Nazif Emruloski v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-4083
___________
NAZIF EMRULOSKI,
Petitioner
v.
JOHN ASHCROFT, Attorney General of the United States;
IMMIGRATION AND NATURALIZATION (INS) DISTRICT DIRECTOR,
Respondents
___________
ON APPEAL FROM THE
IMMIGRATION AND NATURALIZATION SERVICE
(No. A72 370 388)
___________
Submitted Under Third Circuit LAR 34.1(a)
July 26, 2002
BEFORE: SLOVITER, NYGAARD, and BARRY, Circuit Judges.
(Filed August 1, 2002)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Petitioner, Nazif Emruloski seeks review of the dismissal by the United
States Board of Immigration Appeals ("the Board") of his motion to reopen proceedings.
The action commenced when Emruloski, a native and citizen of Macedonia, applied then
withdrew his application for asylum and withholding of removal. Almost two years later,
he filed a motion to reopen seeking withholding of removal under the Convention Against
Torture. The Immigration Judge denied relief and was later affirmed by the Board. The
decision to deny was based on Emruloski’s motion being filed out of time and his failure
to establish a prima facie case under the Convention Against Torture. We will deny
Petitioner’s petition and affirm the Board’s dismissal. We have jurisdiction to review the
Board’s dismissal of Petitioner’s motion to reopen. Sevoian v. Ashcroft, 290 F.3d 166,
169 (3d Cir. 2002) citing Khourassany v. INS, 208 F.3d 1096, 1100 (9th Cir. 2000)
(holding that the Board’s denial of a motion to reopen is reviewable by the federal court
of appeals).
Emruloski alleges that he fled Macedonia when he was being recruited to
join the Serbian Army. He refused to join the army because he did not want to be ordered
to kill his fellow countrymen. As a result of his refusal to join, he alleges that he was the
subject of constant harassment and abuse, leaving him no other choice but to flee the
country out of fear of its continuing unrest. He entered the United States on September
20, 1993 with authorization to remain until December 19, 1993. On February 27, 1997
while still in the United States, Emruloski filed an application for asylum and withholding
of removal. He subsequently withdrew that application on July 7, 1998, during
proceedings, and was granted voluntary departure. He promised to depart the United
States on or before November 4, 1998.
On February 24, 2000, Emruloski, still residing in the United States,
received a "Bag and Baggage" letter from the Immigration and Naturalization Service.
He subsequently filed a motion to reopen proceedings on March 15, 2000, requesting a

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withholding of removal under the Convention Against Torture. The Immigration Judge
denied the motion holding that it was untimely filed. She further held that Emruloski did
not provide any evidence that would prove unrest, forced recruitment or combat in
Macedonia. The timing of petitioner’s motion in conjunction with the reception of the
"Bag and Baggage" letter led the Immigration Judge to conclude that the motion’s filing
was "merely a dilatory tactic." A.R. 51.
On appeal, the Board dismissed the petition and affirmed the Immigration
Judge’s denial of relief. The Board held that the motion was filed out of time and
Emruloski did not meet the evidentiary burden of showing that it is more likely than not
that he would be tortured if removed to Macedonia for the purposes of relief under the
Convention Against Torture. Emruloski submitted additional evidence on his appeal,
which the Board could not consider but noted that the new evidence was insufficient to
warrant reopening the proceedings.
We review the Board’s decision to dismiss Emruloski’s appeal for an abuse
of discretion and review the Board’s factual findings for substantial evidence. Sevoian,
290 F.3d at 174 (holding that when the Board or an Immigration Judge denies reopening
on prima facie case grounds both substantial evidence and abuse of discretion standards
should apply). See also Kamalthas, 251 F.3d 1279, 1281 (9th Cir. 2001); Najjar v.
Ashcroft, 257 F.3d 1262, 1304 (11th Cir. 2001) (applying both substantial evidence and
abuse of discretion standards). Under an abuse of discretion standard, the Board’s
decision should only be reversed if it is arbitrary, irrational or contrary to law. Sevoian,
291 F.3d at 174 quoting Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994). Under the
deferential substantial evidence standard, the Board will only be reversed if factual
evidence not only supports but compels a contrary conclusion to the Board’s decision.
Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) citing INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992).
Petitioner seeks review of his motion to reopen proceedings for withholding
of removal under the Convention Against Torture. The relief sought falls under Article
18 of the Convention because of the date on which the final order for removal was issued.
An alien under a final order of deportation,
exclusion, or removal that became final prior to
March 22, 1999 may move to reopen
proceedings for the sole purpose of seeking
protection under [withholding of removal of the
Convention Against Torture]. Such motions
shall be governed by 3.23 and 3.2 of this
chapter, except that the time and numerical
limitations on motions to reopen shall not
apply... The motion to reopen shall not be
granted unless: (i) The motion is filed within
June 21, 1999; and (ii) The evidence sought to
be offered establishes a prima facie case that the
applicant’s removal must be withheld or
deferred [when it is more likely than not that he
or she would be tortured if removed to the
proposed country of removal]. 8 C.F.R.
208.18(b)(2).
Emruloski’s final order of removal was issued on July 7, 1998. He filed his motion to
reopen on March 15, 2000, after the June 21, 1999 deadline, with no explanation or
reason for his tardiness. Additionally important is the Immigration Judge’s determination
that the motion to reopen proceedings was a dilatory tactic. The Judge’s conclusion was
based on the facts that Petitioner did not contact his lawyer until after he received his
"Bag and Baggage" letter, which was over a year past his voluntary departure deadline.
After the passing of the legislation effecting the Convention Against Torture, Petitioner
had three months in which he could have brought his motion to reopen for a hearing on
the merits. Instead of exercising this option, Petitioner’s actions point to the possibility
that he attempted to evade the system until it could no longer be avoided. Under the
regulations, Emruloski’s motion to reopen was untimely. The Board appropriately
affirmed the Immigration Judge’s denial of relief. Hence, neither the Board nor the

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Immigration Judge acted arbitrarily, irrationally, or contrary to law in dismissing
Petitioner’s motion to reopen on the basis of untimeliness.
Petitioner argues that the Board, in Matter of J-J-, 21 I & N Dec. 976 (BIA
1997), held that an exception to the regulatory 90 day filing deadline exists for motions
for reopening related to changed circumstances in the country of nationality. In Matter of
J-J-, the Board suggested that in exceptional situations it could grant reopening sua
sponte, regardless of limitations. This exception to the time limitation in Matter of J-J- is
to be applied on a case-by-case basis by the Board and we give great deference to the
Board’s decision of what qualifies as an exceptional situation. Since the Petitioner’s
evidence supporting his motion to reopen was the same offered in his original motion for
asylum and withholding of removal, it is not unreasonable to conclude that it does not
create an exceptional situation. Similarly, the new evidence offered by Petitioner on
appeal to the Board (consisting of reports from the U.S. Department of State) was not
newly discovered nor did it provide proof of changed country conditions. Thus, the
Board did not abuse its discretion by failing to consider Petitioner’s situation exceptional.
Even if Petitioner’s circumstances were considered exceptional and the time
limitations were disregarded, he must also offer evidence establishing the prima facie
case under the Convention Against Torture. The burden on the Petitioner is to show "that
it is more likely than not that he or she would be tortured if removed to the proposed
country of removal." 8 C.F.R. 208.16(c)(2). This standard requires Petitioner to make an
objective showing that he is entitled to relief. In re J-E-, 23 I. & N. Dec. 291, 302, 2002
WL 481156 (BIA Mar. 22, 2002) ("[The standard] has no subjective component, but
instead requires the alien to establish by objective evidence."). We stated in Sevoian, "the
prima facie case standard for a motion to reopen under the Convention requires the
applicant to produce objective evidence showing a reasonable likelihood that he can
establish that he is more likely than not to be tortured." 290 F.3d at 175.
The Board found that Petitioner "failed to provide any documentary
evidence with his motion to reopen or to establish that country conditions have changed."
A.R. 3. The Board indicated that the statements made by Petitioner in his motion were
entitled to no evidentiary weight. Emruloski provided new evidence to the Board on his
appeal in the form of reports issued by the United States Department of State.
Recognizing that this newly attached evidence could not be considered as part of the
record on appeal, the Board suggested that this evidence with the existing record would
still not satisfy the requirements to reopen the proceedings.
Similar to Sevoian, the finding that Emruloski lacked sufficient supporting
evidence indicates that the Board reviewed the evidence and came to a conclusion based
on the gathered facts. 290 F.3d at 175 ("The Board’s reference to ’insufficient evidence’
indicates that it weighed the evidence and found it lacking, and thus made a factual
finding about Sevoian’s claim."). As a factual finding, the Board’s conclusion is
scrutinized under the substantial evidence standard.
The Convention defines torture as,
Any 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).
It proceeds by limiting the definition, stating, "torture is an extreme form of cruel and
inhuman treatment and does not include lesser forms of cruel, inhuman or degrading
treatment or punishment that do not amount to torture." 8 C.F.R. 208.18(a)(2).
There is no evidence to suggest that a reasonable factfinder would have

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been compelled by the evidence to find contrary to the Board’s decision to dismiss under
the Convention Against Torture. The makeup of Emruloski’s evidence on the original
record consisted of statements from his own affidavit and an onslaught of newspaper and
other articles. They contained no evidence of conscription (or torture for avoiding it) as
also concluded by the Board and Immigration Judge. Even considering the evidence
entered on appeal from the U.S. Department of State, Petitioner still does not provide
evidence of the extreme form of cruel and inhuman treatment, which constitutes torturous
conditions. More specifically, the reports from the U.S. Department of State do not report
that citizens who avoid forced recruitment are subject to torturous conditions or
treatment. The evidence on appeal only supports the Board’s decision that Emruloski
failed to meet his burden and to dismiss the appeal.
Petitioner argues that the Board abused its discretion when it did not accept
Emruloski’s factual allegations as true. However, under the required standard, "objective
evidence that the alien will be persecuted is necessary." Kashani v. Immigration and
Naturalization Service, 547 F.2d 376, 379 (7th Cir. 1977). Emruloski’s assertions that he
fears he will be tortured if returned to Macedonia will not suffice without corroboration.
Id.
Additionally, taking Emruloski’s allegations as objective statements of fact,
he asserts that his failure to submit to conscription with the Serbian Army resulted in
constant harassment and abuse. This does not amount to torture as protected under the
Convention nor does it amount to grounds for Emruloski’s belief that he would be
tortured or killed if he returned to Macedonia. Therefore, we conclude that the Board’s
factual findings are supported by substantial evidence and that it did not abuse its
discretion.
For the foregoing reasons, this petition for review is denied and the decision
of the Board of Immigration Appeals is affirmed.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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