Argued January 8, 2015
Petition for Review of an Order of the Board of Immigration Appeals. No. A079-920-994.
For EMIR LENJINAC, Petitioner: Christopher M. Dressel, Attorney, SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Chicago, IL.
For ERIC H. HOLDER, JR., Attorney General of the United States, Respondent: Timothy G. Hayes, Attorney, Lindsay M. Murphy, Attorney, OIL, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, Washington, DC.
Before BAUER, MANION, and ROVNER, Circuit Judges.
Bauer, Circuit Judge.
Emir Lenjinac was born in Bosnia-Herzegovina in 1987 and is a Bosnian Muslim. During his childhood from 1992 to 1995, Bosnia-Herzegovina was entrenched in a civil war involving various political and ethnic factions within the territory of former Yugoslavia. The war was characterized by ethnic cleansing and Bosnian Muslims were particularly threatened by the violence. Lenjinac's family fell victim to
these atrocities during the Srebrenica massacre of 1995; their home was burned to the ground and Serbian forces captured several male family members who have not been seen since.
In 2002, Lenjinac emigrated from Bosnia-Herzegovina to the United States and he became a permanent resident in 2005. He has not returned to his birth country since emigrating. After years of lawful residency, however, in November 2010, Lenjinac was charged with and pleaded guilty to dealing in cocaine in Indiana state court.
Following his conviction, the United States initiated removal proceedings against Lenjinac, charging him with removability as an aggravated felon under 8 U.S.C. § 1227(a)(2)(A)(iii). Lenjinac conceded his removability, but filed an application for asylum, withholding of removal, and Convention Against Torture (" CAT" ) protection with the Immigration Court.
Lenjinac's immigration proceedings began in June 2013. During the proceedings, his mother and brother both testified in support of his application for CAT deferral, describing fears that members of the military might kill Lenjinac because they previously killed other male family members during the civil war. Lenjinac also testified. He indicated that given his criminal history in the United States, he would likely be detained upon his return and tortured while in the Bosnian prison system. He also stated that he would have no safe place to live because he has no family or home to return to in Bosnia-Herzegovina.
In her decision, the IJ only considered the merits of Lenjinac's CAT deferral request because his aggravated felony conviction rendered him ineligible for asylum and withholding of removal. As to the CAT deferral request, the IJ found it was more likely than not that Lenjinac would be subjected to torture if removed and therefore granted his application. The IJ based her decision on Lenjinac's testimony, his family members' testimonies, and reports of torture and ...