Krystof of Kruszynski v. Immigration and Naturalization Service

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 23, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1258.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A28-463-702




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


MEMORANDUM Krzystof Kruszynski, 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 Kruszynski deportable and denying Kruszynski'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.


Administrative Notice Kruszynski contends the BIA erred by deciding his case based on political considerations rather than on an individual basis.[1] He refers to the BIA's taking of administrative notice of political changes that have occurred in Poland since 1989. The BIA noted in particular the change in Poland's government. The BIA is entitled to take administrative notice of Solidarity's participation in Poland's new coalition government and of Lech Walesa's election as president. Acewicz v. INS, No. 91-70257, slip op. 969, 977 (9th Cir. Feb. 4, 1993). Nevertheless, due process may require the BIA to provide the petitioner an opportunity to rebut the noticed facts. Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). Due process does not, however, require the BIA to provide an opportunity to rebut facts that are "legislative, indisputable, and general." Id. Here, Kruszynski had ample opportunity to argue before the IJ and the BIA that his fear of persecution remained well-founded despite the change in government.[2] See Castillo-Villagra, 972 F.2d at 1029. Thus, he was not denied due process. See Acewicz, No. 91-70257, slip op. at 978. Accordingly, 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 Kruszynksi's fear of persecution.[3] See id.


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); 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 v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988) (quotations omitted). Kruszynksi's request for asylum is based in part on his fear that, as a member of Solidarity, he will be persecuted if he returns to Poland. Nevertheless, substantial evidence supports the BIA's determination that Kruszynski has failed to demonstrate a well-founded fear of persecution based on his membership in Solidarity. See Acewicz, No. 91-70257, slip op. at 974-78. We therefore agree with the BIA that Kruszynski has failed to establish statutory eligibility for asylum on that basis. Moreover, because Kruszynski failed to demonstrate a well-founded fear of persecution, he also failed to meet the higher standard of clear probability of persecution. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992). Accordingly, the BIA did not err by denying Kruszynski's request for withholding for deportation.


Due Process Claims A. Evidence in the Record Kruszynski contends that he was denied due process because the IJ failed to consider evidence presented at the hearing. 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, petitioner has failed to show how the IJ's alleged error affected the outcome of the hearing. Thus, because petitioner has failed to show prejudice, the BIA correctly found that petitioner was not denied due process. See Diaz-Escobar, 782 F.2d at 1494; Garcia-Jaramillo, 604 F.2d at 1239. B.Cross-Examination Kruszynski contends that he was denied due process because he was not allowed an opportunity to cross-examine the author of a Bureau of Human Rights and Humanitarian Affairs opinion letter ("BHRHA") which the IJ admitted into evidence. In deportation proceedings aliens must be given "a reasonable opportunity . . . to cross-examine witnesses presented by the government." 8 U.S.C. § 1252(b)(3). A denial of this right may constitute a violation of the constitutional guaranty of due process, if the prejudice to the alien is substantially great. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). Procedural due process challenges to the BHRHA's advisory opinions regarding asylum applications have been rejected where the immigration judge ruling on the asylum application indicated that he was not relying on the advisory opinion. Barraza Rivera, 913 F.2d 1443, 1448 (9th Cir. 1990); Pereira-Diaz v. INS, 551 F.2d 1149, 1153-54 (9th Cir. 1977). Here, the IJ specifically noted that he was not bound by the recommendation of the BHRHA and recognized his obligation to evaluate each case on its merits. Accordingly, any error committed by the IJ in denying cross-examination was harmless. Barraza Rivera, 913 F.2d at 1448. C.Inadequate Translation Kruszynski contends that he was denied due process at his deportation hearing because the translation services were inadequate and portions of the proceedings on the record were omitted during transcription. To prevail on this claim, Kruszynski "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, Kruszynski does not cite any specific instance in which the alleged incorrect or incomplete translation prevented him from fairly presenting his case. Nor has he shown that a better translation would have altered the outcome of the proceedings. See id. Accordingly, because Kruszynski has failed to demonstrate prejudice, the BIA did not err by dismissing this claim. See Diaz-Escobar, 782 F.2d at 1494.[4] PETITION FOR REVIEW DENIED.

[1]In his brief, Kruszynski consistently refers to alleged errors committed by the IJ. Our jurisdiction is limited, however, to review of the BIA's decision. See Acewicz, No. 91-70257, slip op. 969, 974 (9TH Cir. Feb. 4, 1993). Nevertheless, to the extent the BIA addressed the arguments raised by Kruszynski we will treat them as though they were directed at the BIA's decision.   [2]In response to the IJ's question regarding the change in Poland's government, Kruszynski testified that he would be persecuted if he returned to Poland because the changes in Poland are not yet Well-established. Kruszynski also testified that he had been detained and harassed by the Communist Party on several occasions and that his family had been questioned as to his whereabouts.   [3]In light on our holding in Acewicz, we reject Kruszynksi's contention that the BIA improperly relied on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990) and Kaszmarczyk v. INS, 933 F.2d 588 (7th Cir. 1991). [4]We also reject Kruszynski's contention that the BIA violated his due process rights by conducting a de novo review of the IJ's findings. See Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986); Elnager v. INS, 930 F.2d 784, 788 (9th Cir. 1991).  
Submitted: 10 March, 1993; Filed: 23 March, 1993 The panel unanimously finds this case suitable for decision without oral argument

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