In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3065

RIZAJA PELINKOVIC, SANIJA PELINKOVIC,

and SVEBOR PELINKOVIC,

Petitioners,

v.

JOHN D. ASHCROFT, Attorney General of

the United States,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals

Nos. A72 678 113, A72 678 112, and A72 678 111.

____________

ARGUED DECEMBER 10, 2003—DECIDED APRIL 28, 2004

____________

Before EASTERBROOK, MANION, and KANNE, Circuit

Judges.

KANNE, Circuit Judge.

I. Background

Rizaja Pelinkovic applied for asylum in 1995. His wife,

Sanija, and his son, Svebor, made derivative claims under
2 No. 02-3065

8 U.S.C. § 1153(d). The Pelinkovics are Muslims and ethnic

Albanians from the city of Bar in Montenegro, a part of the

former Yugoslavia. They fled their home for the United

States in February of 1992 due to Rizaja’s fear that the

military would forcibly reactivate him and send him to

Croatia to fight in a war in which he did not believe. The

family also complained of generalized discrimination, mistreatment, and economic hardship based on their Muslim

faith and Albanian ancestry. 

Prior to the Pelinkovics’ departure, Yugoslavia consisted

of autonomous provinces, including Serbia, Montenegro,

Croatia, Bosnia and Herzegovina, Macedonia, and Slovenia.

Capric v. Ashcroft, 355 F.3d 1075, 1082 (7th Cir. 2004)

(describing in detail the Balkan political landscape). Under

the rule of Serbian president Slobodan Milosevic, many of

the provinces seceded, including Croatia. Croatia’s secession

resulted in armed conflict with Serbia and, by association,

Montenegro. It was this civil war with Croatia from which

the Pelinkovics fled. Serbia and Montenegro later joined in

April of 1992 to form the Federal Republic of Yugoslavia

(“FRY”). See id.

The immigration judge hearing the Pelinkovics’ case

determined that Rizaja’s fear of forced military service or

punishment for failure to perform such service was unsupported. The judge reiterated the long-accepted position that

a country may require military service of its citizens. He

also noted that according to the State Department, FRY

citizens avoiding compulsory military service were not

pursued, harassed, or arrested. The fact that Rizaja’s

brother resided in Bar with similar military service obligations which he had heretofore avoided also cut against

Rizaja’s claim that he would be persecuted upon his return

to Montenegro.

The immigration judge found no other basis on which to

grant asylum, noting that the generally poor country con-
No. 02-3065 3

ditions cited by the Pelinkovics affected the entire population and that there was not enough evidence in the record

to support granting them asylum based solely on their

religious and ethnic minority status.

On appeal, the Board of Immigration Appeals (“BIA”) upheld the immigration judge’s determination. We affirmed

the BIA’s May 5, 1997 decision in an unpublished order

dated February 17, 1998.

The Pelinkovics then filed two petitions requesting the

BIA to reopen their case. The first petition, filed in

September of 1998, was based on changed country conditions in the FRY. In late 1998, Milosevic was still in

power and had begun military action in Kosovo (a province

within Serbia), which was struggling for independence.

See Capric, 355 F.3d at 1082. The majority of Kosovars

were Muslim and of ethnic Albanian descent, like the

Pelinkovics. Montenegro, although still unified with Serbia

in the FRY, was critical of Milosevic’s policies toward

Kosovo and his brutal police and military campaign aimed

at the ethnic Albanian separatists. See id. Relations between Serbia and Montenegro were strained, with predictions of civil war. 

In his petition to reopen based on changed country conditions, Rizaja reiterated his concern that if deported to

Montenegro, he, along with his son, Svebor, who was now

of military age, would be forced by Serbia to fight in Kosovo

against fellow Albanians. He stressed that because of

Milosevic’s campaign against ethnic Albanians in Kosovo

and the weakness of the Montenegrin government, conditions for ethnic Albanians in Montenegro had also deteriorated. In support of his petition, he attached his affidavit,

a military summons dated March 25, 1998, and numerous

news reports about the continuing destabilization of the

Balkans and isolated instances of violence against ethnic

Albanians.
4 No. 02-3065

The second petition, filed in April of 1999, was based on

Congress’s enactment of the U.N. Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (“CAT”), § 2242 of the Foreign Affairs

Reform and Restructuring Act of 1998, Pub. L. No. 105-277,

112 Stat. 2681, 2681-821. The CAT was made judicially

enforceable through 8 C.F.R. §§ 208.16(c) and 108.18(b)(2).

See Oforji v. Ashcroft, 354 F.3d 609, 614-15 (7th Cir. 2003).

The Pelinkovics asked the BIA to remand their case to the

immigration judge to permit them all to apply for relief

under the CAT. Because of ever-worsening conditions in

Montenegro, they urged that they could present credible

claims that each of them would be tortured upon their

return. Specifically, they cited mounting strife between

Serbia and Montenegro and alleged that civil war was

imminent, in which case Montenegrin ethnic Albanians

would likely face the same atrocities as the Kosovars. The

Pelinkovics supported this petition with their affidavits and

additional news stories on the mounting tension between

Serbia and Montenegro. They also included articles on

NATO’s bombing of Milosevic’s forces, which began in

March of 1999, in response to his incursion into Kosovo.

The BIA denied both petitions on July 18, 2002. As to the

September 1998 motion to reopen based on changed country

conditions, it found that the evidence presented by the

Pelinkovics merely demonstrated “escalating conditions”

that had no direct effect on Rizaja’s asylum claim. The BIA

stated that the Pelinkovics failed to convince the Board that

there was a reasonable possibility they would be persecuted

by Serbian nationalists because of their Albanian ethnicity.

The BIA also reiterated its position that a government has

the right to require military service and enforce such a

requirement with reasonable penalties. As to the April 1999

CAT claim, the BIA found that none of the evidence presented established that any of the Pelinkovics would be

subject to torture upon their return home.
No. 02-3065 5

The Pelinkovics now appeal the BIA’s decisions not to

reopen their case based on changed country conditions or

the CAT. We affirm the decisions of the BIA and deny the

Pelinkovics’ petition for review.

II. Analysis

We review the BIA’s decision not to reopen an asylum

claim under the highly deferential abuse of discretion

standard. 8 C.F.R. § 1003.2(a); Dandan v. Ashcroft, 339

F.3d 567, 575 (7th Cir. 2003). Motions to reopen are

“strongly disfavored.” Selimi v. Ashcroft, 360 F.3d 736, 739

(7th Cir. 2004) (citing INS v. Doherty, 502 U.S. 314 (1992)).

The Supreme Court has identified three independent

grounds upon which the BIA can deny a motion to reopen:

“(1) ‘failure to establish a prima facie case for the relief

sought;’ (2) ‘failure to introduce previously unavailable,

material evidence;’ and (3) ‘a determination that even if

these requirements were satisfied, the movant would not be

entitled to the discretionary grant of relief which he sought.’ ”

Mansour v. INS, 230 F.3d 902, 907 (7th Cir. 2000) (quoting

Doherty, 502 U.S. at 323). We will uphold the BIA’s decisions to deny the Pelinkovics’ motions to reopen “ ‘unless

[they were] made 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.’ ” Mansour, 230 F.3d at

907 (quoting Wijeratne v. INS, 961 F.2d 1344, 1348 (7th Cir.

1992)).

A. Motion to Reopen Based on Changed Country

Conditions

The BIA refused to reopen the Pelinkovics’ asylum

application due to changed country conditions because the

evidence presented with the September 1998 petition did
6 No. 02-3065

not establish prima facie eligibility for asylum or withholding of deportation. Aliens claiming asylum bear the

burden of showing they were subject to persecution in their

country of origin or have a well-founded fear of future

persecution upon their return home on account of race,

religion, nationality, membership in a particular social

group, or political opinion. See 8 U.S.C. § 1101(a)(42)(A);

Capric, 355 F.3d at 1084. To succeed in establishing a

prima facie case, a petitioner “must present specific facts

demonstrating that he has . . . good reason to believe that

he will be singled out for persecution.” Petrovic v. INS, 198

F.3d 1034, 1037 (7th Cir. 2000); see also 8 C.F.R.

§ 208.13(b)(2)(i). In other words, the Pelinkovics needed to

present evidence that Rizaja individually would be subject

to persecution upon return home based on changed country

conditions in Montenegro.

A petitioner can also attempt to establish a prima facie

case by presenting “a pattern and practice of persecution of

an identifiable group, to which he belongs, such that his

fear [of persecution] is reasonable.” Capric, 355 F.3d at

1094 (quoting 8 C.F.R. § 208.13(b)(2)(iii)). To meet this

standard, the Pelinkovics needed to show that Rizaja would

be subject to persecution per se because of his ethnic

Albanian or Muslim status.

The Pelinkovics based their motion to reopen because of

changed country conditions on two separate grounds—

eligibility for military service and generalized discriminatory conditions. We will discuss each in turn.

1. Military Service

The BIA determined that Rizaja’s renewed fear that if he

returned home to Montenegro he and his son would be

forced to fight in another war in which they did not believe,

or be punished for not doing so, did not overcome the FRY’s

right to require military service from its citizens and to
No. 02-3065 7

enforce that right with reasonable penalties. Thus, the BIA

reasoned, Rizaja and Svebor’s eligibility for military service

did not amount to persecution. 

First, the Pelinkovics argue that this determination was

patently wrong and unreasonable because the war in

Kosovo, unlike the Croatian war from which they originally

fled, was targeted at ethnic Albanians. Specifically, Rizaja

predicted that if forcibly conscripted into the military, he

and his son would be ordered to take part in human rights

abuses against ethnic-Albanian Kosovars and be asked to

kill fellow Albanians leading the revolt. We understand him

to oppose such activities based on his shared ethnic heritage with the Kosovars. 

We have previously acknowledged that “in some cases,

refusal to enter the army may render one a refugee if for

instance, the reason for refusal is a ‘genuine political,

religious or moral conviction or for valid reasons of conscience.’ ” Vujisic v. INS, 224 F.3d 578, 581 (7th Cir. 2000)

(quoting the Handbook on Procedures and Criteria for

Determining Refugee Status, United Nations High

Commissioner for Refugees ¶ 170 (Geneva 1979)). Yet,

Rizaja failed to present evidence that if he or his son were

forcibly conscripted into the FRY military they, as individuals, would be forced to serve in Kosovo and commit the

acts to which they morally objected.

Rather, the general evidence submitted paints a picture

of strong Montenegrin resistance to sending its citizens

to fight in Kosovo. Several articles provided by the

Pelinkovics with their petition report the Montenegrin

Assembly’s demand that Montenegrin conscripts be released from service in Kosovo and returned to stations in

Montenegro, with one article noting that only fifteen

percent of Montenegrin conscripts were even deployed in

Kosovo. Indeed, the evidence creates some question as to

whether ethnic Albanians were desirable army conscripts
8 No. 02-3065

at all. A news report by the British Broadcasting Corporation (“BBC”) states that it asked FRY military leaders why

ethnic Albanians were not serving in the army. The BBC

characterizes the response received as a “typical militarystyle answer,” which was, “[i]t is not we who decided that

they should not serve, and you know very well who did.”

(A.R. at 136.) The BBC’s article squares with a 1997 State

Department report noting that the FRY was generally

unenthusiastic about arming ethnic minorities. See Capric,

355 F.3d at 1094. Further, although Rizaja states in his

affidavit in support of the petition to reopen that army

conscripts who refuse an order to shoot a fellow Albanian

are themselves shot on sight, there is nothing in the record

to support this allegation. 

Second, aside from their moral convictions against the

war, the Pelinkovics urge that the BIA should have gleaned

from the evidence presented in their petition to reopen that

“military service was itself a staging area for persecution”

of ethnic Albanian males. Rizaja swore in his affidavit

attached to the petition that “[t]here have been credible

reports of the murder of Albanian solders [sic], as shown by

the exhibits I have attached to this petition.” (A.R. at 81, ¶

9.) Yet, out of the twenty-seven news articles provided by

the Pelinkovics, only one murder of a single ethnic-Albanian

soldier is reported. The circumstances surrounding his

death are not discussed, but are decried by an ethnicAlbanian Montenegrin political party as evidence that the

FRY military “is clearly conducting a policy of expulsion, illtreatment, harassment and stage-managed crimes.” (A.R.

at 141.) Except for this one self-interested statement by a

political party, no neutral source backs up the Pelinkovics’

claim.

Third, the Pelinkovics argue that Rizaja and Svebor will

be punished for avoiding military service, entitling them to

asylum. We recognize that if the “ ‘military action with
No. 02-3065 9

which an individual does not want to be associated, is

condemned by the international community as contrary to

basic rules of human conduct, punishment for desertion or

draft evasion could . . . in itself be regarded as persecution.’ ”

Vujisic, 224 F.3d at 581 (again quoting the Handbook on

Procedures and Criteria for Determining Refugee Status, ¶

171). It is beyond question that the Kosovar conflict which

the Pelinkovics sought to avoid was condemned by the

international community as contrary to basic rules of

human conduct. Id. at 582 (noting the continued condemnation of Yugoslavia’s campaign in Kosovo, as evidenced by

NATO bombings). Yet, the Pelinkovics failed to provide the

BIA with evidence that if Rizaja and Svebor refused to obey

the summons to serve, they would be subject to punishment.

Instead, the record documents exhibit only lukewarm,

sporadic attempts by the military to punish draft dodgers.

According to the single article submitted by the Pelinkovics

discussing the army’s attempt to punish those

Montenegrins avoiding military service, the number sought

to be prosecuted was listed as “more than thirty,” but only

two “showed up” in court over two days—one ethnic Serb

and one ethnic Albanian. They were both promptly fined,

but not imprisoned. Although the article speaks of progressively worse punishment for those who avoid appearing in

court and continue to refuse to answer the call, no other

articles report pursuit or harassment of draft dodgers.

Further, the article fails to confirm the Pelinkovics’ claim,

made exclusively in their briefs, that ethnic Albanians

received more severe treatment for draft evasion than did

those of Serbian descent. 

Based on the lack of evidence supporting the Pelinkovics’

claim that Rizaja and Svebor’s eligibility for military service

in the Kosovar conflict rises to the level of persecution, we

find that the BIA did not abuse its discretion in denying the

petition to reopen on that ground. The BIA rationally

concluded that the FRY retained the right to call upon its
10 No. 02-3065

citizens to serve in the military and to punish them proportionally when they refused. In the case of the Pelinkovics,

based on the evidence presented, they failed to show that,

if conscripted, they would serve in Kosovo or, if they chose

to avoid military service, they would be punished for such

avoidance. They also failed to provide prima facie evidence,

either individually or on a per se basis, that ethnic Albanians were treated more harshly within the military or as

draft dodgers.

We note that the Pelinkovics’ case is distinguishable from

Vujisic v. INS, 224 F.3d 578 (7th Cir. 1997) and

Begzatowski v. INS, 278 F.3d 665 (7th Cir. 2002) on which

petitioners heavily rely. In Vujisic and Begzatowski both,

we reversed the BIA’s denial of the petitioners’ asylum

applications that presented evidence of Yugoslav military

abuses directed individually at the petitioners because of

ethnicity, and did so under a slightly less deferential

standard of review than that applicable here. See 224 F.3d

at 581 (reviewing the BIA’s decision to deny the petitioner’s

asylum application under the substantial evidence test);

278 F.3d at 668 (same).

Vujisic was a Slovenian ethnic Serb who ignored Yugoslav

military reactivation orders in 1991 because of his objections to the invasion into Slovenia. 224 F.3d at 579. While

previously serving in the military, he was beaten and

accused of being a spy because of his Slovenian origins. Id.

Importantly, he was able to show fear of future persecution

should he rejoin the military based upon the treatment of

his father, also in the Yugoslav military. According to

Vujisic, after he failed to appear for service, his father was

arrested, questioned about his son’s whereabouts, and

dishonorably discharged without pension benefits. Id. at

581. We held that his experiences while in the military and

his family’s plight after his failure to obey reactivation

orders showed that the “Serbian officials singled out Vujisic

for persecution above that of other draftees, deserters and

Slovenian sympathizers . . . .” Id.
No. 02-3065 11

Begzatowski was an ethnic Albanian from Macedonia who

deserted the Yugoslav military in 1990 after experiencing

discriminatory treatment including segregation, lack of

access to bathing facilities, lack of training, physical

assaults and threats, and being used as a human shield in

battle. 278 F.3d at 667. We reversed the BIA’s determination that Begzatowski did not experience past persecution

based on his military experience because he provided

evidence that he, as an ethnic Albanian, had been singled

out for abuse. Id. at 670.

Again, Rizaja made no such showing that changed

country conditions would result in his or his son’s persecution by the FRY military upon their return home. The BIA’s

decision to deny reopening of the Pelinkovics’ asylum claim

on that ground was appropriate.

2. Generalized discrimination

Separate from their concerns about military service, the

Pelinkovics also alleged in their petition to reopen based on

changed country conditions that Milosevic’s campaign

against the ethnic-Albanian Kosovar insurgents subjected

them, as ethnic-Albanian Montenegrins, to a credible fear

of persecution upon their return home. The BIA determined

that on the record before it, the Pelinkovics succeeded in

only illuminating escalating civil strife. The BIA stated that

it remained unpersuaded that the Pelinkovics would face

persecution by Serbian nationalists based on their ethnicAlbanian heritage. Again, we find that the BIA did not

abuse its discretion in refusing to reopen the Pelinkovics’

case on these grounds.

The majority of the articles submitted by the Pelinkovics

outline Montenegro’s disagreement with Milosevic’s brutal

attempts to suppress the Kosovar separatists and the

resulting political schism between Serbia and Montenegro,

foreshadowing civil war. The civil unrest reported by the
12 No. 02-3065

Pelinkovics affected all Montenegrins equally, regardless of

ethnicity. We note, as we have many times before, that

crisis conditions common to all citizens of the affected

country do not present a prima facie case warranting reopening of an asylum claim. See Capric, 355 F.3d at 1084

(“However, generalized conditions of hardship which affect

entire populations do not rise to the level of persecution.”);

Bradvica v. INS, 128 F.3d 1009, 1013 (7th Cir. 1997)

(noting that the generalized conditions of strife in BosniaHerzegovina did not support a claim of asylum because they

did not show that the petitioner would be singled out for

persecution); Sivaainkaran v. INS, 972 F.2d 161, 165 (7th

Cir. 1992) (“[C]onditions of political upheaval which affect

the populace as a whole or in large part are generally

insufficient to establish eligibility for asylum.”). The

Pelinkovics had to show more.

To that end, the Pelinkovics argue, weakly, that because

of their membership in a persecuted minority class,

they are per se eligible for asylum. See 8 C.F.R.

§ 208.13(b)(2)(iii). Their evidence in support of this proposition includes articles describing abuses perpetrated by

police against ethnic Albanians in Kosovo, not in

Montenegro, the Pelinkovics’ home. In Capric v. Ashcroft,

we recently rejected the petitioners’ claim that they were

per se eligible for asylum based on their religion and

ethnicity. 355 F.3d at 1094-95. The Caprics, like the

Pelinkovics, hailed from Bar, Montenegro and were Muslims and ethnic Albanians. The Caprics, like the

Pelinkovics, based their asylum claim on the pattern of

persecution and ethnic cleansing directed against Kosovar

ethnic Albanians, who were struggling for independence

from Serbia. After distinguishing the treatment between

Montenegrin and Kosovar ethnic Albanians, we held that

the “evidence does not show that this was an ‘extreme

situation’ in which ethnic Albanians were subject to a

pattern and practice of persecution in Montenegro.” Id. at

1095. The same is true here.
No. 02-3065 13

Because the Pelinkovics cannot make a case that they

would be per se subject to persecution based on their

Muslim religion and ethnic-Albanian ancestry, they needed

to come forward with evidence that they individually would

be subject to religious/ethnic persecution upon their return

home, which they did not do. See 8 C.F.R. § 208.13(b)(2)(i).

We have held in numerous cases involving applicants

fleeing the war-torn Balkans that “fear of general conditions of ethnic persecution common to all members of an

ethnic minority does not constitute the well-founded fear

required by statute.” Petrovic, 198 F.3d at 1037 (collecting

cases); Selimi, 360 F.3d at 740-41, (denying Macedonian

ethnic Albanians’ petitions to reopen for failing to show that

they would be individually targeted for persecution, instead

stating generalized fear based on their membership in an

ethnic minority); see also Sivaainkaran, 972 F.2d at 165

(noting that the petitioner’s homeland, Sri Lanka, “like so

many countries across the globe, is locked in a seemingly

intractable ethnic civil war,” but that such a sad state of

political turmoil “does not permit the judiciary to stretch

the definition of ‘refugee’ to cover sympathetic, yet statutorily ineligible, asylum applicants”).

The BIA rationally determined that based on the evidence

presented with their petition to reopen, the Pelinkovics did

not establish a prima facie case that they would be persecuted in Montenegro because of their ethnic minority

status. The petition to reopen was properly denied.

We pause here to note that, as a final summation, the

Pelinkovics broadly argue that based on what the world

knows now of the heinous war crimes committed by

Milosevic during the Kosovo campaign, the BIA should have

viewed their moral objections to military service and their

fear of persecution based on ethnicity more charitably. Yet,

we take judicial notice that the Montenegro to which the

Pelinkovics will return is much different from the one they

left in 1992. See, e.g., Medhin v. Ashcroft, 350 F.3d 685, 690
14 No. 02-3065

(7th Cir. 2003) (taking judicial notice of the State Department’s current country report on Ethiopia); Dobrota v. INS,

195 F.3d 970, 973 (7th Cir. 1999) (taking judicial notice of

the State Department’s most recent country report on

Romania). 

The situation in the Balkans has improved dramatically.

As of today, Milosevic is out of power and on trial in The

Hague. The FRY has been dissolved and is renamed “Serbia

and Montenegro.” Kosovo, still technically a part of the new

Serbia and Montenegro, is a United Nations protectorate.

Although living conditions remain difficult because of years

of civil war and economic sanctions, and sporadic ethnic

clashes still occur, the State Department notes continued

improvement, along with few human rights abuses, including a negligible amount against Muslims of Albanian

descent. See United States Department of State, Background Note: Serbia and Montenegro (Jan. 2004), available

at http://www.state.gov/ r/pa/ei/bn/ 5388pf.htm; United

States Department of State, Country Reports on Human

Rights Practices-2003: Serbia and Montenegro (Feb. 25,

2004), available at http://

www.state.gov/g/drl/rls/hrrpt/2003/ 27874pf.htm.

The country conditions in Serbia and Montenegro, which,

after a decade of strife, have finally changed for the better,

are yet another reason to uphold the BIA’s decision not to

reopen their asylum claim. See Dobrota, 195 F.3d at 974

(affirming the BIA’s denial of aliens’ asylum application

because current country conditions reflected no threat to

the petitioners).

B. Motion to Reopen Based on the Convention

Against Torture

We also find that the BIA did not abuse its discretion in

determining that the Pelinkovics could not state a prima

facie case under the CAT. “An applicant has the burden of
No. 02-3065 15

proof to establish that it is more likely than not that he or

she would be tortured if removed to the proposed country of

removal.” Mansour, 230 F.3d at 907. “Torture,” under the

CAT, is defined as:

[A]ny act by which severe pain or suffering, whether

physical or mental, is intentionally inflicted on a person

for such purposes as obtaining from him or her or a

third person information or a confession, punishing him

or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating

or coercing him or her or a third person, or for any

reason based on discrimination of any kind, when such

pain or suffering is inflicted by or at the instigation of

or with the consent or acquiescence of a public official

or other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1); see also 8 C.F.R. § 208.18(a)(4) (defining under what circumstances “mental pain or suffering”

may constitute torture). According to the BIA, the

Pelinkovics’ motion to reopen and attached evidence failed

to show that any of them would be subject to “torture” as

that term is defined in the federal regulations. We agree.

The Pelinkovics premise their CAT claim, filed in April of

1999, on what appeared to be Montenegro’s imminent civil

war with Serbia. The Pelinkovics reasoned that because

Serbia demonstrated a pattern of human rights abuses

against ethnic Albanians in its Kosovar campaign, it would

continue that practice against ethnic Albanians in any

armed conflict with Montenegro. Their petition states: 

As shown by the articles attached hereto, on or about

April 3, 1999, President Slobodan Milosevic fired eight

Serbian generals stationed in Montenegro and replaced

them with hard-line loyalist[s]. That there is incipient

concern on the part of the United States that this action

will precipitate a civil war between Montenegro and
16 No. 02-3065

Serbia and will result in the commission of atrocities

and torture against ethnic Albanians residing in

Montenegro.

(A.R. 16, ¶ 5); see also (A.R. 21, ¶¶ 4, 6) (“I and my family

face substantial risk of torture by the Serbian army. In the

event of final control of the government of Montenegro by

Serbia, the Serbian army will engage in the torture and

wholesale slaughter of Albanians, particular[ly] adult

males. . . . This slaughter is now occurring in Kosovo.”). 

As with the similar claims made in support of their

motion to reopen based on changed country conditions, the

Pelinkovics’ failure to make a particularized showing that

any of them would more likely than not be subject to torture

upon their return, as differentiated from the general risk

shared by all ethnic Albanians in Montenegro, dooms their

case. See Tarawally v. Ashcroft, 338 F.3d 180, 188 (3d Cir.

2003) (denying a Sierra Leone petitioner’s CAT claim

despite evidence that the government at the time of his

application committed widespread human rights abuses,

including arbitrary killing of civilians, because those

statements “alone are insufficient to demonstrate that it is

more likely than not that a particular civilian, in this case

Tarawally, will be tortured by [the government] if returned

to Sierra Leone.”). Indeed, it was impossible for the

Pelinkovics to make such a showing, as the events they

feared were prospective—possible civil war with Serbia,

possibly resulting in the same ethnic cleansing directed at

ethnic Albanians as in other Milosevic campaigns. Thankfully, those possibilities did not come to pass.

III. Conclusion

The BIA did not abuse its discretion in denying the

Pelinkovics’ two petitions to reopen their asylum claims.

We, therefore, DENY the Pelinkovics’ petition for review.
No. 02-3065 17

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-28-04