Krcic v. Gonzales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0387n.06
Filed: June 1, 2006

No. 05-3424

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETAR KRCIC, VERA KRCIC, and )
NIKOLA KRCIC, )
)
Petitioners, )
)
v. ) ON PETITION FOR REVIEW FROM A
) FINAL ORDER OF THE BOARD OF
ALBERTO R. GONZALES, Attorney ) IMMIGRATION APPEALS
General, )
)
Respondent. )

Before: GUY, DAUGHTREY, and CLAY, Circuit Judges.

PER CURIAM. The petitioners in this case, Petar Krcic, his wife, Vera Krcic, and

their son, Nikola Krcic, are ethnic Albanians from Montenegro in the former Yugoslavia and

are now considered citizens of the country called Serbia and Montenegro. They entered

the United States in 1994 without documentation or inspection and filed applications for

asylum in 1997, asserting that they had been persecuted in Montenegro because of their

ethnic background and because Petar Krcic had failed to report for military service under

conscription by the Serbian army. The Krcics conceded removability and renewed their

applications for asylum and withholding of removal, applying also for voluntary departure

as alternative relief. Following an evidentiary hearing, an immigration judge denied their

application. The Board of Immigration Appeals summarily affirmed the immigration judge’s
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decision and, on the petitioners’ initial appeal to the Sixth Circuit, we denied their petition

for review. Krcic v. Ashcroft, No. 02-4247 (6th Cir. December 6, 2004).

The petitioners secured new counsel, who filed a motion to reopen their case on the

basis of prior ineffective assistance of counsel and worsening conditions in Serbia and

Montenegro. That motion was denied by the BIA as untimely because it was filed more

than 90 days after entry of the BIA order. The Board concluded that the claim of ineffective

assistance of counsel was not borne out by the record. The Board also noted that even if

timely, the motion to reopen could not be sustained, because the new allegations of past

persecution could have been presented at the original hearing and because the changed

conditions did not warrant reopening of the case. The Krcics now request us to overturn

the Board’s decision and remand the case with directions to reopen their removal

proceedings. We find no legal basis on which to premise such an order.

The ineffective assistance of counsel claim was based on the petitioners’ allegation

that their original attorney had prevented them from presenting all their proof concerning

prior persecution. But, as it unfolded, that “evidence” simply does not hold up to inspection.

For example, in his initial asylum interview in 1997, Petar Krcic apparently described

psychological abuse and discrimination that he had suffered as a result of his ethnicity but

reported only one instance of physical abuse by authorities, saying that he was hit by police

when he was interrogated about his failure to report for military duty. In his written

application for asylum, Petar stated:

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I am seeking asylum because I am unwilling to return to my home country,
Serbia-Montenegro, because I fear I will be persecuted because of the fact
that I am a member of the ethnic Albanian minority in a majority Serbian
country. The basis for my fear is that I have experienced a lifetime of
discrimination and mistreatment, both official and unofficial, because of my
ethnic identity. The persecution I experienced was heightened during the
recent ethnic fighting between the states of former Yugoslavia. During this
time, attempts were made to forcibly conscript me into military service, which
would have resulted in my being sent to fight in a foreign country, either
Bosnia or Croatia, in the Serb forces. The Serb forces have been
condemned for performing atrocities and abusing the human rights of their
victims in Bosnia and in Croatia. I did not want to participate in an army
which behaved in such a fashion and I fled the country of Serbia/Montenegro
in order to avoid such service.

At the subsequent evidentiary hearing in 2000, in response to questions by the

immigration judge and his attorney, Petar confirmed that there was only one instance of

physical abuse. Specifically, when asked by his attorney whether “anybody hurt [him]

there,” Petar responded, “No, that, that day when I was stopped by the police in the city,

and the police pushed me down, so that was the day.” By 2003, however, the petitioners’

allegations of persecution had escalated to include numerous detentions by police, vicious

beatings of both Petar and Vera because of their political activity, and a gang rape of Vera

at the hands of three police officers. The Board concluded, as do we, that the record fails

to reflect any reason why this evidence, if credible, was not included in the original

application or presented at the evidentiary hearing.

The petitioners’ proof with regard to changed country conditions consisted principally

of articles and press releases describing the 2003 assassination of Prime Minister Zoran

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Djindjic, which led to a 42 day state of emergency. However, there is nothing in the record

to connect that assassination to the Krcics or to rebut the finding of the Board that:

[T]he State Department Report [as of July 2004] indicates that the
government of Serbia and Montenegro generally respects human rights,
although there were some problems resulting from the assassination and
resulting 42-day state of emergency, which was widely supported by the
population. The Report indicates that, in 2003, there were sporadic attacks
against ethnic Albanians, in Serbia rather than Montenegro, where the
[petitioners] are from. The Report does not indicate widespread actions
against ethnic Albanians in Montenegro.

Indeed, in a previous case with parallels to the one now before us, we noted that, to the

extent that conditions had recently changed in Montenegro, they had changed for the

better. See Pilica v. Ashcroft, 388 F.3d 941, 955 (6th Cir. 2004) (“While there is still

societal discrimination against ethnic Albanians, the situation in Montenegro is better than

in other parts of [former] Yugoslavia, and progress has been made in recent years in

increasing Albanians' political representation.”).

We review the denial of a motion to reopen deportation proceedings under an abuse

of discretion standard. Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir.2004) (citing INS

v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904 (1988)). An abuse of discretion occurs when the

Board makes a decision “without a rational explanation, inexplicably departed from

established policies, or rested on an impermissible basis such as invidious discrimination

against a particular race or group.” Balani v. INS, 669 F.2d 1157, 1161 (6th Cir. 1982)

(citation omitted). In this case, we are unable to conclude that the Board abused its

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discretion in denying the Krcics’s motion to reopen the proceedings, and we must therefore

DENY the petition to review the Board’s final order.

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