NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 21 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSTOJA KRSTIC, No. 18-71870
Petitioner, Agency No. A079-927-841
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 6, 2020
Portland, Oregon
Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,** District Judge.
Ostoja Krstic petitions for review of the Board of Immigrations Appeals’
(“BIA”) final order of removal. Krstic challenges the immigration judge’s (“IJ”)
and BIA’s jurisdiction over his case; the adverse credibility finding; the
determination that he was subject to the persecutor bar, inadmissible, and ineligible
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul C. Huck, United States District Judge for the U.S.
District Court for Southern Florida, sitting by designation.
for relief; and the termination of his asylee status. We have jurisdiction under
8 U.S.C. § 1252. “On review from a decision to terminate asylum status, this
Court reviews the BIA’s factual findings for substantial evidence. Questions of
law are reviewed de novo.” Urooj v. Holder, 734 F.3d 1075, 1077–78 (9th Cir.
2013) (citation omitted). We review adverse credibility determinations for
substantial evidence. Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 910 (9th Cir.
2004). We deny the petition for review.
1. As an initial matter, the defective notice to appear, which lacked the date
and time of the immigration hearing, did not deprive the IJ or BIA of jurisdiction.
See Karingithi v. Whitaker, 913 F.3d 1158, 1158–59 (9th Cir. 2019) (concluding
that the IJ had jurisdiction where “the initial notice to appear d[id] not specify the
time and date of the proceedings, but later notices of hearing include[d] that
information”). Two days after Krstic was served with the defective notice to
appear, he received a hearing notice specifying the date and time of his removal
proceedings. Accordingly, we need not decide “whether jurisdiction would have
vested if [he] had not received this information in a timely fashion.” Id. at 1162.
2. Substantial evidence supports the adverse credibility determination.
Because Krstic filed his first refugee application prior to May 11, 2005, the BIA
and IJ properly evaluated his credibility under the pre-REAL ID Act standard.
Under that standard, “the IJ must provide specific, cogent reasons for reaching an
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adverse credibility determination, and minor inconsistencies or factual omissions
that do not go to the heart of the asylum claim are insufficient to support it.” Singh
v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir. 2004) (citation omitted). Krstic’s
“repeated[] and persistent[] lie[s] under oath with respect to his application for
asylum” are sufficient to support the adverse credibility finding. Martinez v.
Holder, 557 F.3d 1059, 1065 (9th Cir. 2009); see also Singh v. Holder, 638 F.3d
1264, 1272 (9th Cir. 2011) (“[L]ies and fraudulent documents when they are no
longer necessary for the immediate escape from persecution do support an adverse
inference.”).
3. The BIA affirmed the IJ’s finding that the government made a threshold
showing that Krstic assisted in persecution. We cannot say that the evidence
compels a contrary conclusion. “[D]etermining whether a petitioner ‘assisted in
persecution’ requires a particularized evaluation of both personal involvement and
purposeful assistance in order to ascertain culpability.” Miranda Alvarado v.
Gonzales, 449 F.3d 915, 927 (9th Cir. 2006). We apply a burden-shifting approach
to determine whether the persecutor bar applies: The government must first make
“a threshold showing of particularized evidence of the bar’s applicability before
placing on the applicant the burden to rebut it.” Budiono v. Lynch, 837 F.3d 1042,
1048 (9th Cir. 2016). The petitioner retains the ultimate burden, however: “If the
evidence indicates that one or more of the grounds for mandatory denial of the
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application for relief may apply, the alien shall have the burden of proving by a
preponderance of the evidence that such grounds do not apply.” 8 C.F.R.
§ 1240.8(d) (emphasis added). Here, the government presented expert testimony
and documentary evidence indicating that Krstic assisted in the genocide of
Bosnian Muslims. This evidence was sufficient to “indicate[]” that the persecutor
bar “may” apply. Id. Thus, the BIA properly determined that the burden shifted to
Krstic to disprove the applicability of the bar.
4. Substantial evidence supports the BIA’s determination that Krstic failed
to rebut the evidence when the burden shifted to him: Krstic’s discredited
testimony and other evidence was not sufficient to show by a preponderance of the
evidence that the persecutor bar did not apply. Nor does Krstic demonstrate
extenuating circumstances “so coercive that, on a totality of circumstances
analysis, [he] cannot be said to have ‘assisted or otherwise participated in’
persecution he was forced to inflict[.]” Miranda Alvarado, 449 F.3d at 929. Thus,
the BIA did not err in affirming Krstic’s inadmissibility, see 8 U.S.C.
§§ 1182(a)(3)(E)(ii)–(iii), 1227(a)(4)(D), or in affirming the applicability of the
persecutor bar, which precludes him from relief. See id. §§ 1158(b)(2)(A)(i),
1231(b)(3)(B). Accordingly, we conclude that the denial of asylum and
withholding of removal is supported by substantial evidence.
5. Finally, we find no error in the BIA’s determination that the IJ properly
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terminated Krstic’s asylee status. The attorney general may terminate a grant of
asylum made to an individual subject to the persecutor bar. See id.
§§ 1158(b)(2)(A)(i), (c)(2)(B). To terminate a grant of asylum, the IJ must find
that the government established by a preponderance of the evidence “a showing of
fraud in the alien’s application such that he or she was not eligible for asylum at
the time it was granted[.]” 8 C.F.R. § 1208.24(a)(1), (f). Kristic does not dispute
the fraud. As to prior asylum eligibility, substantial evidence supports the
determination that Krstic’s involvement with the Army of the Republika Srpska
(“VRS”) likely would have barred him (and, indeed, now does bar him) from
asylum eligibility. Moreover, as the IJ found, there is no credible record evidence
supporting the events underlying Krstic’s original asylum claim.
PETITION FOR REVIEW DENIED.
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