Dan Oancea v. Immigration and Naturalization Service

DAN OANCEA, Petitioner, v. IMMIGRATION AND NATURALIZATION
SERVICE, Respondent.
No. 94-70602 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 12, 1996, ** Submitted, Pasadena, California ** The panel unanimously finds this case suitable for
submission on the record and briefs and without oral
argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4.
April 16, 1996, FILED

Prior History:

Petition to Review a Decision of the Board of Immigration Appeals. I&NS No. A70-039-593.

Disposition:

The petition is DENIED.

Counsel:

DAN OANCEA, Petitioner: Errol I. Horwitz, Woodland Hills, CA. IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Regional Counsel, Western Region, Immigration & Naturalization Service, Laguna Niguel, CA. District Counsel, IMMIGRATION & NATURALIZATION SERVICE, Office of the District Counsel, Los Angeles, CA. Ronald E. LeFevre, Chief Legal Officer, IMMIGRATION & NATURALIZATION SERVICE, San Francisco, CA. OIL, Carl H. McIntyre, Jr., Brenda E. Ellison, OFFICE OF IMMIGRATION LITIGATION, Civil Division, Washington, DC.

Judges:

Before: SCHROEDER and LEAVY, Circuit Judges, and TRIMBLE ***, District Judge. *** The Honorable James T. Trimble, Jr., United States District Judge for the Western District of Louisiana, sitting by designation.

Opinion:

MEMORANDUM * * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. Dan Oancea, a native and citizen of Romania, petitions for review of the decision of the Board of Immigration Appeals (BIA) affirming an immigration judge's denial of his request for asylum and withholding of deportation. We have jurisdiction over this timely petition pursuant to 8 U.S.C. § 1105a(a). The petition is denied. To be eligible for asylum, Oancea had to prove he was a refugee within the meaning of 8 U.S.C. § 1101(a) (42) (A). 8 C.F.R. § 208.13. The BIA determined that Oancea failed to carry this burden. We may reverse the BIA's determination only if Oancea shows the evidence he presented was "so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 117 L. Ed. 2d 38, 112 S. Ct. 812 (1992). Oancea argues that his testimony demonstrates a well-founded fear of persecution. He testified that he was a participant in the 1989 demonstrations leading to the overthrow of Ceausescu and that, since his departure from Romania, police have visited his wife and asked about him. Oancea also testified that, if he returned to Romania, he would have to serve a two-year prison sentence imposed when he attempted to leave Romania without exit permission in 1989. The BIA concluded that Oancea's testimony about the prison sentence was an "embellish[ment]" of "his asylum request," because Oancea had not mentioned the sentence in his initial asylum application and had not brought it to the attention of the INS officials who interviewed him. We need not reach the Board's determination that Oancea's testimony lacked credibility because we find that the evidence presented to the Board was not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Oancea's claim of potential prosecution for violating Romanian travel restrictions does not amount to persecution. "It is not persecution for a country to restrict travel abroad." Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992). Likewise, prosecution for violating such restrictions does not in itself establish persecution. Matter of Matelot, 18 I. & N. Dec. 334 (BIA 1982). The BIA also found that Oancea had not shown that he would be subjected to persecution upon his return to Romania. Oancea's testimony was that ninety percent of the citizens in Bucharest took part in the 1989 demonstrations. Oancea provided no reason why Romanian authorities would have a particular concern with his participation. Oancea failed to rebut the State Department's advisory opinion that "current conditions [in Romania are] so altered as to remove any presumption that past mistreatment under Ceausescu or in the chaotic first year after his overthrow will lead to mistreatment in the future." Because the BIA properly determined that Oancea is ineligible for asylum, he is also not entitled to withholding of deportation. Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992). The petition is DENIED.