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Nezirovic v. Heaphy

United States District Court, W.D. Virginia, Roanoke Division

July 8, 2015

TIMOTHY HEAPHY, ET AL., Defendant(s)


NORMAN K. MOON, District Judge.

Almaz Nezirovic, filed this civil action while he was a detainee at the Western Virginia Regional Jail awaiting the disposition of extradition proceedings. The court construed and docketed his pleading as a civil rights action under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). Nezirovic alleges that the defendant federal officers falsely charged him with immigration fraud and wrongfully argued to the court that he is eligible for extradition for war crimes in the former Yugoslovia, which stalled his attempt to become a naturalized citizen of the United States. Based on financial information Nezirovic has submitted in this case, I will grant him in forma pauperis status under 28 U.S.C. § 1915(a). Upon review of his complaint, however, I conclude that his case must be summarily dismissed under 28 U.S.C. § 1915(e)(2)(b) for failure to state a claim.


Nezirovic is a citizen of Bosnia and Herzegovina ("Bosnia"), which was part of the former country of Yugoslavia. In 1997, after the sectarian war in that region from 1991 to 1995, Nezirovic applied for admission to the United States as a refugee. In so doing, he completed a Refugee Application (From I-590) on which he denied having committed any crimes. His application was granted. In 1999, Nezirovic filed a Form I-485 seeking permanent resident status, also known as a "green card, " which was granted, allowing him to live and work in the United States indefinitely and to apply for citizenship. He and his wife lived for several years in Roanoke, Virginia. In November 2004, they filed applications for naturalization (Form N-400).

In June 2011, a federal grand jury returned a two-count indictment charging Nezirovic with committing fraud by lying about his past in immigration documents he completed in connection with his entry into the United States and his attempt to obtain citizenship. See United States v. Nezirovic, No. 7:11CR00047 (W.D. Va. June 30, 2014). Among other things, the indictment alleged that during the war in Yugoslavia, between April and July 1992, Nezirovic joined the Croatian Defense Council ("HVO"). In that military role, he served as a guard at the Rabic camp in Derventa Municipality, where Serbian civilians were detained. The indictment further alleged that as a guard, Nezirovic willfully caused suffering and serious injury to specific Serbian civilians, conduct similar to that of other Rabic camp officials who were charged and convicted for committing war crimes against civilians.[1] Nezirovic was arrested on June 24, 2011, and detained on these federal charges. The court ordered him released on bond on June 27, 2011. The criminal case was then continued several times.

A five-count superseding indictment issued in April 2012, charging that in June 2011, Nezirovic possessed a permanent resident card knowingly procured by means of false claims and statements, in violation of 18 U.S.C. § 1546(a) (Count One); and that in November 2004, Nezirovic knowingly included false information in his naturalization application, in violation of 1425(a) (Counts Two through Five). Count One was based on allegations that on his Form I-485, Nezirovic falsely represented that he had not performed foreign military service and falsely denied that he had provided false information to obtain refugee status in 1997, when he stated that he had committed no crimes. Counts Two through Five were based on allegations that Nezirovic made false representations on his Form I-400 seeking naturalization, by representing that he had never "persecuted, directly or indirectly, any person because of race, religion, national origin, membership in a particular social group or political opinion, " that "he had never committed a crime for which he had not been arrested, " and that "he had never given false or misleading information to any U.S. government official while applying for any immigration benefit" or "to gain entry or admission into the United States."

In July 2012, the United States, at the request of the government of Bosnia, filed a complaint to extradite Nezirovic to Bosnia to face prosecution of a January 12, 1993, criminal report issued by the Doboj Police Department of Bosnia against 127 persons, including Nezirovic. The report stated that according to witness reports, Nezirovic had committed certain war crimes against civilians in violation of Article 142 of the adopted Criminal Code of the Socialist Federal Republic of Yugoslavia ("SFRY"), a law in effect at the time of the alleged crimes. The District Court in Doboj had issued a warrant for Nezirovic's arrest on these charges in May 2003. Bosnian officials, in support of the July 2012 extradition request, submitted statements from 21 witnesses to Nezirovic's acts of torture on detained civilians. In response to this extradition complaint, federal authorities in Roanoke arrested and detained Nezirovic on July 17, 2012, his request for bond was denied, and he remained in detention from that date until his extradition. The parties agreed to continue the criminal proceedings (No. 7:11CR00047) pending the resolution of the extradition request.

The extradition complaint against Nezirovic was assigned to United States Magistrate Judge Robert S. Ballou of this court, who conducted an evidentiary hearing on September 7, 2012. The limited purpose of such a hearing is to determine "(1) whether there is probable cause to believe that there has been a violation of the laws of the foreign country requesting extradition, (2) whether such conduct would have been criminal if committed in the United States, and (3) whether the fugitive is the person sought by the foreign country for violating its laws."[2] Gon v. Holt, 774 F.3d 207, 210 (4th Cir. 2014) (citation omitted). Judge Ballou concluded that "the record supports an independent finding of probable cause to believe that Nezirovic committed the crimes charged" in the 1993 report. In re Extradition of Nezirovic, No. 7:12MC39, 2013 WL 5202420, at *7 (W.D. Va. Sept. 16, 2013). Judge Ballou also found that the 1993 criminal report was the functional equivalent of a charging document so as to toll the applicable statute of limitations and that Nezirovic's charged acts did not fall under a political activity exception. Id. at *14-18. As such, the magistrate judge found Nezirovic subject to extradition under the Extradition Treaty between the United States and Bosnia, as supplemented by the Convention against Torture ("CAT"); therefore, the magistrate judge issued the Secretary of State a certificate of extraditability for Nezirovic.

Nezirovic's only vehicle to challenge Judge Ballou's decision was to file a petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging the validity of his detention. In his habeas petition, among other things, Nezirovic argued that because the 1993 report was not a criminal charge that tolled the applicable statute of limitations, his extradition should be time barred; and that his actions were merely political activity, making him exempt from extradition. United States District Judge Michael F. Urbanski denied this § 2241 petition, and Nezirovic's appeal was unsuccessful. Nezirovic v. Holt, 990 F.Supp.2d 606 (W.D. Va. Mar. 13, 2014), affirmed, 779 F.3d 233 (4th Cir. Feb. 25, 2015).[3]

After Judge Urbanski denied Nezirovic's § 2241 petition, the United States moved to dismiss the federal criminal charges without prejudice. The motion stated that

[g]iven the imminent resolution of the extradition proceeding and taking into account the significant expense that will be incurred to bring witnesses from Bosnia-Herzegovina to testify in connection with the criminal case against Nezirovic, the United States has determined that judicial economy and the ends of justice will be best served by the dismissal of the criminal case without prejudice, and by allowing the extradition proceedings to be resolved on appeal.

Mot. Dism. ¶ 6, No. 7:11CR00047, ECF No. 83. On June 30, 2014, "for the reasons... set forth in the motion of the United States to dismiss without prejudice, " the court granted that motion and dismissed the criminal action against Nezirovic without prejudice.

In his current complaint, Nezirovic names as defendants former United States Attorney Tim Heaphy and Homeland Security Inspector Michael Tarantino. Nezirovic alleges the following claims for relief: (1) defendants arrested him in 2011 on charges of immigration fraud, based on defendants' lies that he had been charged with war crimes in Bosnia; and although he allegedly "won" the fraud case, it caused his application for citizenship to be "frozen and it was never certified"; and (2) Heaphy and Tarantino purposely relied on inaccurately translated documents when they claimed that Nezirovic had been charged with committing war crimes, which caused him to lose the extradition proceedings in this court and the court of appeals.

Both of Nezirovic's claims rely on the interpretation of the term "criminal charge." The Extradition Treaty expressly states that the United States and Bosnia "agree to deliver up persons who[have] been charged with or convicted of" specified crimes. (ECF No. 18-2, at 1-2.) Neziroic claims that since he has never been criminally charged or convicted, he cannot be extradited. He presents "new evidence" from Bosnia that purportedly proves this point: a ...

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