Hazret Nanic v. Loretta E. Lynch ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3246
___________________________
Hazret Nanic; Jasminka Nanic,
lllllllllllllllllllllPetitioners,
v.
Loretta E. Lynch,1
lllllllllllllllllllllRespondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
Submitted: December 9, 2014
Filed: July 20, 2015
____________
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
____________
COLLOTON, Circuit Judge.
Hazret Nanic and his wife, Jasminka Nanic, natives of the former Yugoslavia,
petition for review of a decision of the Board of Immigration Appeals denying their
applications for asylum and withholding of removal. We conclude that the Board’s
1
Loretta E. Lynch is automatically substituted for Eric H. Holder, Jr., pursuant
to Federal Rule of Appellate Procedure 43(c)(2).
decision was supported by substantial evidence, and that the petitioners were
accorded due process, so we deny the petition.
Hazret Nanic, whom we will call Nanic, was born in Bosnia and is currently
a citizen of Bosnia-Herzegovina and Croatia. He is a practicing Muslim, but he
rejects the “Bosniak” label used by governments in the region to describe Muslims
in Bosnia. Nanic advocates a unified Bosnia and identifies himself as Bosnian.
Nanic and his wife entered the United States in November 2006 as
nonimmigrant visitors from Bosnia-Herzegovina. They were authorized to remain
in the United States until June 8, 2007. On June 13, 2007, Nanic applied for asylum
and withholding of removal, naming his wife on the application as a derivative
beneficiary. The Department of Homeland Security denied Nanic’s application and
issued notices to appear, charging that the Nanics were removable for remaining in
the United States after expiration of their visas.
To qualify for asylum, an alien must show that he is unable or unwilling to
return to his country of origin 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. 8 U.S.C. §§ 1158(b)(1)(A), 1101(a)(42)(A). If an alien
establishes past persecution, then there is a presumption of future persecution.
Otherwise, the alien must demonstrate a well-founded fear of future persecution that
is subjectively genuine and objectively reasonable. INS v. Cardoza-Fonseca, 480
U.S. 421, 440 (1987); Hassan v. Ashcroft, 388 F.3d 661, 666 (8th Cir. 2004).
An immigration judge denied relief after an evidentiary hearing, and the Board
affirmed. The Board concluded that Nanic did not demonstrate that he suffered past
persecution in Bosnia-Herzegovina or in Croatia, and that he did not establish a well-
founded fear of persecution if he were returned to his home country. The Board also
rejected Nanic’s contention that the immigration judge deprived Nanic of due process
-2-
by receiving testimony of an expert witness about country conditions and considering
a document prepared by an asylum officer who interviewed Nanic. Because the
standard of proof for withholding of removal is more demanding than the requirement
for asylum, the Board also denied Nanic’s application for withholding.
We review the Board’s decision for substantial evidence, and we must uphold
administrative findings of fact unless any reasonable adjudicator would be compelled
to conclude to the contrary. 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502
U.S. 478, 481 & n.1 (1992). We review the Board’s decisions on constitutional
questions de novo.
To support his claim of past persecution, Nanic presented evidence about
incidents that occurred in his homeland. He testified that in 1994, during the height
of the civil war in the Balkans, he and his brother Osman were stopped by the
Croatian police at a checkpoint. When the police asked his nationality, Nanic
responded “Bosnian,” and the police pulled him out of the car and started to beat him.
His brother spoke to the officers and asked them to stop. The officers relented and
told Nanic that but for his brother, he would be dead. In May 1995, Nanic was
stopped by the Croatian police a second time when he was driving in a convoy to
deliver humanitarian supplies. The police hit him two or three times in the face and
took him for questioning. He was interrogated and threatened with violence, but he
was not harmed, and he was released after approximately twenty-four hours. Nanic
also reported that his daughters were harassed at school in Croatia during 1996 or
1997 after Nanic refused to identify them as Croats or Bosniaks and insisted that they
were Bosnians.
The Board found that these incidents were insufficient to establish past
persecution, because minor beatings and low level harassment do not amount to
persecution. A reasonable adjudicator could reach that conclusion. “[B]rief periods
of detention do not necessarily constitute persecution,” and “[t]he mere presence of
-3-
some physical harm does not require a finding of past persecution.” Ngure v.
Ashcroft, 367 F.3d 975, 990 (8th Cir. 2004). Persecution also “does not include low-
level intimidation and harassment.” Malonga v. Mukasey, 546 F.3d 546, 552 (8th Cir.
2008). We have upheld the denial of asylum claims involving more serious abuses
than those claimed by Nanic. E.g., Al Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir.
2004); Eusebio v. Ashcroft, 361 F.3d 1088, 1090 (8th Cir. 2004).
Nanic contends that the Board failed to consider other evidence that supported
a finding of past persecution. He says that people followed him in Bosnia, and that
members of the secret police came to his home and interrogated him on several
occasions. But Nanic was unable to identify who followed him, and he explained
only that secret police questioned him about people unknown to him and demanded
to know about his work with the humanitarian organizations. This information does
not add materially to the incidents discussed by the Board, and additional evidence
of alleged harassment does not compel a finding of past persecution. Nanic further
complains that the governments of Bosnia-Herzegovina and Croatia refuse to let him
identify as a “Bosnian,” as opposed to Serb, Croat, or Bosniak, but this alleged
interference with Nanic’s sense of self-identity does not rise to the extreme level of
government action required to establish persecution.
Nanic argues that even without a finding of past persecution, he has a well-
founded fear of future persecution if returned to his home country. He cites his
inability to express his nationality as Bosnian and fear that he would be harmed by
political enemies who disagree with his desire for a unified Bosnia. Nanic testified
that a friend warned him to cease declaring himself as Bosnian, and another friend
told him that if he continued to identify as Bosnian, then he would be “liquidated
overnight.” He bolsters his argument with claims that his brother Izet was murdered
and that a like-minded friend named Dr. Ljubijankic was killed because of his
political views.
-4-
The Board determined that Nanic had no well-founded fear of persecution, and
this conclusion was supported by substantial evidence. The Board upheld the
immigration judge’s finding that Nanic’s brother and Dr. Ljubijankic were killed
during military action in the civil war. Given the testimony of historian Michael
MacQueen about the brother’s death and contemporaneous news accounts regarding
the demise of Dr. Ljubijankic, a reasonable adjudicator was not compelled to reach
a contrary conclusion on that point.
Nanic’s testimony about warnings from unidentified friends was too vague to
compel a finding that he had a well-founded fear that is objectively reasonable,
especially when members of his family continue to live in Bosnia-Herzegovina
without harm, and Nanic himself returned to the country several times since 2000
after foreign travel without experiencing persecution. The Board relied on the
testimony of historian MacQueen to find that Nanic’s self-identification as Bosnian
did not support a well-founded fear. MacQueen opined that a “good chunk” of
Bosnian society still adheres to the view that they are “basically Bosnians,” and that
Bosnia is a “relatively peaceful place although poor.” He saw no reason why Nanic
could not return to his previous profession. MacQueen’s testimony was substantial
evidence in support of the Board’s conclusion.
Nanic responds that the Board violated his due process right to a fair hearing
by considering MacQueen’s testimony, because the Department failed to identify
MacQueen as a witness at least fifteen days in advance of the hearing, as required by
Chapter 3.1(b)(ii)(A) and 4.16(b)(ii) of the Immigration Court Practice Manual. But
because MacQueen’s testimony was offered solely to rebut Nanic’s testimony and
affidavit, the fifteen-day rule likely did not apply. Cf. Nyama v. Ashcroft, 357 F.3d
812, 816 (8th Cir. 2004). In any event, the Department moved to admit MacQueen’s
testimony at a June 2011 hearing, but MacQueen did not actually testify until a
January 2012 hearing, so Nanic had more than six months’ notice. There was no
unfair surprise.
-5-
Nanic also complains about the immigration judge’s consideration of an
“Assessment to Refer”—a document prepared by an asylum officer based on an
interview with Nanic—because the asylum officer found that Nanic lacked
credibility. Nanic says the assessment was unreliable evidence. We agree with the
Board that Nanic was not prejudiced by any error in considering the assessment,
because the immigration judge also received evidence that undermined the asylum
officer’s conclusion on credibility, and the judge found independently that Nanic was
a credible witness.
The petition for review is denied.
______________________________
-6-