Roman Horbacz v. Immigration and Naturalization Service

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 1, 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. A29-602-500




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


MEMORANDUM Roman Horbacz, 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 Horbacz deportable as charged and denying Horbacz's application for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a) and 1253(h). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and 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 determinations, including the determination that an alien has failed to prove a well-founded fear of persecution, under the substantial evidence standard. Id. Under this standard, we reverse the BIA "only where the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Id.


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 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). An alien may base his claim of persecution on "a probability of deliberate imposition of substantial economic disadvantage . . . for reasons of race, religion, or political opinion." Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); see also Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988). A claim for asylum based on economic hardship "depends on something more than generalized economic disadvantage at the destination." Raass v. INS, 692 F.2d 596, 596 (9th Cir. 1982). We agree with the BIA that Horbacz has failed to establish statutory eligibility for asylum. Horbacz's request for asylum was based in part on his claim that he suffered employment difficulties as a result of his participation in Solidarity. In support of his claim, Horbacz testified that, because of his political beliefs, he received lower pay and was not promoted. He also testified that he had difficulties getting assigned to fishing cruises because he would not join the Communist party. Nevertheless, Horbacz went on fishing cruises approximately once a year and traveled to the United States three times between 1987 and 1989. The BIA properly held that the evidence presented did not establish the type of economic harm required to support a claim for asylum. See Kovac, 407 F.2d at 107. Accordingly, the BIA did not err by denying Horbacz relief. Furthermore, because Horbacz failed to demonstrate a well-founded fear of persecution, he also failed to meet the higher standard of a clear probability of persecution necessary for withholding of deportation. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992).


Due Process A. Evaluation of Horbacz's Application Horbacz contends the BIA erred by deciding his asylum application based on political considerations rather than on an individual basis.[1] Horbacz contends there is a government policy of denying all Polish applications filed after September 11, 1989 due to alleged changed political conditions in Poland. This contention lacks merit. The Fifth Amendment guarantees aliens due process in deportation proceedings. Barraza Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir. 1990). In a deportation hearing, an alien's right to due process is satisfied only by a "full and fair hearing." 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-Quintanilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985). The BIA is entitled to take administrative notice of Solidarity's participation in Poland's new coalition government and of the effect of the changes on a petitioner's fear of persecution. See Acewicz, No. 91-70257, slip op. at 978. 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). Here, Horbacz 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 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). Horbacz had ample opportunity to argue before the IJ and the BIA that his fear of persecution remained well-founded despite the change in government. Moreover, both the IJ's and the BIA's decisions reflect that the denial of Horbacz's application was based on the individual merits of Horbacz's claim. Accordingly, we find no merit in Horbacz's contention that his application was not considered on an individual basis. See Cuadras, 910 F.2d at 573; Sagermark, 767 F.2d at 650-51; 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" (quotations omitted)). B.Evidence and Cross-Examination Horbacz contends he was denied due process because (1) the IJ and the BIA failed to consider certain articles Horbacz had presented at the hearing, and (2) the author of the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") letter submitted during his hearing was unavailable for cross-examination. These contentions lack merit. 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). Denial of this statutory right may constitute a violation of the constitutional guarantee of due process if the prejudice to the alien is substantially great. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). 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); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1239 (9th Cir. 1979), cert. denied, 449 U.S. 828 (1980). Horbacz has failed to show how the alleged errors prejudiced him. Thus, his due process claims fail. See Diaz-Escobar, 782 F.2d at 1494; Garcia-Jaramillo, 604 F.2d at 1239. PETITION FOR REVIEW DENIED.[2]

[1]Horbacz also refers to alleged errors committed by the IJ. Our review is limited to the decision of the BIA. See Acewicz, No. 91-70257, slip op. at 974. Nevertheless, to the extent the BIA addressed the arguments raised by Horbacz we will treat them as though they were directed at the BIA's decision.   [2]We deny Horbacz'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").
Submitted: 23 March, 1993; Filed: 1 April, 1993 The panel unanimously finds this case suitable for decision without oral argument

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