NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 11-1474 _______________

ALIJA JADADIC,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent _______________

On Petition for Review of a Final Order of the Board of Immigration Appeals Immigration Judge: Honorable William K. Strasser (No. A072-494-586)

_______________

Submitted Under Third Circuit LAR 34.1(a) January 27, 2012 _______________

Before: AMBRO, CHAGARES and HARDIMAN, Circuit Judges

(Opinion filed: February 17, 2012) _______________

OPINION _______________

AMBRO, Circuit Judge Alija Jadadic petitions for review of an order by an Immigration Judge (“IJ”),

summarily affirmed by the Board of Immigration Appeals, denying his claims for asylum

and withholding of removal. For the reasons set forth below, we affirm the decision of

the IJ and deny the petition for review.

I.

Jadadic is a native of the former Yugoslavia and a citizen of what is now

Montenegro. He arrived in the United States in 1992 without valid entry documents, and

he was placed in exclusion proceedings. A hearing was scheduled in 1993, but the matter

was administratively closed when he did not appear. In 1996, Jadadic applied for

asylum, withholding of removal, and protection under the United Nations Convention

Against Torture. He stated during the proceedings that he had not received notice of the

1993 hearing.

Fast forward to 2004, when Jadadic’s evidentiary hearing finally took place. In

his testimony and affidavit in support of his relief applications, Jadadic stated that he is

an ethnic Albanian Muslim from Plav, Montenegro. In 1990, he and his parents and two

brothers joined the SDA (the Party of Democratic Action), a party that opposed Slobodan

Milosevic, then President of the Republic of Serbia. Jadadic’s brother was recruited to

serve in Milosevic’s special police, where his superiors forced him to aid in quashing

Muslim demonstrations. When the brother’s term of duty ended, he refused the demand

to re-enlist. The special police responded by jailing him for two months and beating him

while in detention. The brother escaped in February 1992 and fled to the United States,

which ultimately granted him asylum.

2 After Jadadic’s brother escaped, the special police, according to Jadadic,

frequently went to the family’s home in search of him. They would force the family

outside and upend furniture, destroy walls, and ransack the house, ostensibly looking for

weapons. The police also beat Jadadic two or three times, demanding to know the

whereabouts of his brother. Subsequently, Jadadic himself was summoned to report for

duty with the special police. Fearing that he would suffer his brother’s fate and be forced

to kill civilians and Muslims as part of Milosevic’s regime, he fled Yugoslavia and went

to Germany. Later in 1992 he entered the United States from Sweden.

The IJ denied Jadadic’s applications for relief, finding that he had shown neither

past persecution nor a well-founded fear of future persecution “due to the passage of time

and the change of circumstances.” The IJ noted that if the case had been decided earlier,

from the year of Jadadic’s departure through 1998, the outcome might have been

different. However, that was no longer true because the “leadership of Yugoslavia that

was involved in ethnic cleansing has basically been removed from power.” In 2005, the

Board of Immigration Appeals affirmed without opinion. In 2011, the Board reissued its

prior decision, holding that Jadadic had demonstrated that his prior counsel was

ineffective for failing to file a timely petition for review. This petition for review

followed.

II.

The Board of Immigration Appeals had jurisdiction over this case pursuant to

(b)(3). We have jurisdiction under

. Where, as here, the

Board summarily affirms the IJ’s opinion, “we review the IJ’s decision as the final

3 administrative determination.” Huang v. Att’y Gen.,

(3d Cir. 2010).

We treat the IJ’s findings of fact as “conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.”

(b)(4)(B). We review

questions of law de novo. Totimeh v. Att’y Gen., --- F.3d ---,

(3d

Cir. Jan. 12, 2012).

III.

Jadadic has applied for asylum and withholding of removal. 1 The Attorney

General or the Secretary of Homeland Security may grant an alien asylum provided that

he is a “refugee” within the meaning of the Immigration and Nationality Act.

(b)(1)(A). The definition of “refugee” that applies here is “any person . . . who is

unable or unwilling to return to” his home 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.”

§ 1101(a)(42)(A). The applicant bears

the burden of proof to establish that he is a refugee. Id. § 1158(b)(1)(B)(i).

Refugee status may not be based solely on past persecution if the IJ finds, by a

preponderance of the evidence, that “[t]here has been a fundamental change in

circumstances such that the applicant no longer has a well-founded fear of persecution in

the applicant’s country of nationality . . . .”

(b)(1)(i)(A). The

Government bears the burden of proof to demonstrate a change in circumstances in the

1 Before the IJ, Jadadic had also sought relief pursuant to the United Nations Convention Against Torture. However, on appeal, he has not challenged the IJ’s conclusions under the Convention, and thus has waived any argument on that ground. See Bradley v. Att’y Gen.,

, 243 n.8 (3d Cir. 2010).

4 applicant’s country.

§ 208.13(b)(1)(ii). “Even if the presumption of future

persecution is rebutted, an applicant can still be granted asylum if he or she ‘has

demonstrated compelling reasons for being unwilling or unable to return to the country

arising out of the severity of the past persecution’ or ‘has established that there is a

reasonable possibility that he or she may suffer other serious harm upon removal to that

country.’” Sheriff v. Att’y Gen.,

(3d Cir. 2009) (quoting

(b)(1)(iii)).

Whereas a grant of asylum is discretionary, withholding of removal is mandatory.

“[T]he Attorney General may not remove an alien to a country if the Attorney General

decides that the alien’s life or freedom would be threatened in that country because of the

alien’s race, religion, nationality, membership in a particular social group, or political

opinion.”

(b)(3)(A). To receive the grant of withholding, the alien must

establish a “clear probability” that it is “more likely than not that the alien would be

subject to persecution on one of the specified grounds.” INS v. Stevic,

, 429-

30 (1984).

The District Court’s conclusion that Jadadic had not suffered past persecution is

open to question. We, along with our sister Courts of Appeals, have recognized that

“refugee status [may be] based on avoidance of military service . . . ‘if the alien would be

associated with a military whose acts are condemned by the international community as

contrary to the basic rules of human conduct.’” Ilchuk v. Att’y Gen.,

(3d Cir. 2006) (quoting M.A. v. INS,

, 312 (4th Cir. 1990) (en banc)); see

also Islami v. Gonzales,

(2d Cir. 2005) (holding that this rule “clearly”

5 applies to a Muslim Albanian conscripted into the Milosevic-era Yugoslavian army);

Mekhoukh v. Ashcroft,

(1st Cir. 2004). Jadadic asserts that had he

remained in the former Yugoslavia, he would have been required to commit acts of

violence against his own people. The international community condemned such acts with

a coordinated military campaign and with the first-ever indictment of a sitting head of

state for war crimes.

However, we need not decide whether the threat of compulsory service in the

special police constitutes past persecution in this context. 2 For we believe that the

Government has satisfied its burden of demonstrating a “fundamental change in

circumstances” in Montenegro such that Jadadic no longer faces a well-founded fear of

persecution there. As the IJ recognized, “[t]he leadership of Yugoslavia that was

involved in ethnic cleansing has basically been removed from power. . . . [T]he

government of Yugoslavia has now taken a more orderly course of action.” As we

2 In addition to the threat of conscription, Jadadic cites as evidence of past persecution the searches of his family’s home and beatings of him by police seeking his brother. While we do not condone such acts, they do not rise to the level of past persecution under our law. See Voci v. Gonzales,

(3d Cir. 2005) (“While this Court has not yet drawn a precise line concerning where a simple beating ends and persecution begins, our cases suggest that isolated incidents that do not result in serious injury do not rise to the level of persecution.”).

The seeming persecution of Jadadic’s brother likewise is not relevant here. The experience of family members may be relevant, but this is not a case where “there is a high degree of factual similarity between the applicant’s claim and those of his family members, and where his claim of political persecution rests on that very familial relationship.” Cham v. Att’y Gen.,

(3d Cir. 2006). Jadadic’s brother allegedly was forced into the special police and imprisoned in deplorable conditions for two months; neither fate befell Jadadic.

6 recognized at the time, the State Department’s 2003 Country Report indicated that in

Montenegro “police occasionally beat suspects during arrest and detention, but there has

been generally improved respect by the police for human rights.” Berishaj v. Ashcroft,

(3d Cir. 2004); see also Prela v. Ashcroft,

(7th Cir.

2005) (“Yugoslavia . . . has undergone significant change since 1999.”). The IJ

incorporated this report into the record and relied on it in his ruling.

Under our law, these general improvements in country conditions are not enough.

“[G]eneral evidence of improved country conditions will not suffice to rebut credible

testimony and other evidence establishing past persecution; evidence of changed country

conditions can successfully rebut the presumption only if it addresses the specific basis

for the alien’s fear of persecution.” Sheriff,

(emphasis in original) (citing

Berishaj,

). Jadadic’s specific fear is that “he would be arrested or

killed by the ‘police’ who are ‘the same people’ who harmed his brother and ‘know that

[his] family was against Milosevic.’” Jadadic Br. at 22 (quoting A.R. at 214, 216).

However, the evidence before us is sufficiently related to Jadadic’s individual fear

to sustain the holding of the IJ. The Montenegro section of the 2003 Country Report

describes “an overall decline in police brutality and other abuses.” There is no indication

that the scattered police beatings were politically motivated, and officers who were

involved were under investigation. Leaders of the Milosevic-era special police had been

indicted by the International Criminal Tribunal for the Former Yugoslavia and transferred

to The Hague. The 2010 Country Report indicates further progress in these areas. See

U.S. Department of State, Montenegro: Country Reports on Human Rights Practices—

7 2010 (Apr. 2011) at 4-5, 11-12; Nbaye v. Att’y Gen.,

(3d Cir. 2011)

(recognizing Country Reports not in the record for limited purposes). We conclude that

this evidence is not “such that a reasonable factfinder would have to conclude that the

requisite fear of persecution existed,” INS v. Elias-Zacarias,

(1992),

and thus must affirm on the basis of the IJ’s findings of fact.

Because Jadadic “has not met [his] burden of proof with respect to asylum,” he “is

also not eligible for withholding of removal,” which presents a more demanding standard.

Sioe Tjen Wong v. Att’y Gen.,

(3d Cir. 2008). For these reasons,

we must deny Jadadic’s petition for review.

8