Pjetrovic vs. INS, (5th Cir. 2000)

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* Pursuant to 5 TH C IR . R. 47.5, the court has determined th a t this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .

R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-60126 Summary Calendar SAFET PJETROVIC, Petitioner, versus IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A41-413-423 January 27, 2000 Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM: * Safet Pjetrovic petitions for review of an order of the Board of Immigration Appeals (§ 1186a(c)(3)(C). Under these circumstances, Pjetrovic was entitled to a hearing at which the burden of proof was on the Attorney General to prove that his marriage had not been in good faith. § 1186a(b)(2); s ee also 8 U.S.C. § 1229a(c)(3)(A). A finding that the marriage had not been in good faith would render Pjetrovic deportable under 8 U.S.C. § 1227(a)(1)(D). S ee § 1227(a)(1)(D). In a removal proceeding under § 1227(a), an alien § 1229a(b)(4)(B).

In the case of an alien who has been admitted to the United States, as Pjetrovic was, the INS § 1229a(c)(3)(A).

Because PjetrovicÂ’s immigration hearings lacked essential elements of due process, the petition for review is GRANTED, the order of the BIA is VACATED, and the case is remanded for further proceedings consistent with this opinion. S ee Reno , 507 U.S. at 307; Hernandez-Garza v. INS , 882 F.2d 945, 947 (5th Cir. 1989). In the light of the disposition of the appeal, the BIAÂ’s denial of PjetrovicÂ’s motion to reopen the proceedings for consideration of his asylum application is MOOT. On remand to the immigration judge, Pjetrovic may submit a new application for asylum based on current conditions in former Yugoslavia.

VACATED and REMANDED.

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