Kanacevic v. Holder , 369 F. App'x 298 ( 2010 )

09-3188-ag
Kanacevic v. Holder
BIA
Hom, IJ
A095 872 577
A095 872 578
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 16 th day of March, two thousand ten.
5
6 PRESENT:
7 JOSEPH M. McLAUGHLIN,
8 ROBERT A. KATZMANN,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _______________________________________
12
13 SULEJMAN KANACEVIC, HATIDZE KANACEVIC,
14 Petitioners,
15
16 v. 09-3188-ag
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 ____________________________________________________________
22
23 FOR PETITIONERS: Gregory Marotta, Vernon, New Jersey.
24
25 FOR RESPONDENT: Tony West, Assistant Attorney
26 General; Melissa Neiman-Kelting,
27 Senior Litigation Counsel; Kristin
28 K. Edison, Attorney, Office of
1 Immigration Litigation, United
2 States Department of Justice,
3 Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED, that the petition for review
8 is DENIED.
9 Sulejman Kanacevic, a native of Montenegro, seeks
10 review of a June 30, 2009, order of the BIA affirming the
11 October 22, 2007, decision of Immigration Judge (“IJ”) Sandy
12 K. Hom, which denied his application for asylum and
13 withholding of removal. 1 In re Sulejman Kanacevic, Hatidze
14 Kanacevic, Nos. A095 872 577/578 (B.I.A. June 30, 2009),
15 aff’g Nos. A095 872 577/578 (Immig. Ct. N.Y. City Oct. 22,
16 2007). We assume the parties’ familiarity with the
17 underlying facts and procedural history in this case.
18 “Where the BIA adopts . . . and merely supplements the
19 IJ’s decision, . . . we review the decision of the IJ as
20 supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d
1Sulejman Kanacevic’s wife, Hatidze Kanacevic, was
included as a derivative applicant on his asylum
application. Accordingly, we refer exclusively to
Sulejman Kanacevic throughout this Order, as his wife’s
eligibility for relief is based entirely on the facts of
his claim.
2
1 268, 271 (2d Cir. 2005). However, when the BIA affirms the
2 IJ’s decision in some respects but not others, we review the
3 IJ’s decision as modified by the BIA’s decision, i.e., minus
4 the arguments for denying relief that the BIA rejected. See
5 Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522
6 (2d Cir. 2005). Here, the BIA’s decision focused on the IJ’s
7 holding that Kanacevic failed to meet his burden of proof,
8 making it unclear whether the BIA agreed with the IJ’s
9 alternative adverse credibility determination. Under these
10 circumstances, we dispose of Kanacevic’s case on burden of
11 proof grounds and “assume, but do not determine” his
12 credibility for purposes of our analysis. Yan Chen, 417 F.3d
13 at 271. The applicable standards of review are well-
14 established. See 8 U.S.C. § 1252(b)(4)(B); see also Manzur
15 v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.
16 2007).
17 We find no error in the agency’s conclusion that
18 Kanacevic failed to establish a well-founded fear of
19 persecution. In a prior order issued upon the parties’
20 joint stipulation, we instructed the agency to analyze
21 Kanacevic’s claim in light of our decision in Islami v.
22 Gonzales, 412 F.3d 391, 398 (2d Cir. 2005) (finding that an
3
1 ethnic Albanian’s refusal to serve in the Serbian military’s
2 campaign because of its commission of crimes against
3 humanity can constitute persecution). On remand, the IJ
4 determined that our holding in Islami did not support a
5 finding that Kanacevic had a well-founded fear of
6 persecution because Kanacevic was released from his
7 mandatory military duty. The IJ further found that
8 “material and substantial changes” had occurred in
9 Montenegro; specifically, that the war in Serbia and
10 Montenegro had ended, and that Montenegro had abolished
11 military conscription in August 2006. Kanacevic did not
12 challenge those findings on appeal to the BIA, a fact the
13 BIA noted in its decision.
14 Kanacevic now argues before this Court that the
15 agency’s changed country conditions finding is erroneous
16 because it failed to consider explicitly his expert’s
17 report. However, as we have held, petitioners must raise to
18 the BIA the specific issues they later raise in this Court.
19 See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004); see also
20 Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d
21 Cir. 2007) (explaining that, while not jurisdictional, this
22 judicially imposed exhaustion requirement is mandatory).
4
1 Accordingly, because Kanacevic failed to meaningfully
2 address the IJ’s changed country conditions finding on
3 appeal to the BIA, and because the Government has raised
4 this failure to exhaust in its brief to this Court, we
5 decline to consider this issue. See Lin Zhong, 480 F.3d at
6 124 (describing the issue exhaustion requirement as an
7 “affirmative defense subject to waiver.”).
8 Even absent a well-founded fear of future persecution,
9 the agency may grant asylum based on the severity of past
10 persecution. 8 C.F.R. § 1208.13(b)(1)(iii)(A) (providing
11 that a petitioner must demonstrate “compelling reasons for
12 being unwilling or unable to return . . . [that] aris[e] out
13 of the severity of the past persecution”). Here, however,
14 we find no abuse of discretion in the BIA’s conclusion that
15 Kanacevic did not endure the type of atrocious persecution
16 for which humanitarian asylum is reserved. 2 See Mirzoyan v.
17 Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (stating that
18 humanitarian asylum is reserved for “certain rare cases”);
2
Despite Kanacevic’s argument to the contrary, we
also do not find that the BIA acted ultra vires in
finding him ineligible for humanitarian asylum. See
8 C.F.R. § 1003.1(d)(3)(ii) (providing that the BIA may
review de novo “questions of law, discretion, and
judgment and all other issues in appeals from decisions
of immigration judges”).
5
1 Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir. 2007) ; Matter
2 of Chen, 20 I. & N. Dec. 16, 18-19 (B.I.A. 1989).
3 For the foregoing reasons, the petition for review is
4 DENIED. As we have completed our review, any stay of
5 removal that the Court previously granted in this petition
6 is VACATED, and any pending motion for a stay of removal in
7 this petition is DISMISSED as moot. Any pending request for
8 oral argument in this petition is DENIED in accordance with
9 Federal Rule of Appellate Procedure 34(a)(2), and Second
10 Circuit Local Rule 34.1(b).
11 FOR THE COURT:
12 Catherine O’Hagan Wolfe, Clerk
6