Dejan Kostic v. Eric H. Holder, Jr. , 340 F. App'x 249 ( 2009 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 09a0470n.06
No. 08-3675 FILED
Jul 08, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
DEJAN KOSTIC, )
)
Petitioner, )
)
v. ) ON APPEAL FROM THE BOARD OF
) IMMIGRATION APPEALS
ERIC H. HOLDER, JR., )
)
Respondent. ) OPINION
)
Before: GILMAN and McKEAGUE, Circuit Judges; and BARRETT, District Judge.*
RONALD LEE GILMAN, Circuit Judge. Dejan Kostic is a native of the former
Yugoslavia and a citizen of Serbia. He currently resides in Michigan, where he works as an
electrician. Kostic timely filed an asylum application after he arrived in the United States as a
nonimmigrant student in 1994. After an unexplained ten-year delay in processing, Kostic’s
application was referred to the immigration court, where his claims were adjudicated in a removal
proceeding. The Immigration Judge (IJ) found that Kostic did not testify credibly and therefore did
not meet his burden of showing that he is a refugee. This resulted in the IJ’s order removing him to
Serbia. Kostic appealed the IJ’s decision to the Board of Immigration Appeals (BIA). The BIA
affirmed, and Kostic now petitions for review of the BIA’s order. For the reasons set forth below,
we DENY the petition for review.
*
The Honorable Michael R. Barrett, United States District Judge for the Southern District of Ohio, sitting by
designation .
No. 8-3675
Kostic v. Holder
I. BACKGROUND
Kostic filed an application for asylum and withholding of removal within two months of his
arrival in the United States. He filed a second asylum application in March 1995, this time attaching
a document titled “Certificate” as evidence of his membership in an unnamed political party.
Kostic also attached written statements to both applications. In these statements, he
described his membership in the SPO (Serbian Renewal Movement), an opposition party to the
Communists in the former Yugoslavia. He also described, among other things, two occasions when
the Communist secret police allegedly arrested and beat him because of his democratic beliefs.
Those two incidents lie at the heart of Kostic’s asylum claim.
Kostic wrote that his “first experience with physical abuse by the . . . Communist secret
police was in 1987,” when he was a high school student. One day he declared at school that he
“thought the time had come to stop the cult of adulation surrounding the Communist dictator, Josip
Broz Tito.” According to Kostic, “[t]he following day [he] was picked up by the secret police and
taken for questioning. [He] spent three days (October 5-8) in jail,” where he was “severely beaten
. . . with sandbags . . . all over [his] body but mostly on [his] back.” Kostic stated that he “ha[s]
experienced kidney problems [as a] result” of those beatings, as well as “psychological difficulties,
the result of the trauma suffered during those few days.”
The second incident that Kostic described occurred approximately four years later, when he
was a university student. He wrote that “in 1991, [he] joined the SPO, Serbian Renewal
Movement[,]” and he explained that the SPO was the strongest opposition party at that time to
Slobodan Milosevic’s Communist Party. According to Kostic, he organized a group of science
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students at his university to attend a protest in Belgrade that was scheduled for March 9, 1991. He
wrote that he “arrived in Belgrade the night before and . . . spent the night in the SPO
Headquarters . . .” making final preparations for the protest.
Kostic explained that the protest began as planned, but quickly turned tragic. He said that
an “enormous,” “fully armed” police force with army tanks arrived and began beating the protestors.
When the protesters fought back, many of them were killed by the police. Kostic “was rounded up
with a group of protesters” and taken to a jail. His written statement described the events that
followed in considerable detail. He wrote that while he waited to be interrogated, passing officers
“kick[ed him] or hit [him] with a club” and called him and the other protestors names, including
“scum,” “traitor,” and “criminal.” Kostic then described a lengthy and brutal interrogation that
culminated with his being “hosed down with fire hoses” and made to stand outdoors overnight in a
stiff wind and freezing temperatures. He wrote that he was “released the next day, March 10.”
For reasons unexplained in the record, no action was taken on Kostic’s application for nearly
ten years. In June 2004, the Department of Homeland Security (DHS) finally served Kostic with a
Notice to Appear in immigration court. The notice to appear alleged that Kostic had remained in the
United States beyond the temporary period for which he had been admitted and charged him with
removeability pursuant to 8 U.S.C. § 1227(a)(1)(B).
In November 2004, Kostic suffered a serious injury at work when a dump truck dropped
waste water on him. The force of the water caused him to strike his head and neck against a high-
voltage cable. Kostic received long-term treatment for his injuries, including prescription medication
to treat his ongoing neck and lower-back symptoms.
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The IJ reviewed Kostic’s applications at a hearing in July 2006. After conceding that he was
removable, Kostic pursued his applications for asylum and withholding of removal. Kostic’s
attorney requested a continuance because of Kostic’s medical condition. The IJ denied the request
because no evidence other than Kostic’s own statements demonstrated that his medication adversely
affected his ability to remember or concentrate in any way.
Kostic served as the sole witness in support of his claim. During the brief direct examination
by his counsel, Kostic’s attorney neglected to ask him about the first incident of alleged physical
abuse in 1987. But his attorney did inquire about the second incident in 1991, which Kostic again
described. He stated that he had organized a group of university students to travel on behalf of the
SPO to “a big demonstration” on March 9, 1991. When asked what happened to him at the
demonstration, he said that there was a “huge massive attack” by government officers and that he
was arrested and beaten. In addition, Kostic testified that the weather was cold, “around zero degrees
centigrade,” and that officers threw cold water on him.
The IJ issued an oral decision denying Kostic’s application and ordering him removed to
Serbia. She found that Kostic had not testified credibly, citing several inconsistencies in his
testimony and in his written documentation. The IJ also found that, even if Kostic had been able to
establish through credible testimony that he had experienced past persecution, his application must
nonetheless be denied due to changed country conditions. Kostic appealed the IJ’s decision to the
BIA, which affirmed the denial of his application in a two-paragraph written decision. The BIA
“f[ou]nd that the Immigration Judge did not clearly err in finding that [Kostic] was not credible in
his testimony below given the inconsistencies between his testimony, his two asylum applications,
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and his documentary submissions. Thus, [Kostic]’s asylum application was properly denied because
of the adverse credibility determination.” The BIA went on to state that “the conditions in
Yugoslavia have changed dramatically since [Kostic] left because Milosevic is no longer in power.”
With respect to the denial of Kostic’s motion for a continuance, the BIA held that the issue had been
abandoned because it was not addressed in Kostic’s appellate brief to the agency.
Kostic now petitions this court for review of the BIA’s decision. He argues, among other
things, that the record compels the conclusion that he was credible and that he has a well-founded
fear of future persecution because of his past political activities in Serbia.
II. ANALYSIS
A. Standard of review
“Because the BIA adopted the IJ’s decision with additional commentary, we review the
decision of the IJ, as supplemented by the BIA, as the final administrative order.” Ceraj v. Mukasey,
511 F.3d 583, 588 (6th Cir. 2007). Questions of law involving immigration proceedings are
reviewed de novo. Ali v. Ashcroft, 366 F.3d 407, 409 (6th Cir. 2004). We will not disturb the IJ’s
factual findings, or a determination that the petitioner failed to establish eligibility for asylum or
withholding of removal, if substantial evidence supports such rulings. INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992) (holding that a factfinder’s rulings will be upheld if “supported by reasonable,
substantial, and probative evidence on the record considered as a whole”). Under this standard, we
will not reverse a factual determination of the IJ unless we find “that the evidence not only supports
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a contrary conclusion, but compels it.” Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004)
(emphasis in original).
B. Legal framework
Under the Immigration and Nationality Act (INA), 8 U.S.C. § 1158(a), the U.S. Attorney
General has the discretion to grant asylum to a “refugee.” Perkovic v. INS, 33 F.3d 615, 620
(6th Cir. 1994). The disposition of an application for asylum involves a two-step inquiry:
(1) whether the applicant qualifies as a “refugee” as defined in 8 U.S.C. § 1101(a)(42)(A), and
(2) whether the applicant “merits a favorable exercise of discretion by the Attorney General.” Id.(citing INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987)).
Section 1101(a)(42)(A) of the INA defines a “refugee” as an alien who is unable or unwilling
to return to his or her home country “because of persecution or a well-founded fear of persecution
on account of race, religion, nationality, membership in a particular social group, or political
opinion.” An applicant may therefore establish eligibility for asylum by showing that he or she (1)
has suffered past persecution, or (2) has a well-founded fear of future persecution. 8 C.F.R. §
208.13(b). The burden is on the applicant to establish that he or she qualifies as a refugee.
8 C.F.R. § 1208.13(a)-(b). If credible, the applicant’s testimony “may be sufficient to sustain the
burden of proof without corroboration.” 8 C.F.R. § 1208.13(a).
Once an applicant shows that he or she has suffered from past persecution, the applicant is
presumed to have a well-founded fear of future persecution. Mikhailevitch v. INS, 146 F.3d 384, 389
(6th Cir. 1998). This presumption can be rebutted by the government “only through establishing by
a preponderance of the evidence that since the persecution occurred, conditions in the applicant’s
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country have changed to such an extent that the applicant no longer has a well-founded fear of being
persecuted if he were to return.” Id. (citation and internal quotation marks omitted).
C. The IJ’s adverse credibility determination
Credibility determinations are findings of fact that we review under the “substantial
evidence” standard. Yu v. Ashcroft, 364 F.3d 700, 703 (6th Cir. 2004). “Credibility encompasses not
just consistency but also plausibility and sufficient detail.” Dorosh v. Ashcroft, 398 F.3d 379, 382
(6th Cir. 2004). A credibility finding, like other factual findings, will be reversed “only if any
reasonable adjudicator would be compelled to conclude to the contrary.” Yu, 364 F.3d at 703(quoting 8 U.S.C. § 1252(b)(4)(B)) (internal quotation marks omitted).
The IJ supported her adverse credibility determination by citing various perceived
inconsistencies in Kostic’s testimony and his written materials. We find that several of the cited
inconsistencies lack support in the record. For example, the IJ stated in her decision that Kostic “was
unable to recall the name” of his political party, the SPO. In fact, the transcript of the hearing reveals
that when Kostic was first asked on direct examination what the SPO “stand[s] for,” he reasonably
responded by describing its democratic political principles. His counsel then clarified that she was
asking what the initials stood for, and Kostic clearly stated: “Serbian Movement.” Although Kostic
did not respond with the full translated name of the organization in English (Serbian Renewal
Movement), the IJ’s statement that Kostic was unable to recall the name of his party is plainly
inaccurate. Neither the IJ nor Kostic’s attorney followed up by asking him for the complete name.
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Our examination of the record reveals that several of the other inconsistencies cited by the
IJ similarly lack support. But because one fatal flaw in Kostic’s case precludes the conclusion that
the IJ’s credibility determination is not supported by substantial evidence, we have no need to
discuss each purported inconsistency. See id.The flaw in question relates to the length of Kostic’s alleged detention in March 1991.
Kostic submitted a document in support of his claim titled “Certificate.” The document was written
in the Serbo-Croatian language and was accompanied by an English translation. Although the
signature on the document is illegible, Kostic testified that it was written by “friends” of his who
were members of the SPO party. The document reads, in part:
Dejan Kostic is a member of our party. As an activist at the University of Novi Sad,
School of electrical engineering, he took active part in the demonstrations in
Belgrade, on March 1991 [sic]. As a result he was detained. In the course of his stay
in pretrial confinement, while interrogated, he was physically and psychologically
tortured and he suffered physical injuries. He was detained from March 11, 1991 to
March 24, 1991.
(Emphasis added.) In contrast, Kostic’s written statement in support of his asylum application
alleged that he was detained by police on March 9, 1991 and released “the following day.”
Inconsistent with both of these time frames is Kostic’s testimony at his asylum hearing that he was
detained “for three days.”
Although “a minor inconsistency . . . taken alone ‘would be an inadequate basis for an
adverse credibility finding[,]” Ben Hamida v. Gonzales, 478 F.3d 734, 738 (6th Cir. 2007) (quoting
Yu, 364 F.3d at 704), the differences here are not minor. Kostic himself was inconsistent as to
whether he was detained for three days or only overnight. And the statement that he submitted from
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his “friends” states that he was detained and tortured for thirteen days—or nearly two weeks. These
discrepancies regarding the length of Kostic’s detention “go to the heart of” his claim that he was
persecuted by the police. See Chen v. Gonzales, 447 F.3d 468, 472 (6th Cir. 2006).
When the IJ asked Kostic to explain “why [he] would submit a document which is extremely
inconsistent with [his] sworn statements,” Kostic offered no explanation. The judge read from the
document and pointed out to Kostic that “[i]t says that you were detained for nearly two weeks.”
Kostic replied that he “d[id]n’t quite remember.” The IJ then asked whether “[i]t would be fair to
say . . . that [the] document [was] not consistent with the claims [he] made” in his asylum
application. Kostic responded, “I guess so.”
In light of the “high degree of deference” that we must give to the factual determinations of
the IJ, the inconsistencies in Kostic’s testimony and written submissions leave us with little choice
but to uphold the adverse credibility determination. See Sterkaj v. Gonzales, 439 F.3d 273, 278 (6th
Cir. 2006) (upholding an IJ’s adverse credibility determination where an asylum applicant submitted
an inconsistent document without explanation). Because Kostic cannot overcome the IJ’s finding
regarding his lack of credibility, he cannot prove that he is eligible for asylum. This also means that
he cannot meet the more stringent standards required to qualify for withholding of removal. See INS
v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987) (holding that the asylum standard for past
persecution or well-founded fear of future persecution is lower than the “clear probability” standard
to show eligibility for withholding of removal).
D. Changed country conditions
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The IJ and the BIA further rested their denial of Kostic’s application for asylum on the
alternative ground that country conditions in Serbia have changed. Evidence submitted by both
Kostic and the government shows that, since Kostic left his country, the one-party Communist
system headed by Milosevic has been overthrown and multiparty democracy established. According
to the IJ and the BIA, these changed conditions demonstrate that Kostic no longer has an objectively
reasonable fear of future persecution if he returns to the former Yugoslavia (now Serbia).
The record does not compel a contrary conclusion. In sum, even if we assumed that Kostic
was credible and that his detentions in 1987 and 1991 amounted to past persecution, we would still
deny his petition because the government has rebutted the presumption of a well-founded fear by
showing that country conditions have changed dramatically. See Mikhailevitch v. INS, 146 F.3d 384,
389 (6th Cir. 1998)
III. CONCLUSION
For all of the reasons set forth above, we DENY Kostic’s petition for review.
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