Adam Wegner v. Immigration and Naturalization Service

ADAM WEGNER, Petitioner v. UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 91-70651 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 22, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1266.

Prior History:

Petition for Review of an Order of the Board of Immigration Appeals. INS No. A28-463-810

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

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

Opinion:

MEMORANDUM Adam Wegner, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' (BIA) decision dismissing his appeal of an immigration judge's (IJ) denial of his applications for asylum and withholding of deportation and finding him deportable as charged. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review.

I

Standard of Review We review the BIA's denial of asylum for abuse of discretion. Acewicz v. INS, No. 91-70257, slip op. 969, 974 (9th Cir. Feb. 4, 1993). 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).

II

Testimony at Hearing Wegner contends that he was denied due process because the IJ restricted the evidence he could present at his deportation hearing. Wegner contends that because of this error, the BIA should have remanded his case for a new hearing. These contentions lack merit. 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." Mohsseni Behbahani v. INS, 796 F.2d 249, 250-51 (9th Cir. 1986); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1239 (9th Cir. 1979). To prevail on a due process claim, however, the alien must show that the alleged procedural errors were prejudicial. Diaz-Escobar v. INS, 782 F.2d 1488, 1494 (9th Cir. 1986). Here, Wegner alleged that the IJ erred by not allowing Wegner to elaborate on his answers to the IJ's questions. Wegner has failed, however, to show what testimony he would have presented and how it would have affected the outcome of his hearing. Accordingly, because Wegner has failed to show prejudice, the BIA correctly found that he was not denied due process. See Diaz-Escobar, 782 F.2d at 1494; Garcia-Jaramillo, 604 F.2d at 1239.

III

Right To Counsel Wegner contends that he was prevented from receiving a fair hearing because the government failed to provide him with an attorney at government expense, and he was unable to obtain an attorney he could afford. This contention lacks merit. Due process entitles aliens to be represented by counsel of their choice at their own expense. Acewicz v. INS, No. 91-70257, slip op. 969, 980 (9th Cir. Feb. 4, 1993). Aliens, however, have no right to appointed counsel. Id. In order to ensure that an alien understands his right to counsel, an IJ must, pursuant to federal regulation, (1) notify an alien at his deportation hearing of his right to counsel at his own expense; (2) inform him of the availability of free legal services in the district where the deportation is held; and (3) determine whether the alien wants legal representation and whether he has received a list of legal services programs. 8 C.F.R. § 242.16(a); Acewicz, No. 91-70257, slip op. at 980. An alien's waiver of his right to counsel at a deportation hearing must be knowing, intelligent, and voluntary. Ramirez v. INS, 550 F.2d 560, 565 (9th Cir. 1977). Denial of a right to counsel, if sufficiently prejudicial, may amount to violation of the constitutional right to a full and fair hearing. Castro-O'Ryan v. Department of Immigration & Naturalization, 847 F.2d 1307, 1313 (9th Cir. 1988). Here, Wegner was advised of his right to counsel by the IJ and he voluntarily waived this right. See Ramirez, 550 F.2d at 565. Moreover, the government was under no obligation to provide counsel for Wegner at government expense. See, Acewicz, No. 91-70257, slip op. at 980-81.

IV

Denial of Asylum Section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a) ("Act"), authorizes the Attorney General, in his or her discretion, to grant asylum to an alien who is a "refugee." As defined in the Act, a refugee is 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). We agree with the BIA that Wegner has failed to establish statutory eligibility for asylum. Wegner's request for asylum is based on his fear that if he returns to Poland he will be arrested for having stayed abroad and for having sought political asylum. Substantial evidence supports the BIA's determination that Wegner has not shown a well-founded fear of persecution in Poland. See Berroteran-Melendez, 955 F.2d at 1256. Wegner also contends that in denying his request for asylum the IJ heavily relied on the fact that Wegner was able to leave Poland with a government issued passport. The fact that Wegner was able to leave Poland with a government issued passport, however, should not be accorded much weight. See Garcia Ramos v. INS, 775 F.2d 1370, 1374, N. 7 (9th Cir. 1985). Here, there is no indication in the record that the IJ gave undue weight to Wegner's obtaining a government issued passport. Accordingly, Auriga has not shown that he was prejudiced by the IJ's actions. See Diaz-Escobar, 782 F.2d at 1494.

V

Political Considerations Wegner contends that the IJ and the BIA failed to consider the individual merits of his application for asylum and withholding of deportation because of a government policy of denying all Polish applications based on changed political conditions in Poland.[1] This contention lacks merit. Furthermore, our review is limited to the decision of the BIA, not the IJ. See Acewicz v. INS, No. 91-70257, slip op. 969, 974 (9th Cir. Feb. 4, 1993). Nevertheless, we may consider the IJ's decision to determine whether the BIA erred by failing to find that the IJ had not properly considered the individual merits of Wegner's appeal. As previously noted, in a deportation proceeding, an alien is entitled to due process which is satisfied by a full and fair hearing. Mohsseni Behbahani, 796 F.2d at 250-51; Garcia-Jaramillo, 604 F.2d 1236, 1239. 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. See Sarvia-Quintilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985). Here, Wegner was given a hearing in which he was afforded a full and fair opportunity to present testimony and other evidence in support of his application. See Mohsseni Behbahani, 796 F.2d at 250-51. Both the IJ's and the BIA's decisions reflect that the denial of Wegner's application was based on the individual merits of his claim. See Id. Accordingly, we find no merit in Wegner's contention that his application was not considered on its individual merit. See Garcia-Jaramillo, 604 F.2d 1236, 1239; see also Acewicz, No. 91-70257, slip op. at 978 (court found that evidence of changed circumstances 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).

VI

Reliance on Precedent Wegner contends that the BIA improperly relied on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990), to deny his request for asylum. In Kubon, the Seventh Circuit affirmed the BIA's dismissal of a Polish petitioner's appeal from an IJ's denial of asylum. The Court held that the BIA properly took administrative notice of changed circumstances in the Polish government which rendered petitioner's claim to a well-founded fear of persecution baseless. See 913 F.2d at 388. Specifically, the Seventh Circuit noted that petitioner's membership in the Solidarity Organization, without more, did not establish a well-founded fear of persecution in light of the fact that Solidarity was part of the coalition governing Poland at that time. Id. We recently reached the same conclusion, holding that the BIA is entitled to take administrative notice of the "changed conditions in Poland and of the effect of those changes on petitioners' fear of persecution." Acewicz v. INS, No. 91-70257, slip op. 969, 978 (9th Cir. Feb. 4, 1993). Thus, the BIA did not err by citing Kubon as support for its determination that Wegner's membership in Solidarity, without more, did not establish a well-founded fear of persecution. See Id.[2] PETITION FOR REVIEW DENIED.

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[1]To the extent Wegner also is seeking 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).   [2]We deny Wegner's request for costs and attorneys' fees pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504(a)(1) ("EAJA"). See Ardestani v. INS, 112 S. Ct. 515, 520 (1991) (administrative deportation proceedings are not adversary adjudications and are, therefore, "wholly outside the scope of the EAJA").