                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 08 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS



                            FOR THE NINTH CIRCUIT



MILOMIR DJURIC,                                  No. 10-73087

              Petitioner,                        Agency No. A071-758-106

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,

              Respondent.



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

                     Argued and Submitted November 6, 2012
                              Seattle, Washington

Before: W. FLETCHER and FISHER, Circuit Judges, and DEARIE, District
        Judge.**

       Milomir Djuric petitions for review of the BIA’s denial of his application for

asylum, withholding of removal, and discretionary waiver of entry fraud. We




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
        The Honorable Raymond J. Dearie, United States District Judge for the
Eastern District of New York, sitting by designation.
remand for the BIA to consider the humanitarian branch of Djuric’s discretionary

asylum claim and otherwise deny the petition.

      1. The BIA upheld the Immigration Judge’s (IJ) denial of withholding of

removal by adopting the relevant portion of the IJ’s findings and reasoning, so we

look to both decisions when assessing Djuric’s withholding of removal claim. See

Alaelua v. INS, 45 F.3d 1379, 1381-82 (9th Cir. 1995); Shrestha v. Holder, 590

F.3d 1034, 1039 (9th Cir. 2010). The BIA accepted the IJ’s finding that Djuric

suffered past persecution in Bosnia on the basis of his ethnicity and properly

placed the burden on the government to show that Djuric could safely and

reasonably relocate within Bosnia. See 8 C.F.R. § 1208.16(b)(3)(ii). The agency’s

conclusion that the government met that burden is supported by substantial

evidence. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992) (“To reverse

the BIA finding we must find that the evidence not only supports [a contrary]

conclusion, but compels it . . . .”). Hundreds of thousands of Serbian refugees have

returned to Bosnia; Djuric’s parents, sister, and parents-in-law, all ethnic Serbs,

live in Sepak, Bosnia, without incident; the Sepak area is predominantly ethnically

Serbian; and Djuric is an adult male in good health with a variety of employable

skills. Thus, the record does not compel a conclusion contrary to that reached by

the IJ and BIA. To the extent Djuric argues that he is likely to suffer persecution


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on a basis other than his ethnicity, the agency properly placed the burden on Djuric

to establish a clear probability that his life or freedom would be threatened on such

basis if he returns to Bosnia. See 8 C.F.R. § 1208.16(b)(1)(iii). The agency’s

conclusion that he did not meet his burden is supported by substantial evidence.

      2. Djuric argues that the BIA’s denial of asylum on discretionary grounds

constituted an abuse of discretion because it failed to give adequate consideration

to the effects of relocation on Djuric’s family and it gave undue weight to Djuric’s

entry fraud. We need not reach the question of whether the BIA abused its

discretion; its conclusion in the context of withholding of removal that Djuric can

safely and reasonably relocate within Bosnia means that the agency must deny

asylum on discretionary grounds unless he meets the qualifications for

humanitarian asylum under 8 C.F.R. § 1208.13(b)(1)(iii). See 8 C.F.R. §

1208.13(b)(1)(i) (“Except as provided in paragraph (b)(1)(iii) of this section . . . an

immigration judge, in the exercise of his or her discretion, shall deny the asylum

application of an alien found to be a refugee on the basis of past persecution if . . .

[t]he applicant could avoid future persecution by relocating to another part of the

applicant’s country of nationality . . . and under all the circumstances, it would be

reasonable to expect the applicant to do so.” (emphasis added)). Although the IJ

further found that Djuric does not meet the qualifications for humanitarian asylum,


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the BIA did not reach the issue. Accordingly, we remand to the BIA to consider

whether Djuric is entitled to humanitarian asylum under 8 C.F.R. §

1208.13(b)(1)(iii).

      3. Djuric argues that the BIA applied the wrong legal standard when

upholding the IJ’s finding that he does not warrant a discretionary waiver of his

entry fraud under INA § 237(a)(1)(H), 8 U.S.C. § 1227(a)(1)(H). The BIA

weighed Djuric’s undesirability as a permanent resident against the social and

humane considerations present to determine whether a grant of relief is in the best

interests of this country. This was not an incorrect legal standard to apply. See

INS v. Yang, 519 U.S. 26, 31 (1996) (holding that the waiver statute “in no way

limits the considerations that may guide the Attorney General in exercising her

discretion to determine who, among those eligible, will be accorded grace”).

Because the BIA did not apply an incorrect legal standard, we have no jurisdiction

to review its discretionary denial of Djuric’s application for waiver of his entry

fraud. See INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii).

      The parties shall bear their own costs on appeal.

      PETITION GRANTED IN PART, DENIED IN PART AND

REMANDED.




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