Bazkli Kaszcak v. Immigration and Naturalization Service
| Publisher | United States Court of Appeals for the Ninth Circuit |
| Publication Date | 24 March 1993 |
| Citation / Document Symbol | Fed. R. App. P. 34(a); 9th Cir. R. 34-4 |
| Type of Decision | 91-70708 |
| Cite as | Bazkli Kaszcak 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, 24 March 1993, available at: https://www.refworld.org/cases,USA_CA_9,3ae6b6bc0.html [accessed 22 May 2023] |
| Comments | Submitted: 10 March, 1993; Filed: 24 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. |
BAZYLI KASZCZAK, Petitioner, v. UNITED STATES IMMIGRATION
AND NATURALIZATION SERVICE, Respondent.
No. 91-70708 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 24, 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. A28-463-823Disposition:
PETITION FOR REVIEW DENIED.Judges:
Before: WALLACE, Chief Judge, FARRIS and BRUNETTI, Circuit Judges.Opinion:
MEMORANDUM Bazyli Kaszczak, 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 Kaszczak deportable and denying Kaszczak'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, 974 (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 the substantial evidence 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). Persecution involves "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988) (quotations omitted). We agree with the BIA that Kaszczak has failed to establish statutory eligibility for asylum. Kaszczak's request for asylum was based on his claim that he has a well-founded fear of being persecuted by the Communists in Poland because of his involvement with Solidarity. In support of his claim, Kaszczak testified that he was arrested and detained once in 1967 for a 72-hour period. Kaszczak also testified that his children had trouble in school, that the police requested him to stop by the police station for questioning, and that his sister's retirement benefits were denied. Nevertheless, Kaszczak failed to offer evidence demonstrating that such actions were taken because of his political beliefs. Moreover, Kaszczak failed to present evidence that he has a well-founded fear of persecution despite the change in Poland's government. Substantial evidence supports the BIA's determination that Kaszczak has not shown a well-founded fear of persecution in Poland based on his involvement with Solidarity. See Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992). Thus, the BIA did not err by dismissing Kaszczak's appeal. Furthermore, because Kaszczak 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 Kaszczak contends the IJ violated his due process rights by: (1) considering Kaszczak's visits to Poland and possession of a passport when ruling on Kaszczak's asylum claim, (2) deciding Kaszczak's case based on political grounds rather than on an individual basis, and (3) ignoring evidence Kaszczak had presented at the hearing.[1] Kaszczak also contends the BIA violated his due process rights by conducting a de novo review. These contentions lack merit. 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." Mohsseni Behbahani v. INS, 796 F.2d 249, 250-51 (9th Cir. 1986); Garcia-Jaramillo v. INS, 604 F.2d 1236, 1239 (9th Cir. 1979), cert. denied, 449 U.S. 828 (1980). 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). 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). The BIA has the power to conduct a de novo review of the record and to make its own findings. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir. 1985), aff'd, 480 U.S. 421 (1987). Thus, errors committed by the IJ may be rendered harmless by the BIA's review. See Elnager v. INS, 930 F.2d 784, 787 (9th Cir. 1991). A.Passport and Travel Kaszczak has failed to demonstrate that the IJ's consideration of Kaszczak's travel to Poland and possession of a passport prejudiced the outcome of the proceedings. Although the BIA considered Kaszczak's visits to Poland and possession of a passport, it considered such facts only in describing the IJ's decision. The BIA's decision indicates that these facts were only two of many supporting the denial of Kaszczak's application for asylum. Even without these facts, substantial evidence supports the BIA's decision. See Acewicz, No. 92-70257, slip op. at 978. Accordingly, Kaszczak's due process claim fails. See Diaz-Escobar, 782 F.2d at 1494. B.Evaluation of Kaszczak's Application The record does not support Kaszczak's contention that the IJ failed to consider Kaszczak's application on an individual basis. Kaszczak 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). Both the IJ's and the BIA's decisions reflect that the denial of Kaszczak's application was based on the individual merits of Kaszczak's claim. Accordingly, we find no merit in Kaszczak'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" and that "each applicant received a full opportunity to present his case" (quotations omitted)). C.Evidence Although Kaszczak alleged that the IJ failed to consider certain exhibits Kaszczak presented at the hearing, the BIA considered the exhibits during its de novo review of the hearing. Thus, Kaszczak was not prejudiced by the alleged error committed by the IJ. See Elnager, 930 F.2d at 787. Accordingly, Kaszczak's due process claim fails. See Diaz-Escobar, 782 F.2d at 1494. D.BIA's Review Kaszczak's contention that the BIA violated his due process rights by reviewing de novo the IJ's findings also fails. "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, 930 F.2d at 787. Thus, the BIA's de novo review of the record did not violate Kaszczak's due process rights. See id. PETITION FOR REVIEW DENIED[2][1]Our review is limited to the decision of the BIA and the bases upon which it relied in reaching its decision. Acewicz, No. 91-70257, slip op. at 974. Nevertheless, to the extent the BIA addressed the arguments raised by Kaszczak, we will treat them as though they were directed at the BIA's decision. [2]We deny Kaszczak'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").
