The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of *

Michigan, sitting by designation.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 09a0735n.06

Nos. 08-3574 and 08-4599

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

DOBROSLAV BULATOVIC; MINA BULATOVIC,

Petitioners,

v.

ERIC H. HOLDER, JR., Attorney General;

DEPARTMENT OF HOMELAND SECURITY,

Respondents.

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ON PETITION FOR REVIEW

OF AN ORDER OF THE

BOARD OF IMMIGRATION

APPEALS

BEFORE: BATCHELDER, Chief Judge, and GRIFFIN, Circuit Judge; TARNOW, District Judge.*

GRIFFIN, Circuit Judge.

In these consolidated appeals, Dobroslav Bulatovic and his wife, Mina Bulatovic, petition

this court for review of two adverse decisions of theBoard ofImmigration Appeals (“BIA”). In Case

No. 08-3574, petitioners seek review of the BIA’s April 15, 2008, order summarily dismissing their

appeal of the immigration judge’s (“IJ”) June 7, 2007, decision denying relief and ordering removal

to their native country, Montenegro. In Case No. 08-4599, petitioners seek review of the BIA’s

November 3, 2008, order granting their motion to reconsider the April 2008 order but again
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

Mina Bulatovic does not assert independent grounds for relief. 1

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dismissing their appeal. For the reasons stated below, we dismiss the petition for review in Case No.

08-3574 for lack of jurisdiction and deny the petition in Case No. 08-4599. 

I.

Dobroslav Bulatovic and Mina Bulatovic (“petitioners”) are natives and citizens of

Montenegro, part of the former Federal Republic of Yugoslavia. They arrived in the United States

on January 21, 2001, as nonimmigrant visitors with authorization to remain until July 20, 2001.

They overstayed their visas, and, on January 18, 2002, Dobroslav filed an application for asylum

with Mina as a derivative beneficiary. His application was denied by an asylum officer, and

petitioners were placed in removal proceedings as nonimmigrant aliens who remained in the United

States for a time longer than permitted. Petitioners conceded removability, but Dobroslav renewed

his application for asylum, with Mina as his dependent, and also requested withholding of removal

and protection under the Convention Against Torture (“CAT”). 

1

As the basis for relief, Dobroslav alleged in his application that he was conscripted into the

Yugoslavian army in 1999 and deserted after approximately twenty days because he did not want to

participate in the persecution of the Albanian minority during the NATO bombardment of

Yugoslavia. He claimed that after his desertion, the Montenegrin police searched for him and sent

him notices to appear. Dobroslav did not respond and made plans to leave Yugoslavia. He and

Mina married in September 2000 and obtained visas to enter the United States. Dobroslav alleged

that, by this time, his desertion was a matter of record, and he feared that he would be arrested,
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Bulatovic v. Holder

The IJ denied petitioners’ request for voluntary departure because Dobroslav testified that

2

he would not abide by a voluntary departure order. 

- 3 -

detained, and mistreated if he were to remain in Yugoslavia. Petitioners thereafter came to the

United States. 

On June 7, 2007, following a removal hearing at which Dobroslav testified about his alleged

fear of reprisal stemming from his military desertion if he were to return to Montenegro, the IJ

rendered an oral decision in which she denied all forms of relief. The IJ made an adverse credibility

determination based on her findings that Dobroslav’s testimony was inconsistent with his written

application, his application omitted key information, and he failed to submit available corroborating

evidence. The IJ further concluded that, even if Dobroslav’s claims were credible, he nevertheless

failed to establish his eligibility for asylum, withholding of removal, or CAT protection. The IJ thus

ordered petitioners’ removal to Montenegro. 

2

Petitioners, through counsel, timely appealed the IJ’s decision to the BIA. In their Notice of

Appeal, petitioners checked a box indicating that they intended to file a separate written brief or

statement. In a one-page addendum to the Notice of Appeal, petitioners set forth their “Reasons for

Appeal,” alleging in terse terms that the IJ’s “adverse credibility finding was ‘clearly erroneous[,]’”

that the IJ “relied upon a mischaracterization of the evidence in finding that [petitioner] had not

proven that he had been persecuted on account of a protected ground[,]” and that the IJ “erroneously

held that the absence of a fear of persecution by [Dobroslav’s] family may be imputed to

[Dobroslav].” 
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Bulatovic v. Holder

8 C.F.R. § 1003.1(d)(2)(i)(E) provides in pertinent part that “[a] single [BIA] member or 3

panel may summarily dismiss any appeal or portion of any appeal in any case in which . . . [t]he party

concerned indicates on Form EOIR-26 or Form EOIR-29 that he or she will file a brief or statement

in support of the appeal and, thereafter, does not file such brief or statement, or reasonably explain

his or her failure to do so, within the time set for filing.” See also BIA Practice Manual § 4.16(c).

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In a notice dated August 21, 2007, the BIA sent petitioners’ counsel a briefing schedule and

enclosed uncorrected but complete transcripts of the IJ’s oral decision and the testimony of record.

The notice set a September 11, 2007, deadline for the receipt of petitioners’ brief. The notice also

included two warnings: first, if petitioners indicated their intent to file a brief on appeal but then

failed to do so, the BIA may summarily dismiss their appeal pursuant to 8 C.F.R. §

1003.1(d)(2)(i)(E); second, a request for an extension of time to file a brief “must be received on or

before the expiration of the initial briefing schedule.” (Emphasis omitted.) These warnings 3

conformed to the established practices and procedures of the BIA set forth in the BIA Practice

Manual, which provides official guidance to parties and counsel who appear before the BIA. See

BIA Practice Manual §§ 4.4(b)(iv)(C), 4.7(c)(ii). Upon petitioners’ timelymotion, the deadline was

extended to October 2, 2007. The BIA’s notice granting petitioners’ extension request reiterated the

standard summary dismissal warning and further advised that 

[t]he Board generally does not grant more than one extension per party or per case,

if detained. Therefore, if you have received an extension, you should assume that

you will not be granted any further extensions. 

If you file your brief late, you must file it along with a motion for consideration of

your late-filed brief. . . . The motion must set forth in detail the reasons that

prevented you from filing your brief on time. You should support the motion with

affidavits, declarations, or other evidence. Only one such motion will be considered

by the Board. 
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Bulatovic v. Holder

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* * *

If you have any questions about how to file something at the Board, you should

review the Board’s Practice Manual and Questions and Answers at

www.usdoj.gov/eoir. 

Despite these warnings, petitioners failed to file a brief or request another extension before the

deadline passed. 

On October 3, 2007, counsel for petitioners sent a motion to the BIA, which was received

on October 4, 2007, requesting that the BIA furnish the signed, corrected copies of the hearing

transcript and IJ’s decision, not yet provided to petitioners, and reset the briefing schedule. In

petitioners’ motion, counsel alleged that “[d]ue to the fact that the IJ may make edits and the edits

may or may not be material, [petitioners] cannot raise all issues for appeal until they receive the

‘approved decision.’ The forwarded decision was only a ‘rough draft’ that is unsigned, unapproved

and has not been reviewed by a lawyer (i.e. the IJ).” Counsel claimed that petitioners would be

“severely prejudiced if the approved transcripts surface at a later date,” but did not further explain

the nature of the alleged prejudice. He further complained that the BIA’s failure to provide an

“approved” transcript was part of a broader “pattern and practice of forwarding incomplete

transcripts to me in all of my cases, i.e. the unapproved, unsigned, unedited transcript of oral

decision, despite the obligation of the [IJ] to approve the transcript of oral decision within 14 days

[as required by 8 C.F.R. § 1003.5].” Counsel maintained that the BIA was effectively “engaging in

a secret decision regarding whether the unsigned decision is subsequently being revised in such a

way that it does not reflect the decision dictated at the actual hearing.” 
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Bulatovic v. Holder

While petitioners’ motion for reconsideration was pending with the BIA, counsel for 4

petitioners filed a complaint for mandamus, on behalf of the present petitioners and another client,

in the United States District Court for the Eastern District of Michigan to compel the Executive

Office for Immigration Review (“EOIR”) to furnish the “approved” transcripts of the removal

hearing and IJ’s decision. Petitioners ultimately stipulated to dismissal of the action. 

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In an order dated April 15, 2008, the BIA summarily dismissed petitioners’ appeal pursuant

to 8 C.F.R. § 1003.1(d)(2)(i)(A) and (E), for failure to specify the reasons for the appeal so as to

permit meaningful review and failure to provide the promised appellate brief or otherwise reasonably

explain the failure to do so within the time set for filing. Petitioners filed a timely petition for review

of the summary dismissal order with this court and contemporaneously filed a motion to reconsider

with the BIA. In the motion to reconsider, petitioners reiterated their request for “approved

transcripts,” attached a copy of their October 4, 2007, motion, and included an appellate brief

challenging the merits of the IJ’s decision. 

4

On November 3, 2008, the BIA granted petitioners’ motion to reconsider but again dismissed

their appeal. In its decision, the BIA noted that due to an administrative error, its April 2008

decision inadvertently omitted a discussion of petitioners’ motion for an approved record and to reset

the briefing schedule. The BIA corrected this oversight by addressing the motion and denying it as

untimely because it was filed two days after the October 2, 2007, briefing deadline. The BIA added:

Even if we were to address [petitioners’] motion on the merits, the motion would be

denied. The Immigration Judge did not make any corrections to the transcript of the

hearings. The Board received, on September 10, 2007, a signed and corrected copy

of the Immigration Judge’s decision. Only minor corrections and changes were
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Bulatovic v. Holder

Petitioners claim that they did not receive copies of the corrected transcript and IJ decision 5

until the certified administrative record was received by this court. 

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made, none of which warranted serving the parties with the corrected copy of the

Immigration Judge’s decision. 

[5]

The BIA further found no error in its prior dismissal of petitioners’ appeal. The BIA

determined that petitioners’ vague allegations of error set forth in the addendum to their Notice of

Appeal provided insufficient grounds to overturn the IJ’s decision, i.e., petitioners failed to

adequately explain why the IJ’s credibility determination was clearly erroneous or how the IJ

allegedly mischaracterized the evidence. The BIA also noted that petitioners asserted inaccurately

that the IJ imputed the absence of fear from Dobroslav’s family to him when, in actuality, the IJ

“held that the reasonableness of [Dobroslav’s] fear of persecution was reduced when his family

members remained in Montenegro unharmed for several years after his departure from the country

. . . .” Thus, the BIA dismissed petitioners’ appeal. 

Petitioners timely filed a separate petition for review of the BIA’s November 2008 decision,

and we consolidated the petitions for purposes of this appeal. 

II.

We lack jurisdiction over the petition for review in Case No. 08-3574. As we explained in

Mu Ju Li v. Mukasey, 515 F.3d 575 (6th Cir. 2008), our jurisdiction in immigration cases is limited

to “final order[s] of removal,” 8 U.S.C. § 1252(a)(1), and 

when the BIA grants a motion to reconsider and – after considering the issues afresh

– renders a new decision addressing the arguments raised, the original order has been

vacated and a new order entered in its place. It follows logically that in such a
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

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circumstance, the BIA’s prior decision cannot be deemed a final order of removal for

purposes of this court’s jurisdiction. To hold otherwise would be to place this court

in the position of reviewing a decision that the BIA has deemed errant in some regard

and non-binding on the parties or itself. 

* * *

In so holding, we provide those who practice before the BIA with a clear rule: Where

a petition for review is filed with this court and a motion to reconsider is filed with

the BIA, if the BIA grants the motion to reconsider and renders a new decision

addressing the issues presented in the case, then the new decision effectively vacates

the prior decision and a separate petition for review of the new decision must be filed

with this court. 

Mu Ju Li, 515 F.3d at 578-80 (citation and footnote omitted). See also Naeem v. Holder, 321 F.

App’x 516, 520 (7th Cir. 2009) (unpublished) (favorably citing Mu Ju Li and holding that the BIA’s

decision upon reconsideration “effectively supplanted the previous order and became the final order

of removal” where “it substantially differed from that [original] order because it added an analysis

of the petitioners’ pattern or practice claim[.]”). 

This “clear rule” applies to the present case. The BIA effectively vacated its April 2008 order

when it granted petitioners’ motion to reconsider, addressed the omission in the April order, and

reaffirmed its dismissal of the appeal based on petitioners’ failure to provide adequate explanations

in support of their nebulous allegations of error on the part of the IJ. Because the April 2008 order

no longer constitutes a “final order[]” within the meaning of 8 U.S.C. § 1252(a)(1), we lack

jurisdiction to review it. 
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

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Therefore, the sole agency decision properly before us is the BIA’s November 2008 order that

is the subject of the separate timely petition filed in Case No. 08-4599. See Mu Ju Li, 515 F.3d at

580. 

III.

Petitioners allege that the BIA violated their due process rights when it denied their motion

to serve the corrected version of the record on the parties or reset the briefing schedule and instead

dismissed their appeal without giving them the benefit of the corrected record to prepare their appeal.

Petitioners argue that the BIA failed to follow the mandate of 8 C.F.R. § 1003.5(a), which provides

that, upon an appeal to the BIA, the IJ “shall review the transcript and approve the decision within

14 days of receipt” of the BIA’s request that the record be forwarded. They also complain that the

BIA did not rule on their motion to furnish the approved transcript for over a year. 

When the BIA reviews the IJ’s decision de novo and issues its own separate opinion, we

review the BIA’s decision as the final agency determination. Morgan v. Keisler, 507 F.3d 1053,

1057 (6th Cir. 2007). We likewise review de novo claims of due process violations in removal

proceedings. Garza-Moreno v. Gonzales, 489 F.3d 239, 241 (6th Cir. 2007). “An alien must

establish both error and substantial prejudice to prevail on a due process challenge to deportation

proceedings.” Id. (citation and internal quotation marks omitted). “[A] defect ‘must have been such

as might have led to a denial of justice’ to trigger due process concerns.” Id. at 241 (quoting

Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001)). “A showing of prejudice is essentially

a demonstration that the alleged violation affected the outcome of the proceedings; we will not
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

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simply presume prejudice.” Gishta v. Gonzales, 404 F.3d 972, 979 (6th Cir. 2005) (citations and

internal quotation marks omitted). 

Certainly, we are cognizant of “the dangers in an oral opinion that is forwarded for review

without an examination for errors in transcription” and have deemed it “extremely poor practice not

to provide the parties with the corrected version of the IJ’s decision when it was corrected.”

Djokovic v. Mukasey, 273 F. App’x 505, 507, 509 (6th Cir. 2008) (unpublished). On prior occasions,

we have “note[d] with concern that the government [has] failed to meet its obligation to prepare a

reasonably accurate and complete record of the removal hearing upon [an alien’s] appeal from the

IJ’s order.” Sterkaj v. Gonzales, 439 F.3d 273, 279 (6th Cir. 2006) (citing 8 U.S.C. §

1229a(b)(4)(C); 8 C.F.R. § 1003.5; and 8 C.F.R. § 1240.9); see also Garza-Moreno, 489 F.3d at 241

(echoing this concern). “Due process demands a reasonably accurate and complete transcript to

allow for meaningful appellate review and to allow the alien to mount a challenge to the proceedings

conducted before the IJ.” Sterkaj, 439 F.3d at 279. 

Consequently, we endorse neither the BIA’s failure, once again in the instant case, to

promptly serve the parties with a corrected copy of the transcript nor its apparent practice of

rendering its own editorial determination that the IJ’s corrections were “minor” and therefore did not

warrant serving the parties with a corrected copy of the record. 

However, under the present circumstances, the alleged deprivation of meaningful

administrative review is of petitioners’ own making. The BIA served petitioners with reasonably

accurate and complete, albeit uncorrected, copies of the record and the IJ’s decision when it initially
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

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issued the briefing schedule, thereby providing petitioners with the necessary materials to perfect

their administrative appeal. Although petitioners indicated their intent to file a brief in their Notice

of Appeal, they failed to do so in a timely manner, despite being granted one deadline extension.

It was only after the extended deadline passed that petitioners submitted their motion for a corrected

transcript or alternatively to reset the briefing schedule. By proceeding in this untimely manner,

petitioners undisputedly failed to comply with the BIA’s well-established practices and procedures.

As one court has explained, the BIA’s briefing schedule and practices serve a legitimate

purpose:

Under the federal regulations, an alien in custody generally has 21 days in which to

file a brief to the BIA, but “upon written motion, [the BIA] may extend the period for

filing a brief or a reply brief for up to 90 days for good cause shown.” 8 C.F.R. §

1003.3(c)(1). Furthermore, “[i]n its discretion, the [BIA] may consider a brief that

has been filed out of time.” Id. “In the interests of fairness and the efficient use of

administrative resources,” extension requests are disfavored. See BIA Practice

Manual, § 4.7(c)(i). Accordingly, it is the BIA’s policy to grant a first briefing

extension, but to only grant second requests “in rare circumstances.” Id. at §

4.7(c)(i)(A). Likewise, the BIA only will consider allowing a late-filed brief if it is

accompanied by a motion that “set[s] forth in detail the reasons for the untimeliness”

and is supported by “affidavits, declarations, or other evidence.” See Id. at § 4.7(d).

Even then, it “rarely” considers the motion. Id. 

* * *

The BIA’s policy of denying second requests “in the interests of fairness and the

efficient use of administrative resources” is not arbitrary and capricious . . . .

Likewise, the BIA[’s] . . . policy of requiring petitioners to explain the reasons for the

untimeliness in a motion supported by evidence is not arbitrary and capricious. 

Al-Shishani v. U.S. Att’y Gen., No. 08-15750, 2009 WL 1845578, at *3 (11th Cir. June 29, 2009)

(unpublished per curiam). 
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

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Moreover, Section 4.2(f) of the BIA Practice Manual sets forth a specific procedure for

litigants that desire to challenge defects or corrections in the immigration court record. It provides

in pertinent part: 

(iii) Defects in the transcript. – Obvious defects in the transcript . . . should be

brought to the immediate attention of the Clerk’s Office. Such requests should be

filed separately under a cover page titled “REQUEST FOR CORRECTION OF

TRANSCRIPT.” . . . The Board, in its discretion, may remedy the defect where

appropriate and feasible. 

Defects do not excuse the parties from existing briefing deadlines. Those deadlines

remain in effect until the parties are notified otherwise. See Chapter 4.7(c)

(Extensions). 

Where the Board does not or cannot remedy the purported defect in the transcript,

and the party believes that defect to be significant to the party’s argument or the

adjudication of the appeal, the party should identify the defect and argue its

significance with specificity in the appeal brief. The Board recommends that the

brief be supported by a sworn, detailed statement. The Board will consider any

allegations of transcript error in the course of adjudicating the appeal. 

(iv) Corrected oral decisions. – When an Immigration Judge issues an oral

decision, the Immigration Judge reviews the transcription of the oral decision, and

may make minor, clerical corrections to the decision. These corrected decisions are

returned to theBoard and served on the parties. If a party believes the corrections are

significant to the party’s argument or the adjudication of the appeal, the party should

identify the correction and its significance with specificity in the appeal brief.

Corrections do not excuse the parties from existing briefing deadlines. If the

corrected decision is served after the briefing schedule has expired, the parties

should file a “Motion to Accept Supplemental Brief.” See Chapter 4.6(g)

(Supplemental Briefs). 

BIA Practice Manual § 4.2(f)(iii)-(iv) (emphasis added). Adherence to these procedures insures the

meaningful appellate review that petitioners now claim is lacking: 

When an alien follows these procedures, the BIA is able to evaluate whether the

“gaps [in the transcript] relate to matters material to [the] case and [whether] they
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Bulatovic v. Holder

We note that petitioners do not challenge the propriety of the BIA’s decision regarding the 6

untimeliness of their pleadings in this court and therefore have waived this issue. See United States

v. Lopez-Medina, 461 F.3d 724, 743 n.4 (6th Cir. 2006) (issues not raised in an appellate brief, or

issues advanced in a perfunctory fashion, are waived.). 

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materially affect [the alien’s] ability to obtain meaningful review.” Moreover, if the

BIA concludes that a defective transcript did not cause prejudice, these procedures

create a record that facilitates the meaningful and effective judicial review to which

a petitioner is entitled. 

Witjaksono v. Holder, 573 F.3d 968, 976 (10th Cir. 2009) (citation and internal quotation marks

omitted). 

Petitioners disregarded these procedures. Consequently, even assuming arguendo that they

had a legitimate excuse for their failure to file an appellate brief before the extended deadline, they

did not inform the BIA of these reasons or request a second briefing extension in a timely manner.

6

The direct consequence was petitioners’ inability, given the barebones allegations of error contained

in the addendum to the Notice of Appeal, to satisfy their burden of proof regarding the IJ’s

substantive decision denying relief. 

Finally, as petitioners’ counsel, a seasoned immigration practitioner, should be well aware,

we have held that minor clerical changes or transcription errors in an uncorrected decision are not

tantamount to the deprivation of due process absent a showing of prejudice. In Garza-Moreno,

counsel in the current case argued that the BIA’s failure to provide his clients with a signed and

edited copy of the IJ’s order and an accurate transcript violated their due process rights. GarzaMoreno, 489 F.3d at 241. We rejected this argument, stating that 
Nos. 08-3574 and 08-4599

Bulatovic v. Holder

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[w]hile sending Petitioners an unsigned order may have been a technical defect, we

fail to see how it “denied them justice.” 

* * *

Petitioners claim that the agency’s failure to provide them with an accurate transcript

violated the Fifth Amendment. They point to sixty-seven “indiscernible” notations

in the transcript of the hearing before the IJ. . . . 

While due process demands a reasonably accurate and complete transcript to allow

for meaningful appellate review, a mere failure of transcription, by itself, does not

rise to a due process violation. The petitioner has the burden to prove prejudice in

order to establish a due process violation in an immigration hearing. A petitioner

furnished with an inaccurate or incomplete transcript must show that a complete and

accurate transcript would have changed the outcome of the case. Petitioners do not

point us to a single argument that the “indiscernible” notations precluded them from

advancing before the BIA or this court, nor do we find any from our review of the

transcript. Because they cannot show prejudice, they cannot establish a violation of

the Fifth Amendment’s due process guarantee. 

Id., 489 F.3d at 241-42 (citations, internal quotation marks, and brackets omitted). See also

Witjaksono, 573 F.3d at 975 (holding that the BIA’s failure to provide an accurate and complete

transcript of the removal hearing did not deprive the alien of due process where the information

omitted from the transcript was “immaterial”); Soumare v. Holder, No. 07-4417, 2009 WL 2568091,

at *7 (6th Cir. Aug. 21, 2009) (unpublished) (holding that “because [the petitioner] has not identified

how the ‘indiscernibles’ in the hearing transcript prejudiced his ability to perfect an appeal, we

conclude that [the petitioner] has not demonstrated a due-process violation.”) (footnote omitted);

Djokovic, 273 F. App’x at 510 (holding that the petitioner’s due process rights were not violated by

corrections to the IJ’s decision). 
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Bulatovic v. Holder

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As the BIA accurately noted in its November 2008 order, the IJ made no corrections to the

hearing transcript and only minor edits to the oral decision, including the correction of one citation.

Thus, the argument made by petitioners to this court that these minor edits compromised their ability

to prepare their appeal and caused prejudice is wholly spurious. Petitioners never brought to the

immediate attention of the BIA any obvious or significant defects in the complete record that they

initially received, did not request any corrections, and did not timely move to file a Supplemental

Brief before the briefing deadline expired. The BIA therefore properly dismissed their appeal. 

IV.

For the reasons set forth above, we dismiss the petition for review in Case. No. 08-3574 for

lack of jurisdiction and deny the petition for review in Case No. 08-4599.