SALEH CAPRIC , CAMILA CAPRIC , ALBERT CAPRIC , and ELVIS CAPRIC v. John D. Ashcroft , Attorney General of the United States , 1

1 The Attorney General has been substituted for the Immigration
and Naturalization Service.
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3172
S ALEH C APRIC , C AMILA C APRIC ,
A LBERT C APRIC , and E LVIS C APRIC ,
Petitioners,
v.
J OHN D. A SHCROFT , A TTORNEY G ENERAL
OF THE U NITED S TATES , 1
Respondent.
____________
Petition for Review of Orders of the Board of Immigration Appeals
Nos. A70 528 882, A70 528 748, A70 528 749, A70 528 750.
____________
A RGUED S EPTEMBER 25, 2003—D ECIDED J ANUARY 23, 2004
____________
Before C UDAHY , R IPPLE , and K ANNE , Circuit Judges.
K ANNE , Circuit Judge. In 1992, Petitioners Saleh Capric,
his wife, Camila, and sons, Albert and Elvis, were citi-
zens of Bar, Montenegro, a region in the former Federal
Republic of Yugoslavia (“FRY”). Capric’s family entered the
United States on September 2, 1992, as non-immigrant
visitors for pleasure with permission to remain here until
March 1, 1993. Capric himself entered this country on
September 19, 1992, as a visitor using a passport and visa

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2 No. 02-3172
2 Capric’s wife, Camila, and their two sons, Albert and Elvis,
derivatively claimed asylum based on Mr. Capric’s claim. Thus,
we will refer to the singular Petitioner or Capric to describe all
of the Petitioners as well as Mr. Capric individually. Furthermore,
the substantive outcome of Capric’s claims is determinative
for all Petitioners. 8 U.S.C. §§ 1153(d), 1158(b)(3); 8 C.F.R.
§ 207.7(a).
3 The first, held on April 29, 1998 (“Hearing 1”), was conducted
in English at the suggestion of Capric’s counsel, but was sus-
pended by the IJ after it became clear that a Serbo-Croatian
or Albanian translator was needed. The second (“Hearing 2”)
was conducted with an Albanian translator, but neither the
record, nor either parties’ briefs reveal the exact date of the
hearing.
he later admitted were fraudulent. Capric filed an asylum
application in October of 1992, which was eventually de-
nied by the INS on February 15, 1996 (“Application 1”). On
that same day, Camila, Albert, and Elvis Capric were
placed in deportation proceedings for remaining in the
United States beyond their authorized periods of stay.
8 U.S.C. § 1251(a)(1)(C)(I) (Supp. II 1996). In November
of 1996, Capric was also placed in deportation proceed-
ings for having procured entry into the United States
by fraud or by wilfully misrepresenting a material fact.
8 U.S.C. § 1251(a)(1)(A).
In a hearing on February 25, 1997, before an immigra-
tion judge (“IJ”), the Petitioners conceded deportability
and Capric renewed his application for asylum, 8 U.S.C.
§ 1158(a), and withholding of deportation, 8 U.S.C.
§ 1253(h) (Supp. II 1996). This second asylum application
was not actually filed until a hearing on July 18, 1997
(“Application 2”). His wife and sons were included in that
application. 2 Two hearings were held on Capric’s asylum
application, 3 and on June 11, 1999, the IJ issued a decision
denying Capric’s application for asylum and withholding

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No. 02-3172 3
of deportability, finding (1) the evidence provided by
Capric lacked credibility; and (2) even if this evidence was
assumed to be credible, he failed to prove eligibility for
asylum. The IJ also granted the discretionary relief of
voluntary departure in lieu of deportation. 8 U.S.C.
§ 1254(e)(1) (Supp. II 1996). On July 24, 2002, the Board
of Immigration Appeals (“BIA”) affirmed the results of
the IJ’s decision without opinion under its streamlining
procedure. 8 C.F.R. § 1003.1(a)(7). This petition for re-
view followed. For the following reasons it is denied.
I. History
A. Background on the Federal Republic
of Yugoslavia
From approximately 1989 to 1992, following the death
of then Yugoslav communist leader Josip Broz Tito, Serbi-
ans, under the leadership of Slobodan Milosevic, asserted
direct rule over all of Yugoslavia, including the formerly
autonomous provinces of Kosovo and Vojvodina. Conse-
quently, between 1991 and 1992 Slovenia, Croatia, Bosnia
and Herzegovenia, and Macedonia all seceded from Yugo-
slavia. On April 27, 1992, the remaining republics of
Serbia and Montenegro formally joined to form the FRY,
led by President Milosevic. Milsosevic and his party, the
Serbian Socialist Party, continued to rule the FRY until
September 2000, when he was defeated in a federal elec-
tion (though he did not concede defeat until October).
Although formally unified with Serbia in 1992, the
government and people of Montenegro retained a dis-
tinct identity. Specifically, Montenegrins were very crit-
ical of Milosevic’s brutal police and military campaign
against ethnic Albanians, many of whom were separatist
insurgents. Milosevic’s campaign focused in the southern
FRY province of Kosovo, located within Serbia, and lasted
from approximately late 1997 until June 1999. Interna-

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4 No. 02-3172
tional response to this ethnic cleansing campaign included
NATO bombings of Serbia and the stationing of NATO,
Russian, and other peacekeepers in Kosovo. In June of
1999, Kosovo was formally declared a United Nations
protectorate.
In 2000, Vojislav Kostunica was elected President of the
FRY in the federal election that removed Milosevic from
power. Partisan differences between nationalist Pres-
ident Kostunica and Zoran Djinjic, Prime Minister of
Serbia and Democratic Party member, followed the elec-
tion. Finally, in 2002, Serbian and Montenegrin political
leaders began negotiations aiming to forge a more re-
laxed relationship between the two republics. These talks
led to the formal creation of a loose federation called
Serbia and Montenegro on February 4, 2003, legally
replacing the former Federal Republic of Yugoslavia.
As of November 2003, Milosevic is on trial for war
crimes, genocide, and ethnic cleansing at the Hague. See
United States Department of State, Consular Information
Sheet: Serbia and Montenegro (Mar. 20, 2003), available
at http://travel.state.gov/serbia_montenegro.html; United
States Central Intelligence Agency, The World Fact-
book: Serbia and Montenegro (Jan. 1, 2003), available at
http://www.cia.gov/cia/publications/factbook/geos/yi.html;
United States Department of State, Background Note:
Federal Republic of Yugoslavia (Aug. 2002), available at
http://www.state.gov/r/pa/ei/bgn/5388.htm.
B. An Overview of the Treatment of Ethnic
Albanians in Montenegro
At the time of Capric’s asylum hearings in 1998, as a
result of Serbian-nationalist control of both the govern-
ment and a heavily armed police force numbering over
100,000, ethnic Albanians were subject to widespread
discrimination throughout Yugoslavia. But their treatment

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No. 02-3172 5
varied significantly from area to area. Specifically, ethnic
Albanians were subject to numerous and more serious
human rights abuses in Serbia, particularly in the for-
merly autonomous province of Kosovo. Although human
rights abuses existed in Montenegro, they did not gen-
erally rise to the level found in Kosovo.
The more significant types of mistreatment suffered by
ethnic Albanians primarily at the hands of Milosevic-
controlled Serbian police included: political killings (in
1996, there was a total of 14 such killings, 13 of which
occurred in Kosovo); arbitrary arrest and detention for
periods exceeding three days; interrogations and severe
beatings while detained; threats and violence against fam-
ily members, including the holding of family members
as hostages; and the arbitrary and illegal searches of
homes, vehicles, shops, and offices, typically for weapons,
and during which police would confiscate hard currency.
C. Capric’s Testimony About His Life
in Montenegro
Capric is a forty-three-year-old citizen of the former
Federal Republic of Yugoslavia. He was born in Montenegro
in 1960 and lived there until coming to the United States
in 1992. Capric, his wife whom he married in 1984, and
their two sons are Albanian ethnic minorities, as well as
Moslems.
Capric began employment with the Yugoslav Customs
Service in 1981. He was responsible for railway cargo
inspections. His wife, Camila, was also employed by the
government. Since 1982, she worked in a post office in
Pecurice, Bar, Montenegro, eventually becoming its man-
ager. To facilitate Mrs. Capric’s employment in the post
office, beginning in 1985, the Yugoslav government al-
lowed the Caprics to reside rent-free in a state-owned
apartment unit attached to the post office building.

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6 No. 02-3172
Beginning in 1989 (coinciding with the death of Tito
and the rise of Serbian nationalist control of the FRY), the
Caprics began experiencing difficulties. Capric’s co-workers,
the vast majority of whom were Serbian Orthodox, began
to ridicule him because of his religion and ethnicity.
This continued until he was fired in 1992. Also in 1989,
Capric was called to serve in the Yugoslav military; he
refused to appear.
Then in April 1992, the Yugoslav government informed
the Caprics that they would have until January 1, 1993 to
vacate their apartment because the old post office was
being torn down in order to build a new one. Capric was
told that if he and his family did not vacate the apart-
ment, he would be placed in jail. The building containing
the post office and the Capric apartment was eventually
torn down in March or April of 1993, and a new post
office was built on that same lot.
In June 1992, uniformed police officers entered the
Capric apartment around two or three o’clock in the
morning. Capric was taken to a police station in Bar where
he was detained for five to seven days, without adequate
food or water. While at the Capric residence, the police
searched the premises for weapons and money. In addition,
the police escorted Mrs. Capric to the post office where
they performed a search of those premises as well. How-
ever, no weapons were found and no money was confiscated.
Also in 1992, Capric was fired from his job with the
Customs Service. It is unclear exactly when in 1992 Capric
was fired. Some of Capric’s testimony indicates that the
police intended his detention at a police station in Bar to
result in his firing. He also indicated that he was fired
because he refused to serve in the Yugoslav military in
1989. Furthermore, from approximately June until Sep-
tember of 1992, Capric was frequently stopped and ques-
tioned by uniformed police.

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No. 02-3172 7
Capric also stated that he was a member of the Albanian
Democratic Party. However, he indicated no specific dates
of membership or other affiliation. Capric gave no spe-
cific information about participation in party activities.
In addition, he stated that he was never detained or
questioned about his political affiliations or membership
in this opposition party.
Unemployed and facing the prospect of finding a new
home, Capric determined that his family would seek a
new life in the United States. Just before coming to the
U.S. in September 1992, Mrs. Capric quit her job and
obtained tourist visas for herself and her two sons. Mr.
Capric could not obtain a visa, but instead purchased a
passport and visa for $6000 under an assumed name. The
Caprics arrived in the United States in September 1992.
By November of 1996, Capric, Camila, Albert, and Elvis
had all been placed in deportation proceedings. Because
the Caprics entered deportation proceedings prior to
April 1, 1997, we apply statutory immigration law as it
stood prior to passage of the Illegal Immigration and
Reform and Immigration Act of 1996. See Krouchevski v.
Ashcroft, 344 F.3d 670, 671 n.2 (7th Cir. 2003).
II. Analysis
The Attorney General has broad discretion to grant
asylum to an alien who is a “refugee.” 8 U.S.C. § 1158(b).
Refugee is defined as “any person who is outside any
country of such person’s nationality . . . and who is unable
or unwilling to return to . . . that country because of
persecution or a well-founded fear of persecution on ac-
count of race, religion, nationality, membership in a
particular social group, or political opinion . . . .” 8 U.S.C.
§ 1101(a)(42)(A). Hence, to qualify for a discretionary
grant of asylum, an applicant must establish past per-
secution or a well-founded fear of future persecution. See,

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8 No. 02-3172
e.g., Toptchev v. INS, 295 F.3d 714, 720 (7th Cir. 2002). Put
differently, it is the applicant’s burden to show that he
or she is a “refugee.” See, e.g., Cuevas v. INS, 43 F.3d
1167, 1170 (7th Cir. 1995), cited in Sayaxing v. INS, 179
F.3d 515, 519 (7th Cir. 1999).
Although the statute does not define “persecution,” we
have indicated that it “ ‘must rise above mere harass-
ment.’ ” Ciorba v. Ashcroft, 323 F.3d 539, 545 (7th Cir. 2003)
(quoting Roman v. INS, 233 F.3d 1027, 1034 (7th. Cir.
2000)). It includes “detention, arrest, interrogation, prose-
cution, imprisonment, illegal searches, confiscation of
property, surveillance, beatings, [] torture,” Toptchev, 295
F.3d at 720 (quoting Begzatowski v. INS, 278 F.3d 665, 669
(7th Cir. 2002) (quoting Mitev v. INS, 67 F.3d 1325, 1330
(7th Cir. 1995)), behavior that threatens the same,
Sayaxing, 179 F.3d at 519, and non-life-threatening be-
havior such as torture and economic deprivation if the
resulting conditions are sufficiently severe, id. However,
generalized conditions of hardship which affect entire
populations do not rise to the level of persecution. See, e.g.,
Sharif v. INS, 87 F.3d 932, 935 (7th Cir. 1996).
Under 8 C.F.R. § 208.13(b)(1), if an applicant proves
past persecution, a rebuttable presumption arises that
the alien has a well-founded fear of future persecution.
Ambati v. Reno, 233 F.3d 1054, 1060 (7th Cir. 2000). The
government can then overcome that presumption if condi-
tions in the country from which the applicant fled have
changed to such an extent “that the applicant no longer
has a well-founded fear of persecution” if he or she were
to return. 8 C.F.R. § 208.13(b)(1)(i)(A). But even if the
government demonstrates changed conditions such that
the alien need not fear future persecution, asylum still
may be granted if the past persecution was sufficiently
heinous. See Bereza v. INS, 115 F.3d 468, 475 (7th Cir.
1997), cited in Pop v. INS, 279 F.3d 457, 461 n.2 (7th Cir.
2002).

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No. 02-3172 9
Alternately, under 8 C.F.R. § 208.13(b)(2) an applicant
can affirmatively demonstrate a well-founded fear of
persecution if his fear is subjectively genuine and objec-
tively reasonable in light of credible evidence. Sayaxing,
179 F.3d at 519-20 (quoting Tzankov v. INS, 107 F.3d
516, 519 (7th Cir. 1997)); Bradvica v. INS, 128 F.3d 1009,
1012 (7th Cir. 1997). The subjective fear component turns
largely upon the applicant’s own testimony and credibility.
Sayaxing, 179 F.3d at 520. But the objective component
requires the applicant to prove that either (a) there is
a reasonable probability that he or she will be singled out
individually for persecution, 8 C.F.R. § 208.13(b)(2)(i); or
that (b) there is a pattern or practice of persecution of
an identifiable group, to which the alien demonstrates
he belongs, such that the alien’s fear is reasonable, 8 C.F.R.
§ 208.13(b)(2)(iii).
Proof of past persecution or a fear of future persecution
is established, in part, by the information contained in
the asylum application, including the alien’s detailed
statements about his mistreatment and other evidence,
if available (i.e., birth certificates, passports, news ar-
ticles, photos, hospital records, witnesses’ affidavits). How-
ever, in nearly every case, the alien will exercise his due
process right to present evidence on his behalf by testify-
ing before the IJ about the adversities suffered in his
home country. Additional documentary or other evidence
may be introduced at the hearing as well.
Because direct authentication or verification of an
alien’s testimony and/or evidence is typically very dif-
ficult and often impossible, the IJ evaluates the credibil-
ity of the applicant’s evidence. A credibility analysis
assesses the applicant’s claim only for internal consistency,
detail, and plausibility, typically demonstrated by back-
ground evidence concerning general country conditions,
if available. See In re S-M-J-, 21 I. & N. Dec. 722, 724
(BIA 1997), quoted in Abdulai v. Ashcroft, 239 F.3d

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10 No. 02-3172
4 Regarding corroboration requirements, the federal regulation
is quite general, stating, “[t]he testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof with-
out corroboration.” 8 C.F.R. § 208.13(a) (emphasis added). In
1997 the BIA interpreted this regulation in specific terms. See
In re S-M-J-, 21 I. & N. Dec. 722 (BIA 1997). In S-M-J-, the BIA
held that corroborating evidence is not required where the rec-
ord contains general country condition information in accord
with the asylum claim and where the applicant relies primarily
on personal experiences not reasonably subject to verification
or impossible to verify. Id. However, the BIA also held that
corroborating documentary evidence of the applicant’s experience
is required, or an explanation should be given as to why the
information was not presented, “where it is reasonable to expect
such corroborating evidence for certain alleged facts pertaining
to the specifics of an applicant’s claim.” Id; see, e.g., In re M-D-, 21
I. & N. Dec. 1880 (BIA 1998) (stating that it is generally reason-
able to expect applicants to produce letters from family members
remaining in the applicant’s home country). Under Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 843-44 (1984), the BIA’s interpretations of the stat-
utes and regulations that it administers are accorded substantial
deference.
Both the Second and Third Circuits have approved the
BIA’s corroboration requirement as set out in In re S-M-J- and In
re M-D-. See Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003)
(citing Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001));
Guan Shan Liao v. U.S. Dept. of Justice, 293 F.3d 61, 71 (2d Cir.
2002) (citing Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000)
(noting Chevron, 467 U.S. at 843)). The Ninth Circuit, however,
(continued...)
542, 551 n.6 (3d Cir. 2001). A credibility analysis should
not be confused with a burden of proof analysis, which
considers and weighs all the surrounding evidence.
Abdulai, 239 F.3d at 551 n.6. If determined to be cred-
ible, the testimony of the alien alone “ ‘may be sufficient
to sustain the burden of proof without corroboration.’ ” 4 In

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No. 02-3172 11
4 (...continued)
disapproved of the requirement and held corroboration unnec-
essary when testimony of the alien is credible. Ladha v. INS, 215
F.3d 889 (9th Cir. 2000), cited in Abovian v. INS, 257 F.3d 971,
974 (9th Cir. 2001) (dissenting opinion). Although we have noted
the existence of the BIA’s corroboration requirement and the
Ninth Circuit’s disapproval therefor, Meghani v. INS, 236 F.3d
843, 846 (7th Cir. 2001), we have not yet either accepted or
rejected it. For a detailed discussion of this issue, please see
Kurtis A. Kemper, Annotation, Necessity and Sufficiency of
Evidence Corroborating Alien’s Testimony to Establish Basis for
Asylum or Withholding of Removal, 179 A.L.R. Fed. 357 (2002).
re S-M-J-, 21 I. & N. Dec. at 724 (quoting 8 C.F.R.
§ 208.13(a)).
However, if the IJ finds the testimony to be incredible,
then a convincing explanation of the discrepancies or
extrinsic—and credible—corroborating evidence is re-
quired. See, e.g., de Leon-Barrios v. INS, 116 F.3d 391, 393-
94 (9th Cir. 1997). Without such an explanation or cor-
roboration, whether included with the application, pre-
sented at the hearing, or submitted via a motion to reopen
the case to supplement the record during the pendency
of an appeal to the BIA, the applicant cannot meet his
burden of proof and his asylum claim will fail. See, e.g.,
Mansour v. INS, 230 F.3d 902, 906 (7th Cir. 2000) (af-
firming asylum denial where applicant’s testimony was
riddled with discrepancies, which the applicant failed
to explain except to allege a language difficulty); Malek
v. INS, 198 F.3d 1016, 1019-21 (7th Cir. 2000) (affirming
asylum denial where the applicant’s testimony was found
to be “vague, [and] lacking in internal consistency and
plausibility” and where corroborating testimony was
unpersuasive because the witnesses had limited knowl-
edge of the alien’s experiences in his home country);
Ahmad v. INS, 163 F.3d 457, 461-63 (7th Cir. 1999) (af-
firming asylum denial where applicant’s testimony con-

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12 No. 02-3172
flicted with his asylum application, where the IJ dis-
believed a letter corroborating the applicant’s member-
ship in a political party, and where the applicant failed
to submit additional corroborative evidence).
A. Standard of Review
While we review the legal analysis of the immigration
courts de novo, Ciorba, 323 F.3d at 544, factual findings
such as denials of petitions for asylum and withholding
of deportation are reviewed for substantial evidence, INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992); Petrovic v.
INS, 198 F.3d 1034, 1037 (7th Cir. 2000). The BIA’s de-
cision must be affirmed if it is supported by “ ‘reasonable,
substantial, and probative evidence on the record consid-
ered as a whole.’ ” Elias, 502 U.S. at 481 (quoting 8 U.S.C.
§ 1105a(a)(4)), cited in Useinovic v. INS, 313 F.3d 1025,
1029 (7th Cir. 2002). We will overturn an agency’s deter-
mination only when “the evidence compels that contrary
conclusion,” Ciorba, 323 F.3d at 544 (quoting Bradvica
v. INS, 128 F.3d 1009, 1012 (7th Cir. 1997)), and not
“ ‘simply because [we] would have decided the case dif-
ferently,’ ” Georgis v. Ashcroft, 328 F.3d 962, 968 (7th Cir.
2003) (quoting Yadegar-Sargis v. INS, 297 F.3d 596, 601
(7th Cir. 2002)). In short, our review is highly deferential.
Georgis, 328 F.3d at 968; Toptchev, 295 F.3d at 720.
An IJ’s credibility determinations also enjoy “highly
deferential” review, Mansour, 230 F.3d at 906, so long
as they are supported by “specific, cogent reasons” that
“bear a legitimate nexus to the finding,” Ahmad, 163 F.3d
at 461 (quotations omitted). Akin to review of a BIA’s de-
nial or grant of asylum and withholding of deportation,
an agency’s credibility findings should not be superseded
simply because an alternate finding could also be sup-
ported by substantial evidence. Id. (citing Arkansas v.
Oklahoma, 503 U.S. 91, 113 (1992)). In sum, these findings

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No. 02-3172 13
5 The March 1997 Profile was also entered into the record.
However, because the Profiles are nearly identical, “Profile” refers
either to both Profiles or to the April 1997 Profile.
of fact should only be overturned under “extraordinary
circumstances.” Pop v. INS, 270 F.3d 527, 531 (7th Cir.
2001); Ahmad, 163 F.3d at 462 (listing cases where the
IJ’s credibility determinations were not supported by
substantial evidence); Nasir v. INS, 122 F.3d 484, 486 (7th
Cir. 1997).
When, as here, a case is streamlined, the IJ’s decision
becomes that of the BIA for purposes of judicial review.
Georgis, 328 F.3d at 966-67. And with these principles
in mind, we turn to Capric’s case. Although difficult to
discern from Petitioner’s brief, we understand Capric to
be making essentially three claims. First, he argues that
he was denied due process of law because (a) he testified
without an interpreter in his initial immigration hearing
on April 29, 1998 (“Hearing 1”); and/or (b) the State De-
partment’s Country Profile of Asylum Claims and Coun-
try Conditions for Serbia/Montenegro for April 1997 (“Pro-
file”) 5 was so unduly prejudicial that after reading the
Profile, the IJ was unable to fairly evaluate Capric’s
claims. Second, Capric argues that the IJ’s adverse cred-
ibility determination was in error. Third, if we find the
evidence provided by Capric to be credible, then he proved
he suffered past persecution and a well-founded fear of
persecution should be presumed. Alternatively, and again
premised upon a finding that Capric is credible, he other-
wise affirmatively demonstrated such a fear. We find
none of these arguments persuasive.
B. The Due Process Claims
Aliens in the United States are entitled to due process.
Kerciku v. INS, 314 F.3d 913, 917 (7th Cir. 2003) (citing

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14 No. 02-3172
Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (“[T]he Due
Process Clause applies to all ‘persons’ within the United
States, including aliens, whether their presence here is
lawful, unlawful, temporary, or permanent.”); Ambati v.
Reno, 233 F.3d 1054, 1061 (7th Cir. 2000). And these rights
apply in a deportation proceeding. Podio v. INS, 153 F.3d
506, 509 (7th Cir. 1998) (citations omitted). Due process
requires that an applicant receive a full and fair hearing
which provides a meaningful opportunity to be heard.
Kericku, 314 F.3d at 917. We review de novo Capric’s claims
that his due process rights were violated because (a)
he testified without an interpreter at Hearing 1; and/or
(b) the Profile was unduly prejudicial. Id.
An alien is required to raise and exhaust his remedies
as to each claim or ground for relief if he is to preserve
the right to judicial review of that claim. See Abdulrahman
v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir. 2003); Mojsilovic
v. INS, 156 F.3d 743, 748 (7th Cir. 1998). Although due
process claims generally do not require exhaustion be-
cause the BIA does not have authority to review constitu-
tional challenges, when those issues involve procedural
errors correctable by the BIA, applicants must raise
such claims as part of their administrative appeal.
Sayaxing, 179 F.3d at 522. To prevail on a due process
claim an applicant must show prejudice. Roman v. INS,
233 F.3d 1027, 1033 (7th Cir. 2000) (citing Mojsilovic v.
INS, 156 F.3d 743, 749 (7th Cir. 1998)). Prejudice can
be found only when the due process transgression is
“ ‘likely to impact the results of the proceedings.’ ” Rusu
v. INS, 296 F.3d 316, 320-21 (4th Cir. 2002) (quoting
Jacinto v. INS, 208 F.3d 725, 728 (9th Cir. 2000)).
1. Lack of Interpreter
A due process challenge alleging a failure to be heard
meaningfully because no interpreter was provided is

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No. 02-3172 15
procedural in nature and therefore must be raised
before the BIA. See, e.g., Malek v. INS, 198 F.3d 1016,
1021-22 (7th Cir. 2000). Respondent alleges Capric failed
to exhaust his administrative remedy as to this issue,
thereby waiving it here. While Capric stated in his notice
of appeal that the “deportation hearing did not comport
with the requirem[e]nt of due process,” (A.R. 49), there
was no explicit elaboration in his subsequent BIA ap-
peal brief, (A.R. 17-26). The appeal brief does contain
a cursory mention of the interpreter problem:
The IJ in his decision about credibility states that the
Respondent is fluent in English, this is an overstate-
ment. The Respondent does speak and understand
some English but as can be seen in the transcript he
is far from fluent. After the Respondent initially at-
tempted to testify in English, the IJ stopped the hear-
ing because he felt an interpreter was needed.
(A.R. 23) (citations omitted). Although Capric’s appeal to
the BIA did not frame the lack of an interpreter prob-
lem explicitly in due process terms, the combination of
both his notice of appeal and his later brief were argu-
ably enough to alert the BIA to the issue. See, e.g.,
Abdulrahman, 330 F.3d at 595 n.5. Regardless of wheth-
er the issue was properly preserved for appeal, the claim
is easily determined to be meritless.
Capric failed to either allege or demonstrate any prej-
udice resulting from his testimony at Hearing 1. At his
attorney’s suggestion, Capric did testify in English at
Hearing 1. (A.R. 84.) However, it quickly became ap-
parent that Capric needed an interpreter, and the IJ sua
sponte terminated the hearing. (A.R. 103.) At the second
hearing in 1998, an Albanian interpreter was provided.
Capric does not argue that any evidence was misunder-
stood or otherwise obscured because of language diffi-
culties in Hearing 2. Nowhere does he question the capabil-

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16 No. 02-3172
6 Capric makes repeated mention of the IJ’s statement in his
opinion that Capric was “fluent in English.” (A.R. 57.) But it is
irrelevant with respect to his due process claim. Regardless of
whether Capric was fluent in English, the provision of an Alba-
nian interpreter at Hearing 2 ensured that he had a meaning-
ful opportunity to present his claim and to explain any inconsis-
tencies between his two applications and his testimony, as was
the IJ’s concern.
ity of the interpreter provided in Hearing 2. His basic
argument is that the adverse credibility finding was
somehow the result of his testimony given in English in
Hearing 1.
However, even now Capric does not identify any spe-
cific testimony from Hearing 1 that the IJ relied upon in
his decision. Instead, when referencing Capric’s testi-
mony, the IJ referred exclusively to testimony given in
Hearing 2, where Capric was assisted by an interpreter.
Furthermore, Hearing 2 provided Capric with a full oppor-
tunity to testify on his own behalf and to clarify any
points of confusion which he perceived to have resulted
from Hearing 1. Hence, Capric has not demonstrated,
or even alleged, that he was prejudiced by his attorney’s
decision to have him testify in English at Hearing 1. 6
Moreover, due process requires a meaningful oppor-
tunity to present a claim, but imposes no obligation to
ensure that the alien actually makes a meaningful presen-
tation. Rusu v. INS, 296 F.3d 316, 324 (4th Cir. 2002).
Capric, through counsel, “suggest[ed]” and agreed to tes-
tify in English at Hearing 1. (A.R. 84.) Thus, to the ex-
tent that Capric’s alleged language problems were self-
inflicted, we can provide no relief. Rusu, 296 F.3d at 324;
but cf. Nazarova v. INS, 171 F.3d 478, 480-82 (7th Cir.
1999) (vacating a deportation order entered in absentia
on due process grounds when alien would not take the
stand without the interpreter, who was late); Amadou v.

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No. 02-3172 17
INS, 226 F.3d 724, 728 (6th Cir. 2000) (finding a due
process violation where specific and identifiable misin-
terpretations led to an adverse credibility determination).
2. The State Department Profile
A due process challenge alleging unduly prejudicial
documentary evidence is also procedural in nature and
therefore must be raised before the BIA. As previously
quoted, Capric stated in his notice of appeal that the
“deportation hearing did not comport with the require-
ment of due process.” (A.R. 49.) But he failed to make any
specific or even general allegations regarding the Profile
in his subsequent BIA appeal brief, (A.R. 17-26.) This
was not enough to alert the BIA to the issue. Indeed,
Capric’s brief to this court contains the first mention of
the allegedly prejudicial nature of the Profile. Had Capric
properly brought this argument to the BIA’s attention,
it could have granted the usual remedy of a new hearing,
with a new IJ and/or excluding the Profile entirely or
in part. Because Capric did not raise this issue before the
BIA, he may not raise it now.
Even if we did have jurisdiction to review this issue,
Capric’s claim is meritless because he suffered no prej-
udice as a result of the IJ’s decision to admit the Profile
into evidence. First, he had a full opportunity to rebut
and challenge the opinions expressed in the Profile. See
Gailius v. INS, 147 F.3d 34, 46 n.7 (1st Cir. 1998). Second,
nothing in the transcript of either Hearing 1 or 2 demon-
strates that the Profile irreparably colored the IJ’s view
of ethnic Albanians as a group. Last, the IJ’s decision
did not refer to any portion of the Profile which could
possibly be construed as prejudicial. Even the language

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18 No. 02-3172
7 Capric referred to a particular passage from the Profile that
stated “[p]erhaps because of poverty and unemployment, ethnic
Albanians from the Balkans are often alleged to be disproportion-
ately involved with drug running, crime, and people smuggling.”
(A.R. 208.)
which Petitioner vigorously takes issue with, 7 when
viewed in its complete context, cannot be considered
unduly prejudicial. Essentially, Petitioner argues that
because the IJ “obviously read [the Profile] . . . [he] was
[improperly] influenced by it.” (Pet. Reply Br. at 26.) This
conclusory logic is neither persuasive, nor legally suffi-
cient. Even assuming the Profile is impermissibly inflam-
matory, which we find it is not, the Petitioner has not
suffered any identifiable or even likely prejudice. In
short, this argument is an attempt to cloak a substan-
tial evidence challenge to the IJ’s decision in due proc-
ess constitutional garb.
C. The Credibility Determination
The IJ’s adverse credibility determination is supported
by substantial evidence and deserves our deference. In
his decision, the IJ cited no fewer than seven discrep-
ancies between Capric’s original application filed in Octo-
ber of 1992 and completed in his own hand (“Application
1”), (A.R. 194-98), his amended application filed in July
of 1997, completed by Capric’s attorney and signed by
Capric (“Application 2”), (A.R. 154-61), and his testimony
at Hearing 2 in 1998 (A.R. 107-32). Also, the IJ noted
Capric’s failure to explain each of these discrepancies
during his testimony at Hearing 2. At least four of the
inconsistencies go to the heart of Capric’s claim. de Leon-
Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir. 1997)
(reasoning that minor inconsistencies or omissions will
not support an adverse credibility finding, but discrep-

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No. 02-3172 19
ancies involving the “heart of the asylum claim” do (quot-
ing Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th
Cir. 1990)); see Malek, 198 F.3d at 1020-21 (clear inconsis-
tencies between application and testimony support ad-
verse credibility determination); Pal v. INS, 204 F.3d
935, 938 (9th Cir. 2000); but cf. Chanchavac v. INS, 207
F.3d 584 (9th Cir. 2000) (reversing adverse credibility
determination where inconsistency merely was that
alien highlighted certain details in his original applica-
tion which were omitted in his later application);
Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir. 1996)
(finding that an “applicant’s testimony is not per se lack-
ing in credibility simply because it includes details that
are not set forth in the asylum application”).
First, Capric’s responses to the question, “Why are you
seeking asylum?”, were inconsistent. On Application 1 he
wrote, “To live in a free country raising my two sons in
freedom without being a[]fraid to say who or what they
are. I run from war since I consider this an [u]njust
and illegal war. A war against minorities and a war
against religion. [sic]” (A.R. 195.) On Application 2 Capric
indicated that he and his family were “under a fear of
persecution . . . stem[ming] from [Capric] being Moslem.”
(A.R. 253.) Capric also stated he refused to appear for
military service, was fired because of his religion and
failed to find alternate employment, was arrested and
detained for one week, and was forced out of his home.
However, in his testimony Capric did not explain why he
made no mention of his religion, his job loss, his arrest, or
the forcible taking of his home in Application 1.
Second, Capric’s responses to the question, “What do you
think would happen to you if you returned to the coun-
try from which you are claiming persecution?”, were
inconsistent. On Application 1, he wrote “[t]hey (the
Serbs) would persecute me or even put me in jail for leav-
ing the country.” (A.R. 195.) On Application 2 he indi-

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20 No. 02-3172
cated that he and his family would be subject to incar-
ceration or death because they are Moslem and/or be-
cause he refused military service. He offered no explana-
tion at Hearing 2 why he failed to mention in his orig-
inal application that his family’s lives might be at risk,
a fact the IJ reasoned would not likely be forgotten.
Third, on Application 1 Capric unequivocally indicated
that neither he nor his family had ever belonged to or
been associated with any organizations or groups in
Montenegro. (A.R. 196.) But on Application 2 he indicated
that he had been a long-time member of the Albanian
Democratic Party and had actually organized many meet-
ings in Montenegro. (A.R. 254.) When confronted with
this contradiction during Hearing 2, Capric gave only
a cursory explanation of the organization’s purpose and
did not discuss his alleged efforts to organize meetings
nor explain why he failed to mention his membership
on Application 1. Furthermore, Capric presented no cor-
roborating evidence of his alleged party membership.
Fourth, and perhaps most disturbing, although it
is reasonable to expect particularly invasive events to
be mentioned in asylum applications, Pop, 270 F.3d at
532, Capric unequivocally indicated on Application 1 that
neither he nor any member of his family had ever been
arrested, detained, interrogated, or convicted and sen-
tenced. (A.R. 196.) However, in Application 2 Capric
indicated that he was (1) “arrested, detained, and impris-
oned by government officials” for his refusal to serve in
the military; (2) the arrest occurred while he was attend-
ing a meeting; (3) he was imprisoned for one week with-
out adequate food or water; and (4) was later stopped by
the police on several occasions. (A.R. 254.) Furthermore,
at Hearing 2 Capric offered no explanation for the dis-
crepancy between the Applications and testified that he
was arrested at his home at two or three o’clock in the
morning and was held by police for five days, (A.R. 112-13,

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No. 02-3172 21
115-17, 119), in conflict with both Application 1 and 2.
Neither did Capric offer any explanation regarding his
failure to mention in Application 1 the frequent stops
and inquiries he endured at the hands of the police.
The IJ also found unbelievable and insufficiently cor-
roborated Capric’s allegation that the government demol-
ished his family’s apartment as part of an effort to force
Albanians and Moslems out of Montenegro. Capric tes-
tified that the property and building they resided in
were owned by the government. The Caprics resided
there either rent-free or at a greatly reduced rate. The
Capric’s were given at least eight months to relocate.
Finally, the old post office building, in which the Caprics
apartment was located, was actually torn down and a
new post office erected in March or April of 1993. (A.R. 111-
15, 117-19, 121-25.) At a minimum, substantial evi-
dence supports the IJ’s decision not to credit Capric’s
uncorroborated belief that he and his family were forced
out of their apartment due to their religion or ethnicity,
rather than because the government was building a new
post office.
Capric makes much of the IJ’s conclusion that Capric
was “fluent” in English. Admittedly, and as Hearing 1
showed, Capric’s proficiency in English was questionable.
However, Capric himself indicated on Application 1 that
he was “fluent” in English and chose to complete that
application in English, without assistance. As Applica-
tion 1 demonstrates, Capric could read, understand, and
thoroughly respond in writing to the questions asked in
the application. (A.R. 194-98.) At a minimum, Capric
understood English well enough to comprehend and re-
spond “No” to the two critical questions which asked
whether he or his family were ever involved with any
organizations in Montenegro and whether they had ever
been arrested, detained, or interrogated. (A.R. 196.) His
testimony at Hearing 1 reveals only a (partial) inability

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22 No. 02-3172
to communicate orally in English. Regardless, at Hearing
2, assisted by an interpreter, Capric had a meaningful
opportunity to explain the noted inconsistencies and to
offer otherwise consistent and supporting testimony.
In short, language difficulties can in no way excuse the
significant inconsistencies between the applications and
testimony given at Hearing 2. Instead, the IJ correctly
concluded that the attorney-drafted Application 2 dis-
torted and embellished the hardships faced in Monte-
negro, and amounted to a “fictionalized account of per-
secution,” which Capric could neither keep straight nor
explain at Hearing 2. The discrepancy regarding whether
any member of the Capric family had ever been arrested,
detained, interrogated, or convicted and sentenced, given
its memorability, coupled with the other inconsistencies,
and Capric’s failure to explain them or offer credible
extrinsic corroboration, provides substantial evidence to
support the IJ’s credibility finding. We find that this is
not the extraordinary circumstance which would demand
reversal of the IJ’s adverse credibility determination.
D. Asylum Eligibility
Although we need not consider whether if what Capric
alleges, when assumed to be credible and true, would
rise to the level of persecution or demonstrate a well-
founded fear of persecution, substantial evidence sup-
ports the IJ’s conclusion that it does not. There is no
doubt as to the hardships ethnic Albanians faced in the
former FRY, but “political turmoil alone does not permit
the judiciary to stretch the definition of ‘refugee’ to cover
sympathetic, yet statutorily ineligible asylum applicants.”
Sivaainkaran v. INS, 972 F.2d 161, 165 (7th Cir. 1992). The
evidence in this case does not compel a conclusion that
Capric was either persecuted in the past or has a well-
founded fear of future persecution.

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No. 02-3172 23
1. Past Persecution
First, Capric alleges that he may have been arrested
and/or lost his job as a result of his refusal to serve in the
military in 1989. Refusal to serve in the military, par-
ticularly if based upon religious objections, may be
viewed as a political act. See, e.g., Begzatowski v. INS, 278
F.3d 665, 667-70 (7th Cir. 2002). However, he was not
arrested and detained until 1992. Similarly, he did not lose
his government job until 1992. The very government which
had attempted to compel his military service had for-
mally broken apart in 1990, and had been replaced with
the FRY in 1992. Thus, the evidence does not lead to
the conclusion that he was arrested or fired on account of
his refusal to serve in the military two to three years
earlier.
Also, even if his arrest and detention were the result
of his refusal to serve, such events would not necessar-
ily amount to “persecution.” The law of the FRY permits
the police to hold suspects for up to 72 hours, or three days.
(A.R. 146.) Assuming that Capric was held for a week
without adequate food or water, he did not testify that
he was interrogated or physically brutalized while de-
tained. In fact, although in Application 2 Capric alleged
he was stopped frequently by police from June until
September of 1992, he was never arrested again, nor ever
interrogated. In Borca v. INS, 77 F.3d 210, 215 (7th Cir.
1996), we affirmed a BIA finding that an alien had not
been persecuted and held that two arrests, two home
searches, and numerous threatening phone calls on ac-
count of the alien’s political activities merely amounted
to harassment. Likewise, in Zalega v. INS, 916 F.2d 1257,
1260 (7th Cir. 1990), we upheld the BIA’s finding of no
persecution where the alien had been arrested, detained,
and had his home searched many times over a four-year
period. Capric’s mistreatment does not even rise to the
level of harms suffered in either Borca or Zalega and

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24 No. 02-3172
hence, does not compel the conclusion that he was perse-
cuted.
Second, as discussed in detail above, there is nothing
in the record that shows that the Caprics were forced
from their apartment on account of their religion or ethnic-
ity. Rather, the FRY government asserted its control over
a building it owned and in which it allowed the Capric’s
to reside, virtually for free.
Third, the evidence does not support a finding that
Capric suffered economic persecution. We do acknowledge
extreme economic hardship as a form of persecution and
independent ground for asylum. Kovac v. INS, 407 F.2d
102, 105-107 (9th Cir. 1969) (asylum may be granted if
there is a probability of deliberate imposition of substan-
tial economic disadvantage due to race, religion, or politi-
cal opinion), cited in Borca v. INS, 77 F.3d 210, 216 (7th
Cir. 1996). Assuming, arguendo, that Capric was fired
because of either his religion and ethnicity or his refusal
to serve in the military (assumptions for which there is
no evidence except for Capric’s testimony), the IJ was
nonetheless justified in concluding that there was not
substantial evidence demonstrating the probable imposi-
tion of a significant economic disadvantage. Simply put,
considering the overall circumstances of the Capric
family, Mr. Capric’s termination from one job is not
a sufficiently severe economic hardship. See, e.g.,
Khourassany v. INS, 208 F.3d 1096, 1100-01 (9th Cir.
2000); Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.
1990). Even when considered together with the loss of
the Caprics’ apartment, given that the government gave
the family eight months to find a new residence, Mrs.
Capric’s continued employment with the post office, the
total absence in the record of any evidence about even
one single attempt on the part of Capric to find any other
work, and the harsh generalized economic conditions in
the FRY at the time, this evidence does not demonstrate

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No. 02-3172 25
economic persecution. Generalized economic disadvan-
tages and conditions facing entire populations are not
persecution.
In sum, Capric may have been harassed and may have
suffered economic hardships. But harassment and hard-
ship are not the same as persecution. Even when analyzed
in the aggregate, see Baballah v. Ashcroft, 335 F.3d 981,
989 (9th Cir. 2003) (cumulatively considering the harms
suffered by an alien), these events do not compel the
conclusion that Capric suffered past persecution on account
of his race, religion, ethnicity, or political beliefs. See, e.g.,
Bradvica, 128 F.3d at 1012-14 (affirming asylum denial of
the BIA which held that a Croatian alien from the Bosnia-
Herzegovenia region of the FRY did not suffer persecution
when he was arrested, detained, interrogated, and physi-
cally threatened, where generalized conditions of unrest
and strife persisted in the FRY, and where alien alleged
that he might be punished for deserting the FRY mili-
tary). Hence, even if we had overruled the IJ’s credibility
determination, given the generous standard of review
applicable to administrative decisions, we would nonethe-
less affirm the IJ’s finding that Capric was not persecuted.
And consequently, he is not entitled to the 8 C.F.R.
§ 208.13(b)(1) presumption that he has a well-founded
fear of future persecution.
2. Well-Founded Fear of Future Persecution
Capric’s alternate assertion, that apart from any pre-
sumption, substantial evidence compels the conclusion
that he has affirmatively demonstrated a well-founded
fear of future persecution under 8 C.F.R. § 208.13(b)(2),
also fails. Such a showing requires that Capric’s fear is
subjectively genuine and objectively reasonable. We need
not consider these arguments at all because Capric’s
testimony is not credible and thus, he cannot establish a

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26 No. 02-3172
subjectively genuine fear of persecution. Moreover, even
if Capric’s entire testimony was credible and he demon-
strated a subjective fear of future persecution, he still
would not be afforded asylum.
a. 8 C.F.R. § 208.13(b)(2)(i)
Under 8 C.F.R. § 208.13(b)(2)(i), notwithstanding a
subjective fear of persecution, Capric must still prove that
he is likely to be singled out for persecution (the objec-
tive requirement). See Elias-Zacarias, 502 U.S. at 482
(“the mere existence of a generalized ‘political’ motive
underlying [persecution] is inadequate to establish . . . the
proposition that [the alien] fears persecution on account
of that motive”); Tamas-Mercea v. Reno, 222 F.3d 417,
427 (7th Cir. 2000) (citing Bradvica, 128 F.3d at 1013
(“generalized conditions of strife do not support a claim
for asylum because they do not show that [the alien]
himself will be singled out for persecution.”)); Sayaxing, 179
F.3d at 520 (citing Sivaainkaran v. INS, 972 F.2d 161, 165
(7th Cir. 1992) (applicant must present “specific [and]
detailed” evidence that his encounters with the govern-
ment were of “such a magnitude and frequency that they
would cause a reasonable person to fear being singled
out for persecution and to demonstrate that his fear of
persecution pertained to him individually, rather than to
the population generally.”) (citation omitted)); Gonzalez v.
INS, 77 F.3d 1015, 1021 (7th Cir. 1996) (“[C]onditions of
political upheaval which affect the populace as a whole
or in large part are generally insufficient to establish
eligibility for asylum.”) (citing Sivaainkaran, 972 F.2d at
165). As discussed supra in Part D.1., most of what Capric
alleged does not rise to the level of persecution, in the
past or future.
Furthermore, Capric specifically identified only two fears
of future persecution as such: (a) persecution due to his

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No. 02-3172 27
failure to serve in the military; and (b) economic persecu-
tion. Yet, the FRY undertook only sporadic “efforts to find
and/or punish [draft] evaders,” and was generally unenthu-
siastic about arming ethnic minorities. (A.R. 207.) It is
also notable that the FRY, as early as June of 1996,
“approved amnesty for those who had avoided or deserted
from military service between 1991 and 1995.” Id. Thus,
evidence does not compel a finding of a well-founded fear
of persecution due to his refusal to serve in the military.
Also, fears of generalized economic hardship or lack of
opportunity do not establish a well-founded fear of per-
secution. See, e.g., Feleke v. INS, 118 F.3d 594, 598 (8th
Cir. 1997); Baka v. INS, 963 F.2d 1376, 1379 (10th Cir.
1992). Although Capric need not have demonstrated that
he was locked out of every possible job, Borca, 77 F.3d at
216, he did have the burden of proving that a future
significant economic disadvantage was (a) likely; and (b)
deliberately directed at him due to his religion and/or
ethnicity. This Capric simply did not prove. See supra
Part D.1.
b. 8 C.F.R. § 208.13(b)(iii)
Capric also asserts for the first time on appeal that as
an ethnic Albanian living in Montenegro and a practicing
Moslem, he per se has a well-founded fear of persecu-
tion should he return to Yugoslavia. In order for Capric’s
per se argument to succeed, even if he demonstrated a
subjective fear of persecution, he must still prove that
“there is a pattern and practice of persecution of an iden-
tifiable group, to which he belongs, such that his fear
is reasonable” (the objective requirement). 8 C.F.R.
§ 208.13(b)(2)(iii); see Hoxha v. Ashcroft, 319 F.3d 1179,
1183 n.6 (9th Cir. 2003); but cf. Ahmad v. INS, 163 F.3d
457, 463 (7th Cir. 1999) (expressly rejecting a per se rule).

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28 No. 02-3172
The Petitioner’s reliance upon the Ninth Circuit case
of Hoxha is misplaced. First, Hoxha addressed the per-
secution of ethnic Albanians located in Serbia, specifically
Kosovo. 319 F.3d at 1182-83. Capric is an ethnic Albanian
from Montenegro. Here again we note that the record
explicitly stated that Albanians in Montenegro and
Sandzak enjoyed better treatment than those located in
other areas, such as Serbia, particularly Kosovo. Because
the alleged “pattern and practice of persecution” was not
uniform throughout the FRY, this distinction is key.
Second, the Hoxha court never reached the question of
whether a pattern and practice of persecution had been
shown by the alien. Instead, unlike the instant case, the
Hoxha court held that the alien had produced evidence
compelling a finding of a well-founded fear of future
persecution. Id. at 1183 n.6. Here there was little evi-
dence of a “pattern and practice” of persecution of ethnic
Albanians in Montenegro. Capric relied entirely upon
State Department reports addressing the FRY generally
and detailing ethnic cleansing campaigns in other regions.
In sum, evidence does not show that this was an “ex-
treme situation” in which ethnic Albanians were subject
to a pattern and practice of persecution in Montenegro.
Compare Kotasz, 31 F.3d at 852-53 (discussing generally
pattern and practice cases and making note of the large-
scale systemic attempt by the Nazis to exterminate the
Jews). And as we noted in Bradvica, if we accepted Capric’s
argument, proffered for the first time to this court, then
nearly all of the population of Serbia, Bosnia-Herzegovenia,
and other war-torn areas would be eligible for asylum in
the United States. 128 F.3d at 1013.
E. Withholding of Deportation
In order to obtain the related, but distinct, relief of
withholding of deportation under 8 U.S.C. § 1253(h), the

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No. 02-3172 29
applicant must demonstrate a clear probability of perse-
cution upon deportation because of race, religion, national-
ity, membership in a particular social group, or political
opinion—a much more demanding burden. See INS v.
Stevic, 467 U.S. 407 (1984). An alien therefore must
show “that it is more likely than not that he or she will
be subjected to persecution upon deportation.” INS v.
Cardoza-Fonesca, 480 U.S. 421, 430 (1987); Toptchev, 295
F.3d at 720. Hence, if an applicant’s asylum claim fails,
his withholding of deportation claim will also necessarily
fail. 295 F.3d at 720 (citing Iliev v. INS, 127 F.3d 638,
641 (7th Cir. 1997)). Because Capric’s appeal of his asylum
denial fails, his appeal regarding withholding of deporta-
tion also fails.
III. Conclusion
For the foregoing reasons, Capric’s petition for review
is D ENIED .
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-23-04

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