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Canovic v. Mukasey

United States Court of Appeals, Second Circuit
Nov 19, 2007
No. 05-3718-ag (2d Cir. Nov. 19, 2007)

Opinion

No. 05-3718-ag.

November 19, 2007.

UPON DUE CONSIDERATION of this petition for review of the Board of Immigration Appeals decision, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition for review is DENIED.

FOR PETITIONER: LINDA C. FLANAGAN, New York, NY.

FOR RESPONDENT: ANDREW INSENGA, (Lennie A. Lehman, Assistant United States Attorney, Steven M. Biskupic, United States Attorney, on the brief), Milwaukee, WI.

PRESENT: JOSÉ A. CABRANES, ROBERT D. SACK, ROBERTA. KATZMANN, Circuit Judges.



Petitioner Hamdo Canovic, a native and citizen of the Federal Republic of Yugoslavia, seeks review of a June 24, 2005 order of the Board of Immigration Appeals ("BIA") affirming and adopting in part the January 6, 2004 decision of Immigration Judge ("IJ") Noel A. Ferris that denied Canovic's application for asylum, withholding of removal, and relief under Article 3 of the Convention Against Torture ("CAT"). In re Canovic, Hamdo, No. A 95 167 570 (B.I.A. June 24, 2005), affirming No. A 95 167 570 (Immig. Ct. N.Y. City, Jan. 6, 2004). We assume the parties' familiarity with the underlying facts and procedural history in this case.

When the BIA affirms the IJ's decision in all but one respect, we review the IJ's decision as modified by the BIA. See Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d Cir. 2005). We review the BIA and IJ's factual findings under the substantial evidence standard, treating them as "conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). We will vacate and remand BIA decisions "that result from flawed reasoning, a sufficiently flawed fact-finding process, or the application of improper legal standards." Manzur v. U.S. Dep't of Homeland Sec, 494 F.3d 281, 289 (2d Cir. 2007).

We conclude that substantial evidence supports the BIA's determination that Canovic failed to meet his burden of establishing past persecution or a well-founded fear of future persecution. In support of his claim that he had suffered past persecution, Canovic testified that he had been conscripted into the Serbian army for a year; and that, while in the army, he "always had to do more" than the other soldiers — for example, more guard duty — because he was a Muslim. The BIA and IJ accurately noted that Canovic's testimony did not establish (1) that Canovic had experienced mistreatment that amounted to persecution, or (2) that this mistreatment was connected with his Muslim religion or Albanian ethnicity. Under these circumstances, the BIA and IJ reasonably found that Canovic did not establish past persecution. See Ivanishvili v. U.S. Dep't of Justice, 433 F.3d 332, 341 (2d Cir. 2006) (defining persecution as "the infliction of suffering or harm upon those who differ on the basis of a protected statutory ground").

Substantial evidence also supports the BIA's determination that Canovic failed to establish a well-founded fear of future persecution. Canovic testified that he feared being returned to Montenegro because he had ignored a conscription notice in 1999. However, he did not offer any evidence to rebut the Government's showing that the Federal Republic of Yugoslavia had, in 2001, passed a law granting amnesty to individuals who fled abroad in order to avoid serving in the Serbian army during the war in Kosovo. Furthermore, although the state union of Serbia and Montenegro broke apart into the independent states of Serbia and Montenegro after the BIA issued its opinion in this case, Canovic does not assert that this change in sovereignty has had any effect on the applicability of the relevant amnesty laws and does not request that we remand for consideration of changed country conditions.

Because Canovic is unable to show the objective likelihood of persecution needed to make out an asylum claim, he is necessarily unable to meet the higher standard required to succeed on his claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 155 (2d Cir. 2006) ("It is well-settled that the burden of proof for a withholding of removal claim is higher than the burden of proof for an asylum claim.") Because Canovic's CAT claim was based on the same factual predicate as his claims for asylum and withholding of removal, substantial evidence also supports the BIA and IJ's determinations that Canovic failed to establish a likelihood of torture upon his return to Montenegro. See Shou Yung Guo v. Gonzales, 463 F.3d 109, 114 (2d Cir. 2006).

Canovic fled from the Federal Republic of Yugoslavia, a country that no longer exists and to which he, therefore, cannot be removed. Because Canovic is in asylum-only proceedings pursuant to 8 U.S.C. § 1187(b), respondent's counsel assures us that the Department of Homeland Security will, subsequent to our decision in this case, make a determination as to an appropriate place to which he will be removed.

For the foregoing reasons, Hamdo Canovic's petition for review is DENIED. As we have completed our review, Canovic's pending motion for a stay of removal is DISMISSED as moot.


Summaries of

Canovic v. Mukasey

United States Court of Appeals, Second Circuit
Nov 19, 2007
No. 05-3718-ag (2d Cir. Nov. 19, 2007)
Case details for

Canovic v. Mukasey

Case Details

Full title:HAMDO CANOVIC, Petitioner, v. MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE…

Court:United States Court of Appeals, Second Circuit

Date published: Nov 19, 2007

Citations

No. 05-3718-ag (2d Cir. Nov. 19, 2007)