Milomir Djuric v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 1, 2018
• Docket: 14-71884
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 01 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MILOMIR DJURIC, No. 14-71884

Petitioner, Agency No. A071-758-106

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted April 10, 2018** Seattle, Washington

Before: TASHIMA and GRABER, Circuit Judges, and MIHM,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). *** The Honorable Michael M. Mihm, United States District Judge for the Central District of Illinois, sitting by designation. Milomir Djuric, a native and citizen of Bosnia-Herzegovina, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

of an immigration judge’s (“IJ”) denial of his claim for humanitarian asylum and

the BIA’s denial of his motion to reopen. We deny the petition in part and dismiss

it in part.

1. Djuric petitions for review of the agency’s determination that he is

ineligible for humanitarian asylum. To establish eligibility for humanitarian

asylum, a petitioner must demonstrate either “compelling reasons for being

unwilling or unable to return to the country arising out of the severity of the past

persecution” or “that there is a reasonable possibility that he or she may suffer

other serious harm upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii);

Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir. 2008).

Substantial evidence supports the agency’s determination that Djuric’s

forced departure from his hometown of Zenica did not constitute “compelling

reasons.” The BIA did not err in determining that because Djuric testified that he

was never physically harmed, his was not a “rare situation[] of ‘atrocious’

persecution, where the alien establishes that, regardless of any threat of future

persecution, the circumstances surrounding the past persecution were so unusual

2 and severe that he is unable to return to his home country.” Vongsakdy v. INS, 171

F.3d 1203, 1205 (9th Cir. 1999).

Substantial evidence also supports the agency’s determination that Djuric

will not face serious harm that “equals the severity of persecution.” In re L-S-, 25

I. & N. Dec. 705, 714 (B.I.A. 2012). Djuric testified that members of his

immediate family have lived without incident in Bosnia. Given that fact, the

agency reasonably determined that Djuric will not face “substantial economic

disadvantage,” Ming Xin He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014), or suffer

“severe mental or emotional harm,” In re L-S-, 25 I. & N. Dec. at 714, in Bosnia.

2. Djuric also petitions for review of the BIA’s denial of his motion to

reopen his applications for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1)

and a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). However, judicial

review of an agency’s discretionary denial of either waiver is foreclosed. 8 U.S.C.

§§ 1182(i)(2), 1252(a)(2)(B). This remains true when the agency’s discretionary

denial is the subject of a motion to reopen. Fernandez v. Gonzales, 439 F.3d 592,

600 (9th Cir. 2006).

Although judicial review is available for a petitioner’s colorable

“constitutional claims or questions of law” related to the agency’s discretionary

decision, 8 U.S.C. § 1252(a)(2)(D), an argument that the agency violated due

3 process “by failing to properly weigh the equities and hardship . . . is an abuse of

discretion challenge re-characterized as an alleged due process violation” that does

not give this court jurisdiction. Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th

Cir. 2006) (per curiam) (order).

Djuric’s purported due process arguments – that the IJ’s persecutor finding

acted as a “thumb on the scale” before the BIA and that the BIA weighed his

military service differently than that of other former VRS soldiers – are both

complaints about the agency’s weighing of the equities. Djuric never articulates

how the agency “prevented [him] from presenting [his] case before the [agency],

denied a full and fair hearing before an impartial adjudicator, or otherwise denied a

basic due process right.” Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.

2005).

The new evidence Djuric submitted with his motion to reopen “addresse[d]

the same basic hardship grounds considered previously” and was thus cumulative.

Fernandez, 439 F.3d at 601–03. We therefore lack jurisdiction over Djuric’s

petition as it pertains to the BIA’s denial of his motion to reopen.

• ! •

The petition is DENIED in part and DISMISSED in part.