Zdzilaw Burak v. Immigration and Naturalization Service

ZDZISLAW BURAK, Petitioner, v. UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 91-70736 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 19, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1256.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A28-463-496

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

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

Opinion:

MEMORANDUM Zdzislaw Burak, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' (BIA) order affirming an immigrations judge's (IJ) decision finding him deportable as charged and denying his applications for asylum and withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review.[1]

I

Standard of Review We review for abuse of discretion the BIA's decision to grant or deny asylum under section 208(a). Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir. 1992). Factual findings underlying this decision, including whether the alien has proved a well founded fear of persecution, are reviewed for substantial evidence. Abedini v. INS, 971 F.2d 188, 190 (9th Cir. 1992). Under the substantial evidence standard, we must determine whether, based on the evidence presented, the BIA's conclusion was substantially reasonable. Berroteran-Melendez, 955 F.2d at 1255. We review de novo the BIA's determinations on questions of law. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

II

Denial of Asylum/Withholding of Deportation 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." Rodrigues-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988) (per curiam) (quotations and emphasis omitted). We agree that Burak has failed to establish statutory eligibility for asylum. Burak's request for asylum is based on his fear of harassment by members of the Communist party due to his membership and activities in the Solidarity organization. Although Burak has demonstrated a subjective fear of persecution, there is substantial evidence in the record to support the BIA's conclusion that he has failed to demonstrate that his fear is objectively reasonable. See Berroteran-Melendez, 955 F.2d at 1256. Because Burak failed to demonstrate a well-founded fear of persecution, he also failed to meet the higher standard of clear probability of persecution necessary for withholding of deportation. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992).

III

Due Process Burak contends that the BIA's practice of determining the facts de novo violated his due process rights to notice and an opportunity to be heard. Specifically, Burak contends that the BIA improperly found that he had suffered no prior persecution, overruling the IJ's contrary finding. This contention lacks merit. "The BIA has the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence." Elnager v. INS, 930 F.2d 784, 787 (9th Cir. 1991). Here, upon a de novo review of the record, the BIA determined that Burak had "not met his burden of establishing either a well founded fear of persecution or a clear probability of persecution in returning to Poland, nor that he suffered persecution at any time in the past." The BIA did not exceed its authority by making such a finding and thus did not violate Burak's due process rights. See id.

IV

Denial of Asylum Based on "Political Considerations" Burak contends that the BIA erred by rejecting his claim that the Immigration and Naturalization Service (INS) District Director, the IJ, and the BIA have been denying asylum to Polish applicants based on improper "political considerations." Burak argues that the alleged systematic denial of all requests for political asylum filed by Polish nationals in Anchorage, Alaska indicates that the asylum applications of Polish applicants are summarily denied based mainly on "background" conditions and "changed country" conditions rather than on evidence of individual circumstances presented at the asylum hearings. The BIA found that (1) there was no evidence in the record that the IJ applied political considerations in denying Burak's asylum application, and (2) the IJ properly based its decision on testimony and other evidence of record. The BIA also found that Burak's counsel's mere allegation that the INS has a "policy" of denying all asylum applications of Polish nationals is not evidence of such a policy and, moreover, any such policy has no bearing on deportation hearings before the IJ. We agree. In a deportation proceeding, an alien is entitled to due process under the fifth amendment which is satisfied only by a full and fair hearing. Cuadras v. INS, 910 F.2d 567, 573 (9th Cir. 1990); Mohsseni Behbahani v. INS, 796 F.2d 249, 250-51 (9th Cir. 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. See Sarvia-Quintilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985). Here, Burak 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 Cuadras, 910 F.2d at 573. Both the IJ's and the BIA's decisions reflect that the denial of asylum was based on the individual merits of Burak's claim and not exclusively on political considerations or any alleged policy of the INS.

V

Failure to Consider Evidence Burak contends that the IJ and the BIA denied him due process by failing to consider information contained in an exhibit submitted by the INS and certain articles submitted by Burak indicating that the communists and the KGB continue to retain power in Poland. Burak appears to argue that because these items of evidence were not mentioned specifically by either the IJ or the BIA, the items were not considered in the decision to deny Burak asylum and withholding of deportation. 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, Burak has failed to show either that the IJ and the BIA refused to consider the evidence in question or that the alleged failure to consider this evidence somehow was prejudicial. Thus, Burak has failed to establish a due process claim. See id.

VI

Caselaw Cited by the IJ and BIA Burak contends that the IJ erred by relying on Kubon v. INS, 913 F.2d 386 (7th Cir. 1996) in denying 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. Id. at 388. Specifically, the Seventh Circuit noted that petitioner's membership in the Solidarity party, 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 have 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). Here, the IJ noted at the end of his decision "that the case of Kubon v. INS, 913 F.2d 386 (7th Cir. 1990) that denied asylum to another Pole based on the significant changes in the government structure is analogous to the case at bar." The BIA also cited to Kubon for the proposition we set forth in Acewicz. In light of our holding in Acewicz, we find no error in the IJ's or the BIA's citations to Kubon.[2] PETITION FOR REVIEW DENIED.

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[1]In his brief, Burak refers to alleged errors committed by the IJ. Our jurisdiction is limited, however, to review of the BIA's decision. See Acewicz v. INS, No. 91-70257, slip op. 969, 974 (9th Cir. Feb. 4, 1993). Nevertheless, to the extent the BIA addressed the arguments raised by Burak we will treat them as though they were directed at the BIA's decision. [2]We deny Burak'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").