Ryszard Staszcyk v. Immigration and Naturalization Service
| Publisher | United States Court of Appeals for the Ninth Circuit |
| Publication Date | 30 March 1993 |
| Citation / Document Symbol | Fed. R. App. P. 34(a); 9th Cir. R. 34-4 |
| Type of Decision | 92-70132 |
| Cite as | Ryszard Staszcyk v. Immigration and Naturalization Service, Fed. R. App. P. 34(a); 9th Cir. R. 34-4, United States Court of Appeals for the Ninth Circuit, 30 March 1993, available at: https://www.refworld.org/cases,USA_CA_9,3ae6b6d03c.html [accessed 4 June 2023] |
| Comments | Submitted: 23 March, 1993; Filed: 30 March, 1993 The panel unanimously finds this case suitable for decision without oral argument |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
RYSZARD STASZCYK, Petitioner, v. UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE, Respondent.
No. 92-70132 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
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.
March 30, 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. A29-602-476Disposition:
PETITION FOR REVIEW DENIED.Judges:
Before: WALLACE, Chief Judge, FARRIS and BRUNETTI, Circuit Judges.Opinion:
MEMORANDUM Ryszard Staszcyk, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' (BIA) order affirming the immigration judge's (IJ) decision denying his applications for asylum and withholding of deportation and finding him deportable as charged. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review.I
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). Factual findings underlying this decision, including whether the alien has proved a well-founded fear of persecution, are reviewed for substantial evidence. Abedini v. INS, 971 F.2d 188, 190 (9th Cir. 1992). Under the substantial evidence standard, we must determine whether, based on the evidence presented, the BIA's conclusion was substantially reasonable. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir. 1992). We review de novo the BIA's determinations on questions of law. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).II
Denial of Asylum/Withholding of Deportation Staszcyk contends that the BIA erred by determining that the threat of economic reprisals was insufficient to support his request for relief from deportation. This contention lacks merit. 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). "[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." Kovac v. INS, 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 "depends on something more than generalized economic disadvantage at the destination." Raass v. INS, 692 F.2d 596 (9th Cir. 1982). We agree that Staszcyk has failed to establish statutory eligibility for asylum. Staszcyk's request for asylum is based on his membership in and activities on behalf of the Solidarity organization for which he was allegedly arrested, detained for 48 hours, and beaten. Staszcyk also claims that he was denied promotions at his workplace due to his political activities and that authorities at his workplace threatened him with loss of his job if he refused to join the Communist party. Although Staszcyk may have demonstrated a subjective fear of persecution, there is substantial evidence in the record to support the BIA's conclusion that he has failed to demonstrate that his fear is objectively reasonable. See Berroteran-Melendez, 955 F.2d at 1256. The BIA also did not err by finding that Staszcyk's employment difficulties did not amount to persecution. The evidence does not establish the sort of deliberate imposition of substantial economic harm required to support a claim for asylum. Compare Desir, 840 F.2d at 727 (petitioner's ability to earn livelihood severely impaired by threats of violence, eventually resulting in petitioner moving to different county); with Saballo-Cortez v. INS, 761 F.2d 1259, 1264 (9th Cir. 1985) (denial of discounts on food and special work permit not sufficient to establish persecution). Accordingly, the BIA did not err by finding that Staszcyk failed to establish a well-founded fear of persecution based on economic hardship. Because Staszcyk failed to demonstrate a well-founded fear of persecution, he also failed to meet the higher standard of clear probability of persecution necessary for withholding of deportation. See Berroteran-Melendez, 955 F.2d at 1258.III
Due Process Staszcyk contends that the BIA's de novo determination of the facts violated his due process rights to notice and an opportunity to be heard. This contention lacks merit. "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). Here, upon a de novo review of the record, the BIA determined that "there does not exist a basis for [Staszcyk's] claim that he has a well-founded fear of persecution by the Polish government due to his past membership and participation in Solidarity." The BIA did not exceed its authority by making such a finding and thus did not violate Staszcyk's due process rights. See id.IV
Denial of Asylum Based on "Political Considerations" Staszcyk contends that the Immigration and Naturalization Service (INS) District Director, the IJ, and the BIA have been denying asylum to Polish applicants based on improper "political considerations." Staszcyk argues that the alleged systematic denial of all requests for political asylum filed by Polish nationals in Anchorage, Alaska indicates that the asylum applications of Polish applicants are summarily denied based mainly on "background" conditions and "changed country" conditions rather than on evidence of individual circumstances presented at the asylum hearings. In a deportation proceeding, an alien is entitled to due process under the fifth amendment which is satisfied only by a full and fair hearing. Cuadras v. INS, 910 F.2d 567, 573 (9th Cir. 1990); 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, Staszcyk 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. Both the IJ's and the BIA's decisions reflect that the denial of asylum was based on the individual merits of Staszcyk's claim and not exclusively on political considerations or any alleged policy of the INS.VI
Caselaw Cited by the IJ and BIA Staszcyk contends that the IJ and the BIA erred by relying on the cases of 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 his request for asylum. In Kubon, the Seventh Circuit affirmed the BIA's dismissal of a Polish petitioner's appeal from an IJ's denial of asylum. The court held that the BIA properly took administrative notice of changed circumstances in the Polish government which rendered petitioner's claim to a well-founded fear of persecution baseless. Kubon, 913 F.2d at 388. Specifically, the Seventh Circuit noted that petitioner's membership in the Solidarity organization, without more, did not establish a well-founded fear of persecution in light of the fact that Solidarity was part of the coalition governing Poland at that time. Id. The Seventh Circuit reach similar conclusions in Kaczmarczyk. See 933 F.2d at 594-97. We have recently reached the same conclusions, 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. Here, the IJ noted at the end of his decision that this case was analogous to the Seventh Circuit's decisions in Kubon and Kaczmarczyk. The BIA also cited to Kubon and Kaczmarczyk for the proposition we set forth in Acewicz. In light of our holding in Acewicz, we find no error in the IJ's or the BIA's citations to Kubon or Kaczmarczyk.[1] PETITION FOR REVIEW DENIED.[1]We deny Staszcyk'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").
