In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3710

VECISLAY MILANOUIC, also known as

VECISLAV MILANOVIC,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order

of the Board of Immigration Appeals.

No. A98-322-600

ARGUED APRIL 9, 2009—DECIDED JANUARY 6, 2010

Before MANION, ROVNER, and WOOD, Circuit Judges.

ROVNER, Circuit Judge. Petitioner appeals the Board of

Immigration Appeal’s (BIA) denial of his request for

withholding of removal. We note at the outset that although the caption of the case identifies petitioner as

Vecislay Milanouic, he made it clear at the hearing before

the Immigration Judge that his name is actually spelled
2 No. 08-3710

Vecislav Milanovic. We will refer to Milanovic by the

spelling that he has declared to be the correct one in this

opinion.

Milanovic, an ethnic Serb, was born in Yugoslavia

and came to this country as a non-immigrant visitor in

February 1996. He did not leave the country when his

authorization expired in July 1996, and on September 24,

2004, the Department of Homeland Security served him

with a Notice to Appear charging that he was subject to

removal because he had remained longer than his visa

allowed. Milanovic subsequently applied for asylum,

withholding of removal under § 241(b)(3) of the Immigration and Nationality Act (INA), and protection under

the Convention Against Torture (CAT). The Immigration Judge (IJ) denied that relief after an evidentiary

hearing, but granted him voluntary departure under

§ 240B of the INA. 8 U.S.C. § 1229c. Milanovic then appealed to the BIA, which affirmed the IJ in an order

dated September 24, 2008. He now appeals to this court.

Milanovic’s asylum claim was based upon actions taken

against him when he lived in the former Yugoslavia, and

on the threat to his sons of conscription in the Serbian

army should they return. Milanovic testified at the

hearing that he served in the military in the former Yugoslavia between 1979 and 1980. In 1993, he was again

called upon to serve in the military, and was sent to

Kosovo on maneuvers for 15 days. He fled towards

Serbia, and was caught by the military police and

detained for 45 days, during which time he was

mistreated by the military police. After the 45 days

passed, he returned home.
No. 08-3710 3

He subsequently became involved in supporting the

Serbian Renewal Party against the governing Socialist

Party which was led by Slobodan Milosevic. In September 1995, he was at a restaurant speaking to others about

opposing the government, when Milosevic supporters—

led by a local official who was a member of the

Socialist Party, Ratko Zecevic, and several policemen—severely beat him. He suffered serious injuries as

a result of that beating, which required hospitalization

and resulted in the removal of one of his testicles.

Those incidents form the basis of his claim for asylum

and withholding of removal.

The IJ denied the asylum claim as untimely, rejecting

Milanovic’s contention that the potential conscription of

his son constituted a changed circumstance justifying

the delay. In so holding, the IJ noted that his son’s

potential conscription was distinct from the political

activities that formed the genesis of his claim, that it

was not a harm to Milanovic himself, and that in any

case it was not timely raised.

The IJ proceeded to address Milanovic’s claim for

withholding of removal. An alien is entitled to withholding of removal if he can demonstrate a clear probability that his life or freedom would be threatened

based on his race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C.

§ 1231(b)(3)(A); Ishitiaq v. Holder, 578 F.3d 712, 717 (7th

Cir. 2009); Patel v. Holder, 581 F.3d 631, 634 (7th Cir. 2009).

Once an alien establishes that he was subject to past

persecution, that triggers a rebuttable presumption of
4 No. 08-3710

future persecution. 8 C.F.R. § 1208.16(b)(1); Ishitiaq, 578

F.3d at 717; Patel, 581 F.3d at 634. The government may

rebut that presumption by demonstrating—by a preponderance of the evidence—either a fundamental change

in circumstances such that the applicant’s fear is no

longer reasonable, or that the applicant could avoid

future persecution by relocating to another part of the

country and that it would be reasonable to expect the

applicant to do so. 8 C.F.R. § 1208.16(b)(1). The burden of

proof to rebut that presumption is on the government. Id.

The IJ found that the incident involving the military

police was insufficient to demonstrate past persecution

and Milanovic does not contest that on appeal. The IJ

found credible Milanovic’s testimony as to the beating

at the restaurant, however, and held that the incident

was sufficient to constitute past persecution. Accordingly,

Milanovic was entitled to a rebuttable presumption of

future persecution. The IJ held, however, that the government demonstrated a change in country conditions

that rebutted that fear of future persecution. Specifically,

the IJ noted that Slobodan Milosevic had been overthrown, and had died while on trial at the Hague for

war crimes. Milosevic’s Socialist Party was no longer in

power in Serbia, and Milanovic’s party, the Serbian

Renewal Party, had been elected to some seats in parliament. Accordingly, the government had rebutted the

presumption of future persecution. Milanovic did not

offer evidence to establish that the threat persisted

despite that change in power, and the IJ held that he

had failed to meet the criteria for withholding of removal.
No. 08-3710 5

At the outset, we note that the transcription of the IJ’s

oral decision appears to be incomplete, as reflected in the

disconnect between the first and second pages. To its

credit, the government pointed out that discrepancy in

its responsive brief to this court. Milanovic does not

complain that the record is incomplete, or that any substantive aspect of the IJ’s decision is missing. Moreover,

our independent review of the record as a whole makes

clear that all portions of the oral decision relevant to

the IJ’s determination are transcribed, and we can

review the decision. We note, however, that this is not

the first time in this past year that we have been presented

with an incomplete record. See Patel v. Holder, 563 F.3d 565,

567 (7th Cir. 2009) (noting that one page of the IJ’s decision

was missing from the administrative record.) This is

unacceptable and we trust that greater care will be exercised in the future to ensure that records presented to

this court are accurate and complete.

We turn to the contention raised by Milanovic in this

appeal. He argues that the IJ erred in determining

that the government had rebutted his showing of past

persecution by demonstrating that a transfer in power

in Serbia constituted a change in country conditions.

Milanovic asserts that it is insufficient for the IJ to rely

merely on the country report to rebut a finding of past

persecution, and also appears to argue that his claim of

persecution was based on a local official’s independent

actions and therefore the demise of Milosevic does not

address the basis of the persecution claim. In affirming

the IJ, the BIA relied on the findings of the IJ but

added some analysis of its own. In such a circumstance,
6 No. 08-3710

we review the IJ’s decision as supplemented by the additional reasoning of the BIA. Mema v. Gonzales, 474 F.3d

412, 416 (7th Cir. 2007); Pavlyk v. Gonzales, 469 F.3d 1082,

1087 (7th Cir. 2006).

As we noted, Milanovic appears to argue on appeal that

his claim of persecution was based on the actions of a

purely local official and thus the ouster of Milosevic

could not constitute a change in country conditions

sufficient to rebut the presumption of future persecution.

It is questionable as to whether this argument is even

preserved, because it is developed to some extent in the

recitation of facts, but not in the argument section of

the brief. See Long v. Teachers’ Retirement System of Illinois,

585 F.3d 344, 349 (7th Cir. 2009) (“To present an argument on appeal, a party must develop its position by

providing citation to the relevant portions of the record

and supporting authority.”) If raised, there is the additional problem that this argument was never presented to

the IJ or the BIA. Although Milanovic challenged the

finding that the country report rebutted his presumption

of future persecution, he never challenged it on the

ground that the actions of the officials were not tied to

the ruling regime. In fact, before the IJ, the persecution

was specifically characterized as having taken place at

the hands of Milosevic supporters based on Milanovic’s

support for the opposition party. In his Statement in

Support of I0589, Milanovic discussed his membership in

the movement opposing Milosevic, and stated that his

opposition resulted in the beating at the restaurant at the

hands of a well-known Milosevic supporter Ratko

Zecevic, stating that he was threatened with further
No. 08-3710 7

harm if he continued his anti-Milosevic activities. That is

consistent with his testimony at the hearing before the

IJ. In fact, during closing arguments, his attorney argued

that he had suffered the severe beating by Milosevic

supporter Zecevic and the policemen because of his

membership in the opposition. Similarly, the Brief in

Support of Notice of Appeal states that “supporters and

police of President Slobodan [sic] Milosevic, namely Ratko

Zecevic who was a judge and an official in his town

together with several policemen, beat him severely and

inflicted serious injuries on him.” Therefore, throughout

the administrative process, Milanovic characterized the

persecution as having been undertaken by Milosevic

supporters because of his opposition to Milosevic. He

never asserted that the persecution was perpetrated by

local officials acting independently such that the ouster

of Milosevic and his party would lose relevance. Instead,

the only argument raised to the BIA was the contention

that the IJ erred in relying on the country report without

giving him an opportunity to rebut it, thus “taking the

place of the Trial Attorney for the Department of Homeland Security.”

We have made clear that an alien must exhaust all

administrative remedies before seeking review in this

court, and that the duty to exhaust includes the

obligation to present to the BIA each argument against

the removal order. Ishitiaq v. Holder, 578 F.3d 712, 717-18

(7th Cir. 2009), citing 8 U.S.C. § 1252(d)(1) and Ghaffar v.

Mukasey, 551 F.3d 651, 655 (7th Cir. 2008). In Ishitiaq, we

held that Ishitiaq had waived his claim that the IJ had

mistakenly equated past persecution with torture. Ishitiaq,
8 No. 08-3710

578 F.3d at 718. We held that although Ishitiaq had challenged the finding of past persecution, he had based that

challenge only on the argument that his case was distinguishable from the two cases relied upon by the IJ. That

challenge did not preserve all possible challenges to the

past persecution determination, however, but rather

exhausted only the specific arguments actually raised. Id.

Similarly, in this case, Milanovic raised only a challenge

to the procedures used in relying on the country report,

and to the role exercised by the IJ in using that report

to rebut his presumption. Milanovic did not assert that

the country report was insufficient to rebut his claim

because the actions of the local officials were not tied to

Milosevic or the party. Accordingly, this issue is waived.

Even if it were considered, however, the testimony at

the hearing and the standard of review would doom the

claim. We review factual findings under the substantial

evidence test, and will uphold them if supported by

evidence a reasonable mind would find adequate to

support the conclusion. Terezov v. Gonzales, 480 F.3d 558,

563 (7th Cir. 2007). The IJ determined that the country

report constituted a change in conditions sufficient to

rebut the presumption of future persecution. We have

repeatedly upheld the use of country reports to demonstrate such a change in conditions if the report addresses

the specific basis for the alien’s fear of persecution;

where that individualized assessment is not made, or the

report fails to address the basis for the fear of persecution

at issue in the case, we have rejected such a use of the

country reports. See Ayele v. Holder, 564 F.3d 862, 871 (7th
No. 08-3710 9

Cir. 2009); Brucaj v. Ashcroft, 381 F.3d 602, 607 (7th Cir.

2004); Berishaj v. Ashcroft, 378 F.3d 314, 327 (3d Cir. 2004).

See also Pelinkovic v. Ashcroft, 366 F.3d 532, 540-41 (7th

Cir. 2004) (relying in part on the change in conditions

following the removal of Milosevic as a basis to uphold

BIA decision.)

The question, then, is whether the record supports the

IJ’s determination that the change in government in

Serbia was sufficiently tied to Milanovic’s fear of persecution as to rebut the presumption. Here, there is

adequate evidence to support the IJ’s determination that

the removal of Milosevic constituted a change in

country conditions sufficient to rebut the presumption

of future persecution. At the hearing, the persecution

suffered by Milanovic was tied to his actions in opposition to Milosevic and the Socialist Party, and the perpetrators were consistently identified as Milosevic supporters. Accordingly, the IJ could reasonably conclude

that with the removal of Milosevic and his party from

power, Milanovic would no longer face the fear of future

persecution for his actions in working toward that

ouster. That does not mean that the country report is

dispositive—it rebutted the presumption but did not

ordain the outcome. Milanovic could still have proven

entitlement to such withholding by demonstrating that

the local officials were still in power, or that there was

continued persecution in the country against those

who had opposed Milosevic, but he did not do so. Although Milanovic states that he was not provided an

opportunity to provide such evidence, he raises that

contention in one sentence and never develops the argu-
10 No. 08-3710

ment, nor does he identify what evidence he would have

introduced, and therefore he has not fairly presented that

issue in this appeal. Long v. Teachers’ Retirement System of

Illinois, 585 F.3d 344, 349 (7th Cir. 2009) (“A party may

waive an argument by disputing a . . . ruling in a footnote

or a one-sentence assertion that lacks citation to record

evidence.”)

Finally, Milanovic contends that the BIA erred in

failing to consider his claim for humanitarian asylum. The

IJ rejected his claim for asylum because it was not timely

filed, and Milanovic has not contested that determination. Therefore, he has presented no grounds for reversal.

The decision of the IJ and the BIA is AFFIRMED.

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