Nanic v. Lynch

• Decision Date: 20 July 2015
• Docket Number: No. 13–3246.,13–3246.
• Citation: 793 F.3d 945
• Parties: Hazret NANIC; Jasminka Nanic, Petitioners, v. Loretta E. LYNCH,Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

793 F.3d 945

Hazret NANIC; Jasminka Nanic, Petitioners

v.Loretta E. LYNCH¹ Respondent.

No. 13–3246.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 9, 2014.

Filed: July 20, 2015.

Rehearing and Rehearing En Banc Denied Sept. 28, 2015.

Peter A. Gianino, argued, Saint Louis, MO, for petitioner.

Thankful T. Vanderstar, OIL, Civil Division, DOJ, argued, Washington, DC, for respondent.

Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.

Opinion

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 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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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 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...