FILED
NOT FOR PUBLICATION
MAY 01 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILOMIR DJURIC, No. 14-71884
Petitioner, Agency No. A071-758-106
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 10, 2018**
Seattle, Washington
Before: TASHIMA and GRABER, Circuit Judges, and MIHM,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***
The Honorable Michael M. Mihm, United States District Judge for the
Central District of Illinois, sitting by designation.
Milomir Djuric, a native and citizen of Bosnia-Herzegovina, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
of an immigration judge’s (“IJ”) denial of his claim for humanitarian asylum and
the BIA’s denial of his motion to reopen. We deny the petition in part and dismiss
it in part.
1. Djuric petitions for review of the agency’s determination that he is
ineligible for humanitarian asylum. To establish eligibility for humanitarian
asylum, a petitioner must demonstrate either “compelling reasons for being
unwilling or unable to return to the country arising out of the severity of the past
persecution” or “that there is a reasonable possibility that he or she may suffer
other serious harm upon removal to that country.” 8 C.F.R. § 1208.13(b)(1)(iii);
Sowe v. Mukasey, 538 F.3d 1281, 1287 (9th Cir. 2008).
Substantial evidence supports the agency’s determination that Djuric’s
forced departure from his hometown of Zenica did not constitute “compelling
reasons.” The BIA did not err in determining that because Djuric testified that he
was never physically harmed, his was not a “rare situation[] of ‘atrocious’
persecution, where the alien establishes that, regardless of any threat of future
persecution, the circumstances surrounding the past persecution were so unusual
2
and severe that he is unable to return to his home country.” Vongsakdy v. INS, 171
F.3d 1203, 1205 (9th Cir. 1999).
Substantial evidence also supports the agency’s determination that Djuric
will not face serious harm that “equals the severity of persecution.” In re L-S-, 25
I. & N. Dec. 705, 714 (B.I.A. 2012). Djuric testified that members of his
immediate family have lived without incident in Bosnia. Given that fact, the
agency reasonably determined that Djuric will not face “substantial economic
disadvantage,” Ming Xin He v. Holder, 749 F.3d 792, 796 (9th Cir. 2014), or suffer
“severe mental or emotional harm,” In re L-S-, 25 I. & N. Dec. at 714, in Bosnia.
2. Djuric also petitions for review of the BIA’s denial of his motion to
reopen his applications for a waiver of inadmissibility under 8 U.S.C. § 1182(i)(1)
and a waiver of removability under 8 U.S.C. § 1227(a)(1)(H). However, judicial
review of an agency’s discretionary denial of either waiver is foreclosed. 8 U.S.C.
§§ 1182(i)(2), 1252(a)(2)(B). This remains true when the agency’s discretionary
denial is the subject of a motion to reopen. Fernandez v. Gonzales, 439 F.3d 592,
600 (9th Cir. 2006).
Although judicial review is available for a petitioner’s colorable
“constitutional claims or questions of law” related to the agency’s discretionary
decision, 8 U.S.C. § 1252(a)(2)(D), an argument that the agency violated due
3
process “by failing to properly weigh the equities and hardship . . . is an abuse of
discretion challenge re-characterized as an alleged due process violation” that does
not give this court jurisdiction. Bazua-Cota v. Gonzales, 466 F.3d 747, 749 (9th
Cir. 2006) (per curiam) (order).
Djuric’s purported due process arguments – that the IJ’s persecutor finding
acted as a “thumb on the scale” before the BIA and that the BIA weighed his
military service differently than that of other former VRS soldiers – are both
complaints about the agency’s weighing of the equities. Djuric never articulates
how the agency “prevented [him] from presenting [his] case before the [agency],
denied a full and fair hearing before an impartial adjudicator, or otherwise denied a
basic due process right.” Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.
2005).
The new evidence Djuric submitted with his motion to reopen “addresse[d]
the same basic hardship grounds considered previously” and was thus cumulative.
Fernandez, 439 F.3d at 601–03. We therefore lack jurisdiction over Djuric’s
petition as it pertains to the BIA’s denial of his motion to reopen.
• ! •
The petition is DENIED in part and DISMISSED in part.
4