Gojko Jungic v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0022n.06
FILED
No. 10–3056
Jan 10, 2012
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
GOJKO JUNGIC, )
) ON PETITION FOR REVIEW
Petitioner, ) OF AN ORDER OF THE
) BOARD OF IMMIGRATION
v. ) APPEALS
)
ERIC H. HOLDER, JR., Attorney )
General, ) OPINION
)
Respondent. )
______________________________
Before: GRIFFIN and WHITE, Circuit Judges; and WATSON, District Judge.*
MICHAEL H. WATSON, District Judge. Gojko Jungic, a citizen of Bosnia and
Herzegovina, an ethnic Serb, and Orthodox Christian, petitions for review of a decision of the Board
of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of Jungic’s
applications for asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Jungic served as an ambulance driver during the Bosnian Civil War. After the war, Jungic
began to receive anonymous threats, which he asserts constitute past persecution, and he eventually
came to the United States. The BIA concluded that Jungic’s asylum application was untimely, and
that in any event Jungic failed to demonstrate past persecution or a reasonable fear of future
persecution if he returned to Bosnia and Herzegovina. We DENY the petition for review because
1
The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
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we lack jurisdiction to review the BIA’s determination of untimeliness, substantial evidence supports
the BIA’s denial of withholding of removal, and Jungic waived his claim under the CAT.
A. Factual Background
Gojko Jungic was born in August 1952 in what was then Yugoslavia, and is now Bosnia and
Herzegovina. Jungic began his own business in Bosnia and Herzegovina in 1988. AR 102–03. The
business consisted of servicing trucks and selling parts, tires, and agricultural equipment. AR 102.
Jungic’s business began losing money in about 1996 or 1997, and ceased operation in March or April
of 2003. AR 103.
Jungic served in the military during the Bosnian War from June 1992 until the Dayton Peace
Accords were signed in December 1995. AR 104. Jungic was not involved in the fighting, but drove
a medical van used to transport the wounded. AR 104–05.
Jungic avers that in 1998 or 1999, he began to receive anonymous threats in the form of calls
to his cell phone and written notes left on his car. AR 103–06. He maintains that after the bombing
of Serbia, anonymous callers would say things such as “all of you were at war with us, all of you are
going to pay the same price that the Serbs are paying now in Serbia. We’re going to do you all in
and you are the first one.” AR 105–07. The notes left on Jungic’s car sometimes had a drawing of
a skull and crossbones with Jungic’s name underneath. At times the notes were written in Arabic,
which Jungic could not read. He did not attempt to have the notes translated, although he apparently
knew someone who could have done so. AR 106. Jungic indicated he threw the notes away or
burned them. AR 106. Although he was unsure, Jungic indicated he received threats once, twice,
or three times a month. AR 105.
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Jungic does not know who made the threats. AR 107. He believes he received the threats
because he participated in the war. Id. Jungic did not tell anyone about the threats, saying he did
not want to burden his family, and never reported them to the police because he believed there was
“no point” in doing so. AR 107–08, 119–20. Jungic’s younger son, who remains in Bosnia and
Herzegovina, also received threats but ignored them. AR 107. Jungic does not indicate that his
younger son ever suffered any harm as a result of the threats.
Jungic indicated that if he returned to Bosnia and Herzegovina he would live in fear that
someone would attack and kill him. AR 112. He did not know who would attack him, but
apparently he suspects a Muslim organization. Id.
Jungic entered the United States in December 2004 on a visitor’s visa, which permitted him
to stay in the United States for six months. AR 97. He received a six-month extension, which
expired in December 2005. Id. Jungic asserts that he came to the United States because life in
Bosnia and Herzegovina was unstable and unsafe. AR 98.
It is undisputed that Jungic filed his application for asylum on August 30, 2006, more than
one year after he arrived in the United States, and more than eight months after his extended visa
expired. AR 60–61. Jungic explains that he talked with two or three attorneys in Virginia before
his visa expired, but the attorneys never took any action on his behalf. AR 109. Jungic also visited
an immigration office in Alexandria, Virginia several times but the lines were so long that he
abandoned the effort. Id. Jungic also sought the advice of his wife’s uncle in Virginia, but the uncle
was unhelpful. AR 115. One Virginia attorney told Jungic to go to Chicago, Detroit, or Cleveland
to solve his immigration issues. AR. 110. Jungic contacted his present attorney in April 2006. Id.
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B. Administrative Proceedings
Jungic was issued a notice to appear in April 2007. AR 55–56. He appeared before an IJ in
August 2007, at which time he conceded removability. AR 80. The IJ conducted the merits hearing
in March 2008. AR 83–127. Jungic was the only witness who testified at the hearing. Jungic also
submitted documentary evidence, including State Department Country Reports on Human Rights
Practices in Bosnia and Herzegovina for 2006, which indicate the continued existence of religious
and ethnic violence and discrimination. AR 138, 145–46, 163–64.
At the conclusion of the hearing, the IJ issued an oral decision denying Jungic’s applications
for asylum and withholding of removal under the INA and relief under the CAT. AR 55–68. The
IJ found that Jungic’s application for asylum was time-barred because Jungic failed to file it within
a reasonable time after he fell out of status. AR 61.
In the alternative, the IJ determined that Jungic failed to show that he was persecuted on the
basis of his race, religion, nationality, membership in a particular social group, or political opinion.
AR 62–63. The IJ rejected Jungic’s theory that he received the threats because he served in the army
during the war because thousands of people served in the army, and there was no indication that such
threats were widespread or received by others who similarly served in the military. AR 63.
Morever, the IJ noted that Jungic served as an ambulance driver, which is not the type of military
service that would likely inspire threats. Id.
Further, the IJ found significant that Jungic received the anonymous threats over a period of
five to six years, but there was no evidence that anyone attempted to carry out the threats, and Jungic
testified that he was never harmed in Bosnia and Herzegovina. AR 64. The IJ additionally noted
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that Jungic’s son also received threats, but remained in Bosnia and Herzegovina with his wife and
children. Id. Moreover, the IJ found Jungic’s testimony about the threats vague. AR 63, 64. On
these bases, the IJ concluded that Jungic failed to demonstrate past persecution, and Jungic was
therefore not entitled to a presumption of a well-founded fear of future persecution. AR 64.
The IJ stated he would therefore have denied Jungic’s application for asylum even if it had
been timely filed. AR 66.
Having found that Jungic failed to satisfy the standard for asylum, the IJ concluded that
Jungic failed to meet the more demanding standard for withholding of removal. AR 66–67. Lastly,
the IJ ruled that Jungic was not entitled to relief under the CAT because he failed to present evidence
showing that it was more likely than not that he would be subjected to torture if he returned to
Bosnia and Herzegovina. AR 67.
The BIA agreed with the IJ that Jungic failed to file his application for asylum within a
reasonable period of time after his visitor’s visa expired. AR 3. The BIA also agreed with the IJ that
Jungic failed to demonstrate that he was persecuted on the basis of a statutorily-protected ground,
stating that the anonymous threats Jungic described were “too vague to indicate that the callers
attributed a political opinion to [Jungic] or that they targeted him on account of his race, religion,
nationality or membership in a particular social group.” AR 4. The BIA further concluded that
Jungic did not satisfy the standards of proof for withholding of removal or relief under the CAT. Id.
Although the IJ questioned Jungic’s veracity in several respects, the BIA assumed Jungic's
credibility. AR 3.
Jungic timely filed his petition for review of the BIA’s decision by this Court.
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II.
We have jurisdiction to review the BIA’s final order of removal under § 242 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252. When the BIA issues its own separate
opinion rather than summarily affirming the IJ’s decision, we review the BIA’s decision as the final
agency determination. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). We review the BIA’s
legal conclusions de novo and its factual findings under the substantial evidence standard. Zhao v.
Holder, 569 F.3d 238, 246 (6th Cir. 2009). The substantial evidence standard requires us to uphold
the BIA’s factual findings if they are “supported by reasonable, substantial, and probative evidence
on the record considered as a whole.” Id. at 247. We will not overturn the BIA’s factual
determinations merely because we would have decided the matter differently. Kaba v. Mukasey, 546
F.3d 741, 747 (6th Cir. 2008). Rather, to reverse a factual finding, the record evidence must not only
support reversal, but must compel it. Id.III.
A. The Court Lacks Jurisdiction to Review the BIA’s Timeliness Determination
Jungic argues the BIA erred when it ruled that his application for asylum was untimely
because he filed it within a reasonable time after he fell out of status. Respondent contends we lack
jurisdiction to consider the BIA’s timeliness determination because Jungic does not present a
colorable constitutional claim.
The REAL ID Act of 2005 limits our review of the denial of an application for asylum as
untimely. See 8 U.S.C. § 1158(a)(3). “‘No court shall have jurisdiction to review any determination
of the Attorney General regarding whether extraordinary circumstances exist to excuse the filing of
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an asylum application beyond one year after arrival in the United States.’” Vincent v. Holder, 632
F.3d 351, 353 (6th Cir. 2011) (quoting 8 U.S.C. § 1158(a)(3)). The jurisdictional bar applies when
the appeal seeks review of discretionary or factual issues; it does not bar review of constitutional
issues or questions of statutory construction. Id.Here, Jungic arrived in the United States on a six-month visitor’s visa in December 2004.
Jungic later obtained a six-month extension of the visa. He filed his first application for asylum on
August 30, 2006, more than eight months after his visa expired. The IJ found that Jungic failed to
file his application within a reasonable period of time after Jungic fell out of status. The BIA agreed.
Although he notes that purely legal questions are subject to de novo review, Jungic makes
no serious attempt to cast his challenge to the BIA’s timeliness determination as a constitutional
issue or a matter of statutory construction. The BIA considered the facts and determined, in its
discretion, that Jungic’s application was untimely. Consequently, we lack jurisdiction to review the
BIA’s timeliness determination. 8 U.S.C. 1158(a)(3); Vincent, 632 F.3d at 353.
B. Withholding of Removal and Relief Under the CAT
Respondent argues that Jungic waived any challenge to the BIA’s denial of his application
for withholding of removal and his claim for relief under the CAT because he failed meaningfully
to address those claims in his opening brief. In addition, Respondent contends the record does not
compel reversal of the BIA’s decision denying withholding of removal.
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1. Waiver
Claims for nondiscretionary relief are deemed waived where a petitioner mentions them only
in his statement of issues and fails to present any argument on the claims. See Shkabari v. Gonzales,
427 F.3d 324, 327 n.1 (6th Cir. 2005).
Respondent is correct that Jungic does not set forth an extensive, separate discussion of
withholding of removal. Nevertheless, Jungic thoroughly discusses his assertion that he established
past persecution and that he has a reasonable fear of future persecution, and expressly contends he
meets the heightened standard for withholding of removal. “Courts employ the same basic
framework for evaluating an alien’s eligibility for asylum as they do for withholding of removal
under the INA, ‘but in the case of withholding, a higher probability of persecution is required.’”
Dugboe v. Holder, 644 F.3d 462, 471 (6th Cir. 2011) (quoting Castellano-Chacon v. INS, 341 F.3d
533, 545 (6th Cir. 2003)). Thus, both asylum and withholding of removal hinge on past persecution
and the prospect of future persecution, albeit with different standards of proof. By addressing
persecution in detail, and also asserting twice that he met the heightened standard for withholding
of removal, Jungic avoids waiver. We will therefore address the merits of Jungic’s withholding
claim.
Jungic has, however, waived his claim for relief under the CAT. He makes only passing
reference to that claim, and fails meaningfully to explain why “it is more likely than not that he
would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.16(c)(3);
Dugboe, 644 F.3d at 472. We deem Jungic’s claim under the CAT waived. Shkabari, 427 F.3d at327 n.1.
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2. Substantial Evidence Supports Denial of Withholding of Removal
Jungic argues he satisfied the heightened standard for withholding of removal. He also
challenges the IJ’s adverse credibility finding.1 Respondent contends that even if Jungic did not
waive review of the denial of his withholding claim, substantial evidence supports the BIA’s finding
that Jungic failed to demonstrate that he suffered persecution on account of a protected ground. 8
U.S.C. § 1231(b)(3)(A).
“[T]he Attorney General may not remove an alien to a country if the Attorney General
decides that the alien’s life or freedom would be threatened in that country because of the alien’s
race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1231(b)(3)(A); see Dugboe, 644 F.3d at 471. “The alien must show a ‘clear probability’ of
persecution.” Dugboe, 644 F.3d at 472 (citing Liti v. Gonzales, 411 F.3d 631, 640–41 (6th Cir.
2005)); see also Pablo-Sanchez v. Holder, 600 F.3d 592, 594 (6th Cir. 2010).
Persecution is defined as “the infliction of harm or suffering by the government, or
persons the government is unwilling or unable to control, to overcome a
characteristic of the victim,” Bonilla-Morales v. Holder, 607 F.3d 1132, 1136 (6th
Cir. 2010) (citation omitted), and “requires more than a few isolated incidents of
verbal harassment or intimidation, unaccompanied by any physical punishment,
infliction of harm, or significant deprivation of liberty.” Mikhailevitch v. INS, 146
F.3d 384, 390 (6th Cir. 1998); see also Gilaj v. Gonzales, 408 F.3d 275, 285 (6th Cir.
2005).
Hamzah v. Holder, 428 F. App’x 551, 556 (6th Cir. 2011). Under that standard, vague threats and
harassment do not equate to persecution. See Kai Hun Sin v. Mukasey, 294 F. App’x 203, 208 (6th
1
Jungic’s challenge to the IJ’s adverse credibility finding does not merit extended discussion.
First, the BIA did not adopt the IJ’s adverse credibility finding, but assumed Jungic was credible.
See AR 3–4. Second, as set forth below, even if the Court accepts that Jungic testified credibly,
substantial evidence supports the agency’s denial of his claim for withholding of removal.
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Cir. 2008). Similarly, vague and anonymous threats not specifically tied to a statutorily-protected
ground do not demonstrate persecution. Sedrakyan v. Gonzales, 237 F. App’x 76, 84 (6th Cir.
2007); see also Nahrvani v. Gonzales, 399 F.3d 1148, 1153 (9th Cir. 2005) (vague, anonymous
threats, with no indication of immediate harm, do not constitute persecution). In addition, threats
must be motivated on the basis of a statutorily-protected ground to rise to the level of persecution.
See Bonilla-Morales v. Holder, 607 F.3d 1132, 1138 (6th Cir. 2010).
Even assuming Jungic’s credibility, the vague threats he received fall far short of establishing
either past persecution or a clear probability of future persecution. The most specific threat Jungic
described was that after the bombing of Serbia began, anonymous callers said “all of you were at war
with us, all of you are going to pay the same price that the Serbs are paying now in Serbia. We’re
going to do you all in and you are the first one.” AR 105–07. Jungic also received notes on his car
with skulls and crossbones and with Arabic writing, which Jungic could not read and never
attempted to have translated. Although Jungic asserts he received the threats because he served in
the military, his assertion amounts to pure speculation. Moreover, as the IJ observed, driving an
ambulance during the war would not likely provoke persecution. Jungic also suggests he received
the threats because he is an Orthodox Christian. Nothing about the alleged threats, however,
suggests that they were motivated by religious animus. In addition, the mere fact that some of the
notes Jungic received were written in Arabic does not indicate the threats were made because Jungic
is a Christian, or that he is the target of a Muslim organization, as Jungic surmises. It is equally
plausible the threats were the result of general civil strife following the war. In sum, the threats
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Jungic received were vague and do not sufficiently implicate a protected ground. Hence, the
evidence of the threats does not compel reversal of the BIA’s decision.
In addition, Jungic’s claim of persecution is undercut because he remained in Bosnia and
Herzegovina for five or six years after he began receiving the threats. See Almuhtaseb v. Gonzales,
453 F.3d 743, 750 (6th Cir. 2006). Jungic’s claim is further undermined because his son also
received threats, but chose to ignore them and still lives in Bosnia and Herzegovina. See Abudaya
v. Holder, 393 F. App’x 275, 283 (6th Cir. 2010). For those additional reasons, substantial evidence
supports the BIA’s denial of Jungic’s application for withholding of removal.
VII. CONCLUSION
In the absence of a constitutional issue or other purely legal question, we lack jurisdiction to
review the BIA’s determination that Jungic’s application for asylum was untimely. Moreover, the
record evidence does not compel the conclusion that in denying Jungic’s claim for withholding of
removal, the BIA erred in finding that Jungic failed to establish past persecution or a clear
probability of future persecution. In addition, Jungic waived his claim for relief under the CAT
because he failed meaningfully to discuss that claim in his brief before this Court. Accordingly, we
DENY Jungic’s petition for review.