Dejan Kostic v. Eric H. Holder, Jr.

340 F. App'x 249
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 8, 2009
Docket08-3675
StatusUnpublished
Cited by3 cases

This text of 340 F. App'x 249 (Dejan Kostic v. Eric H. Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dejan Kostic v. Eric H. Holder, Jr., 340 F. App'x 249 (6th Cir. 2009).

Opinion

OPINION

RONALD LEE GILMAN, Circuit Judge.

Dejan Kostic is a native of the former Yugoslavia and a citizen of Serbia. He currently resides in Michigan, where he works as an electrician. Kostic timely filed an asylum application after he arrived in the United States as a nonimmigrant student in 1994. After an unexplained ten-year delay in processing, Kostic’s application was referred to the immigration court, where his claims were adjudicated in a *250 removal proceeding. The Immigration Judge (IJ) found that Kostic did not testify credibly and therefore did not meet his burden of showing that he is a refugee. This resulted in the IJ’s order removing him to Serbia. Kostic appealed the IJ’s decision to the Board of Immigration Appeals (BIA). The BIA affirmed, and Kostic now petitions for review of the BIA’s order. For the reasons set forth below, we DENY the petition for review.

I. BACKGROUND

Kostic filed an application for asylum and withholding of removal within two months of his arrival in the United States. He filed a second asylum application in March 1995, this time attaching a document titled “Certificate” as evidence of his membership in an unnamed political party.

Kostic also attached written statements to both applications. In these statements, he described his membership in the SPO (Serbian Renewal Movement), an opposition party to the Communists in the former Yugoslavia. He also described, among other things, two occasions when the Communist secret police allegedly arrested and beat him because of his democratic beliefs. Those two incidents lie at the heart of Kostic’s asylum claim.

Kostic wrote that his “first experience with physical abuse by the ... Communist secret police was in 1987,” when he was a high school student. One day he declared at school that he “thought the time had come to stop the cult of adulation surrounding the Communist dictator, Josip Broz Tito.” According to Kostic, “[t]he following day [he] was picked up by the secret police and taken for questioning. [He] spent three days (October 5-8) in jail,” where he was “severely beaten ... with sandbags ... all over [his] body but mostly on [his] back.” Kostic stated that he “ha[s] experienced kidney problems [as a] result” of those beatings, as well as “psychological difficulties, the result of the trauma suffered during those few days.”

The second incident that Kostic described occurred approximately four years later, when he was a university student. He wrote that “in 1991, [he] joined the SPO, Serbian Renewal Movement[,]” and he explained that the SPO was the strongest opposition party at that time to Slobo-dan Milosevic’s Communist Party. According to Kostic, he organized a group of science students at his university to attend a protest in Belgrade that was scheduled for March 9, 1991. He wrote that he “arrived in Belgrade the night before and ... spent the night in the SPO Headquarters ...” making final preparations for the protest.

Kostic explained that the protest began as planned, but quickly turned tragic. He said that an “enormous,” “fully armed” police force with army tanks arrived and began beating the protestors. When the protesters fought back, many of them were killed by the police. Kostic “was rounded up with a group of protesters” and taken to a jail. His written statement described the events that followed in considerable detail. He wrote that while he waited to be interrogated, passing officers “kick[ed him] or hit [him] with a club” and called him and the other protestors names, including “scum,” “traitor,” and “criminal.” Kostic then described a lengthy and brutal interrogation that culminated with his being “hosed down with fire hoses” and made to stand outdoors overnight in a stiff wind and freezing temperatures. He wrote that he was “released the next day, March 10.”

For reasons unexplained in the record, no action was taken on Kostic’s application for nearly ten years. In June 2004, the Department of Homeland Security (DHS) finally served Kostic with a Notice to Ap *251 pear in immigration court. The notice to appear alleged that Kostic had remained in the United States beyond the temporary period for which he had been admitted and charged him with removeability pursuant to 8 U.S.C. § 1227(a)(1)(B).

In November 2004, Kostic suffered a serious injury at work when a dump truck dropped waste water on him. The force of the water caused him to strike his head and neck against a high-voltage cable. Kostic received long-term treatment for his injuries, including prescription medication to treat his ongoing neck and lower-back symptoms.

The IJ reviewed Kostic’s applications at a hearing in July 2006. After conceding that he was removable, Kostic pursued his applications for asylum and withholding of removal. Kostic’s attorney requested a continuance because of Kostic’s medical condition. The IJ denied the request because no evidence other than Kostic’s own statements demonstrated that his medication adversely affected his ability to remember or concentrate in any way.

Kostic served as the sole witness in support of his claim. During the brief direct examination by his counsel, Kostic’s attorney neglected to ask him about the first incident of alleged physical abuse in 1987. But his attorney did inquire about the second incident in 1991, which Kostic again described. He stated that he had organized a group of university students to travel on behalf of the SPO to “a big demonstration” on March 9, 1991. When asked what happened to him at the demonstration, he said that there was a “huge massive attack” by government officers and that he was arrested and beaten. In addition, Kostic testified that the weather was cold, “around zero degrees centigrade,” and that officers threw cold water on him.

The IJ issued an oral decision denying Kostic’s application and ordering him removed to Serbia. She found that Kostic had not testified credibly, citing several inconsistencies in his testimony and in his written documentation. The IJ also found that, even if Kostic had been able to establish through credible testimony that he had experienced past persecution, his application must nonetheless be denied due to changed country conditions. Kostic appealed the IJ’s decision to the BIA, which affirmed the denial of his application in a two-paragraph written decision. The BIA “f[ou]nd that the Immigration Judge did not clearly err in finding that [Kostic] was not credible in his testimony below given the inconsistencies between his testimony, his two asylum applications, and his documentary submissions. Thus, [Kostic]’s asylum application was properly denied because of the adverse credibility determination.” The BIA went on to state that “the conditions in Yugoslavia have changed dramatically since [Kostic] left because Milosevic is no longer in power.” With respect to the denial of Kostic’s motion for a continuance, the BIA held that the issue had been abandoned because it was not addressed in Kostic’s appellate brief to the agency.

Kostic now petitions this court for review of the BIA’s decision. He argues, among other things, that the record compels the conclusion that he was credible and that he has a well-founded fear of future persecution because of his past political activities in Serbia.

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Bluebook (online)
340 F. App'x 249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dejan-kostic-v-eric-h-holder-jr-ca6-2009.