On Appeal from an Order entered before The Board of Immigration Appeals. (No. A72-780-152).
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: AMBRO, VAN ANTWERPEN and STAPLETON, Circuit Judges
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.*fn1
Turning first to his claims related to persecution in Croatia*fn2, Paripovic testified before the IJ that in October 1990 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 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 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 ...