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Mocevic v. Mukasey: IMMIGRATION - jurisdiction limited, as petitioner removable as criminal alien; cloaked challenge to fact-finding

United States Court of Appeals
No. 07-2239
Mirko Mocevic, *
Petitioner, * Petition for Review of
* Order of the Board of
v. * Immigration Appeals.
Michael B. Mukasey, Attorney General, * [PUBLISHED]
Respondent. *
Submitted: April 17, 2008
Filed: June 23, 2008
Before GRUENDER, BRIGHT, and BENTON, Circuit Judges.
Appellant, Mirko Mocevic (Mocevic), petitions for review of an order of the
Board of Immigration Appeals (BIA), which affirmed the decision of an
Immigration Judge (IJ) denying Mocevics application for asylum, withholding of
removal, and relief under the Covenant Against Torture (CAT). For the reasons
stated below, we deny the petition for review.
Mocevic, a native of Yugoslavia and a citizen of Bosnia-Herzegovina
(Bosnia), entered the United States through New York in 1996 as a refugee. On
August 28, 2002, Mocevic was convicted in Missouri Circuit Court of the felony of
attempted stealing over 0 by coercion, and was placed on probation. In
December 2003, Mocevic admitted to immigration officials that in 1996, when he
sought entry into the United States as a refugee, he submitted false information
relating to his ethnicity and family relationship to a U.S. sponsor on his form
Declaration for Classification as a refugee.
On December 22, 2003, the Department of Homeland Security (DHS)
commenced removal proceedings against Mocevic. The DHS filed a Notice to Appear
(NTA) charging Mocevic with removability as: (1) an alien who by fraud or willful
misrepresentation procured admission into the United States under 8 U.S.C. 1182
(a)(6)(C)(I); and (2) an alien convicted of a crime of moral turpitude under
1182(a)(2)(A)(i)(I). Mocevic admitted to the allegations in the NTA and conceded
removability on both grounds. Mocevic, however, applied for asylum, withholding
of removal, and relief under CAT on the grounds that he suffered persecution as an
Orthodox Christian in a Muslim dominated part of Bosnia and was afraid to return to
Bosnia due to this past persecution.
On October 27, 2005, Mocevic appeared before an IJ for a merits hearing on his
application. Mocevic testified as to the persecution he suffered in Bosnia starting at
an early age and continuing until he left for the United States. At the hearing
Mocevics son John Mocevic, a U.S. Citizen, also offered testimony.
In a written decision, the IJ denied Mocevics application and ordered Mocevic
removable on the grounds that he was an alien convicted of a crime of moral
turpitude, and that he procured admission to the United Sates by knowingly
submitting false information on his refugee form. In denying Mocevics application,
the IJ found that Mocevic was not credible and that even if Mocevic were credible, he
would still deny Mocevics petition because Mocevic failed to meet his burden of
proof. The IJ reasoned that Mocevics testimony, even if credited, failed to establish
persecution or well-founded fear of persecution should he return to Bosnia, as
required for a grant of withholding of removal or relief under CAT. In addition, even
if Mocevic established his burden of proof for asylum, the IJ explained that he would
have denied Mocevics asylum application on discretionary grounds because Mocevic
obtained his initial entry into the United States by fraud.
Mocevic appealed to the BIA. The BIA affirmed the IJs ruling and dismissed
Mocevics appeal holding that the IJ did not err in concluding that Mocevic failed to
meet his burden of proof to justify asylum, withholding of removal, or relief under
CAT. The BIA also ruled that Mocevics due process rights were not violated during
the hearing because Mocevic was given a full and fair opportunity to present his case
and rebut any contradictions. This appeal followed.
We must first determine whether we have jurisdiction to review the BIAs
denial of Mocevics application. See Hanan v. Mukasey, 519 F.3d 760, 763 (8th Cir.
2008) (addressing first whether the Court has jurisdiction to review the BIAs denial
of petitioners motion); Mouawad v. Gonzales, 485 F.3d 405, 411 (8th Cir. 2007)
(same). Because Mocevic is removable as a criminal alien, our jurisdiction to
review Mocevics petition is limited to constitutional claims and questions of law.
See 8 U.S.C. 1252(a)(2)(C) (Notwithstanding any other provision of law . . . , no
court shall have jurisdiction to review any final order of removal against an alien who
is removable by reason of having committed a criminal offense covered in section
1182(a)(2) . . . .); 1252(a)(2)(D) (Nothing in subparagraph . . . (C) . . . shall be
construed as precluding review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of appeals . . . .). Our
jurisdiction, however, does not extend to review of the agencys findings of fact or
discretionary judgments, which are insulated from judicial review. Purwantono v.
Gonzales, 498 F.3d 822, 824 (8th Cir. 2007). In determining whether an argument
advanced in a petition raises a constitutional claim or question of law, we look to the
nature of the argument advanced in the petition. Id. A petitioner may not create
jurisdiction by characterizing a factual question as a constitutional claim or question
of law. Garcia-Aguillon v. Mukasey, 524 F.3d 848, 849-50 (8th Cir. 2008); Hanan,
519 F.3d at 763. This Court reviews de novo constitutional claims and questions of
law, which are properly raised in a petition for review. Mohamed v. Gonzales, 477
F.3d 522, 527 (8th Cir. 2007).
On appeal, Mocevic argues that we have jurisdiction to review his petition
because he raises both a constitutional claim and a question of law. Mocevic argues
that he was denied due process because the IJ, in making an adverse credibility
determination, failed to give any consideration to evidence that rehabilitated his
credibility. Mocevic claims that the IJ failed to consider the totality of the
circumstances when making his credibility determination and based the determination
only on: (1) Mocevics prior offense of knowingly providing false statements on his
refugee form; and (2) his prior criminal conviction.
Because an allegation of wholesale failure to consider evidence implicates due
process, we have jurisdiction to review Mocevics due process claim. Hanan, 519
F.3d at 764. A careful review of the IJs credibility determination, however, does not
support Mocevics claim that the IJ engaged in a wholesale failure to consider the
evidence relating to Mocevics credibility. In determining that Mocevics testimony
was not credible the IJ looked to several factors including the fact that Mocevic
knowingly gave false information in order to obtain refugee status and that his prior
felony involved stealing and not being truthful. The IJ also considered other
evidence relating to Mocevics credibility, including the testimony of his son and
statements from Mocevics friends that were submitted to corroborate Mocevics
credibility. Indeed, the IJ supported his credibility finding with specific, cogent
reasons for disbelief. See Jalloh v. Gonzales, 423 F.3d 894, 898 (8th Cir. 2005)
(We will defer to the IJs credibility finding where the finding is supported by a
specific, cogent reason for disbelief.). We therefore reject Mocevics due process
Mocevic also argues that the BIA committed legal error by affirming the IJs
conclusion that Mocevic did not meet his burden of proof. Mocevic argues that his
testimony, describing several incidents in Bosnia where his life was threatened and
he was beaten and robbed because of his religion, established his burden of proof for
asylum, withholding of removal, and relief under CAT. Mocevic further argues that
no reasonable fact finder could fail to find that [he] established past persecution, and
that the record as a whole shows that it is more likely than not that [he] will suffer
torture if returned to Bosnia. Mocevics argument, however, is nothing more than
a challenge to the IJs discretionary and fact-finding exercises cloaked as a question
of law. See Garcia-Aguillon 524 F.3d at 850 (denying petitioners legal claim
because it amount[ed] to nothing more than a challenge to the IJs discretionary and
fact-finding exercises cloaked as a question of law.). Therefore, we lack jurisdiction
to review this claim.
Accordingly, we deny Mocevics petition for review.


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