Waldemar Stanislaw Famulski v. Immigration and Naturalization Service

WALDEMAR STANISLAW FAMULSKI, Petitioner, v. UNITED STATES
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 91-70555 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
March 10, 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.
March 25, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1257.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A28-464-384

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

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

Opinion:

MEMORANDUM Waldemar Stanislaw Famulski, 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 Famulski deportable and denying Famulski's requests for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We deny the petition for review. We review the BIA's denial of asylum for abuse of discretion. Acewicz v. INS, No. 91-70257, slip op. 969, 978 (9th Cir. Feb. 4, 1993). We review the BIA's factual findings under the substantial evidence test. 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 claims 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. 92-70257, slip op. at 977. Famulski'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 Walesa's faction of Solidarity is now in power. Nevertheless, substantial evidence supports the BIA's determination that Famulski has failed to demonstrate a well-founded fear of persecution based on his membership in Fighting Solidarity.[1] See id. at 974-78. Furthermore, the record shows that Famulski had an opportunity to rebut the facts noticed by the BIA. See Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). Thus, Famulski 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 Famulski's fear of persecution, see id. We therefore agree with the BIA that Famulski has failed to establish statutory eligibility for asylum. Moreover, because Famulski 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 Famulski's request for withholding of deportation.

II

Consideration of Individual Merits of Case Famulski contends the BIA erred by failing to find that his application for asylum and withholding of deportation was denied based on a "blanket" policy of denying all Polish applications filed after September 11, 1989 due to changed political conditions in Poland.[2] This contention lacks merit. Famulski 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 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). Both the IJ's and the BIA's decisions reflect that the denial of Famulski's application was based on the individual merits of his claim. 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)).

III

Due Process Famulski contends he was denied due process because (1) the government failed to provide him an attorney at his deportation hearing; (2) the IJ in effect served as both judge and prosecutor; (3) the IJ coerced him into conceding deportability; and (4) the INS failed to serve him with proper legal documents. Famulski did not raise these issues before the BIA and the BIA did not address them. To the extent these issues involve procedural errors that would have been correctable by the BIA, we decline to consider them. See Acewicz, No. 91-70257, slip op. at 974; see also Vargas v. INS, 831 F.2d 906, 908 (9th Cir. 1987) (failure to raise procedural error correctable by administrative tribunal constitutes failure to exhaust administrative remedies thereby depriving this court of jurisdiction to consider it). Moreover, to the extent these contentions are properly before this court, Famulski has not demonstrated that the alleged procedural errors were prejudicial. See Diaz-Escobar v. INS, 782 F.2d 1488, 1494 (9th Cir. 1986). PETITION FOR REVIEW DENIED.

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[1]Famulski contends the BIA erred by relying in part on the fact that he returned to Poland after an international voyage without seeking asylum in other countries. This contention lacks merit. The BIA noted this fact only in describing the IJ's decision. Both the IJ's and BIA's orders indicate that this fact was only one of many supporting denial of Famulski's requests for relief from deportation.   [2]To the extent Famulski 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).