Adam Wozniak v. Immigration and Naturalization Service

ADAM WOZNIAK, Petitioner, v. UNITED STATES IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 91-70737 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 19, 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. A28-463-828

Disposition:

PETITION FOR REVIEW DENIED.

Judges:

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

Opinion:

MEMORANDUM Adam Wozniak, 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 Wozniak deportable and denying Wozniak'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).

I

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 the "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, Wozniak's request for asylum is based on his fear that, as a member of "Fighting Solidarity", he will be persecuted if he returns to Poland, regardless of whether Walesa's faction of Solidarity is now in power. Nevertheless, substantial evidence supports the BIA's determination that Wozniak has failed to demonstrate a well-founded fear of persecution based on his membership in Fighting Solidarity. See id. at 978-79. Further, the record shows that Wozniak 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, Wozniak 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 Wozniak's fear of persecution, see id. We therefore agree with the BIA that Wozniak has failed to establish statutory eligibility for asylum. Moreover, because Wozniak 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 Wozniak's request for withholding of deportation.

II

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.BIA's De Novo Review Wozniak contends that the BIA's practice of determining the facts de novo violates his due process rights to notice and an opportunity to be heard. Wozniak also contends that the BIA failed to review the record. It is well-established that "the BIA has the power to conduct a de novo review of the record, to make its own findings, and independently to determine the legal sufficiency of the evidence." Elnager v. INS, 930 F.2d 784, 787 (9th Cir. 1991). Accordingly, we reject Wozniak's claim that he was denied due process by the BIA's de novo review of the record. See id. Further, in its decision, the BIA discussed the claims and relevant testimony and evidence in the record, demonstrating that it had reviewed the record. See Sarvia-Quintanilla, 767 F.2d at 1392. Thus, the BIA's review of the record and decision did not violate Wozniak's due process rights. See Elnager, 930 F.2d at 787. B.Consideration of the Individual Merits of Wozniak's Application Wozniak 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. Wozniak 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 Wozniak'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)). C.Failure to Consider Evidence Wozniak contends the IJ and the BIA failed to consider evidence presented at the hearing. Wozniak has failed to show any prejudice from the IJ's or the BIA's alleged failure to consider 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. PETITION FOR REVIEW DENIED.

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[1]Wozniak contends that the IJ erred by relying on Kubon v. INS, 913 F.2d 386 (7th Cir. 1990), in denying Wozniak'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 Kubon only as support for 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, Wozniak testified that he still had a well-founded fear of persecution in Poland because he had difficulty obtaining employment and he was under continuing surveillance by the authorities.   [3]To the extent Wozniak 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]Wozniak 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.