         09-3188-ag
         Kanacevic v. Holder
                                                                                       BIA
                                                                                    Hom, IJ
                                                                               A095 872 577
                                                                               A095 872 578
                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 16 th day of March, two thousand ten.
 5
 6       PRESENT:
 7                JOSEPH M. McLAUGHLIN,
 8                ROBERT A. KATZMANN,
 9                RICHARD C. WESLEY,
10                       Circuit Judges.
11       _______________________________________
12
13       SULEJMAN KANACEVIC, HATIDZE KANACEVIC,
14                Petitioners,
15
16                             v.                               09-3188-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       ____________________________________________________________
22
23       FOR PETITIONERS:                Gregory Marotta, Vernon, New Jersey.
24
25       FOR RESPONDENT:                 Tony West, Assistant Attorney
26                                       General; Melissa Neiman-Kelting,
27                                       Senior Litigation Counsel; Kristin
28                                       K. Edison, Attorney, Office of
1                            Immigration Litigation, United
2                            States Department of Justice,
3                            Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED, that the petition for review

8    is DENIED.

9        Sulejman Kanacevic, a native of Montenegro, seeks

10   review of a June 30, 2009, order of the BIA affirming the

11   October 22, 2007, decision of Immigration Judge (“IJ”) Sandy

12   K. Hom, which denied his application for asylum and

13   withholding of removal. 1   In re Sulejman Kanacevic, Hatidze

14   Kanacevic, Nos. A095 872 577/578 (B.I.A. June 30, 2009),

15   aff’g Nos. A095 872 577/578 (Immig. Ct. N.Y. City Oct. 22,

16   2007). We assume the parties’ familiarity with the

17   underlying facts and procedural history in this case.

18       “Where the BIA adopts . . . and merely supplements the

19   IJ’s decision, . . . we review the decision of the IJ as

20   supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d



            1
            Sulejman Kanacevic’s wife, Hatidze Kanacevic, was
       included as a derivative applicant on his asylum
       application. Accordingly, we refer exclusively to
       Sulejman Kanacevic throughout this Order, as his wife’s
       eligibility for relief is based entirely on the facts of
       his claim.

                                    2
1    268, 271 (2d Cir. 2005).   However, when the BIA affirms the

2    IJ’s decision in some respects but not others, we review the

3    IJ’s decision as modified by the BIA’s decision, i.e., minus

4    the arguments for denying relief that the BIA rejected. See

5    Xue Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522

6    (2d Cir. 2005). Here, the BIA’s decision focused on the IJ’s

7    holding that Kanacevic failed to meet his burden of proof,

8    making it unclear whether the BIA agreed with the IJ’s

9    alternative adverse credibility determination.   Under these

10   circumstances, we dispose of Kanacevic’s case on burden of

11   proof grounds and “assume, but do not determine” his

12   credibility for purposes of our analysis. Yan Chen, 417 F.3d

13   at 271.   The applicable standards of review are well-

14   established.   See 8 U.S.C. § 1252(b)(4)(B); see also Manzur

15   v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.

16   2007).

17       We find no error in the agency’s conclusion that

18   Kanacevic failed to establish a well-founded fear of

19   persecution.   In a prior order issued upon the parties’

20   joint stipulation, we instructed the agency to analyze

21   Kanacevic’s claim in light of our decision in Islami v.

22   Gonzales, 412 F.3d 391, 398 (2d Cir. 2005) (finding that an


                                   3
1    ethnic Albanian’s refusal to serve in the Serbian military’s

2    campaign because of its commission of crimes against

3    humanity can constitute persecution).     On remand, the IJ

4    determined that our holding in Islami did not support a

5    finding that Kanacevic had a well-founded fear of

6    persecution because Kanacevic was released from his

7    mandatory military duty.     The IJ further found that

8    “material and substantial changes” had occurred in

9    Montenegro; specifically, that the war in Serbia and

10   Montenegro had ended, and that Montenegro had abolished

11   military conscription in August 2006. Kanacevic did not

12   challenge those findings on appeal to the BIA, a fact the

13   BIA noted in its decision.

14       Kanacevic now argues before this Court that the

15   agency’s changed country conditions finding is erroneous

16   because it failed to consider explicitly his expert’s

17   report.   However, as we have held, petitioners must raise to

18   the BIA the specific issues they later raise in this Court.

19   See Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004); see also

20   Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d

21   Cir. 2007) (explaining that, while not jurisdictional, this

22   judicially imposed exhaustion requirement is mandatory).


                                     4
1    Accordingly, because Kanacevic failed to meaningfully

2    address the IJ’s changed country conditions finding on

3    appeal to the BIA, and because the Government has raised

4    this failure to exhaust in its brief to this Court, we

5    decline to consider this issue.   See Lin Zhong, 480 F.3d at

6    124 (describing the issue exhaustion requirement as an

7    “affirmative defense subject to waiver.”).

8        Even absent a well-founded fear of future persecution,

9    the agency may grant asylum based on the severity of past

10   persecution.   8 C.F.R. § 1208.13(b)(1)(iii)(A) (providing

11   that a petitioner must demonstrate “compelling reasons for

12   being unwilling or unable to return . . . [that] aris[e] out

13   of the severity of the past persecution”).     Here, however,

14   we find no abuse of discretion in the BIA’s conclusion that

15   Kanacevic did not endure the type of atrocious persecution

16   for which humanitarian asylum is reserved. 2   See Mirzoyan v.

17   Gonzales, 457 F.3d 217, 220 (2d Cir. 2006) (stating that

18   humanitarian asylum is reserved for “certain rare cases”);



            2
            Despite Kanacevic’s argument to the contrary, we
       also do not find that the BIA acted ultra vires in
       finding him ineligible for humanitarian asylum. See
       8 C.F.R. § 1003.1(d)(3)(ii) (providing that the BIA may
       review de novo “questions of law, discretion, and
       judgment and all other issues in appeals from decisions
       of immigration judges”).
                                  5
1    Jalloh v. Gonzales, 498 F.3d 148, 151 (2d Cir. 2007) ; Matter

2    of Chen, 20 I. & N. Dec. 16, 18-19 (B.I.A. 1989).

3        For the foregoing reasons, the petition for review is

4    DENIED.   As we have completed our review, any stay of

5    removal that the Court previously granted in this petition

6    is VACATED, and any pending motion for a stay of removal in

7    this petition is DISMISSED as moot. Any pending request for

8    oral argument in this petition is DENIED in accordance with

9    Federal Rule of Appellate Procedure 34(a)(2), and Second

10   Circuit Local Rule 34.1(b).

11                                 FOR THE COURT:
12                                 Catherine O’Hagan Wolfe, Clerk




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