Matic v. Mukasey

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 08a0125n.06
Filed: February 29, 2008
No. 06-4436

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

PETAR MATIC AND JAGOD SPOLJARIC,
Petitioners
On Petition for Review of a Decision of the
Board of Immigration Appeals
v.

MICHAEL MUKASEY ,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent

______________________________/

BEFORE: KENNEDY, MARTIN, and COLE, Circuit Judges.

KENNEDY, Circuit Judge. Petitioners Petar Matic and Jagoda Spoljaric, husband and

wife, seek review of a final order of removal issued by the Board of Immigration Appeals (“BIA”),

adopting and affirming the Immigration Judge’s (“IJ”) denial of their claims for asylum, withholding

of removal, and withholding of removal under the Convention Against Torture (“CAT”). Because

we find that we do not have jurisdiction to review Petitioner’s asylum or CAT claims and the

finding that Petitioners failed to establish their eligibility for withholding of removal is supported

by substantial evidence in the record, we AFFIRM the BIA’s decision and DENY the petition for

review.

BACKGROUND

Petitioners Matic and Spoljaric, natives and citizens of Croatia, entered the United States as

nonimmigrant visitors for pleasure on December 24, 2001 with authorization to remain in the United
States until September 23, 2002. On February 28, 2003, each filed an Application for Asylum and

Withholding of Removal. On April 11, 2003, the Department of Homeland Security (“DHS”) served

each petitioner with a Notice to Appear (“NTA”), charging them with being subject to removal for

“remain[ing] in the United States for a time longer than permitted.” 8 U.S.C. § 1227(a)(1)(B).

Petitioners each admitted the allegations in their respective NTAs and conceded removability at a

hearing before an IJ on August 13, 2003.

On January 27, 2005, the IJ conducted a merits hearing on Petitioners’ asylum and

withholding of removal applications. At the hearing, Petitioner Spoljaric explained that she had filed

her asylum application in February 2003, more than a year after her arrival in the United States,

because she had hoped that she would be able to stay in the United States by being granted a work

visa; her visa application was denied in December 2002. She testified that she fears returning to

Croatia because she believes that she will be persecuted on account of her Serbo-Croatian ethnicity.

Petitioner Spoljaric testified about several incidents of employment discrimination because of her

Serbian heritage: (1) she was scheduled to start work at a publishing house as an illustrator of

children’s books on January 1, 1998, but after the personnel department received her “autobiography

with [her] schooling and [her] heritage,” she was “told . . . as an excuse that Russian style in

illustrating the school books . . . [is] not seen as proper” and she was not assigned any other projects;

(2) she was forced to resign a month after beginning work at the firm Dekoteks after an administrator

told her, “as a professional you are on a high level, . . . but due to unclean or not clean Croatian

blood the clients of Dekoteks cannot tolerate . . . the reputation of the firm Dekoteks would be

destroyed;” (3) she obtained a job as a designer at Face Cosmetics on October 16, 1998, and a month

later her co-workers “started talking against [her] Serbian heritage” and she received threatening

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notes; (4) she resigned from Face Cosmetics on January 30, 1999 after the administrator’s assistant

told her that “Serbs are not to work in Face and that it would be better for everybody if [she left]

Face and especially it would be a lot better for [her];” (5) she was approached by an individual in the

hallway of her employer, Magma, and threatened, “don’t be in Croatia and in Magma[;] we do [sic]

here with designers, they are Croatians but not Serbs[;] beware that there is a surprise coming to

you;” and (6) her contract with Magma “was cancelled due to the fact that they did not have enough

jobs or a need to do the work, . . . which was actually the big lie” – the director of Magma was

politically active and was the “minister of economy of the Republic of Croatia” and it “was known

through the newspapers and the media that [Magma] was letting go everybody that was Serb.”

Petitioner Spoljaric also testified that she had been physically attacked and threatened by

others because of her Serbian heritage. Petitioner Spoljaric alleged that an acquaintance with whom

she had worked waited for her at her apartment, entered, and then told her that she was against

Croatia because she is a “dirty Serbian,” while physically attacking her by “slapping [her] over [her]

head and over [her] neck. He then informed her that the “police is with us” and he would kill her

if she reported the incident to the police. Petitioner Spoljaric testified that she did not report the

incident to the police because she feared for her life and she believed that the police were working

with the “extreme group.” Petitioner Spoljaric also alleged that three young people jumped in front

of her and a friend while they were walking down the street and said, “You Serbian garbage, it would

be a lot better if you disappear from the firm, Face, because we will fix you in such a manner that

nobody will recognize you.” The three then pulled knives and started to advance toward them, but

Petitioner Spoljaric and her friend managed to run away.

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 Finally, Petitioner Spoljaric testified that after she and her now husband, Petitioner Matic,

began dating, they were verbally attacked by unknown people on the streets on a daily basis for their

mixed heritage. She indicated that she decided to leave Croatia after April 2001, when she received

an anonymous phone call during which the caller stated: “In Croatia we do not need people from

sects and we do not need Serbs. And if you marry Petar we will kill you both and watch what you’re

doing because you’re being followed.”

At the merits hearing, Petitioner Matic stated that he fears returning to Croatia, a

predominately Catholic nation, because he believes that he will be persecuted because he is an

Evangelical Christian. Petitioner Matic testified about several incidents he alleges he suffered

because of his religious beliefs: (1) he traveled from town to town in 1990, providing food, money,

and religious relief, as a member of a Christian humanitarian group and “all kinds of people”

verbally attacked him and tried to physically stop him and others in his humanitarian group; (2) after

he was arrested and taken to the police station in August 1992 for failure to show police the

documents he was required to carry under Croatian law, he was interrogated and instructed to kneel

at gunpoint after telling the inspector that he was not on the front lines of war because of his “heavy

Christian belie[fs];” (3) although he reported this incident to the Ministry of Interior the next day,

he never received an apology or an explanation for what happened at the police station; (4) in 1994,

a Catholic priest, along with “a bunch of bodyguards,” pushed him and other Protestants out of a

restaurant from which they were donating food, while screaming, “[Protestants] should be taken out

of Croatian society right from the roots,” and threatening to report them to the Croatian government

and the Catholic church; (5) the church he attended often had to change the places of its meetings

and prayer because of this kind of hostility; and (6) he was called to attend an informational session

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at the police station in December 1999, where he was asked his place of birth and religion and they

confiscated his passport. Petitioner Matic alleged that he suffered a mental breakdown on March

31, 2001 “because of all these things [that] were happening to [him] and all of the[ ] pressures.” He

stated that the doctors gave him medicine, but he was not admitted to the hospital because he did not

have medical insurance. Petitioner Matic stated that after he and Petitioner Spoljaric began receiving

threatening phone calls, he resolved to leave Croatia “at the first moment . . . feasible” for them to

“safely leave.”

The IJ issued an oral decision at the conclusion of the merits hearing on January 27, 2005,

denying Petitioners’ applications for asylum, withholding of removal, and relief under the CAT, and

granting Petitioners voluntary departure. With respect to their applications for asylum, the IJ found

that Petitioners had failed to timely file their applications within one year of their arrival in the

United States as required by 8 U.S.C. § 1158(a)(2)(B). Additionally, the IJ found that Petitioners

failed to demonstrate either changed circumstances or extraordinary circumstances to excuse their

untimely filing.

With respect to their withholding of removal claims, the IJ stated that Petitioners had

embellished their claims, their testimony was not completely consistent with the statements in their

asylum applications, and they had failed to offer sufficient corroborative evidence in support of their

claims. Additionally, the IJ found, “even assuming either [Petitioner’s] testimony was credible,”

they had not established a clear probability that they would be persecuted if returned to Croatia. The

IJ found that Petitioner Spoljaric’s employment problems amounted to private discrimination, not

persecution. The IJ also found that while the record evidence indicates there are some problems with

religious groups in Croatia, Petitioner Matic had failed to show that the government is systematically

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persecuting Protestant groups or that the government had interfered with the practice of his religion.

Furthermore, the IJ determined that Petitioner Matic’s arrest in 1992 was because of his failure to

have identification, not because of his Protestant faith, and his subsequent brief detention in 1999

was a result of this police record. The IJ noted that he was released and able to recover his passport

through legal means.

With respect to Petitioners’ CAT claims, the IJ held that Petitioners had failed to establish

that it is more likely than not that they would be tortured by, or with the consent or acquiescence of,

the government of Croatia if they return to Croatia.

Petitioners timely appealed the IJ’s decision on December 10, 2004. On August 31, 2006,

the BIA dismissed Petitioners’ appeal and affirmed the IJ’s decision. The BIA reissued its decision

on October 5, 2006 due to a defect in service. Petitioners filed a petition for review with this Court

on November 1, 2006.

ANALYSIS

Where the BIA indicates its agreement with the IJ’s decision and also provides some

comments of its own, as it did here, we review both the BIA’s decision and the IJ’s decision.

Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007). Under our standard of review, we must

uphold the decision if it is “supported by reasonable, substantial, and probative evidence on the

record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To overturn an

administrative determination under this highly deferential standard, “we must find that the evidence

not only supports [a contrary] conclusion, but compels it.” Id. at 481 n. 1.

I. Request for Asylum

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 An alien is precluded from applying for asylum unless she “demonstrates by clear and

convincing evidence that the application has been filed within 1 year after the date of the alien’s

arrival in the United States.” 8 U.S.C. § 1158(a)(2)(B). The exceptions to the one year requirement

permit an application to be considered if the alien demonstrates the existence of either changed

circumstances which materially affect her eligibility for asylum or extraordinary circumstances

relating to her delay in filing the application. 8 U.S.C. § 1158(a)(2)(D). “Extraordinary

circumstances” may excuse the failure to file within one year “as long as the alien filed the

application within a reasonable period given those circumstances.” 8 C.F.R. § 208.4(a)(5). The

burden of proof is on the alien to establish to the satisfaction of the IJ or the BIA that “the

circumstances were not intentionally created through his or her own action or inaction, that those

circumstances were directly related to the alien’s failure to file the application within the 1-year

period, and that the delay was reasonable under the circumstances.” Id.

We lack jurisdiction to review the IJ and BIA’s decision that an alien is not eligible for

asylum on the basis of 8 U.S.C. §§ 1158(a)(2)(B) & (D), unless the alien has raised a constitutional

claim or a question of statutory construction. 8 U.S.C. § 1158(a)(3); Almuhtaseb v. Gonzales, 453

F.3d 743, 746-48 (6th Cir. 2006) (holding, after enactment of the REAL ID Act, that while the Court

lacks jurisdiction to review discretionary and factual questions relating to the untimely filing of an

asylum application, the Court has jurisdiction, under 8 U.S.C. § 1252(a)(2)(D), to review

constitutional claims and matters of statutory construction related to the untimely filing if an alien

raises such issues).

Petitioners argue that we have jurisdiction to review the IJ and BIA’s determination that they

are not eligible for asylum because of their failure to file an application within one year of the date

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of their arrival in the United States because they raise a constitutional claim relating to the untimely

filing. Petitioners attempt to raise a constitutional claim by arguing that the IJ and BIA violated due

process by failing to engage in a case-by-case reasonableness analysis for a delay period shorter than

six months, as required by agency regulations. See 65 Fed. Reg. 76123-76124 (Dec. 6, 2000)

(“[W]aiting [to apply for asylum] six months or longer after expiration or termination of status would

not be considered reasonable. Shorter periods of time would be considered on a case-by-case basis,

with the decision-maker taking into account the totality of the circumstances.”). We find, however,

that the IJ and BIA did engage in a case-by-case analysis and concluded that waiting five months

after their lawful nonimmigrant status expired to file their asylum applications was an unreasonable

period, despite Petitioners’ contention that they waited because they hoped that Petitioner Spoljaric’s

visa petition would be approved. Petitioners’ purported due process claim is simply an attempt to

challenge the IJ and BIA’s discretionary determination that filing a visa petition is not a valid reason

for delaying the filing of an asylum application after lawful status has expired and does not constitute

excusable extraordinary circumstances. Therefore, because Petitioners have not raised a

constitutional question or matter of statutory construction, we must dismiss the petition for review

on their asylum claims for lack of appellate jurisdiction.

II. Request for Relief Under the Convention Against Torture

Petitioners also argue that the IJ erred in relying on In Re S-V-, 22 I. & N. Dec. 1306 (2000),

for the standard of government “acquiescence” required to qualify for withholding of removal under

the CAT when the alien alleges a likelihood of torture from non-governmental sources because of

our recent decision in Amir v. Gonzales, 467 F.3d 921 (6th Cir. 2006). Petitioners, however, failed

to exhaust their administrative remedies by raising such claims before the BIA in the first instance.

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Therefore, we lack jurisdiction to review the denial of Petitioners’ claims for withholding of removal

under the CAT. See 8 U.S.C. § 1252(d).

III. Request for Withholding of Removal

Finally, Petitioners seek review of the denial of their request for withholding of removal. To

qualify for withholding of removal under 8 U.S.C. § 1231(b)(3), an applicant must establish a clear

probability that he will be persecuted on account of a protected ground if forced to return to the

country of removal. Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir.2004). An applicant must

demonstrate that “it is more likely than not” that he will be persecuted upon return. 8 C.F.R. §

1208.16(b)(2). An applicant’s testimony may be sufficient to establish eligibility for withholding

of removal if it is “believable, consistent, and sufficiently detailed to provide a plausible and

coherent account of the basis for his fear.” Pilica, 388 F.3d at 954.

In the present case, the IJ and BIA held that even if Petitioners were credible, they had not

established that they had been persecuted in the past or that there is a clear probability that they

would be subject to persecution if returned to Croatia. The IJ and BIA found that the employment

discrimination, beatings by an acquaintance and unknown assailants, and anonymous threats

Petitioner Spoljaric allegedly suffered on account of her ethnicity did not amount to persecution.

Furthermore, because Petitioner Spoljaric did not file formal complaints or even report the incidents

to the police, the IJ and BIA found that she could not demonstrate a clear probability of future

persecution as she had failed to demonstrate that Croatia is unwilling or unable to protect her from

the alleged non-governmental persecutors. The IJ also found that Petitioner Matic’s claim that his

religious group was denied access to public squares did not constitute persecution and his detention

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by the police resulted from his failure to have proper ID documents in his possession at the time, not

because of his religion or ethnicity.

Because the record evidence does not compel a finding that it is more likely than not that

Petitioners’ lives or freedom would be threatened on account of their ethnicity or religion if returned

to Croatia, we uphold the IJ and BIA’s denial of withholding of removal.

CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the BIA and DENY the petition for

review.

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