Kazimierz Tokarczyk v. Immigration and Naturalization Service

KAZIMIERZ TOKARCZYK, Petitioner, v. UNITED STATES
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 92-70559 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 25, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1260.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A29-602-485

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

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

Opinion:

MEMORANDUM Kazimierz Tokarczyk, 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 Tokarczyk deportable as charged and denying Tokarczyk'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.

I

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." 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 Tokarczyk has failed to establish statutory eligibility for asylum. Tokarczyk's request for asylum was based on his claim that he suffered employment difficulties as a result of his participation in Solidarity. In support of his claim, Tokarczyk testified that following his participation in a demonstration in 1982, he was detained for 48 hours and was assigned to a lower-paying job for two years. 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 Tokarczyk relief. Furthermore, because Tokarczyk 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).

II

Due Process A. Right to Counsel "An alien is entitled to due process under the Fifth Amendment in his deportation hearing." Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). This right to due process entitles aliens "to obtain counsel of their choice at their own expense." Acewicz, No. 91-70257, slip op. at 980; see also 8 U.S.C. §§ 1252(b)(2), 1362. Aliens, however, have no right to appointed counsel. Acewicz, No. 91-70257, slip op. at 980. An alien's waiver of his right to counsel at a deportation hearing must be knowing, intelligent, and voluntary. Ramirez v. INS, 550 F.2d 560, 565 (9th Cir. 1977). Denial of a right to counsel, if sufficiently prejudicial, may amount to violation of the constitutional right to a full and fair hearing. Castro-O'Ryan v. Department of Immigration & Naturalization, 847 F.2d 1307, 1313 (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). We reject Tokarczyk's contention that his due process rights were violated because the government did not provide him with counsel at his hearing before the IJ. Tokarczyk was apprised of his right to representation but chose to proceed without counsel. Moreover, Tokarczyk has failed to show how counsel's assistance in eliciting Tokarczyk's full testimony or cross-examining certain documents would have altered the outcome of the hearing. Thus, Tokarczyk's due process claim fails. See id. B.Evaluation of Tokarczyk's Application Tokarczyk contends the BIA erred by deciding his asylum application based on political considerations rather than on an individual basis.[1] Tokarczyk contends there is a government policy of denying all Polish applications filed after September 11, 1989 due to alleged changed political conditions in Poland.[2] This contention lacks merit. In a deportation hearing, an alien 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). Here, Tokarczyk 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; Sagermark v. INS, 767 F.2d 645, 650-51 (9th Cir. 1985), cert. denied, 476 U.S. 1171 (1986). Both the IJ's and the BIA's decisions reflect that the denial of Tokarczyk's application was based on the individual merits of Tokarczyk's claim. Accordingly, we find no merit in Tokarczyk's contention that his application was not considered on an individual basis. See Cuadras v. INS, 910 F.2d 567, 573 (9th Cir. 1990); 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)). C.Reliance on Seventh Circuit Case We reject Tokarczyk's contention that the BIA improperly relied on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990), in denying his request for asylum. In Kubon, the Seventh Circuit held that the BIA properly took administrative notice of changed circumstances in the Polish government. See 913 F.2d at 388. We 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, No. 91-70257, slip op. at 978. Thus, the BIA did not err by relying on Kubon for the proposition that the BIA may take administrative notice of a change in government that may impact whether an applicant has a well-founded fear of persecution. See Acewicz, 91-70257, slip op. at 978. PETITION FOR REVIEW DENIED.[3]

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[1]Tokarczyk 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 Tokarczyk we will treat them as though they were directed at the BIA's decision.   [2]Tokarczyk asks this court to take judicial notice that the INS District Director in Anchorage, Alaska has not granted a Polish citizen's application for asylum since September 1989. We decline to do so. See 8 U.S.C. § 1105a(a)(4); Fed. R. Evid. 201.   [3]We deny Tokarczyk'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").