Emir Lenjinac v. Eric Holder, Jr. , 780 F.3d 852 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-1807
EMIR LENJINAC,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
No. A079-920-994
ARGUED JANUARY 8, 2015 — DECIDED MARCH 17, 2015
Before BAUER, MANION, and ROVNER, Circuit Judges.
BAUER, Circuit Judge. Emir Lenjinac was born in Bosnia-
Herzegovina in 1987 and is a Bosnian Muslim. During his
childhood from 1992 to 1995, Bosnia-Herzegovina was en-
trenched in a civil war involving various political and ethnic
factions within the territory of former Yugoslavia. The war was
characterized by ethnic cleansing and Bosnian Muslims were
particularly threatened by the violence. Lenjinac’s family fell
2 No. 14-1807
victim to these atrocities during the Srebrenica massacre of
1995; their home was burned to the ground and Serbian forces
captured several male family members who have not been
seen since.
In 2002, Lenjinac emigrated from Bosnia-Herzegovina to
the United States and he became a permanent resident in 2005.
He has not returned to his birth country since emigrating.
After years of lawful residency, however, in November 2010,
Lenjinac was charged with and pleaded guilty to dealing in
cocaine in Indiana state court.
Following his conviction, the United States initiated
removal proceedings against Lenjinac, charging him
with removability as an aggravated felon under 8 U.S.C.
§ 1227(a)(2)(A)(iii). Lenjinac conceded his removability, but
filed an application for asylum, withholding of removal, and
Convention Against Torture (“CAT”) protection with the
Immigration Court.
Lenjinac’s immigration proceedings began in June 2013.
During the proceedings, his mother and brother both testified
in support of his application for CAT deferral, describing fears
that members of the military might kill Lenjinac because they
previously killed other male family members during the civil
war. Lenjinac also testified. He indicated that given his
criminal history in the United States, he would likely be
detained upon his return and tortured while in the Bosnian
prison system. He also stated that he would have no safe place
to live because he has no family or home to return to in Bosnia-
Herzegovina.
No. 14-1807 3
In her decision, the IJ only considered the merits of
Lenjinac’s CAT deferral request because his aggravated felony
conviction rendered him ineligible for asylum and withholding
of removal. As to the CAT deferral request, the IJ found it
was more likely than not that Lenjinac would be subjected to
torture if removed and therefore granted his application. The
IJ based her decision on Lenjinac’s testimony, his family
members’ testimonies, and reports of torture and life-threaten-
ing conditions in Bosnian prisons. She also cited reports of
violence against ethnic minorities, including Bosnian Muslims.
Following the IJ’s decision, the United States appealed to
the BIA. Although the BIA accepted the IJ’s findings of fact as
true, it ultimately vacated the IJ’s grant of deferral of removal,
holding that Lenjinac did not meet his burden of proof. The
BIA concluded that without evidence that parties in Bosnia-
Herzegovina retained an interest in harming Lenjinac or would
torture him upon his return, or evidence that he would be
imprisoned for the purpose of causing him pain and suffering,
Lenjinac had failed to establish that it was more likely than
not that he would be tortured upon his return to Bosnia-
Herzegovina. Lenjinac now appeals the BIA’s decision.
Lenjinac raises two issues on appeal. He first argues that
the BIA applied the incorrect standard of proof to his petition
for deferral of removal under the CAT, and that therefore the
BIA’s decision must be reversed and remanded. Next, he
asserts that even if the BIA applied the correct standard, the
BIA’s decision to deny Lenjinac’s deferral is not supported by
substantial evidence.
4 No. 14-1807
As it relates to his first argument, Lenjinac contends that the
BIA misstated his burden of proof by requiring him to prove
“that authorities will imprison him in order to cause him pain
and suffering.” Brief of Petitioner at 9. Whether the BIA
applied the proper standard of proof is a question of law
subject to de novo review. See 8 U.S.C. § 1252(a)(2)(D); see also
Ward v. Holder, 632 F.3d 395, 397 (7th Cir. 2011).
To qualify for deferral of removal under the CAT, an alien
must establish that he would more likely than not be tortured
if removed. 8 C.F.R. § 1208.16(c)(2). The act of torture must be
specifically intended to inflict severe physical or mental pain
or suffering. Id. at § 1208.18(a)(5). As it relates to torture in a
foreign prison, the alien bears the burden of establishing his
eligibility for CAT protection “by showing that he [is] likely to
be targeted for mistreatment in prison” or that harsh prison
conditions are “specifically intended to inflict pain and
suffering on the prisoners.” Abdoulaye v. Holder, 721 F.3d 485,
492 (7th Cir. 2013).
Lenjinac’s argument that the BIA misstated his burden of
proof reads the BIA’s opinion too narrowly. It isolates a phrase
from an otherwise complete explanation. A fulsome look at the
opinion, however, reveals that the BIA applied the proper
standard. The BIA stated that the applicant bears the burden
of proof for establishing that it is more likely than not that he
would be tortured if removed. The BIA further explained that
abysmal prison conditions alone are insufficient to meet that
burden, Abdoulaye, 721 F.3d at 492, and that Lenjinac could not
meet his burden without some evidence that he would be
targeted for torture or harm upon his return. See Rashiah v.
Ashcroft, 388 F.3d 1126, 1133 (7th Cir. 2004).
No. 14-1807 5
Despite Lenjinac’s argument to the contrary, the BIA also
applied that burden and reached its result with the support of
substantial evidence. Before we explain our conclusion,
however, we must dispense with an argument presented by
the government. The United States argues that we lack
jurisdiction to consider whether the BIA’s decision is sup-
ported by substantial evidence because the Immigration and
Nationality Act (“INA”) precludes review of final decisions
made by the BIA for aggravated felons. In Wanjiru v. Holder,
705 F.3d 258 (7th Cir. 2013), however, we conclusively held that
deferral of removal is not a final remedy and therefore the INA
does not bar judicial review. Accordingly, we have jurisdiction
and may proceed with our analysis.
Under the substantial evidence standard, we are required
to “assess whether the [BIA’s] determination is supported by
reasonable, substantial, and probative evidence on the record
considered as a whole.” Abdoulaye, 721 F.3d at 490 (citations
omitted). We reverse only if the record evidence compels a
contrary conclusion. Id.; see also Pavlyk v. Gonzalez, 469 F.3d
1082, 1091 (7th Cir. 2006). Because the BIA issued its own
opinion independent of the IJ’s ruling, we review the BIA’s
decision only. Abdoulaye, 721 F.3d at 490. Lenjinac bears the
burden of showing that the BIA’s decision was not supported
by substantial evidence. Wanjiru, 705 F.3d at 265.
In its opinion, the BIA accepted the IJ’s findings of fact as
true, but nevertheless concluded that Lenjinac did not meet his
burden of proof to show that it is more likely than not that, if
removed, he would be subject to torture. Specifically, the BIA
found that Lenjinac could not establish that anyone in Bosnia-
6 No. 14-1807
Herzegovina retained an interest in harming him or torturing
him upon his return.
Lenjinac argues that the fact that he is likely to be impris-
oned or detained upon his return combined with evidence that
torture is commonplace in Bosnian prisons satisfies his burden
of proof. But it does not. As the BIA explained in its opinion,
although Lenjinac points to reports of life-threatening prison
conditions and incidents of torture in Bosnian prisons, none of
the record evidence establishes that it is more likely than not
that Lenjinac will be tortured or abused. Under the high
burden for obtaining CAT protection, reports that torture
occurs in a foreign country and its prisons are insufficient
bases for relief without evidence that the petitioner will be
tortured if he returns. See, e.g., Rashiah, 388 F.3d at 1133(upholding BIA’s denial of CAT relief where record contained
evidence of torture in alien’s home country, but no evidence
that applicant himself would be targeted). See also Selimi v.
Ashcroft, 360 F.3d 736, 740–41 (7th Cir. 2004) (holding evidence
of “political turmoil, civil strife, and many human rights
abuses” without evidence that applicant was personally
targeted was an insufficient basis for granting asylum, which
requires a lower burden of proof than CAT protection). Neither
Lenjinac’s familial losses during the Bosnian civil war, his
heritage, nor his lack of home to return to, establish that he
would be more vulnerable to mistreatment than the general
prison population. Additionally, there is no evidence in the
record that Bosnian prison conditions are intended to inflict
pain or suffering on prisoners. See Abdoulaye, 721 F.3d at 491–92
(holding evidence of harsh prison conditions without evidence
that those conditions are intended to inflict pain or suffering on
No. 14-1807 7
prisoners is insufficient to carry burden of proof to establish
likelihood of torture for CAT deferral). Thus, although Lenjinac
expresses fear of torture upon his return to Bosnia-
Herzegovina, the record fails to establish that such torture is
more likely than not and thus does not compel a result con-
trary to the BIA’s conclusion.
For the reasons detailed above, Lenjinac’s petition is
DENIED and the BIA’s decision is AFFIRMED.