United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2843

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Samir Bracic, *

*

Petitioner, *

* Petition for Review of an

v. * Order of the Board

* of Immigration Appeals.

Eric H. Holder, Jr., Attorney General *

of the United States, *

*

Respondent. *

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Submitted: May 12, 2009

Filed: April 29, 2010

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Before WOLLMAN, JOHN R. GIBSON, and MURPHY, Circuit Judges.

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JOHN R. GIBSON, Circuit Judge.

Petitioner Samir Bracic, a native of the former Yugoslavia and a citizen of

Montenegro, petitions for review of an order of the Board of Immigration Appeals

(“Board”) denying his claims for asylum and withholding of removal. Mr. Bracic

contends that the Board violated his Fifth Amendment right to due process by limiting

the case on remand to entry of a ministerial order, but then citing lack of additional

evidence as the basis for the Board’s decision to dismiss his appeal. He further argues

that the Board wrongfully upheld the Immigration Judge’s determination that Mr.

Bracic did not prove past persecution or a clear possibility and well-founded fear of
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future persecution. Mr. Bracic petitions this court for review of the denial of his

applications for asylum and withholding of removal, and we grant the petition.

I.

Mr. Bracic is a Muslim Albanian. After the breakup of the civil wars in Bosnia

and Kosovo, Mr. Bracic testified that Serbian authorities began to issue general

propaganda labeling Albanians as Muslim terrorists, which he attributes to the

discrimination against Muslim Albanians. Mr. Bracic’s high school expelled him for

not studying “hard enough.” During his high school years, police frequently stopped

him on the street, asking him for identification and briefly detaining him.

Mr. Bracic joined two political parties, the Liberal Party in 1995 and the

Albanian Union in 1999. As a member of the Albanian Union, he distributed

pamphlets but did not hold an official position. The Albanian Union urged democracy

for Montenegro with fair representation for Muslim Albanians, and it voiced

opposition to the war in Kosovo because its members believed the government was

killing innocent people and committing war crimes. Mr. Bracic attended Albanian

Union meetings but then stopped for fear of being arrested or being sent to the front

lines of the war. The government sent secret police to the meetings, who would

follow members home and harass them.

The Serbian Army sent Mr. Bracic several draft notices. He responded to the

first notice and reported for a physical examination, which he passed. He did not

respond to any further notices. Mr. Bracic testified that the Serbian Government sent

Muslim Albanians to the front lines of the war in Kosovo to fight other Muslim

Albanians. They were essentially victims, as they were sent without sufficient

ammunition. He believed that he would have been forced to commit war crimes as

well. After the war ended, the government continued to send him draft notices and
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started to call his house, saying that he had to conscript or it would be the last he

would see of this world. 

Mr. Bracic also recounted an incident where he and a friend were on a bus that

was stopped by a group of people who checked identification documents. After

seeing that several of the bus passengers were Muslim Albanian, they threatened and

verbally abused them, saying this is the last time for Albanians to be in the area. Six

months later, an incident occurred that caused Mr. Bracic to leave Montenegro.

Around sunset, when he was on the street, five men dressed in black civilian clothes

asked Mr. Bracic his name and attacked him. The men called him a traitor and beat

and kicked him until he temporarily lost consciousness. When he arrived at his home,

his mother called an ambulance, which transported him to the emergency room at a

nearby hospital. He spent three days in the hospital recovering from injuries to his

head and bruises all over his body. Mr. Bracic did not report the incident to the police

because he was afraid.

In September 2001, a group of men dressed in police uniforms came to his

home. Through the keyhole of the front door, he recognized that one of the men was

part of the group that had assaulted him. He did not answer the door and escaped out

the back window of his house. He never returned home. In November 2001, Mr.

Bracic entered the United States by illegally crossing the Mexican border. Even after

he had left Montenegro, the military police went to the homes of Mr. Bracic’s two

sisters to look for him. During one incident, the police searched the home of one of

his sisters, hit her in the stomach with a rifle, and telephoned her later that night to say

that “this was not the end of it.”

Following his entry into the United States, removal proceedings were

commenced against Mr. Bracic. He conceded removability but claimed asylum,

withholding of removal, relief under Article 3 of the United Nations Convention
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Against Torture and, in the alternative, voluntary departure on the grounds of past

persecution and fear of persecution as a Muslim Albanian. The Immigration Judge

who heard Mr. Bracic’s case found him to be generally credible but denied his

application on two grounds. First, the Immigration Judge held that Mr. Bracic failed

to establish that he suffered past persecution on account of a protected ground.

Second, the Immigration Judge held that Mr. Bracic had not shown a well-founded

fear of future persecution upon his return to Montenegro. The Immigration Judge

denied all of Mr. Bracic’s applications for relief in a written decision and order.

However, the Judge failed to enter an order of removal against the petitioner.

Mr. Bracic appealed only his applications for asylum and withholding of

removal; the Board adopted and affirmed the Immigration Judge’s decision. In its

written decision, the Board noted that the “Immigration Judge’s decision lacks an

order of removal. Therefore, we find it appropriate to remand the record to the

Immigration Court for entry of an order of removal.” On March 6, 2008, the

Immigration Judge held a telephonic hearing with Mr. Bracic, who was represented

by counsel, and counsel for the government. During the hearing, the Immigration

Judge asked, “[D]o the parties have anything further to present on this case at this

time?” to which Mr. Bracic’s counsel answered, “No, Your Honor.” The Immigration

Judge entered an order of removal against Mr. Bracic, and an appeal was timely filed.

After the order of removal was issued, the Board issued its final decision on July 17,

2008, dismissing the appeal. The Board noted that neither party had anything further

to present during the remanded hearing. Additionally, the Board commented that Mr.

Bracic’s “appellate brief . . . [was] not substantially different from the one filed on

appeal, on March 12, 2007" and declined to remand the case “yet again, in the absence

of new and material evidence relating to the respondent’s potential eligibility for

relief.” Mr. Bracic timely filed his Petition for Review with this Court. 
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II.

Mr. Bracic argues that his due process rights were violated because he had no

meaningful opportunity to be heard when the Board remanded the case solely for entry

of an order of removal but then dismissed the appeal because he did not submit new

and material evidence or raise new issues before the Immigration Judge. We review

Mr. Bracic’s due process challenge de novo, as the question of whether an

immigration hearing violates due process is a purely legal issue. Al Khouri v.

Ashcroft, 362 F.3d 461, 463 (8th Cir. 2004).

As a preliminary matter, we observe that Mr. Bracic did not raise a due process

claim in the administrative proceedings. Generally, as a condition to judicial review,

a petitioner must have “exhausted all administrative remedies available to the alien as

of right.” 8 U.S.C. § 1252 (d)(1); Frango v. Gonzales, 437 F.3d 726, 728 (8th Cir.

2006) (stating that Congress likely intended exhaustion requirement to mean that an

alien not only pursue all stages of administrative review but also raise all issues before

the agency). Nonetheless, “we have subject-matter jurisdiction over aliens’

unexhausted constitutional claims unless the claims concern procedural errors

correctable by the administrative tribunal.” Geach v. Chertoff, 444 F.3d 940, 945 (8th

Cir. 2006). Mr. Bracic’s due process claim does not concern “procedural errors

correctable by the administrative tribunal” because the issue first arose after the Board

issued its order of removal. See id. Thus, Mr. Bracic is not precluded from raising

this claim. 

To establish a due process violation, Mr. Bracic must “demonstrate both a

fundamental procedural error and that the error resulted in prejudice.” Lopez v.

Heinauer, 332 F.3d 507, 512 (8th Cir. 2003). Prejudice requires “a showing that the

outcome of the proceeding may well have been different had there not been any

procedural irregularities.” Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir. 2007)
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(holding that alien’s due process rights were violated by exclusion of expert’s report

and testimony, exclusion of a second expert’s corroborating report, and unreliable

translations); Al Khouri, 362 F.3d at 467 (holding that alien’s due process rights were

violated by limiting alien’s testimony and then concluding that limited responses

undermined his credibility, and by allowing inadequate time to prepare his testimony).

This standard does not require petitioners to show by a preponderance that, but for the

procedural infirmities, the result of the proceedings would have been different. Tun,

485 F.3d at 1026. Rather, petitioners must demonstrate an error that “potentially

. . . affects the outcome.” Id. (quotation omitted).

The government raises the argument that the Immigration Judge asked Mr.

Bracic during his remanded hearing if Mr. Bracic had anything further to present, to

which counsel responded in the negative. Although the Immigration Judge asked that

question, the Immigration Judge and the parties clearly viewed the remand as only

ministerial. As the Immigration Judge stated in his oral ruling, “this matter has been

remanded strictly for the purpose of the court entering an Order of Removal.” On

appeal from that order, the Board reiterated the procedural posture of the case, stating

that the case had been remanded “solely for an order of removal.” Despite the limited

remand, the Board then cited lack of additional evidence at the remanded hearing as

a reason for its decision to dismiss Mr. Bracic’s appeal. 

Mr. Bracic encountered a situation he could not have anticipated or controlled.

He was granted a hearing for the express purpose of receiving an order of removal.

The hearing was held by telephone only. It is clear from the record and logical to

conclude that the Immigration Judge intended nothing other than entering the order.

The Board received the case again and this time denied Mr. Bracic’s appeal, at least

in part because he failed to offer new evidence at the hearing. This scenario

constitutes procedural error. See In re Patel, 16 I. & N. Dec. 600, 600 (BIA 1978)

(holding a remand from the Board to the Immigration Judge is effective for all matters
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deemed appropriate in the exercise of administrative discretion “unless the Board

qualifies or limits [the remand] for a specific purpose.”); see also Al Khouri, 362 F.3d

at 465 (“curtailing [petitioner’s] testimony and circumscribing his ability to elaborate

on the details of his claim by instructing him only to answer the questions asked and

then concluding that [petitioner’s] limited responses undermined his credibility

violates notions of fundamental fairness”). 

We must next determine whether this procedural error resulted in prejudice.

Lopez, 332 F.3d at 512. Here, Mr. Bracic argues that the procedural error had the

potential for affecting the outcome of the proceedings. Aside from restating the

standard, however, Mr. Bracic has failed to substantiate this claim. He has not shown

how the procedural error would have changed the outcome of his case because he has

offered no new evidence or advanced new issues that would have established his

entitlement to asylum or withholding of removal. Because he has not done so, Mr.

Bracic has not shown prejudice. See Tun, 485 F.3d at 1026; Al Khouri, 362 F.3d at

467. Accordingly, he has not established a due process violation. 

III.

Next, Mr. Bracic argues that the Board wrongfully upheld the Immigration

Judge’s determination that his experiences in the former Yugoslavia did not rise to the

level of past persecution. Mr. Bracic asserts that he has suffered from past persecution

because of his Albanian ethnicity, Muslim religion and/or political opinion linked to

the Albanian Union. His assertion consists mainly of two arguments intended to

collectively show that a reasonable adjudicator would be compelled to find Mr. Bracic

suffered past persecution: (1) he was persecuted by the government for having evaded

unjust military conscription on account of his political opinion and/or membership in

a particular social group; and (2) he was threatened and attacked because of his

Albanian ethnicity, Muslim religion, and/or political opinion. The Immigration Judge,
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however, determined that Mr. Bracic’s harassment, physical abuse, and forced

conscription did not constitute persecution. The Board noted its agreement with this

conclusion but offered no additional analysis. 

We review a denial of asylum for abuse of discretion and apply the deferential

substantial evidence standard in evaluating the Board’s factual findings. Karim v.

Holder, 596 F.3d 893, 897 (8th Cir. 2010). We will not overturn the agency’s

decision unless Mr. Bracic demonstrates that the evidence “not only supports a

contrary conclusion but compels it,” Diallo v. Mukasey, 508 F.3d 451, 454 (8th Cir.

2007) (quotation omitted) (emphasis in original). 

To establish eligibility for asylum, an applicant must show that he or she is a

refugee who has suffered past persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion, or has a well-founded

fear of persecution on one of these grounds. 8 U.S.C. § 1101 (a)(42)(A); Karim, 596

F.3d at 896. “Past persecution is relevant either because it provides a basis for a wellfounded fear of future persecution, or, in extreme cases, because the severity of past

treatment may form part of a compelling reason for the alien’s unwillingness to return

to the site of such persecution.” See Fisher v. I.N.S., 291 F.3d 491, 497 (8th Cir.

2002); 8 C.F.R. § 208.13(b)(1). 

If Mr. Bracic establishes past persecution, he is entitled to a presumption of a

well-founded fear of persecution on the basis of his original claim upon his return to

Montenegro. See 8 C.F.R. § 1208.13(b)(1). The burden then shifts to the government

to rebut the presumption. The government must show, by a preponderance,

fundamentally changed country conditions or the possibility of internal relocation.

Id.
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A well-founded fear of persecution must be both subjectively genuine and

objectively reasonable. Ngengwe v. Mukasey, 543 F.3d 1029, 1032-33 (8th Cir.

2008). Persecution may be a harm to be inflicted either by the government of a

country or by persons or an organization that the government was unable or unwilling

to control. Id. at 1033 (citations and quotations omitted). It “is an extreme concept

that excludes low-level intimidation and harassment.” Sholla v. Gonzales, 492 F.3d

946, 951 (8th Cir. 2007) (citations and internal quotation marks omitted). Persecution

includes the “threat of death, the threat of infliction of torture, and the threat or

infliction of injury to one’s person or one’s liberty on account of a protected ground.”

Id. (citations and internal quotation marks omitted). “In some cases, an applicant may

be able to show a well-founded fear of persecution on cumulative grounds.” Ngengwe,

543 F.3d at 1036 (8th Cir. 2008) (citations and internal quotation marks omitted). An

applicant “is not obliged to show conclusively why persecution has occurred or may

occur. However, there must be some showing that past persecution was on account

of one of the five protected grounds.” Hassan v. Ashcroft, 388 F.3d 661, 666 (8th Cir.

2004) (citations and internal quotation marks omitted). 

To obtain withholding of removal, an alien must demonstrate a clear probability

that he would suffer persecution on account of a protected ground. Karim, 596 F.3d

at 897. The standard for withholding of removal is more rigorous than that for

asylum, so an alien who fails to prove eligibility for asylum cannot meet the burden

for withholding of removal. Id. Withholding of removal is a mandatory form of

relief, whereas asylum is discretionary. 8 U.S.C. §§ 1231 (b)(3)(A), 1158 (b)(1). 

Mr. Bracic argues that the Immigration Judge erred in concluding that he did

not suffer persecution in part for his refusal to join the Serb-dominated national army,

both during and after the Kosovo war. The background documents show that the

Serbian military was committing atrocities against ethnic Albanians in Kosovo as part

of the government’s campaign of ethnic cleansing, which primarily occurred between
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March and late June of 1999. They also suggest that minorities were to play the role

of human shields during the war. While other courts have recognized this as a basis

for asylum status, see, e.g., Islami v. Gonzales, 412 F.3d 391, 396-97 (2d Cir. 2005)

(stating that alien’s fear of retribution for refusing to participate in Kosovo’s military

known to perpetrate crimes against humanity constitutes past persecution), we need

not decide whether Mr. Bracic established past persecution in part for his refusal to

join the national army. The government’s evidence concerning changed country

conditions in Montenegro successfully rebuts the presumption of future persecution

on this basis because the record establishes that the war in Kosovo has ended, the

government has changed, and a law has been passed to allow for conscientious

objection. See also Islami, 412 F.3d at 398 (holding that presumption of future

persecution of an Albanian who fled the former Yugoslavia to avoid draft was

rebutted by evidence that Serb-domination of Kosovo was ended); Gashi v. INS, 224

F. App’x 74, 75 (2d Cir. 2007) (same); Grdoc v. Gonzales, 202 F. App’x 508, 511 (2d

Cir. 2006) (same). 

Mr. Bracic’s claim that he suffered persecution, however, does not rest solely

on his forced conscription argument. Mr. Bracic also asserts that evidence that he was

threatened and attacked supports his claim of past persecution. The Board cites the

Immigration Judge’s decision, which addressed “only one incident of alleged physical

mistreatment.” As the Immigration Judge noted, citing Fisher, 291 F.3d at 497-98,

“one episode of physical mistreatment does not necessarily require the Court to find

that the respondent suffered past persecution.” To be sure, we have stated that “[e]ven

minor beatings or limited detentions do not usually rise to the level of past

persecution.” Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir. 2006) (alien did not

suffer physical injury from being slapped twice by his brother-in-law who had no ties

to government). Nonetheless, “[w]e have never held that a specific, credible, and

immediate threat of death on account of a political opinion is outside the definition of
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‘persecution,’ just because it occurs during a single incident.” Corado v. Ashcroft,

384 F.3d 945, 947 (8th Cir. 2004).

Looking at the record as a whole, we conclude that the facts compel a

conclusion other than that reached by the Immigration Judge. We are mindful of the

stringent nature of the substantial evidence standard, but no reasonable fact-finder

could fail to find that Mr. Bracic suffered past persecution. The facts surrounding the

incident are much more than “mistreatment.” See Fisher, 291 F.3d at 494 (petitioner’s

physical mistreatment of being pushed while passing by a demonstration did not

amount to persecution). Mr. Bracic testified that five men dressed in black asked him

for his name, called him a traitor, and beat and kicked him until he temporarily lost

consciousness. He then spent days in the hospital. Later, after he recognized one of

his assailants outside of his front door dressed in a police uniform, he fled and never

returned home. He did not report the incident to the police because he feared being

caught.

This beating was not the only evidence in the record of past persecution. Mr.

Bracic testified to an incident in February 2001 where he and a friend were on a bus

that was stopped by a group of people who checked identification documents. After

seeing that several of the bus passengers were Muslim Albanian, they threatened and

verbally abused them, saying this is the last time for Albanians to be in the area. The

police also searched the homes of both of Mr. Bracic’s sisters while looking for him

after he had fled. The officers hit one sister in the stomach with a rifle and telephoned

her later that night to say that “this was not the end of it.” Mr. Bracic included other

claims of physical harm in his application for asylum and attached affidavit, which

were admitted into the record. His affidavit includes testimony of police mistreatment

and beatings from soldiers, police, and their spy groups and sects who had the

authority to execute Muslims. In short, Mr. Bracic’s persecutors made numerous and
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credible threats, accentuated by harassment and beatings, as well as by fear of

retribution for refusing to participate in forced conscription. 

The nature and frequency of the attacks against Mr. Bracic and his family

fueled the urgency of his leaving. The mistreatment that the petitioner claims to have

suffered, when considered on a cumulative basis, compels the conclusion that he

suffered past persecution. See Diallo, 508 F.3d at 454. 

As mentioned above, because Mr. Bracic has established past persecution, he

is also entitled to a presumption of a well-founded fear of persecution on the basis of

his original claim upon his return to Montenegro. See 8 C.F.R. § 1208.13(b)(1). The

burden then shifts to the government to rebut the presumption by showing

fundamentally changed country conditions or the possibility of internal relocation.

Id. The government has a preponderance of the evidence burden of proof. Id. 

In this case, the government has not satisfied its burden. Muslims and ethnic

Albanians remain a minority in Montenegro. The country reports presented by the

government do not show a fundamental change. The background documents state that

“[s]ome ethnic discrimination persisted” and “[v]iolence and discrimination against

. . . ethnic minorities were problems.” U.S. Dep’t of State, Serbia and Montenegro:

Country Reports on Human Rights Practices - 2004 (Feb. 28, 2005). In addition, the

“[p]olice at times beat detainees and harassed citizens.” Id. This is not to say that

more recent evidence could not demonstrate changed conditions in Montenegro, but

we are determining this case on the record before us. The country reports the

government presented are not enough to satisfy its burden to show a fundamental

change. The record does not establish that, since the time he left the country,

conditions in Montenegro have changed to such an extent that the petitioner no longer

has a well-founded fear of being persecuted in that country. 
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We hold that the evidence would compel any reasonable fact-finder to conclude

that Mr. Bracic suffered past persecution. We further believe that the government has

failed to show by a preponderance of the evidence that conditions in Montenegro have

changed to such an extent that a reasonable person in the petitioner’s position would

no longer have a well-founded fear of persecution. 8 C.F.R. § 1208.13(b)(1).

Accordingly, the petitioner is entitled to the regulatory presumption of a well-founded

fear of persecution in Montenegro. Having concluded that Mr. Bracic is eligible for

asylum, we remand this matter to the Immigration Judge for a specific determination

of whether he would be granted discretionary relief. In addition, on remand the

Immigration Judge should consider whether Mr. Bracic is entitled to withholding of

removal based on all the evidence in the record. 

IV.

For the foregoing reasons, we grant the petition for review. We reverse the

decision of the Immigration Judge that Mr. Bracic failed to establish eligibility for

asylum on the basis of past persecution. We remand the matter to the Immigration

Judge for a determination of whether Mr. Bracic is entitled to a discretionary grant of

asylum and/or withholding of removal in light of all the evidence on the record. 

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