Zbigniew Studnicki v. Immigration and Naturalization Service

ZBIGNIEW STUDNICKI, Petitioner, v. UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE, Respondent.
No. 91-70481 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 23, 1993, ** Submitted ** The panel unanimously finds this case suitable for
decision without oral argument. Fed. R. App. P. 34(a); 9th
Cir. R. 34-4.
April 2, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1260.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A29-602-534

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

Before: WALLACE, Chief Judge, FARRIS and BRUNETTI, Circuit Judges.

Opinion:

MEMORANDUM Zbigniew Studnicki, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' (BIA) order affirming the immigration judge's (IJ) decision finding Studnicki deportable and denying Studnicki's applications for asylum and withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a(a). We deny the petition for review. Our jurisdiction is limited to review of the BIA's decision.[1] Acewicz v. INS, No. 91-70257, slip op. 969, 974 (9th Cir. Feb. 4, 1993). We review the BIA's denial of asylum for abuse of discretion. Id. at 978. We review the BIA's factual findings under the substantial evidence standard. Id. We review de novo the BIA's determinations on questions of law. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

I

Asylum/Withholding of Deportation Section 208(a) of the Refugee Act of 1980 ("Act"), 8 U.S.C. § 1158(a), authorizes the Attorney General, in her discretion, to grant asylum to an alien who is a "refugee." A refugee is defined in the Act as an alien who is unable or unwilling to return to his or her home 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); see INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). To establish eligibility for asylum based on a well-founded fear of persecution, an applicant must demonstrate a fear that is both subjectively genuine and objectively reasonable. Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991). An applicant's "candid, credible and sincere testimony demonstrating a genuine fear of persecution" satisfies the subjective component of the standard. See Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987) (quotations omitted). The objective component requires "a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988) (per curiam) (quotations and emphasis omitted). An alien is entitled to withholding of deportation pursuant to 8 U.S.C. § 1253(h) if he or she establishes a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 413 (1984); Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988). The "clear probability" standard applicable to withholding of deportation is more stringent than the "well-founded fear" standard applicable to asylum claims. De Valle v. INS, 901 F.2d 787, 790 (9th Cir. 1990). Accordingly, an alien who fails to meet the "well-founded fear" standard required for asylum also fails to meet the "clear probability" standard required for withholding of deportation. Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992). In assessing the reasonableness of the alien's fear of persecution, the BIA may take administrative notice of changed political conditions within the applicant's native country and of the effect of those changes on the applicant's fear of persecution. Acewicz, No. 91-70257, slip op. at 977. Here, Studnicki's request for asylum is based on his fear that, as a member of "Fighting Solidarity", he will be persecuted if he returns to Poland, regardless of whether former Solidarity leader Lech Walesa's faction of Solidarity is now in power. Nevertheless, substantial evidence supports the BIA's determination that Studnicki has failed to demonstrate a well-founded fear of persecution based on his membership in Fighting Solidarity.[2] See id. at 978-79. Further, the record shows that Studnicki had an opportunity to rebut the facts noticed by the BIA.[3] See Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). Thus, Studnicki was not denied due process, see Acewicz, No. 91-70257, slip op. at 978, and the BIA did not abuse its discretion by taking administrative notice of the changed conditions in Poland and of the effect of the changes on Studnicki's fear of persecution, see id. We therefore agree with the BIA that Studnicki has failed to establish statutory eligibility for asylum.[4]4Moreover, because Studnicki has failed to demonstrate a well-founded fear of persecution, he has therefore also failed to meet the higher standard of clear probability of persecution. See Berroteran-Melendez, 955 F.2d at 1258. Accordingly, the BIA did not err by denying Studnicki's request for withholding of deportation.

II

Due Process Claims In a deportation hearing, an alien is entitled to the fifth amendment guaranty of due process, which is satisfied only by a "full and fair hearing." Cuadras v. INS, 910 F.2d 567, 573 (9th Cir. 1990); Sagermark v. INS, 767 F.2d 645, 650-51 (9th Cir. 1985), cert. denied, 476 U.S. 1171 (1986). A full and fair hearing requires that each case "be evaluated on its own merits to determine whether the alien's factual support and concrete evidence are sufficient" to meet the alien's burden of proof. Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985). To prevail on a due process claim, the alien must show that the alleged procedural errors were prejudicial. Diaz-Escobar v. INS, 782 F.2d 1488, 1494 (9th Cir. 1986). A.Consideration of the Individual Merits of Studnicki's Application Studnicki contends the BIA erred by failing to find that his applications for asylum and withholding of deportation were denied based on a "blanket" policy of denying all Polish applications filed after September 11, 1989 due to changed political conditions in Poland.[5] This contention lacks merit. Studnicki was given a hearing in which he was afforded a full and fair opportunity to present testimony and other evidence in support of his asylum application. See Cuadras, 910 F.2d at 573; Sagermark, 767 F.2d at 650-51. Both the IJ's and the BIA's decisions reflect that the denial of Studnicki's application was based on the individual merits of his claim.[6] See, e.g., Acewicz, No. 91-70257, slip op. at 978 (court found that evidence of changed conditions in Poland "was not blindly applied by the BIA] to automatically deny every asylum application submitted by a Polish alien" and that "each applicant received a full opportunity to present his case" (quotations omitted)). B.Consideration of Evidence Studnicki contends the BIA (1) restricted him from presenting evidence, (2) misinterpreted and mischaracterized evidence, and (3) improperly considered evidence outside the record at Studnicki's deportation hearing. Studnicki has failed to show any prejudice from the BIA's alleged restriction or misinterpretation of the evidence. See Diaz-Escobar, 782 F.2d at 1494. Moreover, we are satisfied that the BIA's determination was supported by substantial evidence. See Acewicz, No. 91-70257, slip op. at 978. Finally, to the extent that Studnicki challenges the BIA's consideration of the changes in Poland's government as evidence outside the record, we have already concluded, as discussed above, that the BIA properly took administrative notice of these changes. See id. at 977. C.Inadequate Translation Studnicki contends he was denied due process at his deportation hearing because the translation services were inadequate. This contention lacks merit. To prevail on a claim that he was denied due process due to inadequate translation services, Studnicki "must show that a better translation would have made a difference in the outcome of the hearing." Acewicz, No. 91-70257, slip op. at 982. Here, Studnicki cites to only a few specific instances where words or answers were not translated correctly. Studnicki has not shown how these isolated instances affected the outcome of the proceedings or how a better translation would have made a difference. See id. Accordingly, the BIA correctly found that Studnicki's due process rights were not violated. PETITION FOR REVIEW DENIED.

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[1]In his brief, Studnicki consistently refers to alleged errors committed by the IJ. We lack jurisdiction, however, to review the IJ's decision. See Acewicz, No. 91-70257, slip op. at 974. Nevertheless, to the extent the BIA addressed the arguments raised by Studnicki, we will treat them as though they were directed at the BIA's decision.   [2]Accordingly, we reject Studnicki's contention that the BIA applied an incorrect legal standard in deciding his asylum application.   [3]In response to the IJ's and INS counsel's questions regarding the changes in Poland's government, Studnicki testified that because he was a member of "Fighting Solidarity" he feared persecution from the faction of Solidarity that is now in power.   [4]Studnicki also contends the BIA erred by failing to establish deportability by clear and convincing evidence. This contention lacks merit. The record shows that Studnicki indicated some misunderstanding as to how long he was permitted to stay in the United States. Nevertheless, Studnicki admitted he had overstayed his visa. Thus, clear, convincing, and unequivocal evidence supported the finding of deportability. See Woodby v. INS, 385 U.S. 276, 277, 286 (1966); see also 8 U.S.C. § 1361.   [5]To the extent Studnicki also seeks review of the denial of his asylum application by the INS District Director, we lack jurisdiction to review the discretionary decisions of the INS District Director. See Abedi-Tajrishi v. INS, 752 F.2d 441, 443 (9th Cir. 1985). [6]Studnicki asks this court to take judicial notice that the INS District Director in Alaska has not granted a Polish alien's application for asylum since 1989. We decline to do so.