Vecislay Milanouic v. Eric Holder, Jr. ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3710
V ECISLAY M ILANOUIC , also known as
V ECISLAV M ILANOVIC,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals.
No. A98-322-600
A RGUED A PRIL 9, 2009—D ECIDED JANUARY 6, 2010
Before M ANION, R OVNER, and W OOD , Circuit Judges.
R OVNER, Circuit Judge. Petitioner appeals the Board of
Immigration Appeal’s (BIA) denial of his request for
withholding of removal. We note at the outset that al-
though the caption of the case identifies petitioner as
Vecislay Milanouic, he made it clear at the hearing before
the Immigration Judge that his name is actually spelled
2 No. 08-3710
Vecislav Milanovic. We will refer to Milanovic by the
spelling that he has declared to be the correct one in this
opinion.
Milanovic, an ethnic Serb, was born in Yugoslavia
and came to this country as a non-immigrant visitor in
February 1996. He did not leave the country when his
authorization expired in July 1996, and on September 24,
2004, the Department of Homeland Security served him
with a Notice to Appear charging that he was subject to
removal because he had remained longer than his visa
allowed. Milanovic subsequently applied for asylum,
withholding of removal under § 241(b)(3) of the Immigra-
tion and Nationality Act (INA), and protection under
the Convention Against Torture (CAT). The Immigra-
tion Judge (IJ) denied that relief after an evidentiary
hearing, but granted him voluntary departure under
§ 240B of the INA. 8 U.S.C. § 1229c. Milanovic then ap-
pealed to the BIA, which affirmed the IJ in an order
dated September 24, 2008. He now appeals to this court.
Milanovic’s asylum claim was based upon actions taken
against him when he lived in the former Yugoslavia, and
on the threat to his sons of conscription in the Serbian
army should they return. Milanovic testified at the
hearing that he served in the military in the former Yugo-
slavia between 1979 and 1980. In 1993, he was again
called upon to serve in the military, and was sent to
Kosovo on maneuvers for 15 days. He fled towards
Serbia, and was caught by the military police and
detained for 45 days, during which time he was
mistreated by the military police. After the 45 days
passed, he returned home.
No. 08-3710 3
He subsequently became involved in supporting the
Serbian Renewal Party against the governing Socialist
Party which was led by Slobodan Milosevic. In Septem-
ber 1995, he was at a restaurant speaking to others about
opposing the government, when Milosevic supporters—
led by a local official who was a member of the
Socialist Party, Ratko Zecevic, and several police-
men—severely beat him. He suffered serious injuries as
a result of that beating, which required hospitalization
and resulted in the removal of one of his testicles.
Those incidents form the basis of his claim for asylum
and withholding of removal.
The IJ denied the asylum claim as untimely, rejecting
Milanovic’s contention that the potential conscription of
his son constituted a changed circumstance justifying
the delay. In so holding, the IJ noted that his son’s
potential conscription was distinct from the political
activities that formed the genesis of his claim, that it
was not a harm to Milanovic himself, and that in any
case it was not timely raised.
The IJ proceeded to address Milanovic’s claim for
withholding of removal. An alien is entitled to with-
holding of removal if he can demonstrate a clear prob-
ability that his life or freedom would be threatened
based on his race, religion, nationality, membership in a
particular social group, or political opinion. 8 U.S.C.
§ 1231(b)(3)(A); Ishitiaq v. Holder, 578 F.3d 712, 717 (7th
Cir. 2009); Patel v. Holder, 581 F.3d 631, 634 (7th Cir. 2009).
Once an alien establishes that he was subject to past
persecution, that triggers a rebuttable presumption of
4 No. 08-3710
future persecution. 8 C.F.R. § 1208.16(b)(1); Ishitiaq, 578
F.3d at 717; Patel, 581 F.3d at 634. The government may
rebut that presumption by demonstrating—by a prepon-
derance of the evidence—either a fundamental change
in circumstances such that the applicant’s fear is no
longer reasonable, or that the applicant could avoid
future persecution by relocating to another part of the
country and that it would be reasonable to expect the
applicant to do so. 8 C.F.R. § 1208.16(b)(1). The burden of
proof to rebut that presumption is on the government. Id.The IJ found that the incident involving the military
police was insufficient to demonstrate past persecution
and Milanovic does not contest that on appeal. The IJ
found credible Milanovic’s testimony as to the beating
at the restaurant, however, and held that the incident
was sufficient to constitute past persecution. Accordingly,
Milanovic was entitled to a rebuttable presumption of
future persecution. The IJ held, however, that the gov-
ernment demonstrated a change in country conditions
that rebutted that fear of future persecution. Specifically,
the IJ noted that Slobodan Milosevic had been over-
thrown, and had died while on trial at the Hague for
war crimes. Milosevic’s Socialist Party was no longer in
power in Serbia, and Milanovic’s party, the Serbian
Renewal Party, had been elected to some seats in parlia-
ment. Accordingly, the government had rebutted the
presumption of future persecution. Milanovic did not
offer evidence to establish that the threat persisted
despite that change in power, and the IJ held that he
had failed to meet the criteria for withholding of removal.
No. 08-3710 5
At the outset, we note that the transcription of the IJ’s
oral decision appears to be incomplete, as reflected in the
disconnect between the first and second pages. To its
credit, the government pointed out that discrepancy in
its responsive brief to this court. Milanovic does not
complain that the record is incomplete, or that any sub-
stantive aspect of the IJ’s decision is missing. Moreover,
our independent review of the record as a whole makes
clear that all portions of the oral decision relevant to
the IJ’s determination are transcribed, and we can
review the decision. We note, however, that this is not
the first time in this past year that we have been presented
with an incomplete record. See Patel v. Holder, 563 F.3d 565,
567 (7th Cir. 2009) (noting that one page of the IJ’s decision
was missing from the administrative record.) This is
unacceptable and we trust that greater care will be exer-
cised in the future to ensure that records presented to
this court are accurate and complete.
We turn to the contention raised by Milanovic in this
appeal. He argues that the IJ erred in determining
that the government had rebutted his showing of past
persecution by demonstrating that a transfer in power
in Serbia constituted a change in country conditions.
Milanovic asserts that it is insufficient for the IJ to rely
merely on the country report to rebut a finding of past
persecution, and also appears to argue that his claim of
persecution was based on a local official’s independent
actions and therefore the demise of Milosevic does not
address the basis of the persecution claim. In affirming
the IJ, the BIA relied on the findings of the IJ but
added some analysis of its own. In such a circumstance,
6 No. 08-3710
we review the IJ’s decision as supplemented by the addi-
tional reasoning of the BIA. Mema v. Gonzales, 474 F.3d
412, 416 (7th Cir. 2007); Pavlyk v. Gonzales, 469 F.3d 1082,
1087 (7th Cir. 2006).
As we noted, Milanovic appears to argue on appeal that
his claim of persecution was based on the actions of a
purely local official and thus the ouster of Milosevic
could not constitute a change in country conditions
sufficient to rebut the presumption of future persecution.
It is questionable as to whether this argument is even
preserved, because it is developed to some extent in the
recitation of facts, but not in the argument section of
the brief. See Long v. Teachers’ Retirement System of Illinois,
585 F.3d 344, 349 (7th Cir. 2009) (“To present an argu-
ment on appeal, a party must develop its position by
providing citation to the relevant portions of the record
and supporting authority.”) If raised, there is the addi-
tional problem that this argument was never presented to
the IJ or the BIA. Although Milanovic challenged the
finding that the country report rebutted his presumption
of future persecution, he never challenged it on the
ground that the actions of the officials were not tied to
the ruling regime. In fact, before the IJ, the persecution
was specifically characterized as having taken place at
the hands of Milosevic supporters based on Milanovic’s
support for the opposition party. In his Statement in
Support of I0589, Milanovic discussed his membership in
the movement opposing Milosevic, and stated that his
opposition resulted in the beating at the restaurant at the
hands of a well-known Milosevic supporter Ratko
Zecevic, stating that he was threatened with further
No. 08-3710 7
harm if he continued his anti-Milosevic activities. That is
consistent with his testimony at the hearing before the
IJ. In fact, during closing arguments, his attorney argued
that he had suffered the severe beating by Milosevic
supporter Zecevic and the policemen because of his
membership in the opposition. Similarly, the Brief in
Support of Notice of Appeal states that “supporters and
police of President Slobodan [sic] Milosevic, namely Ratko
Zecevic who was a judge and an official in his town
together with several policemen, beat him severely and
inflicted serious injuries on him.” Therefore, throughout
the administrative process, Milanovic characterized the
persecution as having been undertaken by Milosevic
supporters because of his opposition to Milosevic. He
never asserted that the persecution was perpetrated by
local officials acting independently such that the ouster
of Milosevic and his party would lose relevance. Instead,
the only argument raised to the BIA was the contention
that the IJ erred in relying on the country report without
giving him an opportunity to rebut it, thus “taking the
place of the Trial Attorney for the Department of Home-
land Security.”
We have made clear that an alien must exhaust all
administrative remedies before seeking review in this
court, and that the duty to exhaust includes the
obligation to present to the BIA each argument against
the removal order. Ishitiaq v. Holder, 578 F.3d 712, 717-18
(7th Cir. 2009), citing 8 U.S.C. § 1252(d)(1) and Ghaffar v.
Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). In Ishitiaq, we
held that Ishitiaq had waived his claim that the IJ had
mistakenly equated past persecution with torture. Ishitiaq,
8 No. 08-3710
578 F.3d at 718. We held that although Ishitiaq had chal-
lenged the finding of past persecution, he had based that
challenge only on the argument that his case was distin-
guishable from the two cases relied upon by the IJ. That
challenge did not preserve all possible challenges to the
past persecution determination, however, but rather
exhausted only the specific arguments actually raised. Id.Similarly, in this case, Milanovic raised only a challenge
to the procedures used in relying on the country report,
and to the role exercised by the IJ in using that report
to rebut his presumption. Milanovic did not assert that
the country report was insufficient to rebut his claim
because the actions of the local officials were not tied to
Milosevic or the party. Accordingly, this issue is waived.
Even if it were considered, however, the testimony at
the hearing and the standard of review would doom the
claim. We review factual findings under the substantial
evidence test, and will uphold them if supported by
evidence a reasonable mind would find adequate to
support the conclusion. Terezov v. Gonzales, 480 F.3d 558,
563 (7th Cir. 2007). The IJ determined that the country
report constituted a change in conditions sufficient to
rebut the presumption of future persecution. We have
repeatedly upheld the use of country reports to demon-
strate such a change in conditions if the report addresses
the specific basis for the alien’s fear of persecution;
where that individualized assessment is not made, or the
report fails to address the basis for the fear of persecution
at issue in the case, we have rejected such a use of the
country reports. See Ayele v. Holder, 564 F.3d 862, 871 (7th
No. 08-3710 9
Cir. 2009); Brucaj v. Ashcroft, 381 F.3d 602, 607 (7th Cir.
2004); Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004).
See also Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41 (7th
Cir. 2004) (relying in part on the change in conditions
following the removal of Milosevic as a basis to uphold
BIA decision.)
The question, then, is whether the record supports the
IJ’s determination that the change in government in
Serbia was sufficiently tied to Milanovic’s fear of perse-
cution as to rebut the presumption. Here, there is
adequate evidence to support the IJ’s determination that
the removal of Milosevic constituted a change in
country conditions sufficient to rebut the presumption
of future persecution. At the hearing, the persecution
suffered by Milanovic was tied to his actions in opposi-
tion to Milosevic and the Socialist Party, and the per-
petrators were consistently identified as Milosevic sup-
porters. Accordingly, the IJ could reasonably conclude
that with the removal of Milosevic and his party from
power, Milanovic would no longer face the fear of future
persecution for his actions in working toward that
ouster. That does not mean that the country report is
dispositive—it rebutted the presumption but did not
ordain the outcome. Milanovic could still have proven
entitlement to such withholding by demonstrating that
the local officials were still in power, or that there was
continued persecution in the country against those
who had opposed Milosevic, but he did not do so. Al-
though Milanovic states that he was not provided an
opportunity to provide such evidence, he raises that
contention in one sentence and never develops the argu-
10 No. 08-3710
ment, nor does he identify what evidence he would have
introduced, and therefore he has not fairly presented that
issue in this appeal. Long v. Teachers’ Retirement System of
Illinois, 585 F.3d 344, 349 (7th Cir. 2009) (“A party may
waive an argument by disputing a . . . ruling in a footnote
or a one-sentence assertion that lacks citation to record
evidence.”)
Finally, Milanovic contends that the BIA erred in
failing to consider his claim for humanitarian asylum. The
IJ rejected his claim for asylum because it was not timely
filed, and Milanovic has not contested that determina-
tion. Therefore, he has presented no grounds for reversal.
The decision of the IJ and the BIA is A FFIRMED.
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