Milan Ljuljdjurovic; Jelka Ljuljdjurovic v. Alberto R. Gonzales, Attorney General

*The Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana,
sitting by designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0419n.06
Filed: May 20, 2005
No. 03-3699
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MILAN LJULJDJUROVIC;
JELKA LJULJDJUROVIC,
Petitioners-Appellants,
v.
ALBERTO R. GONZALES,
ATTORNEY GENERAL,
Respondent-Appellee.
On Review from the Board
of Immigration Appeals
Before: BOGGS, Chief Judge; CLAY, Circuit Judge; WALTER, District
Judge *
WALTER, District Judge. Petitioners-Appellants, Milan Ljuljdjurovic (hereinafter
“Milan”) and Jelka Ljuljdjurovic (hereinafter “Jelka”), appeal from a decision of the Board of
Immigration Appeals denying the their motion to remand, upholding the Immigration Judge’s
denial of asylum, withholding of removal, and denial of voluntary departure.
At their initial immigration hearing, where they were charged with remaining in the
United States longer than permitted, the Ljuljdjurovics admitted doing so, conceded
removability, and requested asylum and withholding of removal, or in the alternative, voluntary
departure. The Ljuljdjurovics ultimately decided to go forward on the basis of Milan’s asylum

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application, rendering Jelka’s request derivative of Milan’s.
After a hearing on the merits of Milan’s asylum application, Immigration Judge Robert
D. Newberry (“the IJ”) issued an oral decision dated June 21, 1999. He denied the application
for asylum and withholding of removal on the grounds that it was not supported by credible
evidence; and that, even if credible, the evidence presented by the Ljuljdjurovics was insufficient
to demonstrate asylum eligibility. The judge also denied the Ljuljdjurovics’ request for
voluntary departure as an alternative to removal. Accordingly, the IJ ordered the Ljuljdjurovics
removed to Yugoslavia.
The Ljuljdjurovics appealed the IJ’s decision to the Board of Immigration Appeals (“the
BIA”). The BIA applied the summary affirmance procedure available to it under 8 C.F.R. §
1003.1(e)(4), and “affirm[ed] without opinion, the results of the [IJ’s] decision.” On April 16,
2003, the BIA issued a final removal order as to both Milan and Jelka. The Ljuljdjurovics argue
that the Immigration Judge abused his discretion in finding that the their application was not
supported by credible evidence; and that, even if credible, the evidence presented by the them
was insufficient to demonstrate asylum eligibility. They also argue that the BIA violated its own
regulations by affirming without opinion the decision of the IJ. This Court disagrees, and the
decisions of the BIA and IJ are therefore AFFIRMED.
I.
Milan, age 37, and Jelka, age 35, are both natives and citizens of the former Yugoslavia.
Their daughter, Ivana, was born in the United States on March 21, 1996. Mr. and Mrs.
Ljuljdjurovic entered the United States, for pleasure, as B-2 non-immigrant visitors on December
14, 1994, but remained without authorization beyond the December 13, 1995 expiration date of
their visas.

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No. 03-3699 3
Milan was born and lived in Podgorica, Yugoslavia, formerly Titograd, Montenegro,
Yugoslavia, all of his life until coming to the United States. He completed high school and two
years of college before being drafted into the Yugoslav army. Milan’s father is Albanian and his
mother is Serbian. He classifies himself as Albanian. The first part of his surname, “Lluljd,” is
Albanian, and the second part, “ovich,” is Serbian. Milan testified that because of his surname
he is identified by fellow Serbs as an Albanian. Milan also testified that he is a practicing
Catholic, although he said he rarely attended church because of the need to “camouflage” his
religion in order to avoid harassment by his neighbors.
Milan completed a year of military service in August 1986. He was recalled to active
duty three times. He was first recalled to fight in the war in Slovenia in May 1990 or 1991.
Milan testified that the situation in the army when he reported for duty was chaotic, with more
troops reporting than the army could arm, clothe, or feed. After a few days, the captain in charge
of the barracks told Milan and several other soldiers belonging to ethnic minorities that “terrible
things are happening in the army” and that they should try to leave unnoticed. Milan did leave,
and returned home.
In July 1991, by which time war had broken out in Croatia, Milan received a second
recall notice. He testified that the atmosphere in the army was hostile to minority soldiers, with
drunken threats to “butcher” minority troops made by Serbian nationalist soldiers, and that
“[v]ery soon it became the official policy that all the soldiers from other ethnic groups should be
interrogated and their patriotism tested. It was assumed that we were traitors.” After eight days,
Milan’s commanding officer told the troops to either prepare to go to war in Croatia, or to leave
their weapons and depart if they disagreed with the war. Milan testified that he left his weapon

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No. 03-3699 4
and departed, because he “did not want to be part of a nationalistic and aggressive army.” He
also testified that despite his commander’s ultimatum, he did not leave the army with official
permission. Soon after leaving the army for the second time, Milan was visited by the military
police and summoned to appear in military court for desertion, for leaving the army the first
time. After the commanding officer who released him submitted an affidavit confirming Milan’s
version of events, he was released.
Several months later, he was court-martialed for desertion for leaving the army the
second time. He defended himself on the grounds that the war was a war of aggression, and that
his failure to serve did not undermine Serbia’s ability to defend itself. After Milan appeared in
court, he was told he would receive another summons but never did. He testified that he does
not know the status of that case, whether he was convicted, or still faces charges. He stated that
he believes the government was too busy with other matters at the time to issue summonses or
decisions against deserters.
In early 1994, Milan was recalled a third time, this time to fight in Bosnia. He did not
report. He testified that the reason for his refusal to serve was his belief that the war was
immoral. He also testified that by this time the military was becoming increasingly dominated
by Serbian nationalists and para-military elements, and that he would not feel safe, as an
Albanian, serving with Serbs.
According to Milan’s relatives in Serbia, he has received two additional summonses from
the army since he left for the United States. Milan’s relatives reported that the military police
came to their house looking for Milan, not believing he had left the country.
Milan testified that he and Jelka were married on August 21, 1994, after having known
each other for four years. She testified that she first met him in 1988 and started dating him

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No. 03-3699 5
about 1990. Milan testified that they were married by a county official in a government office,
and had a reception in the backyard of his parents’ home attended by approximately 30 people.
Jelka is an ethnic Montenegrin, who practices the Serbian Orthodox religion. Milan
testified that his family was opposed to his dating Jelka because of her ethnic background, and
that they were reluctant to marry because they felt they would face hostility from both the
Albanian and Orthodox communities, which were opposed to mixed marriages, on top of the
hostility Milan already experienced from Serbs as a result of his Albanian heritage. Neither the
Orthodox nor Catholic churches would marry them. Milan testified that his mixed marriage hurt
his accounting business because clients would no longer do business with him, and that, after a
bank refused to extend credit to him because of his Albanian extraction, he had to close his
business. He testified that his mother had to stop working due to harassment about his mixed
marriage, and that his sister was attacked and robbed as a result of her own mixed marriage.
Jelka was insulted on the street, and, according to her testimony, the two of them were denied a
room in a hotel due to Milan’s Albanian last name.
Jelka also testified that they received approximately four threatening phone calls per
week after their marriage, and that the police took no action when she reported these calls. She
testified that she had not kept a copy of the receipt she was given after filing her complaint about
the calls. She claims to have been fired from her job as a bookkeeper and accountant after
returning from her honeymoon because she married an Albanian, and that she filed an
employment discrimination complaint without success. She testified that such complaints are
submitted on a form filled out at the appropriate government agency offices, and that she was not
given a copy of her complaint, but only a case number that she memorized.
Shortly after their marriage, the Ljuljdjurovics began looking for a way to leave

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No. 03-3699 6
Montenegro. Jelka testified that their desire to leave was due to the persecution that they claim
to have suffered, and because they did not want to raise a child in that hostile atmosphere. They
began trying to leave for either the United States or Germany, because they had connections that
would help them with regard to both destinations. Eventually, they received visas to travel to the
United States through a connection in the government.
II.
The IJ ruled on three claims for relief. He ruled that the Ljuljdjurovics were not eligible
for asylum or withholding of removal, and they were not entitled, in the alternative, to voluntary
departure. The Ljuljdjurovics do not appeal the IJ’s denial of voluntary departure. That issue is
therefore waived. See Ramant v. Ashcroft, 378 F.3d 554, 558 (6th Cir. 2004).
Asylum can be granted by the Attorney General and, by delegated authority, the BIA and
any IJ. See Yu v. Ashcroft, 364 F.3d 700, 702 (6th Cir. 2004). A refugee is an alien who is
“unable or unwilling to return to . . . [his] country because of persecution or a well-founded fear
of persecution on account of race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Therefore, the BIA or an IJ must first decide if
someone is a refugee under § 1101(a)(42)(A) and then decide whether or not to grant asylum.
See Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). In this case, the IJ decided that the
Ljuljdjurovics were not refugees and thus never reached the second step. Under §
1101(a)(42)(A), an applicant has the burden of proving past persecution or a well-founded fear
of future persecution. 8 C.F.R. § 208.13(a)-(b); see also Yu, 364 F.3d at 703.
The grounds for withholding of removal are the same as the ones used for asylum, except
that instead of proving a “well-founded fear of persecution,” 8 C.F.R. § 208.13(b), the applicant
“must demonstrate a clear probability that he would be subject to persecution.” Mikhailevitch v.

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No. 03-3699 7
INS, 146 F.3d 384, 391 (6th Cir. 1998). Therefore, the Ljuljdjurovics face the same question,
just with “a more stringent showing of truth.” Ibid. So a determination that the Ljuljdjurovics
are not eligible for asylum forecloses discussion of withholding of removal. Ibid.
The standard of review for these proceedings is extremely deferential to the finder of fact.
The IJ’s determination of the Ljuljdjurovics’ refugee status is reviewed under a substantial
evidence test. This court can reverse only if “any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Yu, 364 F.3d at 703 n.2
(recognizing lingering confusion over the proper standard but “officially adopt[ing]” substantial
evidence).
The Ljuljdjurovics raise three grounds for reversal on appeal. First, they claim that the IJ
lacked sufficient evidence for his credibility determination. Second, they claim that he lacked
sufficient evidence for his determination that the Ljuljdjurovics’ evidence was, even if true,
insufficient to demonstrate asylum eligibility. Third, they claim that the BIA violated its own
regulations by affirming without opinion the decision of the IJ.
The persecution claimed by the Ljuljdjurovics falls, broadly speaking, into two
categories: persecution relating to Milan’s desertion and refusal to serve in the military; and
persecution relating to the Ljuljdjurovics’ mixed marriage.
With regard to the Ljuljdjurovics’ mixed marriage, the IJ stated that the loss of
customers, inability to secure a loan, decision to close a business for lack of customers, being
ostracized by friends, losing one’s job, and receiving threatening phone calls constitute at most
discrimination, not persecution. This Court agrees.
The IJ’s determination that the Ljuljdjurovics’ economic suffering did not rise to the
level of persecution is supported by substantial evidence. The term “persecution” in the

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No. 03-3699 8
definition of a refugee under the Act means harm or suffering that is inflicted upon an individual
in order to punish him for possessing a belief or characteristic a persecutor seeks to overcome.
Matter of Acosta, 19 I. & N. Dec. 211, 223 (BIA 1985), overruled on other grounds by Matter of
Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Although economic deprivations or restrictions
can constitute such persecution, they must be “so severe that they constitute a threat to an
individual’s life or freedom.” Id. at 222; see also Daneshvar v. Ashcroft, 355 F.3d 615, 624 (6th
Cir. 2004) (“Economic deprivation constitutes persecution only when the resulting conditions are
sufficiently severe.”) (citing Acosta).
The Ljuljdjurovics presented evidence that Milan had to close his business after
customers deserted him and a bank denied him credit, and that Jelka was fired from her job and
forced to take work as a cleaner for which she was overqualified, but these privations do not rise
to the type of economic persecution that the BIA or the courts have found to necessary to justify
asylum. Compare, e.g., Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (“That Nagoulko
was fired from her job as a kindergarten teacher because of her religious beliefs, while
discriminatory, is not the type of economic deprivation that rises to the level of persecution.
Nagoulko found steady work at the furnace factory for seven years after she was fired from her
teaching job.”) with, e.g., Chand v. INS, 222 F.3d 1066, 1074 (9th Cir. 2000) (finding past
persecution where, in addition to physical abuse, applicant and his family were repeatedly
robbed and forced to vacate their home) and Gonzalez v. INS, 82 F.3d 903, 910 (9th Cir. 1996)
(finding past persecution where, in addition to violence committed against the applicant’s family
and threats made to her, family land had been seized and the applicant’s ration card and her
business’s ability to buy inventory were taken away). The threats received by the Ljuljdjurovics,
their inability on one occasion to obtain a hotel room, and ostracism by their friends may also

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No. 03-3699 9
have constituted discrimination, but discrimination, however odious it may be, is not
persecution. Bucur v. INS, 109 F.3d 399, 402 (7th Cir. 1997).
With regard to Milan’s desertion and refusal to serve in the military, the IJ stated that
Milan had failed to meet his burden of proof under Matter of A-G-, 19 I. & N. Dec. 502 (BIA
1987), to show the required persecution for his military service or failure to attend his military
service. This Court agrees. The requirement of military service is not in itself persecution. A-
G-, 19 I. & N. Dec. at 506. The Handbook on Procedures and Criteria for Determining Refugee
Status, United Nations High Commissioner for Refugees (Geneva 1979) (the “Handbook”) states
that
Not every conviction, genuine though it may be, will constitute a
sufficient reason for claiming refugee status after desertion or
draft-evasion. It is not enough for a person to be in disagreement
with his government regarding the political justification for a
particular military action. Where, however, the type of military
action, with which an individual does not wish to be associated, is
condemned by the international community as contrary to basic
rules of human conduct, punishment for desertion or draft-evasion
could, in the light of all other requirements of the definition, in
itself be regarded as persecution.
Handbook ¶¶ 170-71.
After completing a year of compulsory military service, Milan was recalled to duty three
times. In May 1990 or 1991, to fight in the war in Slovenia; in July 1991, for the war in Croatia;
and in February or March 1994, for the war in Bosnia. During the war in Slovenia, Milan left
the army after the barracks captain told him to leave. Milan was summoned to appear in military
court for this desertion; however, he was released after the barracks captain submitted an
affidavit. Milan again left the army when he was recalled for the war in Slovenia. Milan was
court-martialed for this desertion. After appearing in court for this desertion, he was told that he
would receive another summons, but he never did. Milan did not report to the army when he

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No. 03-3699 10
was called to fight in Bosnia. According to his family, Milan received two additional
summonses since he left for the United States.
The IJ’s finding that, even if all of the evidence concerning Milan’s military service is
credited as true, he has not established persecution is supported by substantial evidence. Milan
has not produced evidence of past persecution for deserting the army. Because Milan has not
sustained his burden of establishing past persecution, he is not entitled to the presumption under
8 C.F.R. § 208.13(b)(1)(i) of a well-founded fear of future persecution. Therefore, Milan
retained the burden on this issue.
Milan testified that he was summoned and appeared in court for two of the three
desertions. After the first desertion, he was released. After the second desertion, he was told he
would receive another summons, but never did. Milan has never appeared in court for the final
desertion. According to his family, he received two additional summons in the nine years he has
been living in the United States. The IJ did not find this evidence sufficient to establish a well-
founded fear of future persecution.
In order to reverse the IJ’s determination on this issue, which was ultimately adopted by
the BIA, this Court would have to decide that the evidence would compel a reasonable factfinder
to conclude that there is a reasonable possibility of Milan suffering future persecution if he were
to return to Yugoslavia. 8 C.F.R. § 208.13(b)(2). Under these circumstances, this Court is
unable to overturn the IJ’s decision.
This Court need not consider the issue of the IJ’s credibility determination because we
have found that the IJ had substantial evidence to deny asylum, without relying on that issue.
Nor need we address the claim that the BIA violated its own regulations by affirming the IJ
without opinion. No practical purpose would be served by remanding this case back to the BIA

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No. 03-3699 11
for a decision once we have rendered a decision on the merits of the IJ’s decision. Therefore, the
decisions of the BIA and IJ are AFFIRMED.

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