not petition for review of the BIA's decision pursuant to 8 U.S.C. § 1242, which requires that an alien file a petition for review in the Court of Appeals within 30 days of the BIA's September 28, 1999 decision.

On December 13, 2001, Bicaj filed the instant petition for writ of habeas corpus. The government's opposition to the motion was filed on April 25, 2003, and Bicaj filed a reply on May 20, 2003.

Scope of Review

In 1996, Congress passed the AEDPA (Antiterrorism and Effective Death Penalty Act) and the IRRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act). In I.N.S. v. St. Cyr, the Supreme Court held that "habeas jurisdiction under § 2241 was not repealed" by these acts. 533 U.S. 289, 314 (2001). However, these acts "substantially restricted the scope of judicial review." Castillo-Perez v. INA, 212 F.3d 518, 523 (9th Cir. 2000). In Sol v. INS, the Second Circuit held that the scope of § 2241 review extends to "purely legal statutory and constitutional claims," but not to "factual findings" and "discretionary determinations by the IJ and the BIA." 274 F.3d 648, 651 (2d Cir. 2001) (citations omitted). Thus, the claimant must raise "a pure question of law" in order to support subject matter jurisdiction. Liu v. INS, 293 F.3d 36, 41 (2d Cir. 2002); see also Pickett v. INS, 237 F. Supp.2d 175, 183 (D.Conn. 2002) (explaining that the claimant must advance a "colorable pure issue of law").

Evidentiary Basis of BIA

Decision Bicaj claims that the evidentiary record was inadequate to support the BIA's findings. As previously held, while a habeas petition under 28 U.S.C. § 2241 may be used to assert a statutory or constitutional claim, a claim that a decision by the BIA "lacked adequate support in the record" is beyond the scope of habeas review. Sol, 274 F.3d at 651. See also Pickett v. INS, 237 F. Supp.2d 175, 183 (D.Conn. 2002) ("[A] § 2241 challenge to a final order of deportation must be more than an APA-style challenge to the sufficiency of the evidence."); Uduojie v. INS, No. 3:02 CV 282, 2002 WL 32002681, at *1 (D.Conn. Sept. 6, 2002) (holding that it is insufficient to "simply contend[] that the Immigration Judge and the Board of Immigration Appeals lacked adequate support for the decision made.").

However, "an assertion that the INS's determination was based on a complete absence of any evidence in the record such that the decision was wholly arbitrary and constituted a denial of due process, . . . would be cognizable under § 2241 review." Pickett v. INS, 237 F. Supp.2d 175, 182 (D.Conn. 2002). See also United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103 (1927) ("Deportation . . . on charges unsupported by any evidence is a denial of due process which may be corrected on habeas corpus."). This is not the case here, where the government points to substantial evidence in support of its decision.

The Attorney General of the United States has discretion to grant asylum to any person who demonstrates past persecution or a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group or opinion." 8 U.S.C. § 1101(a)(42)(A). An alien who fails to qualify for a discretionary grant of asylum under 8 U.S.C. § 1158(b)(1) cannot qualify for the more stringent mandatory withholding of deportation. Zhang v. Slattery, 55 F.3d 732, 738 (2d Cir. 1995).

In terms of Bicaj's past persecution, Bicaj admitted that besides being detained for 24 hours in 1988 on suspicion of celebrating Albanian Flag Day, he had no other problems with police prior to his June 1991 departure from Kosovo. The BIA could reasonably conclude that this incident is not sufficiently extreme or pervasive to constitute past persecution. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (persecution is an "extreme concept" and is not equivalent to "discrimination or harassment"); Kubon v. INS, 913 F.2d 386, 388 (7th Cir. 1990) ("brief confinement for political opposition to a totalitarian regime does not necessarily constitute persecution"); Sovich v. Esperdy, 319 F.2d 21, 25 (2d Cir. 1963) (a brief confinement, although "repugnant to our concept of justice," "would not necessarily fall within the ambit" of persecution).

Furthermore, the government could reasonably conclude that a "well-founded fear of future persecution" does not exist. 8 C.F.R. § 208.13(b). Bicaj testified that he feared returning to Kosovo because he believed he would be drafted into the Serbian army. The government points to the following factors undermining this fear: (1) As of the time of the BIA decision, Serbian forces had departed from Kosovo and NATO peacekeeping troops had entered the area*fn1; (2) Bicaj testified that he did not report to military service when called in May 1989 and, nonetheless, remained in Kosovo until June 1991 without incident; (3) Bicaj's five brothers, between the ages of 17 and 35, have not been forced to serve in the Serbian army; and (4) the authorities did not attempt to stop Bicaj upon his departure from Kosovo.*fn2 Case law holds that the BIA can properly consider changing country conditions. Petrovic v. INS, 198 F.3d 1034, 1038 (7th Cir. 2000); Janusiak v. INS, 947 F.2d 46, 48 n. 1 (3d Cir. 1991). Furthermore, fears of persecution are undercut when an asylum seeker,"[i]n spite of [his] stubborn defiance and repeated resistance to participation in his country's compulsory service requirements, . . . was permitted to work until the day he left without arrest or harm." Saballo-Cortez v. INS, 761 F.2d 1259, 1264 (9th Cir. 1994).

Hearing as a Due Process Violation

Bicaj further argues that his hearing did not afford him with the due process guaranteed by the Fifth Amendment. Mathews v. Eldridge defines due process as "the opportunity to be heard at a meaningful time and in a meaningful manner." 424 U.S. 319, 333 (1976). Bicaj claims he was not heard in a "meaningful manner" since (1) his former counsel failed to provide him with a rigorous defense, (2) the IJ failed to elicit important background information and was confused as to facts, and (3) the official interpreter behaved improperly.

In the immigration context, due process requires that an alien in deportation proceedings be provided notice of the hearing, Landon v. Plasencia, 459 U.S. 21, 32-33 (1982); counsel of choice (at the alien's own expense), 8 U.S.C § 1362; Batanic v. INS, 12 F.3d 662, 667 (7th Cir. 1993); and a full and fair hearing including the opportunity to present and examine evidence, Castillo-Perez, 212 F.3d at 526; Batanic, 12 F.3d at 667, and to testify, Mojsilovic v. INS, 156 F.3d 743, 749 (7th Cir. 1998). In the instant case, Bicaj had a hearing on his asylum claim, at which he was represented by counsel, submitted evidence, testified on his own behalf, and was permitted to call other witness, although he chose not to do so.

Bicaj characterizes his hearing as "almost perfunctory" (Bicaj's Reply Mem. at 2), pointing out that his direct examination by former counsel was covered in a mere 8½ pages of transcript. Thus, he claims that important details of his story are missing. The missing detail he focuses on is that fearing clearance by the Yugoslavian authorities, he did not fly directly from Yugoslavia to the United States, but opted to first go by train to Austria. "Ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Castillo-Perez, 212 F.3d at 527. In retrospect, Bicaj may disagree with the approach taken by his former counsel, but this does not rise to the level of a constitutional violation. It is not the court's role to second guess the strategies of counsel. "Due process challenges to deportation proceedings require a showing of prejudice to succeed." Castillo-Perez, 212 F.3d at 527. Leaving out the detail that Bicaj came to the United States indirectly through Austria is insufficient to constitute prejudice. Likewise, faulting the judge for failing to elicit this information does not help Bicaj make a case for a due process violation.

Similarly unavailing is Bicaj's contention that the IJ "seemed confused" as to the dates when Bicaj was issued a passport and departed from Yugoslavia and as to whether he was drafted to the Serbian or Yugoslavian army. This does not constitute prejudice or rise to the level of a constitutional violation.

Bicaj further points to irregularities in the behavior of the official interpreter that at one point led the judge to instruct him, "Never translate, sir, what he meant. Only translate what he says. Okay? You are not allowed to interpret what he says, or what's in his mind. Okay? So, just as a warning." (Tr. at 52.) The interpreter's behavior, though inappropriate, does not appear to have tainted the proceeding, and it does not undermine the basis for the BIA's decision.

Conclusion

For the foregoing reasons, Bicaj's § 2241 motion is denied, and his case dismissed.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000).

It is so ordered.


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