2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-12-2005

Paripovic v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-4193

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 03-4193

 

ZELJKO PARIPOVIC

Petitioner

v.

*ALBERTO R. GONZALES, ATTORNEY GENERAL

OF THE UNITED STATES OF AMERICA,

Respondent

* Substituted pursuant to Rule 43c, F.R.A.P.

 

On Appeal from an Order entered before

The Board of Immigration Appeals

(No. A72-780-152)

 

Argued December 13, 2004

Before: AMBRO, VAN ANTWERPEN and STAPLETON,

Circuit Judges
2

(Opinion filed August 12, 2005 )

Sunit K. Joshi, Esquire (Argued)

Sokol Braha, Esquire

Joshi & Associates, P.C.

225 Broadway, Suite 705

New York, NY 10007

Attorneys for Petitioner

Peter D. Keisler

 Assistant Attorney General

Civil Division

Richard M. Evans

 Assistant Director

Douglas Ginsburg, Esquire

John D. Williams, Esquire

David E. Dauenheimer, Esquire (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878, Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

 

OPINION OF THE COURT

 
The Republic of Croatia declared independence from the 1

former Yugoslavia in June of 1991. 

3

AMBRO, Circuit Judge

Zeljko Paripovic (“Paripovic”) petitions for review of an

order of the Board of Immigration Appeals (“BIA”) affirming

the denial by an Immigration Judge (“IJ”) of his application for

asylum and withholding of deportation. We deny the petition

(except as to the designation of Croatia as the alternate country

for deportation). In so doing, we decide what is for us an issue

of first impression – the meaning of “last habitually resided”

under 8 U.S.C. § 1101(a)(42) for a “stateless” individual.

I. Facts and Procedural History 

Paripovic is an ethnic Serb born in Croatia in 1964.

Although he holds a birth certificate naming Croatia as his

birthplace, Paripovic conceded before the IJ that he was

rendered stateless by the dissolution of the former Yugoslavia

in 1992, and much of the parties’ dispute is centered on whether

his claims should be analyzed with Croatia or Serbia as the

frame of reference. 

1

Turning first to his claims related to persecution in
Two of those claims can be dealt with summarily. 2

Paripovic argues in his brief that he is entitled to a humanitarian

grant of asylum based on the severity of his past persecution

alone. At oral argument, counsel agreed that this claim is not

properly before us, as it was not raised before the agency. See

Abdulrahman v. Ashcroft, 330 F.3d 587, 594 (3d Cir. 2003). He

also agreed that no claim under the Convention Against Torture

is before us. 

4

Croatia , Paripovic testified before the IJ that in October 1990 2

he was caught in a police round-up of Serbian men and boys.

The police detained him in a camp for one month, where he and

others were “torture[d],” “harassed,” and beaten.

Approximately eleven months later, Croatian soldiers came to

Paripovic’s village and told the Serbs to “leave the country.”

Fearing that the ruling government was in the process of

carrying out the objective of making the country “pure

Croatian,” Paripovic and his parents fled to Serbia in August

1991. At some point during their flight, Paripovic and his

mother were separated from his father. (They never saw nor

heard from him again.)

In Serbia, Paripovic and his mother lived in an old

schoolhouse that served as part of a refugee camp. Although

conditions were poor, there is no indication that Paripovic was

beaten, tortured, or threatened. He was free to leave the camp

at any time, but he had “no place to go.” When military police

began recruiting refugees to fight in Croatia, he fled Serbia in
5

December 1993 to avoid being conscripted. 

Paripovic entered the United States at Puerto Rico

without inspection in January 1994. Within days he was placed

in deportation proceedings. Conceding deportability, Paripovic

filed an application for asylum and withholding of deportation.

The IJ denied his application, and Paripovic appealed to the

BIA. Without discussing the merits of the appeal, the BIA

remanded the matter to the Immigration Court in December

2000 because portions of the transcript were missing (or never

made). 

On remand, Paripovic’s case was transferred to the

Immigration Court in Newark, New Jersey. At a hearing in

April 2001, the IJ decided, with Paripovic’s consent, to examine

his claims anew. The IJ set a hearing date for June 20, 2001, but

on that date Paripovic requested a continuance. The IJ granted

it and advised Paripovic that if he intended to call a witness to

testify about current conditions in Croatia and Serbia, that

witness should be an expert. The case was continued several

times more, ultimately being heard in January 2002. 

At that hearing, Paripovic asked again for an adjournment

of the proceedings because the expert witness he intended to call

was in Bosnia. The IJ denied the request. Turning to the merits,

the IJ found that Paripovic was generally credible. The IJ

agreed with Paripovic that the treatment of Serbs in Croatia was

“discriminatory” and in many cases “involved acts of
At oral argument, counsel for the Government conceded 3

that the alternate designation of Croatia was in error. With

respect to persecution in Croatia, the IJ made no formal

findings, but “agree[d] that the treatment of Serbs in Croatia . .

. in many cases involves actions of persecution. The Court is

inclined to believe the testimony of [Paripovic] overall in terms

of his experiences in Croatia.” Because there is no indication at

this time that Paripovic will be deported to Croatia, we do not

remand for consideration of this issue, but will grant his petition

insofar as it seeks to vacate the alternate designation of Croatia.

6

persecution.” This credibility finding notwithstanding, the IJ

determined that Paripovic was not a refugee. In making this

determination, because Paripovic was a stateless individual, the

IJ inquired about the country in which he had “last habitually

resided” to determine whether he would face persecution in that

location, 8 U.S.C. § 1101(a)(42)(A), and determined that Serbia

was that country. 

Because Paripovic’s objection to being returned to Serbia

was that he might be drafted to fight in a civil war and there was

no longer ongoing conflict, his objection was no longer valid to

the IJ, who concluded that Paripovic had no legitimate fear of

persecution or torture in Serbia. The IJ issued a deportation

order designating Serbia as the primary deportation country and

Croatia as the alternate. 

3
7

The BIA dismissed Paripovic’s appeal in September

2003. It concluded that his contention that the IJ erred in not

granting the continuance was “without merit” (as the expert

witness could have provided testimony in the form of an

affidavit), and it otherwise adopted the IJ’s decision. 

II. Standard of Review

Because Paripovic’s deportation proceedings began prior

to April 1, 1997, our jurisdiction arises from the former

Immigration and Nationality Act (“INA”) § 106, 8 U.S.C.

§ 1105a, and is governed by the transitional rules of § 309(c) of

the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009

(Sept. 30, 1996).

In a slightly different context, we have concluded that the

determination of habitual residence is a mixed question of law

and fact. See Delvoye v. Lee, 329 F.3d 330, 332 (3d Cir. 2003)

(determining a child’s “habitual residence” under the Hague

Convention on the Civil Aspects of International Child

Abduction by reviewing the district court’s conclusion as a

mixed question of law and fact). Although in Najjar v. Ashcroft,

257 F.3d 1262, 1294 (11th Cir. 2001), the Court reviewed the

agency’s last habitual residence determination based on the

substantial evidence standard, no question of statutory

interpretation was presented and the dispute was strictly based

on the factual findings. Because the last habitual residence issue
It is well-settled that the BIA’s interpretation and 4

application of immigration law are subject to deference under

the principles of Chevron U.S.A., Inc. v. Natural Resource

Defense Council, Inc., 467 U.S. 837, 842-43 (1984). See Tineo

v. Ashcroft, 350 F.3d 382, 396 (3d Cir. 2003) (citing INS v.

Aguirre-Aguirre, 526 U.S. 415, 424 (1999)). The issue of

whether deference may be due here is complicated slightly by

the consideration that the BIA did not include a statement

explaining its interpretation of § 1101(a)(42)(A). Rather, citing

Matter of Burbano, 20 I.&N. Dec. 872, 874 (BIA 1994), it

expressly adopted the IJ’s decision. See Tchoukhrova v.

Gonzales, 404 F.3d 1181, 1188 (9th Cir. 2005) (explaining that

“[w]hen the BIA does not express any disagreement with any

part of the immigration judge’s decision, but instead cites

Burbano, the BIA adopts his decision in its entirety.”); Gishta

v. Gonzales, 404 F.3d 972, 980 (6th Cir. 2005) (explaining that

citation of [Burbano] . . . does not mean that the [BIA] did not

exercise its independent review authority over the case, but

rather . . . [it] adopts or affirms the immigration judge’s decision

when it is “in agreement with the reasoning and result of that

decision” (quoting Burbano, 20 I. & N. Dec. at 874)). 

8

can be resolved in our case only by both determining the facts of

the case and deciding what the applicable law means, we review

the determination under a mixed standard of review. Review of

the BIA’s legal conclusions is de novo, with appropriate

deference to the agency’s interpretation of the underlying statute

in accordance with administrative law principles. Abdulai, 239

F.3d 542, 551-52 (3d Cir. 2001). Regarding factual 4
When the BIA has affirmed without opinion the decision

of the IJ under 8 C.F.R. § 1003.1(e)(4)(ii), we have previously

doubted whether its affirmance is entitled to deference. See

Smriko v. Ashcroft, 387 F.3d 279, 289 n.6 (3d Cir. 2004) (“[I]t

would seem to be, at the very least, an open question as to

whether an IJ’s decision affirmed through the streamlining

process would be entitled to Chevron deference. . . . [D]eferring

to the reasoning of an IJ from which the BIA would be free to

depart in other cases would seem highly problematic.”). A

Burbano affirmance, however, significantly differs from a

streamlining decision under 8 C.F.R. § 1003.1(e)(4)(ii), which

“approves the result reached in the decision below[, but] does

not necessarily imply approval of all of the reasoning of that

decision.” In Burbano, the BIA concluded that its

independent review authority does not preclude

[it] from adopting or affirming a decision of the

immigration judge, in whole or in part, when we

are in agreement with the reasoning and result of

that decision. In this situation, the Board’s final

decision may be rendered in a summary fashion;

however, such summary treatment of a case does

not mean that we have conducted an abbreviated

review of the record or have failed to exercise our

own discretion.

Burbano, 20 I. & N. Dec. at 874 (emphasis added). Given that

the BIA has indicated that its analysis has not been truncated,

and approves both the IJ’s reasoning as well as the result, the

9
decision is entitled to deference. 

10

determinations, we affirm findings of fact supported by

substantial evidence. Abdille v. Ashcroft, 242 F.3d 477, 483 (3d

Cir. 2001). We are thus bound by the administrative findings of

fact unless a reasonable adjudicator would be compelled to

arrive at a contrary conclusion. 8 U.S.C. § 1252(b)(4)(B); see

also Abdille, 242 F.3d at 483. 

III. Analysis

A. Last Habitual Residence

“A grant of asylum allows an otherwise-removable alien

to stay in the United States.” Abdulai, 239 F.3d at 545. “Subject

to numerous exceptions not implicated in this case, the Attorney

General may grant asylum to an alien he determines to be a

refugee.” Id. (internal citation omitted). A “refugee” is defined

as

any 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 protection of, that country because of
11

persecution or a well-founded fear of persecution

on account of race, religion, nationality,

membership in a particular social group, or

political opinion. 

8 U.S.C. § 1101(a)(42) (emphasis added). Paripovic argued

below—and the IJ accepted—that Paripovic is a “stateless”

individual. He strenuously argues that the IJ should have

determined that he last habitually resided in Croatia. 

The IJ reasoned:

In this case the Court determines that the

respondent last habitually resided in Serbia. He

resided in Serbia from August of 1991 to

December of 1993. The Immigration and

Nationality Act defines the concept of residence

and it states the “term residence means the place

of general abode; the place of general abode of a

person means his principal, actual dwelling place

in fact, without regard to intent.” Particularly

relevant there in this definition is the issue of

intent. The respondent may well not have

intended to stay in a refugee camp his whole life,

but the Court feels that the amount of time he

spent there makes it fairly clear that his last place

of habitual residence was Serbia.
12

Under Chevron, we must determine whether “the statute is silent

or ambiguous with respect to the specific issue,” and, if so,

“whether the agency’s answer is based on a permissible

construction of the statute.” Chevron, 467 U.S. at 843; see also

Okeke v. Gonzales, 407 F.3d 585, 588 (3d Cir. 2005). Here, the

INA states that an individual’s refugee status shall be

determined “in the case of a person having no nationality” by his

or her relationship with the “country in which such person last

habitually resided,” § 1101(a)(42), but it nowhere clarifies the

meaning of “last habitually resided.” Given the silence as to the

meaning on this specific issue, we consider whether the answer

is based on a permissible construction of the statute.

Though “last habitually resided” is undefined, the INA

does define the term “residence” as “the place of general abode;

the place of general abode of a person means his principal,

actual dwelling place in fact, without regard to intent,” 8 U.S.C.

§ 1101(a)(33); cf. 8 C.F.R. § 214.7(4)(i) (defining “habitual

residence” for determining citizenship of the territories and

possessions of the United States as the “place of general abode

or a principal, actual dwelling place of a continuing or lasting

nature”). It was for this reason that the IJ concluded that

Paripovic’s intent was irrelevant to the analysis. Paripovic

argues that it was not his choice to live in Serbia, and therefore

it should not be deemed to be his place of last habitual

residence. This argument, however, essentially replaces the

notion of “intent” with the concept of “choice.” They are too

similar to provide a basis for concluding that the IJ, given due
13

deference, erred in his analysis. 

Although the IJ does not expressly define “habitual,” his

reasoning makes clear that he understood this term to relate to

the “amount of time [Paripovic] spent there.” “Habitual” may

be defined as “established by long use” or “usual.” See Chen v.

Mayflower Transit, Inc., 315 F. Supp. 2d 886, 911 n.22 (N.D.

Ill. 2004) (citing The American Heritage College Dictionary 609

(3d ed. 2000) (defining “habitual” as, inter alia, “[e]stablished

by long use; usual”)). Thus it was permissible (if not necessary)

for the IJ to consider the duration of time that Paripovic lived in

Serbia. 

Having concluded that the IJ’s interpretation of the

statute was permissible, we next consider whether his factual

findings were supported by substantial evidence. There is no

dispute that Paripovic resided in Serbia for more than two years

in a permanent (or at least semi-permanent) dwelling. These

facts are sufficient given our narrow standard of review. 

Lastly, Paripovic argues that the fact that he lived in

Serbia under duress negates the “habitual” finding. There is no

evidence, however, that he was prevented from leaving Serbia,

and as a result we cannot say we are compelled to reach a

contrary conclusion. Thus, the last habitual residence

determination by the IJ is supported by substantial evidence. 
14

B. Persecution in Serbia

Because the IJ properly determined that Serbia is

Paripovic’s country of last habitual residence, we analyze his

asylum and withholding of deportation claims as they relate to

that country. To establish eligibility for asylum on the basis of

past persecution, an applicant must show, inter alia, an incident

(or incidents) that rise to the level of persecution or a wellfounded fear of future persecution. Abdulrahman v. Ashcroft,

330 F.3d 587, 592 (3d Cir. 2003); 8 U.S.C. § 1101(a)(42)(A).

Turning first to past persecution, Paripovic contends that the

efforts of the military police to conscript him to fight in Croatia

is such persecution, but we have explained that it is “generally

accepted ‘that a sovereign nation enjoys the right to enforce its

laws of conscription, and that penalties for evasion are not

considered persecution.’” Lukwago v. Ashcroft, 329 F.3d 157,

168-69 (3d Cir. 2003) (quoting M.A. v. INS, 899 F.2d 304, 312

(4th Cir. 1990) (en banc)); see also Ambartsoumian v. Ashcroft,

388 F.3d 85, 93 (3d Cir. 2004) (“[C]conscription by a sovereign

nation cannot constitute persecution under 8 U.S.C. §

1101(a)(42)). 

In addition, though Paripovic argued before the IJ and

BIA that Serbia may forcibly remove him to Croatia, there is

little evidence in the record to support this argument, and in any

event there is contrary evidence on which the IJ relied. He also

determined that the draft was no longer in effect, and this

determination has not been challenged before us. Thus, the
At the January 2002 hearing (at which time his case had 5

been pending for approximately eight years), the IJ denied

Paripovic’s last-minute request for continuance due to his

expert’s unavailability. In view of the multiple prior

continuances, the fact that the IJ had advised Paripovic about the

desirability of expert testimony, and the lack of any explanation

for why counsel had failed to raise the expert’s unavailability

prior to the day of the hearing when he seemingly should have

known to do so, we cannot say that the refusal to continue the

hearing violated Paripovic’s right to procedural due process. 

Cf. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003)

(holding that denial of counsel’s request for continuance and

then proceeding with asylum hearing without counsel, where

counsel requested continuance only two days before hearing

and failed to explain his absence, was not an abuse of

discretion). 

15

conclusion that Paripovic neither was persecuted nor has a wellfounded fear of persecution in Serbia is supported by substantial

evidence. Moreover, because he failed to establish eligibility for

asylum, Paripovic necessarily also failed to meet the more

stringent standard for showing a “clear probability of

persecution” to be eligible for withholding of deportation.

Reynoso-Lopez v. Ashcroft, 369 F.3d 275, 278 (3d Cir., 2004)

(quoting INS v. Stevic, 467 U.S. 407, 420 n.13 (1984).5
16

* * * * *

Accordingly, we grant Paripovic’s petition to the extent

that it seeks to vacate the designation of Croatia as the alternate

country for deportation, and deny the petition in all other

respects.