Useinovic, Tahir v. INS ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3339
TAHIR USEINOVIC,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________
Petition for Review of an Order
of the Board of Immigration Appeals.
____________
ARGUED SEPTEMBER 4, 2002—DECIDED DECEMBER 27, 2002
____________
Before FLAUM, Chief Judge, and CUDAHY and KANNE,
Circuit Judges.
CUDAHY, Circuit Judge. Tahir Useinovic, a Yugoslavian,
seeks asylum in the United States. An Immigration
Judge (IJ) and the Board of Immigration Appeals (BIA)
both have found that Useinovic is ineligible for asylum
because he can show neither past persecution nor a well-
founded fear of future persecution. He petitions us to
reverse the BIA’s findings or to remand his case to the IJ
so that he can seek suspension of deportation under the
Nicaraguan Adjustment and Central American Relief Act
(NACARA). We affirm the decision of the BIA.
2 No. 01-3339
I.
Tahir Useinovic is a 41-year-old Albanian Muslim native
of the city of Bar, in the Republic of Montenegro portion
of the Federal Republic of Yugoslavia (Yugoslavia).1 He
entered the United States legally as a visitor on May 15,
1990. Useinovic’s wife, Ismeta Useinovic, to whom he
has been married since 1987, joined him on May 19, 1992.
They had a child born in the United States in 1994.
Useinovic applied for asylum to the Immigration and
Naturalization Service (INS) and was interviewed by
the INS on April 9, 1992.2 In his application for asylum,
Useinovic claimed that “[he] was mistreated every time
[he] practiced [his] religion,” and that “[b]ecause [he] was
involved in demonstrations against the government of
1
The Republic of Montenegro is (for the moment) one of the
two constituent republics (along with Serbia) of Yugoslavia. With
the victory of pro-independence parties in the October 2002
elections, Montenegro’s continued participation in the Federal
Republic of Yugoslavia is very much in doubt.
2
It is not entirely clear from the Administrative Record when
exactly Useinovic applied for asylum for the first time. There is
no date of application on the sheet recording his first interview.
Useinovic claims he applied on March 20, 1991. Pet. Br. at 11. The
Record does contain an application with what appears to be
Useinovic’s signature and a date that could be March 20, 1991
(but it also appears that it could be March 20, 1996). Administra-
tive Record (A.R.) at 413. However, there are three contradictory
indications: 1) the form on which this signature appears is a
form revised on November 16, 1994, 2) the date stamped on
the first page of the application shows its receipt on December
22, 1995 and 3) the signature occurs in a signature block designed
for signing during the asylum application interview, not in an
application date signature block. However, Respondent admits
that Useinovic applied for asylum before December 31, 1991,
Resp. Br. at 20, and a resolution of this issue is unnecessary
for our ultimate disposition.
No. 01-3339 3
Communist Yugoslavia, [he] was detain [sic], jailed, beaten
and then fired from [his] farm job.” Finally, he asserted
that if he were “forced to return to Yugoslavia, [he] will
definitely be detained and either go to jail or [be] forced
into the Yugoslavian Serbian war.” Administrative Re-
cord (A.R.) at 380. Useinovic was issued a Notice of In-
tent to Deny his application (NOID) on February 28, 1995,
and was ultimately denied asylum on April 11, 1995.
The INS issued an Order to Show Cause to Useinovic
on March 27, 1995, charging him with deportability un-
der then-section 241(a)(1)(C)(i) of the Immigration and
Nationality Act (INA), for having overstayed his nonim-
migrant tourist visa. See 8 U.S.C. § 1251(a)(1)(C)(i), trans-
ferred to § 1227(a)(1)(C)(i). At his hearing before the IJ
on March 20, 1996, Useinovic conceded his deportabil-
ity and renewed his request for asylum under 8 U.S.C.
§ 1158. He claimed “refugee” status under section 101(a)(42)
of the INA as grounds for eligibility for asylum, asserting
past persecution and a well-founded fear of future perse-
cution based on his Albanian ethnicity, Islamic religious
faith and anti-government political opinions and actions.3
Useinovic was the only witness at his hearing before the
IJ. Based on his testimony and the few documents sup-
porting his two applications for asylum, it is very difficult
3
The relevant part of INA § 101(a)(42), codified at 8 U.S.C.
§ 1101(a)(42)(A), states that a refugee includes
[A]ny person who is outside any country of such person’s
nationality or, in the case of a person having no nationality,
is outside any country in which such person last habitually
resided, and who is unable or unwilling to return to, and
is unable or unwilling to avail himself or herself of the pro-
tection of, that country because of persecution or a well-
founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion . . . .
4 No. 01-3339
for this court to construct a seamless, accurate and consis-
tent timeline of Useinovic’s experiences in Yugoslavia that
accounts for the events he claims support his well-founded
fear of persecution. What we can determine from his tes-
timony and documentation is as follows. Sometime before
or around 1977, Useinovic undertook his compulsory ser-
vice in the military. Because he was an only child sup-
porting his mother since his father’s death, he was sup-
posed to be eligible for shortened service of only 12 months.
Instead, he served 15 months. Useinovic testified gen-
erally that this extension of time was punishment for
his Islamic beliefs. He also claimed specifically that dur-
ing his time in the army, in 1977, an officer approached
him about joining the Communist Party. Useinovic tes-
tified that upon his refusal, the officer told him he “would
have a lot of problems afterwards,” and that Useinovic
“believe[d] in something that did not exist.” A.R. at 69.
Presumably the officer was referring to Useinovic’s reli-
gious beliefs.
Useinovic also claimed that difficulties in his work were
relevant to his request for asylum.4 At some time after his
4
A review of the Administrative Record suggests that most of
Useinovic’s claims of work-related incidents occurred after his
military service. However, there are indications that some
problems, not specifically elucidated, occurred during a period
of employment prior to military service. Useinovic’s immigration
documents detail his last year of schooling as the 1969-1970 school
year, after which he graduated from a Yugoslavian analog to an
American high school. And Useinovic is also clear in testifying
that his military service occurred around 1977. The Record also
shows that Useinovic described general employment difficulties
after having “graduated school” (A.R. at 69), thereby indicating
that he did work between school and military service and that
he experienced some problems then. But there are no specific
incidents for this period alleged to support his application for
(continued...)
No. 01-3339 5
military service, working either as a crane operator, or
on a farm, Useinovic was again asked to join the Commu-
nist Party and again refused, but he did not claim any
adverse consequences from this refusal. In 1989 and 1990,
Useinovic participated in the organization of five labor
strikes.5 During his testimony, Useinovic recounted that
he and some colleagues learned that two of their friends
had been suspended from work for refusing a transfer
to work that “they’ve never done before.” A.R. at 85.
Useinovic and colleagues on his shift felt they would also
be asked to transfer between jobs in a similar fashion,
and decided to start a strike. Ultimately, five days of
strikes resulted, with the last one involving 1,600 workers.
A.R. at 85. Useinovic testified that these demonstrations
which he organized resulted in his eventually being fired
from his position. He claimed that he was told to take a
leave of absence because there was less work to be done
at his job site. Useinovic came to the United States short-
ly thereafter “just for a visit,” but received notice within
a month that he had been fired. A.R. at 67-68.
Useinovic also testified that he faced persecution based
on his Islamic beliefs. In addition to the comments of
the military officer and to the extended military service
noted above, he claimed that he generally faced prob-
lems because his cousin was a hadja, a leader within the
4
(...continued)
asylum, nor are any such incidents expressly described in the
Record. Useinovic’s testimony concerning specific requests to
join the Communist Party refers to the officer’s request as the
“first time,” indicating that the work-related incidents we analyze
above occurred subsequent to his military service. A.R. at 69.
5
Useinovic’s testimony implies that these strikes were related
to his work as a crane operator; immediately before his testimony
discussing the strikes he testified that he had “no problems” at
his farm job. A.R. at 72.
6 No. 01-3339
Islamic community—a circumstance which caused changes
in the attitudes of friends and coworkers. Although
Useinovic admitted that he had never been arrested or
mistreated by the police, he did testify that sometime
around 1989-90 he had a fight over his Islamic faith with
a coworker, which had scared him sufficiently that he
did not go to work for “a couple of days.” A.R. at 71, 73,
78, 82.
Finally, Useinovic also testified that he feared persecu-
tion if he returned to Yugoslavia based on a home inva-
sion suffered by his mother in June of 1994. A translation
of a police report indicates that during the night of June
11, 1994, two or more men broke into Useinovic’s mother’s
house, tied her up and blindfolded her and stole money
and jewelry. A.R. at 100. In his testimony, Useinovic
claimed the invaders asked his mother, “[W]here is your
son? When is he going to come back?” A.R. at 74. They
told her that if he returned, they would harm him, and if
she tried to escape her restraints, they would “do the
same things [they] did in Bosnia.” A.R. at 74, 76. Useinovic
claimed that he later learned from a neighbor that the
robbers had been sent by the local police. A.R. at 75.
In an oral decision at the hearing, the IJ denied
Useinovic’s request for asylum and granted him voluntary
departure in lieu of deportation. Useinovic, the IJ found,
was a credible witness. However, even taking as true
the events described by Useinovic, he had not met his
burden of proof to show eligibility for asylum. A.R. at 43.
The judge found that Useinovic had presented no specific
evidence that he had been denied any opportunity to
practice his religion, and the specific remarks aimed
at him did not rise to the level of persecution. Nothing
about Useinovic’s protest activities was political, religious
or ethnic in nature; they were labor-related and they
could not support a claim of past persecution. The IJ
further found that his refusal to join the Communist Party
No. 01-3339 7
on the two occasions he had been asked to do so had had
no serious repercussions. Finally, the judge found that
the home invasion of his mother’s house, four years af-
ter Useinovic left Yugoslavia, was a criminally motivated
act, not a political or religious one.
Useinovic appealed to the BIA. The BIA denied his ap-
peal on August 7, 2001. The BIA found that the events
described by Useinovic did not rise to the level of persecu-
tion under the INA. Further, taking judicial notice of
the changed country conditions in Yugoslavia along with
its findings concerning the alleged past events, the BIA
found that Useinovic could not demonstrate an objective-
ly reasonable, well-founded fear of persecution. A.R. at 4.
This petition for review timely followed.
II.
A.
The BIA’s findings regarding asylum eligibility are
factual findings that we review under the substantial
evidence standard. Ambati v. Reno, 233 F.3d 1054, 1059
(7th Cir. 2000). We are required to affirm the BIA’s deci-
sion if it is supported by “reasonable, substantial, and
probative evidence on the record considered as a whole.”
Karapetian v. INS, 162 F.3d 933, 936 (7th Cir. 1998)
(quotations omitted). We will reject the BIA’s findings
only if “the evidence is ‘so compelling that no reason-
able factfinder could fail to find the requisite fear of per-
secution.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478,
484 (1992)).
Useinovic was placed in deportation proceedings by
the INS’s March 27, 1995, Order to Show Cause. Because
deportation proceedings began before April 1, 1997, the
1996 Amendments to the INA under the Illegal Immigra-
tion Reform and Immigrant Responsibility Act of 1996, Pub.
8 No. 01-3339
L. No. 104-208, 110 Stat. 3009 (IIRIRA), which substan-
tially altered deportation procedures (and associated
descriptive terminology6), do not apply to Useinovic’s ac-
tion. See, e.g., Buzdygan v. INS, 259 F.3d 891, 892-93
(7th Cir. 2001). Instead, the transitional rules in section
309(c) of the IIRIRA and the non-superseded sections of
the INA apply, and, as a result, this case continues to be
characterized as a deportation proceeding and request
for asylum. Id.
The INA gives to the Attorney General the discretion-
ary power to grant asylum to an alien who qualifies
as a “refugee” under 8 U.S.C. § 1101(a)(42). 8 U.S.C.
§ 1158(b)(1). Under § 1101(a)(42) a person becomes eligi-
ble for “refugee” status by showing either past persecu-
tion or a well-founded fear of future persecution if re-
turned to her prior country of residence. Useinovic does
not appeal the BIA’s finding that the events he alleges
do not rise to the level of past persecution. Instead, he
claims on appeal that he has a well-founded fear of per-
secution if returned to Yugoslavia on account of his Alba-
nian ethnicity, Islamic religion and anti-government
political opinions. A well-founded fear of persecution re-
quires specific, detailed facts showing 1) a genuine (subjec-
tive) fear of persecution upon return to the petitioner’s
home country, and 2) that the petitioner’s fear is objec-
tively reasonable. Toptchev v. INS, 295 F.3d 714, 720 (7th
Cir. 2002); Cuevas v. INS, 43 F.3d 1167, 1170 (7th Cir.
1995) (requiring that “a reasonable person in the appli-
cant’s circumstances would fear persecution if returned”).
6
For example, under the IIRIRA, the INS no longer serves
an “Order to Show Cause,” but rather a “Notice to Appear.” De-
portation proceedings are now called “removal proceedings.”
Asylum is still asylum, but suspension of deportation is now
called “cancellation of removal.” See 8 U.S.C. §§ 1229, 1229a,
1229b.
No. 01-3339 9
B.
We first must dispose of Useinovic’s claim that the BIA
improperly took administrative notice of changed country
conditions (as reported by the State Department) in Yugo-
slavia in making its determination. Our precedents make
clear that the BIA may take administrative notice of
changed country conditions in its determinations of eligi-
bility for asylum. Petrovic v. INS, 198 F.3d 1034, 1038
(7th Cir. 2000) (affirming the BIA’s administrative notice
of changed country conditions in Yugoslavia and Croatia);
Kaczmarczyk v. INS, 933 F.2d 588, 593-94 (7th Cir. 1991)
(validating the BIA’s administrative notice of the change
of government in Poland, rendering unlikely the possibil-
ity that Solidarity members would be persecuted upon re-
turn to Poland). However, the BIA cannot “blindly apply”
a noticed fact to deny automatically the asylum applica-
tions of that country’s citizens. Kaczmarczyk, 933 F.2d
at 594. The BIA must still engage in an individualized
review of the applicant’s case. Petrovic, 198 F.3d at 1038.
The BIA did engage in an individualized review of
Useinovic’s case. First, the situation recognized by the
BIA’s notice shows that the government Useinovic lived
under in Yugoslavia, as well as the one he claimed to
fear in his applications for asylum, was no longer in
power—in fact the character of the government was com-
pletely different with both the overthrow of Communism
and the removal of the Milosevic regime. Second, the
remainder of the BIA’s opinion is replete with individual-
ized analysis of Useinovic’s claims based on the hearing
before, and the decision of, the IJ. The BIA carefully
and succinctly contrasts the claims of Useinovic with
his resulting testimony. For example, Useinovic claimed
threats, verbal abuse, physical abuse and arrest based
on his ethnicity and religion, but his testimony was that
he had never been physically abused, arrested or jailed
by the police or anyone else. A.R. at 3. This, and the
10 No. 01-3339
analysis that follows, was highly particularized to
Useinovic’s individual circumstances. The BIA’s use of
administrative notice was proper.
C.
Useinovic next claims that both the IJ and the BIA
considered only the issue of past persecution and failed
to consider a well-founded fear of future persecution as
grounds for asylum eligibility. Because a well-founded
fear of persecution was alleged and argued by Useinovic,
and is a statutory ground for refugee status and eligibil-
ity for asylum, Useinovic argues that the failure of the
IJ and BIA to consider such grounds requires reversal.
Even if the IJ and BIA decisions can be read as reflecting
consideration of a well-founded fear of future persecution,
Useinovic further argues that their decisions “cursorily
concluded” that such a fear was not objectively reason-
able without adequate discussion of the factors leading
to this conclusion. Pet. Br. at 7.
Even a cursory examination of the record makes clear
that the IJ did render a decision on Useinovic’s alleged well-
founded fear of future persecution and found it to be un-
reasonable. A.R. at 41. The IJ, after outlining the reason-
able person standard for establishing a well-founded fear
of persecution, describes Useinovic’s “claim of a fear of
persecution,” and details the past racial and religious
incidents Useinovic alleged to support this claim. Further,
the IJ goes on to to describe how Useinovic fears that he
will face persecution for his organization of strikes and
opposition to the government, evidenced, according to
Useinovic, by the attack on his mother. A.R. at 42. There-
fore, as an initial matter it is clear that the IJ did, in fact,
make a determination with respect to Useinovic’s claim of
a fear of future persecution. Similarly, even Useinovic’s
own brief ultimately acknowledges that the BIA did, in
No. 01-3339 11
fact, make a determination on both grounds—past persecu-
tion and a well-founded fear of persecution. Pet. Br. at 7
(“While the BIA cursorily concluded that the appellant
did not demonstrate a reasonable possibility of suffering
persecution . . . .”).
In the alternative, Useinovic claims that the BIA did
not adequately explain its conclusion that he lacked an
objectively reasonable fear of future persecution. The BIA,
claims Useinovic, merely recounted the past incidents
alleged by Useinovic. This claim fails as well. Useinovic
appears to be trying to avoid the deferential substantial
evidence standard of review by characterizing the BIA’s
conclusion as one of legal error, that is, incorrectly inter-
preting the INA. But he is, in reality, challenging the
sufficiency of the evidence supporting the BIA’s findings
with respect to his fear of persecution—an appeal which
actually invokes the substantial evidence standard. To
that end, we must first examine the BIA’s use of past
incidents in its determination that there was no reason-
able fear of future persecution. Then, after evaluating
the BIA’s mode of decision, we will examine the remain-
ing challenge to the sufficiency of the evidence support-
ing the BIA’s determination.
First, the use of past incidents to frame a determina-
tion of a well-founded fear of future persecution is not
only routine, but highly probative. This approach is one
of the principal ways of demonstrating the existence of
a well-founded fear of persecution, because the existence
of past incidents of persecution creates a rebuttable pre-
sumption of future persecution. See Yadegar-Sargis v. INS,
297 F.3d 596, 601 (7th Cir. 2002). However, past events
forming the central basis for a petitioner’s claim of a fear
of future persecution may, in some circumstances, be
found insufficient or irrelevant and unable to support
eligibility for asylum. See Ambati, 233 F.3d at 1060-61
(examining alleged incidents of past persecution in deter-
12 No. 01-3339
mining whether petitioner had an objectively reasonable
fear of future persecution); Petrovic, 198 F.3d at 1037-38
(finding no well-founded fear of persecution based on
examination of evidence of past incidents and considera-
tion of changed country conditions).
During his hearing before the IJ, Useinovic, when
originally asked why he feared persecution, began recount-
ing the list of alleged acts of past persecution that we
have detailed. At the end of his testimony, Useinovic
was asked again what he thought would happen if he
went back to Yugoslavia. A.R. at 86. He responded, “Judg-
ing by all that has happened in the past, which I de-
scribed here in the [c]ourtroom, I don’t believe anything
good could happen to me there.” Id. Useinovic’s claim of
a fear of future persecution centered around the incidents
he alleged from the past. The BIA’s analysis of his claim
of a fear of persecution was, therefore, inevitably centered
around an examination of these past incidents.
However, even given the focus of Useinovic’s claim upon
past incidents in his life, the BIA did not, as Useinovic
claims, limit its examination only to those past incidents.
As already explained, very early in its opinion the BIA
took administrative notice that Yugoslavia had under-
gone significant change in the eleven years since Useinovic
left. A.R. at 3. Not only was the Communist regime that
ruled when Useinovic emigrated no longer in power, but
the dictatorial regime of Slobodan Milosevic had been
replaced. Id. Therefore, the BIA’s analysis of Useinovic’s
fear of persecution involved a consideration both of past
incidents of alleged persecution and of changed country
conditions within Yugoslavia. This was a sound and prop-
er procedure for adjudicating Useinovic’s claim.
So, ultimately we are left with a simple attack on the
substantiality of the evidence considered by the BIA,
which fails as well. There is substantial evidence support-
No. 01-3339 13
ing the BIA’s decision, and a reasonable factfinder could
find that there is not a well-founded fear of persecution.
The BIA found that it was unlikely, eleven years and two
regime changes later, that anyone in a position of power
would remember Useinovic’s activities or be motivated
by those activities to persecute Useinovic. A.R. at 3.
Useinovic testified that he was never arrested, beaten or
jailed by the police. A.R. at 73, 82. Useinovic’s testimony
also shows that his anti-government activities consisted
of refusing to join the Communist Party twice (resulting
in no major consequences for him) and organizing labor
strikes, which can be characterized, based on Useinovic’s
testimony, as involving labor issues rather than political
questions. A.R. at 85 (testifying that the strikes origi-
nated as a protest against job transfers to jobs for which
he and his colleagues were untrained). The only act of
colorably political or religious retribution Useinovic could
cite was the extension of his army service by 3 months. A
reasonable factfinder could conclude that no reasonable
person would fear persecution based upon these events,
particularly in light of the changed country conditions.
Useinovic did not suffer severe consequences for his ac-
tions at the time he acted, and the passage of time
since these activities only lessened the likelihood he
would face any persecution. The robbery of his mother
years after he left the country does not alter this conclu-
sion. This home invasion appears from the evidence, as
the BIA noted, to have been motivated by criminal inclina-
tions, not political retaliation. Useinovic has only hear-
say within hearsay to indicate that the police may
have been involved in the robbery, and slight evidence
to indicate that the robbery was primarily aimed at him
personally and not at his mother’s valuables.
As to his religion, Useinovic testified that he was not
active in his faith. A.R. at 70. The source of his problem
appears from the evidence to have been not his own faith
14 No. 01-3339
but his relationship to his cousin, a local hadja. Other than
isolated verbal confrontations, Useinovic presented no
evidence that he had been targeted based on his religious
beliefs, and no evidence that he would be so targeted upon
his return.
In conclusion, there exists in the record substantial
evidence supporting the BIA’s determination that no rea-
sonable person in Useinovic’s position would fear perse-
cution.
D.
Finally, Useinovic requests that we remand his case to
the IJ so that he can seek relief under the Nicaraguan
Adjustment and Central American Relief Act (NACARA),
Pub. L. No. 105-100, 111 Stat. 2160, Title II, §§ 201 et seq.
(1997). This request for relief points to a tortuous legisla-
tive trail that, at its end, reveals a simple outcome:
Useinovic has pursued this remedy at the wrong time
and in the wrong place.
To begin, Useinovic is requesting this court to remand
his case to the IJ so that he can apply for suspension of
deportation. This remedy would be added to the present
appeal’s application for asylum. The suspension of deporta-
tion was a form of discretionary relief from the Attorney
General authorized by section 244 of the INA.7 8 U.S.C.
§ 1254, repealed by IIRIRA § 308(b)(7). To be eligible
for suspension of deportation, an applicant needed to
have been continuously physically present in the United
7
This court has already issued a far more comprehensive
exegesis on the legislative path from INA § 244 through the
IIRIRA and on to the NACARA, and its consequent effects, to
which interested readers should refer for more information. See
Angel-Ramos v. Reno, 227 F.3d 942, 944-47 (7th Cir. 2000)
No. 01-3339 15
States for seven years, to have been a person of “good
moral character” during that period and to have estab-
lished that deportation would result in “extreme hardship.”
INA § 244. With the passage of the IIRIRA, Congress
tightened eligibility for suspension of deportation, now
called “cancellation of removal.” Specifically, convictions
of certain crimes precluded eligibility, the duration of
the required continuous physical presence was lengthened
to 10 years and the clock on an applicant’s continuous
physical presence was stopped the moment the INS
served a Notice to Appear (the new incarnation of what
was previously referred to as an Order to Show Cause).
IIRIRA § 304(a)(3) (amending the INA to add, inter alia,
§ 240A(b)(1) & (d), codified at 8 U.S.C. § 1229b(b)(1) & (d)).
The stopping of the clock on continuous physical pres-
ence by a Notice to Appear (referred to as the “stop time”
provision of the IIRIRA) was a significant change in the
law because, previously, aliens involved in deportation
proceedings that were significantly delayed often accumu-
lated sufficient “continuous physical presence” to qualify
for a suspension of deportation. Under the IIRIRA, the
onset of removal proceedings froze an alien’s eligibility
for cancellation of removal, regardless of any subsequent
delay. The IIRIRA’s transitional rules (as modified by
the NACARA), referred to above, made clear that indi-
viduals like Useinovic, who were placed in deportation
proceedings before the enactment of the IIRIRA (and
were thus not proceeding under the provisions of the
IIRIRA generally), still faced the stop time provisions
of new INA § 240A(d)(1) & (2).8 See NACARA § 203(a)(1)
8
One of the intricacies of this process (explained in more detail
in Angel-Ramos) is the manner in which the IIRIRA’s transitional
rules muddied the eligibility requirements for a suspension of
deportation for those in a transitional position—i.e., those in
(continued...)
16 No. 01-3339
(amending IIRIRA § 309(c)(5)). The result? An Order to
Show Cause issued even before the IIRIRA took effect
stopped the clock for the accumulation of any further
continuous physical presence during an alien’s deporta-
tion proceedings and froze an alien’s eligibility for suspen-
sion of deportation in the same way that a Notice to Ap-
pear freezes eligibility for cancellation of removal.
However, the NACARA giveth as well as taketh away.
The NACARA turned off the IIRIRA transitional rules’
restrictions for certain individuals and left them within
the INA § 244 criteria that were in place before the
IIRIRA. See NACARA § 203(a)(1) (amending IIRIRA to
add § 309(c)(5)); 8 C.F.R. § 3.43. Among such individuals
are those aliens who entered the country on or before
December 31, 1990, applied for asylum on or before
December 31, 1991 and whose country of origin had
been a signatory to the Warsaw Pact, including Yugo-
slavia. See NACARA § 203(a)(1) (amending IIRIRA to
add § 309(c)(5)(C)(i)(V)); 8 C.F.R. § 3.43(d)(4)(iii).
So where are we? Useinovic, a Yugoslavian national who
entered the United States before December 31, 1990, and
who, according to Useinovic, applied for asylum before
8
(...continued)
deportation proceedings before the IIRIRA went into effect, but
whose cases were still pending after it went into effect. The
problem was that the IIRIRA’s transitional rules’ restrictions
on the continuous physical presence requirement, the “stop time”
provisions, referred only to a “Notice to Appear,” which was
a term of art not in use for those people in deportation proceed-
ings before the IIRIRA, like Useinovic. See IIRIRA § 309(c)(5).
Such individuals had been served with an Order to Show Cause.
The NACARA clarified this by sweeping into the IIRIRA’s stop
time restrictions those individuals served with an Order to Show
Cause, whose deportation proceedings and applications for
suspension of deportation were still pending. See NACARA
§ 203(a)(1), amending IIRIRA § 309(c)(5).
No. 01-3339 17
December 31, 1991, received an Order to Show Cause prior
to the enactment of the IIRIRA. He is, therefore, very
possibly someone to whom the stop time provisions of
the IIRIRA do not apply, and his continuous physical
presence time continued to accumulate even after the
receipt of his Order to Show Cause. Now what? Stepping
back in time to the end of 1997, and the enactment of
the NACARA, what would a person in Mr. Useinovic’s
position have done to seek relief? The NACARA § 203(c)
provided that, with its passage, any individual eligible
for relief under its provisions could file a motion to re-
open deportation proceedings and apply for suspension
of deportation.9 Section 203(c) also directed the Attorney
General to specify a time frame during which newly eligi-
ble individuals could file motions to reopen based on
the NACARA. Within the limitations of the NACARA, the
Attorney General promulgated regulations requiring
that motions to reopen under the NACARA be filed no
later than September 11, 1998, with the corresponding
application for suspension of deportation to follow no
later than November 18, 1999. 8 C.F.R. § 3.43(e).
Here is where the facts begin to turn against Mr.
Useinovic. He has never filed a motion to reopen his
deportation proceedings and to seek relief under the
9
This was significant for a person in Useinovic’s position. The IJ
had rendered a final decision on his petition on March 20, 1996.
Under 8 C.F.R. § 3.23, Useinovic had 90 days to file a motion
to reopen his proceedings before the IJ. By the time the NACARA
was enacted, this window for filing was closed. Only the
NACARA’s special provisions would have given him, and those
similarly situated, an avenue for relief. See Motion To Reopen:
Suspension of Deportation and Cancellation of Removal, 64 Fed.
Reg. 13663, 13666 (March 22, 1999) (“[NACARA § 203] made
special provisions to permit a certain group of people who would
otherwise be prevented by statute and regulation to submit a
motion to reopen.”).
18 No. 01-3339
NACARA. This appears to be fatal to Useinovic’s claim.
First, Useinovic raises his alleged eligibility for relief
under the NACARA for the first time before this court. But
before this court could consider such a claim, Useinovic
would have first had to present it to the BIA and to ex-
haust his administrative remedies. Absent such exhaus-
tion, this court would lack jurisdiction to hear Useinovic’s
claims. 8 U.S.C. § 1105a(d), repealed by IIRIRA § 306(b);10
see Toptchev, 295 F.3d at 721. This was an issue that
Useinovic clearly could have brought to the attention of
the BIA. Second, even if this court were able to consider
Useinovic’s request (transforming it into a direct request
for NACARA relief), we would find him ineligible. He failed
to apply for relief within the time mandated by the stat-
ute and the Attorney General’s regulations. See NACARA
§ 203(c) (requiring the application period for relief to
begin no later than 60 days after the NACARA’s enact-
ment and to extend for not more than 240 days). Looking
only to the mandate of the statute, the opening date
for application would have been, at the latest, January 18,
1998, and the last date on which a motion to reopen
could have been filed under the statute would have been
September 15, 1998. Useinovic not only failed to meet
the deadline of the Attorney General’s regulations, he
also did not meet this statutorily set deadline. Because
he has not exhausted his administrative remedies and,
alternatively, has failed to meet the NACARA’s deadlines,
he can find no relief under the NACARA from this court.
III.
The BIA’s decision was supported by substantial evidence,
and its use of administrative notice of changed country
10
The principle of administrative exhaustion was preserved in
the IIRIRA § 306(a)(2), codified at 8 U.S.C. § 1252(d).
No. 01-3339 19
conditions was proper. Useinovic cannot seek suspension
of deportation under the NACARA by raising that issue
for the first time before this court. Not only has he failed
to exhaust his administrative remedies, but such an ap-
plication is untimely. The decision of the Board of Im-
migration Appeals is, therefore, AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-27-02