Bogdan Zabkiewicz 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 26, 1993, Filed

Subsequent History: Reported as Table Case at: 990 F.2d 1266.

Prior History:

On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A29-602-523




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


MEMORANDUM Bogdan Zabkiewicz, 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 Zabkiewicz deportable and denying Zabkiewicz's requests for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) and deny the petition for review.


Standard of 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.; see also INS v. Zacarias, 112 S. Ct. 812, 815 n.1 (1992) (BIA's findings will not be reversed absent compelling evidence that alien had a well-founded fear of persecution). We review de novo the BIA's determinations on questions of law. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).


Asylum 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 unable or unwilling to return to his or her native country "because of past persecution or a 'well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Acewicz, No. 91-70257, slip op. at 978 (quoting 8 U.S.C. § 1101(a)(42)). A.Well-Founded Fear of Future Persecution To establish eligibility for asylum based on a well-founded fear of future persecution, an applicant must demonstrate a fear that is both subjectively genuine and objectively reasonable. Id. An applicant's credible testimony demonstrating a genuine fear of persecution satisfies the subjective component of the standard. Id. at 979. "The objective component requires a showing, by 'credible, direct, and specific evidence' of facts supporting a reasonable fear of persecution." Id. (quoting Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988) (per curiam)). The alien bears the burden of establishing eligibility for asylum. Id. In Kovac v. INS, we held that "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." 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, requires "something more than generalized economic disadvantage at the destination." Raass v. INS, 692 F.2d 596, 596 (9th Cir. 1982). 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. See Acewicz, No. 91-70257, slip op. at 974-77 (BIA entitled to take administrative notice of changed political conditions in Poland if alien given opportunity to introduce evidence that well-founded fear of persecution exists despite political changes).[1] Here, Zabkiewicz's request for asylum is based on his fear that, as a member of Solidarity, he will be subject to economic persecution if returned to Poland. Both the IJ and the BIA gave Zabkiewicz an opportunity to introduce evidence regarding the effect of Solidarity's new position within the Polish government and political system on his asylum application. Substantial evidence supports the BIA's determination that Zabkiewicz failed to demonstrate a well-founded fear of future persecution, economic or otherwise, based on his membership in Solidarity. See Zacarias, 112 S. Ct. at 816-17; Acewicz, No. 91-70257, slip op. at 977-79; Raass, 692 F.2d at 596. B.Past Persecution. Eligibility for asylum also may be based on past persecution. See Acewicz, No. 91-70257, slip op. at 979 (citing Matter of Chen, Int. Dec. 3104 at 4 (BIA 1989)). For humanitarian reasons, the BIA may grant asylum if the "applicant or his family has suffered atrocious forms of persecution, even [if] there is little likelihood of future persecution." Id. (quotations omitted); Desir, 840 F.2d at 727. Here, Zabkiewicz's testimony indicates that he was detained, harassed, and assaulted by members of the Polish communist government on several occasions and that he was pressured to join the communist party and lost job opportunities because he refused to do so. During this period, however, he was not imprisoned, he continued to work for a state-owned company, and he was allowed to travel overseas. Given these circumstances, the BIA did not err by finding that Zabkiewicz had failed to demonstrate that he "has suffered atrocities that would justify relief on humanitarian grounds." See Acewicz, No. 91-70257, slip op. at 979.


Withholding of Deportation Because Zabkiewicz failed to demonstrate a well-founded fear of future persecution, he also failed to meet the higher standard of clear probability of persecution necessary for withholding of deportation. See id. at 980; Berroteran-Melendez v. INS, 955 F.2d 1251, 1258 (9th Cir. 1992).


Due Process A. Consideration of the Individual Merits of Zabkiewicz's Claim Zabkiewicz contends that the IJ and the BIA failed to consider the individual merits of his application for asylum and withholding of deportation because of a "blanket" policy of denying all Polish applications filed after September 11, 1989 due to changed political conditions in Poland.[2] This contention lacks merit. Furthermore, our review is limited to the decision of the BIA, not the IJ. See Acewicz, No. 91-70257, slip op. at 974. Nevertheless, we may consider the IJ's decision to determine whether the BIA erred by failing to find that the IJ had not properly considered the individual merits of Zabkiewicz's appeal. 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. Sarvia-Quinantilla v. INS, 767 F.2d 1387, 1392 (9th Cir. 1985); see also Castillo-Villagra v. INS, 972 F.2d 1017, 1023 (9th Cir. 1992) (error for BIA not to consider application for asylum on individualized basis). Here, Zabkiewicz 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 Zabkiewicz's application was based on the individual merits of his claim.[3] See, e.g., Acewicz, No. 91-70257, slip op. at 978 (court held 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)). First, our review is limited to the administrative record, which does not contain this information. See 8 U.S.C. § 1105a(a)(4). Second, this information is not subject to judicial notice because it is neither generally known within the jurisdiction nor is it readily determinable. See Fed. R. Evid. 201. Third, it is not relevant to our review of the BIA's decision. The District Director's determination is separate and unrelated to the IJ's and BIA's asylum determinations. Finally, given the political and social changes in Poland since 1989, it is readily understandable why the number of successful applications for asylum by Polish aliens would greatly diminish. See Acewicz, No. 91-70257, slip op. at 977. Thus, even if we were to consider this information, it would not be dispositive of whether Zabkiewicz's application was denied without consideration of the individual merits of his claim. B.Bureau of Human Rights and Humanitarian Affairs' Letter Zabkiewicz contends that he was denied due process because he was not allowed to call and cross-examine the author of a Bureau of Human Rights and Humanitarian Affairs' ("BHRHA") letter. This contention lacks merit. In a deportation proceeding an alien must be given "a reasonable opportunity . . . to cross-examine witnesses presented by the government." 8 U.S.C. § 1252(b)(3); Barraza-Rivera v. INS, 913 F.2d 1443, 1447 (9th Cir. 1990); Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988). If, however, the BIA does not base its decision on the BHRHA letter or if cross-examination of the author of the letter would not have affected the outcome, then no remand is required. See Barraza-Rivera, 913 F.2d at 1448; Pereira-Diaz v. INS, 551 F.2d 1149, 1153-54 (9th Cir. 1977). Here, the BIA specifically stated that its decision "is not based on the advisory opinion of the Department of State." Accordingly, we find no merit in this claim. See Barraza-Rivera, 913 F.2d at 1448; Pereira-Diaz, 551 F.2d at 1153-54. PETITION FOR REVIEW DENIED.

[1]Zabkiewicz contends that in denying his application for asylum, the IJ improperly relied on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990). We need not address this issue, because we are limited to reviewing the decision of the BIA, which only cited Kubon in support of the BIA's ability to take administrative notice of changed political conditions in foreign countries. See Acewicz, No. 91-70257, slip op. at 974.   [2]To the extent Zabkiewicz also is seeking 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).   [3]Zabkiewicz 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: 26 March, 1993 The panel unanimously finds this case suitable for decision without oral argument

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