Durakovic v. Garland

101 F.4th 989

Elvir DURAKOVIC; Sanela Durakovic; A.D., Petitioners v. Merrick B. GARLAND, Respondent

No. 23-2430

United States Court of Appeals, Eighth Circuit

Submitted: March 15, 2024

Filed: May 20, 2024

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

Counsel who represented the petitioner was Nicolette Glazer of Century City, CA.

Counsel who represented the respondent was Jenny Lee of Washington, DC.

Before GRUENDER, SHEPHERD, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

Elvir Durakovic, his wife Sanela, and their daughter (collectively, Petitioners) petition for review of the Board of Immigration Appeals's order of final removal against them. First, they claim the Board violated their due process rights by denying them an extension of time to file their brief. Second, they claim the Board lacked substantial evidence when it determined they were ineligible for asylum and withholding of removal because they were not persecuted for their Muslim faith. Third, they claim the Board lacked substantial evidence when it denied relief under the Convention Against Torture (CAT) on finding they did not face a likelihood of torture if they returned to Bosnia and Herzegovina. For the reasons discussed below, we deny the petition.

I. Background

Petitioners are natives and citizens of Bosnia and Herzegovina. They are Bosnian Muslims, an ethnic and religious group otherwise known as Bosniaks. From 2003 to 2008, Durakovic worked as a security officer at a bank in the city of Gradacac, Bosnia-Herzegovina. During that time, he worked as a confidential informant for police because his father was the Chief of Police and could afford him "some kind of protection." In 2008, Durakovic's father retired from the police, and Durakovic stopped being an informant. Durakovic later learned that some policemen leaked information about his past informant activities to Serbian criminals.

Between December 2009 and February 2012, Durakovic suffered four encounters with criminals targeting him for his prior informant activities. First, in December 2009, three men broke into his house while he was home. They wore all black and had their faces covered, but Durakovic deduced they were Christian Serbians because they wore chain necklaces with large crosses. One of them pushed Durakovic to the ground while the others destroyed things in his house. They asked him, "why are you giving information about things that we do to the police?" and "why are you giving information to the police?" The men left, and Durakovic was not injured during this encounter.

The second incident occurred a short while later in early 2010. While Durakovic was inside his house, three men attacked Durakovic's car, smashing its windows and scratching it, before driving away. The attack lasted two or three minutes, and they probably never knew Durakovic was inside the home at the time. The third incident occurred in 2011 when Durakovic received a phone call in which the caller threatened to hurt him for being an informant, apparently not knowing he had stopped being an informant in 2008.

In February 2012, the fourth and final incident occurred, this one resulting in physical harm to Durakovic. After eating dinner with his family, two cars pulled up in front of his house. Three men emerged; they had covered their faces and wore chain necklaces with crosses. They kicked Durakovic, pushed him to the ground, and tied his hands. One told him, "we will put you in the trunk and we will take you somewhere where we will kill you," but another said, "no. We're just going to beat him—beat you up really badly now and then we'll talk again and then we'll see." During the beating, the men repeated "this is what you get because you were giving information about us to the police." They asked him "why did you provide information about us to the police?" Sanela saw Durakovic getting attacked, and heard the men shout, "why [are] you giving this information to police," and one of the men called Durakovic a "falia,"¹ which is a derogatory term for Muslims in the Bosnian language. Sanela fled with her daughter to Durakovic's brother's home. The attack left Durakovic bruised on his arms, legs, face, and head.

Durakovic did not report this attack to the police as he thought doing so would place him and his family in even greater danger. Petitioners decided to move to the United States to avoid the criminal group's presence elsewhere in Europe. They legally entered the United States in November 2012, applying for asylum in 2013. Shortly after fleeing Bosnia-Herzegovina, Petitioners were informed that unknown people broke into their old house and "ransacked" it while searching for something, though nothing was taken. Six months later, a similar ransacking took place. Just five or six days before their hearing with the immigration judge, Durakovic's family who were still in Bosnia-Herzegovina told Petitioners they were unaware of anyone still looking for Petitioners.

Petitioners applied for asylum, withholding of removal, and protection under CAT. In August 2019, an immigration judge denied all relief. The immigration judge found Durakovic's and his wife's testimony to be credible and that the harm they suffered amounted to past persecution. Even so, the immigration judge concluded Petitioners could not show a nexus—that is, a connection—between the harm suffered and their protected group because Durakovic was "targeted [for] his cooperation with the police, not because of his Muslim faith." The immigration judge also determined that Petitioners' claimed particular social group of "Bosniaks being persecuted for secretly helping the police investigate crime" was not a distinct social group within Bosnia-Herzegovina. Thus, Petitioners were not entitled to asylum or withholding of removal. Nor did the immigration judge think CAT relief was warranted because Petitioners "ha[d] not provided any more convincing evidence showing that anyone remains interested in harming [Durakovic] in his country." Petitioners appealed the decision to the Board.

The Board denied two of Petitioners' requests for an extension of time to file a brief, but Petitioners still filed a brief on time. Petitioners argued the evidence showed a nexus between Durakovic's Muslim faith and the persecution, entitling them to asylum and withholding of removal. They also argued they were entitled to CAT relief and were deprived of due process when the Board denied them time extensions to file their briefs.

The Board noted it did not have jurisdiction to rule on Petitioners' due-process claim, and Petitioners were not prejudiced by the denial because they were "able to submit [their] appellate brief on time." Ultimately, the Board affirmed the immigration judge's denials of asylum, withholding of removal, and CAT relief, and so it dismissed Petitioners' appeal. The family now petitions this court to review the Board's decision.

II. Analysis

We review the Board's legal determinations de novo, Artola v. Garland, 996 F.3d 840, 842 (8th Cir. 2021), and afford great deference to its factual findings, 8 U.S.C. § 1252(b)(4)(B) ("[T]he administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary[.]"). When the Board issues a separate opinion rather than "summarily affirming" the immigration judge's decision, we review the Board's decision "as the final agency action." Artola, 996 F.3d at 842. To the extent the Board adopted the immigration judge's reasoning, we review the immigration judge's decision as well. Id.

A. Due Process Claim

Petitioners argue the Board violated their due process rights or otherwise abused its discretion when it twice denied them an extension to file their appellate brief. The Fifth Amendment's Due Process Clause entitled Durakovic to fair deportation proceedings. See Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993). "For a removal hearing to be fair, the arbiter presiding over the hearing must be neutral and the immigrant must be given the opportunity to fairly present evidence, offer arguments, and develop the record." Tun v. Gonzales, 485 F.3d 1014, 1025 (8th Cir. 2007). "To succeed on a due process claim, [Petitioners] must show fundamental procedural error and prejudice," which requires showing the proceeding's outcome may have been different were it not for the procedural error. Cardoza Salazar v. Barr, 932 F.3d 704, 709 (8th Cir. 2019).

Because of delays in the mailing of transcripts and other documents, Durakovic's counsel claims she only had seven days to draft and file her brief with the Board. Even though counsel twice filed for an extension of time—once on March 16, 2021, and again on March 29, 2021—the Board denied the extensions because counsel failed to show "good cause" as was required by a new procedural rule, see Appellate Procedures and Decisional Finality in Immigration Proceedings; Administrative Closure, 85 Fed. Reg. 81,588, 81,654 (Dec. 16, 2020). Shortly before the Board denied the extensions, however, a district court issued a nationwide injunction against that rule's implementation. See Centro Legal de la Raza v. Exec. Off. for Immigr. Rev., 524 F. Supp. 3d 919, 980 (N.D. Cal. 2021) (enjoining the rule on March 10, 2021). Thus, Durakovic argues the Board should have granted counsel a twenty-one-day extension as a right under the old procedures, and its failure to do so prejudiced Durakovic because "counsel had to scramble to review the record, ascertain the merits of a claim, and prepare an appellate brief."

Petitioners fail to show prejudice. Even though they filed their brief on time, Petitioners argue they were prejudiced because counsel was not able "to file an effective brief." But Petitioners do not articulate how the proceedings below would have been different absent the claimed error. The Board noted no actual prejudice from its decision, nor do Petitioners contend they lacked the...