2003 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
11-7-2003 

# M atli jo sk a v . Att y Ge n U S A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 02-4193

F o l lo w thi s a nd a dd it ion al w ork s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2003

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2003 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it at ion

" M atl ij osk a v

. Att y Ge n U SA" (2003). 2003 D e cisio n s . P ape r 126. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2003/126NOT PRE CEDENT IAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ Case No: 02-4193

___________ MIRJ ANA MATLI JOS KA; NA UM E M AT LIJO SK I; GO RA N M AT LIJO SK I, Petitioners
v. JOHN ASHCROFT, ATTORNEY GENERAL OF THE UN ITED STATES

___________ PETI TI ON FOR RE VIE W OF THE DE CIS ION OF THE BOARD O F IMMIGRATION APPEALS

___________ Submitte d Pursuant to Third Circ uit LAR 34.1(a)

on November 4, 2003 Be for e: M cK EE , SM ITH , and W EIS , Circuit Judges , (Fil ed: November 7, 2003)

___________ OPI NION

___________1 The government seems to imply , based on the manner in which it sequences the facts, that

the petitioners did not apply for asylum until after they received notices to appear on July 27, 2000. That is not the case. Petitioners applied for asy lum within seven months of entering the United Sta

tes in Sept

ember 19 92, and the IN S waited until 2000 to act upon t

he applic ations.
2 Mr. Matlij oska’s whereab outs and im migrati on status a

re unkno wn. Neith

er issue is pertine nt to this ap

peal. 2 SM ITH , Circuit

Judge I. Mirjana Matli

joska and her

two sons, Goran and Naume, s eek revi ew of the Immigration Judge’ s (“IJ ”) denia l of the ir as yl um petitions. Ms. Matlij oska is a native of Serbia, and a citi zen of M acedonia. Both her sons are citizens of Macedonia. Ms. Matlij oska fir st ent ered the countryin 1990 foll owing her then hus band, who had entered the country the previ ous ye ar. I n 1992 she returned to Macedonia to bring her sons to t he United States. Ms. Matli joska and her

sons ente red the United State s toget her on September 5, 1992. App. at 267-72. On April 2, 1993, Ms. Matl ijos ka, her t hen husband, and thei r two sons fi led petiti ons for asy lum. App. at 57, 211-16, 202-10, 124- 42. 1 In March 2000, Ms. Matlij oska and her hus band were divorc ed. 2 It was not untilJulyof 2000 that t

he Office of Poli tica l Asylum intervi ewed Ms. M atli joska r egarding he r petition. On Ju ly 21, 2000, the IN S issued sep arate notices to ap pear, charging petitioners wit h re mo vab ility und er § 237 (a)(1 )(B ) of the I mm igra tion and Na tura lizatio n A ct, 8 U.S.C. § 1227(a )(1)( B). Peti tioner s requested asy lum, withholding of removal under t he Immigration and Nati onalit y Act ( “INA”). and withhol ding of removalunder the3

Convention Against

Torture a nd Other Cruel, Inhuman or Degrading Tr eatment or Pu nish me nt (“ To rture Co nve ntio n”)
. At th e hea ring b efore the IJ, M s. M atlijoska testified that in 1 991 her h om e in Maced oni a was burned down by per son s s he b el ie ved to be Al ban ia ns. Herson Naume testifie d that he had been prese nt along wit h his mother

when the house was burned dow n. M s. M atlijoska testified that an other r easo n fo r her f light w as that s he w as afr aid that he r sons , wh o w ere 17 and 1 2 at the time o f their e ntry into the Un ited Sta tes, w ould be dr afted into the M aced onian army. Sh e exp lained that she wa s afra id of re turning to Macedonia, becaus e she had nothi ng there. In the fi nal hearing, t

he IJ i ssued an ora l rul ing, de nyi ng petit ioners ’ appli cati ons for asy lum. Although the IJ found Ms. Matlij oska’s testi mony credible, he noted that there was no evi dence other than her own te sti mony that her home in Macedonia was burn ed do wn . The IJ dete rmine d that n one o f the re ason s prov ided b y petitioner s rose to the le vel required for as yl um. Inst ead, nothing in t he country

conditi ons report

indicated that Alba nians were out side t he controlof the Macedonian government, nor that t hey had an effect on c ivil ians. The IJ als o found that young men of Naume’s and Goran’s ages were not li kelyto be draf ted into the Macedonian army, a nd that e ven if they had be en, Macedonia was at not war, so that it was unl ikely

that e ither

Naume or Goran would be involved i n an armed confli ct. Although he acknowledged t hat it was unfortunate that

the law required the Matli

joskas to leave the United States and r eturn t o a country where they4

would be without pr operty , the IJ coul d see no alternati ve to removal . The IJ found t he Matlij oskas to be people of good char acter and grante d them volunt ary departure. The BIA affirmed the I J without opinion.

II. Th e IN A, 8 U.S .C. § § 20 8(a ) an d 24 1(b )(3) g ave the I J su bjec t ma tter ju risdi ction
. The BIA had appellat e juri sdiction pursua nt to 8 C. F.R. § 3. 1(b)(3) . This c ourt has jurisdiction over the B IA’s dec ision pursuan t to 8 U.S.C . § 1252(a ). Where the BIA af fir m s a n I J’s de cis io n w ith ou t o pi ni on w e r ev iew th e I J’s de ter m in ati on di re ctl y. Abd ulai v. A shcro

ft , 239 F.3d 542, 549 n.2 (3d Cir . 2001). An IJ’s det ermination that petit ion ers d id n ot m eet th eir b urd en is rev iew able on a sub stan tial ev iden ce s tand ard
. Abd ille v. Ash croft , 242 F .3d 47 7, 483 (3d C ir. 2001 ). The IJ’s de termin ation is conclusi ve unless “any reasonable adjudic ator would be c ompelled t o conclude t o the contrary.” 8 U.S.C . § 1252(4 )(B). We may reverse the IJ’s f indings on furture perse cution only w here “ the ev idenc e pres ented by [petition er] w as suc h that a reaso nable factfi nder would have t o conclude that the requis ite f ear of pers ecuti on exist ed.” INS v. Elias- Zacarias , 5 02 U .S . 4 78, 481 (1 992 ). Si mi larl y , w it h c la im s o f p as t p er se cu ti on “ we must ascertain whether the [ IJ’s ] factual det erminations ar e support ed by s ubstantial evidence . . . ” and “we may decl ine to uphol d the [IJ ’s] fi ndings onl y i f the evi dence compels a cont

raryconclusi on.” Ahm ed v. A shcro ft , 341 F.3d 214, 216-17 (3d Cir . 2003)3 With hold ing rem oval i s appr opria te whe re “the Atto rney Genera l dete rmine s that such a lien's

li fe or fr ee do m w ou ld be th re at en ed in su ch co un tr y on ac co un t o f r ac e, re li gi on , n at io na li ty, membership in a particular social group, or political opinion.” 8 U.S.C. § 1253(h)(1) . An applicant for withholding of removal under the Torture Convention bears the burden of establishing “that it is more likely than not that he or she would be tortured if removed to the proposed country of

removal.” Sevoian v. Ashcroft , 290 F.3d 166, 174-175 (3d Cir. 2002) 5 (internal citations omitted).

III. Asylum is prop er w here a n alien can s how that she qualif ies as a refug ee w ho is unable or unwilling to return t o her home cou ntry because of “persecut[i on] or who has a
we ll-foun ded f ear of perse cution on ac coun t of rac e, religion , nation ality, mem bersh ip in a parti cular s ocial group, or political opinion. ” 8 U.S.C. § 1101( a)(42) (A). A refugee claim ing a w ell fou nded fear o f pers ecutio n m ust sho w b oth tha t she is su bjectiv ely afraid that up on re turning to her h om e cou ntry she w ill be pe rsecu ted an d that th is fear is objectively

reasonabl e. INS v. C ard oza -Fo nse ca, 480 U .S. 421, 430 -31 (198 7). Wh ere petit ioners demonstrate past per secuti on, the y ar e presumed to ha ve a well- founded fear of p erse cutio n. Abd ille , 242 F.3d at 496; 8 C.F.R. § 208.13(b)(1). When petitioners’ applic ation relie s on fear of fut ure pers ecuti on, he or s he must show a well- founded subje ctive f ear, w hich is “ supp orted b y objectiv e evid ence that pe rsecu tion is a re ason able possibi lit y. ” Li n v. INS , 238 F.3d 239, 244 (3d Cir. 2001). I f an appli cant cannot meet the standar d for asy lum, i t is assumed that the appl icant

cannot meet t

he higher s tandard f

or wit hho ldin g re mo val. Id . at 443 -44; Jan usi ak v . I NS , 947 F.2d 46, 47 (3d Cir. 1991 ). 3(quoting 8 C.F.R. § 208.16(c)(2)).
4 Ms. Matlijoska suggests a third reason–that she is afra id to return to Macedonia because she has nothing left th

ere. Alt hough un fortuna te, this is not an appr

opriate basis for an asy lum claim.
5 Petitioners would have the court root its definition in the Handbook on Procedures and Criteria for Determining Refugeee Status (Geneva, 1992). Although the Handbook may be useful, petitioners agree that it does not have the for ce of law in the United States. INS v. Aguirre- Aguirre , 526 U.S. 415, 427 (1999). As the Supreme Court explained in Aguirre , the purpose of the Handbook is to give guidance, not make law. I t is unclear from petitioners’ brief, however, what the standard would be under the Handbook , and whether petitioners would meet that standard. There is no reason, then, for us to addre ss this assertion. 6 Th e bu rde n is o n th e pe tition er to sho w th at sh e m eets the r equ irem ents for asylum
. Li Wu Li n v. INS , 238 F.3d 239, 244 (3d Cir. 2001). Here, petiti oner brings claims of past persecution and future pers ecuti on. She must, theref ore, es tabli sh that

the past conduct rise s to the levelof persecution and that the pe rsecution is likel y t o continue into t he futu re. Ahm ed v. A shcro ft , 341 F.3d 214 ( 3d Cir. 2003) ; 8 C.F.R. § 208.13. M s. M atlijoska prov ided o nly two reaso ns tha t she fe ars pe rsecu tion in Macedonia. 4 First , her home was burned down byindivi duals she belie ved to be Albanians. Second, at

the ti me that t

he Matlij oskas le ft Macedonia, she was afrai d that her sons would be dr afted i nto the mi lit ary . The IJ found t hat, even if he were to accept th es e as se rtio ns a s tru e, th ey do n otcon stit ut e gr oun ds f

oras y lu m. The dispositive question, then, is whether the IJ was correct t hat neither of these circu ms tanc es ris es to the le vel o f “p erse cutio n” d efin ed b y § 11 01( a)(4 2)(A ). Persecution is a “seemingl y br oader concept than threats t o life or freedom. ” INS v. Stevic , 467 U .S. 407, 428 n.22 (198 4). 5 It i s not, however, a l imit less c oncept, as6 Compare Ahmed, 341 F.3d at 214 (discrimination against stateless Palestinians in Saudi

Arabia does not constitute persecution), Skalak v. INS , 944 F.2d 364, 365 (7th Cir 1991) (two incidents where

petitione r was jailed for q

uestioning for th

ree days after p olitical a

ctivity insufficient to show persecution), Kubon v. I NS , 913 F.2d 386, 388 (7th Cir. 1990) (no persecution found where petitioner was detained for five day s for transporting literature for a revolutionary org anization), andZalega v. INS , 916 F.2d 1257 (7th Cir 1990) (petitioner was not persecuted whe

n repea tedly arrested, interr

ogated , fired f

rom employ

ment, and parents questioned when he left for the United States), with Zubeda v. Ashcroft, 333 F.3d 463, 472 (3d Cir. 2003)(repea

ted sexual

abuse, including

gang rape along with

brutal mur

der of f amily members sufficient to show persecution), and Lin , 238 F.3d at 244 (r epeated attemptsby Chinese government to arrest petitioner for student demonstrations af ter 700 students were killed at Tiananmen Square constituted reasonable fea r of persecution). 7 explai ned by t

his Court in Fat in v. INS , 12 F .3d 12 33, 12 40 (3 d C ir. 1993 ): [T]he concept of

persecution does not

encompass alltreat

ment that

our society regards as unf air, unjust, or even un lawfu l or uncon stitutional. If persecution were defi ned that expansivel y, a signi ficant percent age of the worl d’ s po pul at io n wou ld qua li fy for as y lu m in th is cou ntry– an d i t s eems mo st unlik ely that Co ngre ss inten ded s uch a result. Per sec utio n m ust b e “e xtre me con duc t” in o rde r to q ualif y for a sylum pro tectio n. Idat 1240 n.10. There is ample case law from w hich to draw the outer limits
. 6 Before address ing the que sti on of whether the burning of pe titioners ’ house by Alban ians rises to the level of p ersecution, w e must ad dress the IJ’s stateme nt that “[w ]e have no evidence that t

he house was burnt .” What the IJ appar ently meant was that petition ers ha d no t offe red co rrobo rating e viden ce on this po int. Bu t we h ave h eld tha t it is diffic ult for th ose in dividu als w ho f lee pe rsecu tion to p rovid e the re quisite
cor rob ora tion nec essa ry to pr ove per sec utio n. Sen athi rajah v . I NS , 157 F.3d 210, 215-16 (3d Cir. 1998). As expl ained i n Senathir ajah , Common sense establ ishes t hat it is esc ape and fli ght, not litigati on and8

corroboration, t

hat is foremost in the mind of an alien who comes to these sh or es fle ein g d ete nt io n, t or tu re an d p er se cu tio n. A cc or di ng ly, corrobor ation i s not re quired t o establ ish cr edibil ity . The law all ows one se ek in g r ef

uge e s tatu s t o “ pr ove hi s p er se cu ti on c la im wit h hi s o wn testim ony if it is cre dib le.” Id. (quoti ng Mosa v. Ro gers , 89 F.3d 601, 604 (9th Cir . 1996)) . Thus, a n indivi dual wishing to establish past persec ution ma y do so simply through her ow n testimony, wh ere the IJ finds the indivi dual cre dible. The IJ’s de cisi on stat es that he found Ms. Matlij oska and Naume credible . It was improper, theref

ore, for the IJ to requi re corr oborati on that the p etitio ner s’ ho use wa s bu rne d do wn . However, the IJ ’s det ermination that there was no evi dence to suppor t the petiti oners’ claim that Albanians burned the house is supported by the record. Ms. Mat li jo sk a d idnot

ex pl ai n wh y sh e b el ie ve d tha t i t wa s Al ba ni an s wh o ha d bu rn ed dow n her h om e. Na um e testified that he did n ot kn ow that the hou se w as on fire un til a neighbor ca me over and informed them. Thus, the petiti oners themselves di d not provi de the IJ with suffi cient

evidence t

hat Albani ans, as opposed to some ot her group or individual, w ere respon sible for burn ing Petitioners’ hou se. Furtherm ore, the coun try conditions rep ort available to the co urt indicates throug h num erous exa mples w here ethnic Alb anian s, not M aced onian s, hav e bee n victim s of a buse . The IJ, then, h ad am ple reason t o rejec t peti tioner s’ sugges tion t hat Albani ans had burned down their home. The IJ concl uded that , even i f he were to acce pt Ms. Matli joska’ s test

imony t hat Alban ians burne d dow n her ho me, this does n ot constitute persecu tion. We a gree. W here7 Petitioner ’s argument tha t they are par t of a “so cial gr

oup” as d efined by the United Nations, and thus subject to persecution by ethnic Albanians is unpersuasive. Nothing in the record supports the assertion that ethnic Albanians targeted petitioners because they were Macedonian. 9 persecution is alle ged to have occur red at t he hands of a group t

hat is not part

of the gov ern me nt, th at gr oup mu st be sho wn to b e be yond the c ont rol o f the gov ern me nt. See Ab dille v. A shc roft, 242 F .3d 477, 49 4 (3d C ir. 1991); Eln age r v . I NS , 930 F.2d 784, 787 (9th Cir. 1991). There was no such evidence presented to the IJ. Nothing in Ms. M atlijoska ’s testim ony, nor in N aum e’s testim ony, sup ports a findin g that e thnic Albanian factions were bey ond the control of t he Macedonian government. The IJ was
correc t, then, tha t even a find ing tha t the pe titioners’ h om e w as bu rned by ethnic Albanians would not

rise to the l evel of per secuti on. 7 Ms. Matlij oska als o seeks asy lum because at the ti me of her fli ght, s he was concerned that her s ons would be drafted into t he Macedonian Army. She ga ve no explanation as to wh y she feared their service in the M acedon ian Arm y. Compu lsory milita ry serv ice b y itself f alls s hor t of p erse cutio n. Elias- Zacarias , 502 U.S. at 482; Kave h- Hagh igy v. INS , 783 F.2d 1321, 1323 (9th Cir . 1986). Because peti tioner s fail ed to provi de any e vidence, testimonial or otherwise, as to why i t was appropriate to beli eve that Naume and Goran, t hen 17 and 12 ye ars ol d, would be draf ted into the mil itar

y, or that t heir cons cription would lea d to any thing ot her than r outine mi lit ary servi ce, they fail ed to meet t

heir bur den to show perse cution. Add itionally, petitioners argue tha t, even thoug h they did not sup ply it, the IJ10

should have obt ained the country report on Macedonia. The countr y condi tions report

for Ma cedon ia, released by the State D epartmen t in February 200 1, was av ailable to the IJ prio r to M s. M atlijo ska ’s tes timo ny an d m ark ed a s ex hib it nu mb er 7 . Ap p. at 8 4, 15 7-6 6. Petition ers also assert th at the IJ c hastise d them for o mitting the co untry rep ort. Appellant ’s Br. at 13. The IJ commented in hi s oral ruli ng that, “The respondent has shown no countryconditi ons in the year 1992, which would have indicated that eit her of her sons would have been taken i nto the army at that t ime . . . .” App. at 62. The IJ was not intimati ng, however, that pe titioners had not provi ded any c ountryconditi ons, but rather that t hose country condi tions provided di d not support petit ioners ’ fears . A review of that report indicates t

hat he coul d have made an even stronger st atement, that t he countryreport

actual ly paints a picture of Albani ans as suffe ring per secuti on at the hands of Macedonians, not

the othe r way ar ound. The IJ’s de termination that no past persecu tion had oc curred, nor that p etitioners have a well-founded fear of future persecution, is supported by t he record viewed as a wh ole. W e the refo re af firm the B IA ’s af firm anc e of the I J’s d ecis ion
.

TO THE C LERK: Please fi le the foregoing Opini on. /s/ D. Brooks Smith Circuit Judge