Jerzy Grabinski v. Immigration and Naturalization Service

JERZY GRABINSKI, Petitioner, v. UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE, Respondent.
No. 92-70138 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 1257.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A29-602-463

Disposition:

AFFIRMED.

Judges:

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

Opinion:

MEMORANDUM Jerzy Grabinski, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' (BIA) order affirming the immigration judge's (IJ) denial of his applications 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 determination 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, 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 an alien who is unable or unwilling to return to his 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). Persecution involves "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Desir, 840 F.2d at 727 (quotations omitted). 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. Due process may require the BIA to provide the petitioner with an opportunity to rebut the noticed facts. Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). An alien is entitled to withholding of deportation pursuant to 8 U.S.C. § 1253(h) if he 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). Here, Grabinski's request for asylum is based in part upon his fear that he will be persecuted for his membership in Solidarity if he returns to Poland. Grabinski alleges he was arrested twice in 1981 and detained by the Polish authorities for forty-eight hours each time because of his political activity on behalf of Solidarity. He was interrogated about other members of Solidarity. He alleges he was beaten during his second detention and his nose was broken. He did not seek treatment at a hospital, however, because he knew the government was keeping lists of demonstrators and he did not want to be expelled from the university he was attending. Substantial evidence supports the BIA's determination that Grabinski has not shown a well-founded fear of persecution.[1] See Acewicz, No. 91-70257, slip op. at 974-78. Despite his encounters with the Polish authorities, Grabinski finished his education at the university and obtained a position with Gryf, a Polish government fishing company in 1985, when he graduated. He remained with Gryf until he sought asylum in March of 1989. Further, the alleged persecution took place before the government changed, and the record shows that Grabinski had an opportunity to rebut the facts noticed by the BIA.[2] See Castillo-Villagra, 972 F.2d at 1029. Thus, Grabinski was not denied due process on this ground. See Acewicz, No. 91-70257, slip op. at 978. Grabinski's request for asylum is also based in part upon his fear of economic reprisal. Grabinski alleges his superiors at Gryf repeatedly threatened him, from the moment he started working for them, that he would never be promoted if he did not join the Communist Party. He alleges he also was warned that he would be fired and would not be able to obtain other work if he did not join the Party.[3] Grabinski further alleges the likelihood that he would be persecuted if he were forced to return to Poland is particularly high because he was the only person on his ship who refused to join the Party. "A probability of deliberate imposition of substantial economic disadvantage upon an alien for reasons of race, religion, or political opinion is sufficient to confer upon the Attorney General the discretion to withhold deportation." Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969). This standard also applies to determine whether an alien is eligible for asylum. See, e.g., Desir, 840 F.2d at 727. A claim for asylum based on economic hardship, however, "depends on something more than generalized economic disadvantage at the destination." Raass v. INS, 692 F.2d 596, 596 (9th Cir. 1982). Here, we agree with the BIA's finding that the economic persecution Grabinski allegedly suffered when he was in Poland, and the economic hardship he alleges he may suffer should he be forced to return to Poland, do not amount to persecution. Grabinski's allegations do not establish the sort of deliberate imposition of substantial economic harm required to support a claim for asylum. Compare Desir, 840 F.2d at 727 (petitioner's ability to earn livelihood severely impaired by threats of violence, eventually resulting in petitioner moving to different county); with Saballo-Cortez v. INS, 761 F.2d 1259, 1264 (9th Cir. 1985) (denial of discounts on food and special work permit not sufficient to establish persecution). Accordingly, the BIA did not err by finding Grabinski failed to establish a well-founded fear of persecution based on economic hardship. We therefore agree with the BIA that Grabinski has failed to establish statutory eligibility for asylum. Finally, Grabinski is not entitled to withholding of deportation. Because he cannot establish a well-founded fear of persecution, he cannot demonstrate the more demanding "clear probability" of persecution. See Berroteran-Melendez, 955 F.2d at 1258.

II

Due Process Violations In a deportation proceeding, an alien is entitled to due process under the Fifth Amendment. See Cuadras v. INS, 910 F.2d 567, 573 (9th Cir. 1990). Due process is satisfied by a full and fair hearing. See id.; 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. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985). To prevail on a due process claim an alien must show that any alleged procedural errors were prejudicial. Diaz-Escobar v. INS, 782 F.2d 1488, 1494 (9th Cir. 1986); Cuadras, 910 F.2d at 573. A.Summary Denial Grabinski contends the BIA erred by deciding his case based upon political considerations rather than on an individual basis.[4] He refers to the BIA's taking administrative notice of political changes that have occurred in Poland since 1989, specifically, the incorporation of the Solidarity Organization as part of the coalition government in Poland and the election of Lech Walesa, former chairman of Solidarity, to the presidency on December 9, 1990. Grabinski contends the IJ improperly relied on those changes to summarily deny all Polish asylum petitions. Here, Grabinski was afforded a full and fair opportunity to present testimony and other evidence in support of his application at his deportation hearing. See Cuadras, 910 F.2d at 573; Sagermark, 767 F.2d at 650-51. In its decision, the BIA specifically addressed each of Grabinski's claims and determined that Grabinski failed to meet the burden of proof required for either asylum or withholding of deportation. Accordingly, we find no merit in Grabinski's contention that his application was not considered on its individual merit.[5] See Sarvia-Quintanilla, 767 F.2d at 1392; see also Acewicz, No. 91-70257, slip op. at 978. B.Misinterpretation of the Evidence Grabinski also alleges the IJ and the BIA misinterpreted and mischaracterized the evidence he presented at the immigration hearing as the basis for his asylum claim. This contention lacks merit. Here, Grabinski contends the BIA erred by ignoring the evidence Grabinski presented of the economic persecution he endured and by focusing on his arrests when it denied his claim for asylum. The BIA, however, considered the evidence Grabinski presented and found that the circumstances Grabinski described did not merit asylum. Further, Grabinski has not shown any prejudice from the IJ's or the BIA's alleged misinterpretation of the evidence. See Diaz-Escobar, 782 F.2d at 1494.[6] AFFIRMED.

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[1]Grabinski contends the BIA violated due process by conducting a de novo review of the facts of his case. 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).   [2]In response to the IJ's questions regarding the changes in Poland's government, Grabinski testified that although he was aware of the changes in the Polish government, he did not believe anything had really changed because the people who persecuted him were still in Poland.   [3]Although Grabinski alleges the pressure to join the Communist Party began the moment he started at Gryf, he did not seek asylum in the United States when he came here in 1987. Grabinski testified that he did not seek asylum then because he was not yet an officer, and the pressure to join the Communist Party was not so great then.   [4]In his brief, Grabinski repeatedly refers to errors allegedly committed by the IJ. Our jurisdiction is limited, however, to review of the BIA's decision. See Acewicz, No. 91-70257, slip op. at 974. Nevertheless, to the extent the BIA addressed the arguments raised by Grabinski, we will treat them as though they were directed at the BIA's decision.   [5]Grabinski contends the IJ and the BIA improperly relied on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990), and on Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir. 1991), to deny his request for asylum. The Seventh Circuit in Kubon held that an alien's membership in Solidarity, without more, does not establish a well-founded fear of persecution. In Kaczmarczyk, the court held that the BIA did not err by taking administrative notice of the political changes in Poland. The Ninth Circuit recently reached the same conclusions. See Acewicz, No. 91-70257, slip op. at 978. Thus, the BIA did not err by relying on these Seventh Circuit cases.   [6]We deny Grabinski's request for attorney fees pursuant to the Equal Access to Justice Act. See Ardestani v. INS, 112 S. Ct. 515, 520 (1991).