Tadeusz Rost 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 19, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1259.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A-28-464-328.




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


MEMORANDUM Tadeusz Rost, 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 Rost deportable and denying Rost's applications for asylum and withholding of deportation. We have jurisdiction under 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 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).


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 his or 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 is more stringent than she "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.[1] Acewicz, No. 91-70257, slip op. at 977. Here, Rost's request for asylum is based on his fear that, as a member of Solidarity, he will be persecuted by the Communists if he returns to Poland. Nevertheless, substantial evidence supports the BIA's determination that Rost has failed to demonstrate a well-founded fear of persecution based on his membership in Solidarity. See id. at 978-79. Further, the record shows that Rost had an opportunity to rebut the facts noticed by the BIA.[2] See Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). Thus, Rost 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 Rost's fear of persecution, see id. We therefore agree with the BIA that Rost has failed to establish statutory eligibility for asylum. Moreover, because Rost 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 Rost's request for withholding of deportation.


Due Process Claims 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." 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). 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. Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985). To prevail on a due process claim, the alien must show that the alleged procedural errors were prejudicial. Diaz-Escobar v. INS, 782 F.2d 1488, 1494 (9th Cir. 1986).

A.Consideration of the Individual Merits of Rost's Application Rost contends that the BIA erred by failing to find that his applications for asylum and withholding of deportation were denied based on a "blanket" policy of denying all Polish applications filed after September 11, 1989 due to changed political conditions in Poland.[3] This contention lacks merit.

Rost 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, 910 F.2d at 573; Sagermark, 767 F.2d at 650-51. Both the IJ's and the BIA's decisions reflect that the denial of Rost's application was based on the individual merits of his claim.[4] 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)). B.Misinterpretation of Evidence Rost contends the IJ and the BIA misinterpreted evidence presented at the hearing. Rost has failed to show any prejudice from the IJ's or the BIA's alleged misinterpretation of the evidence. See Diaz-Escobar, 782 F.2d at 1494. Moreover, we are satisfied that the BIA's determination was supported by substantial evidence. See Acewicz, No. 91-70257, slip op. at 978. C.Cross-Examination Rost 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 ("BHRHA") opinion letter that was 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 guarantee of due process if the prejudice to the alien is sufficiently 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 IJ ruling on the asylum application indicated that he was not relying on the advisory opinion. See, e.g., Barraza Rivera v. INS, 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 his decision was not bound by the contents of the BHRHA letter. Accordingly, any error committed by the IJ in denying cross-examination did not amount to a due process violation. See Barraza Rivera, 913 F.2d at 1448. PETITION FOR REVIEW DENIED.

[1]Rost contends that the IJ and the BIA erred by relying on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990), and Kaczmarczyk v. INS, 933 F.2d 588 (7th Cir.), cert. denied, 112 S. Ct. 583 (1991), in denying Rost's request for asylum. Our review is limited to the decision of the BIA. See Acewicz, No. 91-70257, slip op. at 974. The BIA relied on these cases only to support its authority to take administrative notice of the changed conditions in Poland. In light of our holding in Acewicz, we find that the BIA did not err by doing so. See id. at 977.   [2]In response to the IJ's and INS counsel's questions regarding the changes in Poland's government, Rost testified that his parents informed him that the Communists still had power and asked questions about Rost. Rost also testified that he was afraid he would be persecuted if he returned to Poland.   [3]To the extent Rost 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).   [4]Rost asks this court to take judicial notice that the INS District Director in Alaska has not granted a Polish alien's application for asylum since 1989. We decline to do so.  
Submitted: 10 March, 1993; Filed: 19 March, 1993 The panel unanimously finds this case suitable for decision without oral argument

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