USCA1 Opinion
August 4, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2323
VOJTECH KUBEC,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
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ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
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Vojtech Kubec on brief pro se.
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Frank W. Hunger, Assistant Attorney General, David J. Kline,
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Assistant Director, Office of Immigration Litigation, and David V.
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Bernal, Attorney, Office of Immigration Litigation, Civil Division,
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Department of Justice, on brief for respondent.
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Per Curiam. Petitioner, Vojtech Kubec, a native
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and citizen of Czechoslovakia, has filed this petition for
review of the decision of the Board of Immigration Appeals
(BIA) denying his application for political asylum. See 8
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U.S.C. 1158(a). Petitioner also claims that the BIA abused
its discretion in accepting certain findings made by the
immigration judge concerning the present nature of the
government in Czechoslovakia.
I.
_
Petitioner was born in 1961 in Plzen,
Czechoslovakia. He attended school there and, at the time he
left Czechoslovakia in 1989, was working as a technician at a
recording studio. He is married to another citizen of
Czechoslovakia and has one child. His mother, father and
sister still live in Czechoslovakia (now the Czech Republic).
Petitioner entered the United States, in August
1989, as a nonimmigrant visitor for pleasure; he was
permitted to remain here until February 1990. However,
petitioner never left this country. As a result, the
Immigration and Naturalization Service issued an order to
show cause why petitioner should not be deported. In
response, petitioner filed applications for political asylum
and withholding of deportation.
A deportation hearing was held on May 6, 1991.
Petitioner admitted the facts in the show cause order and
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conceded deportability. At the conclusion of the hearing,
the immigration judge rendered an oral decision; he denied
the applications for political asylum and withholding of
deportation. The judge determined that petitioner had failed
to demonstrate that he would be persecuted or had a well-
founded fear of persecution if returned to Czechoslovakia.
The immigration judge did grant petitioner's request for
voluntary departure in lieu of deportation. See 8 U.S.C.
___
1254(e)(1). The BIA, in a short order, affirmed the judge's
decision.
II.
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The administrative consideration of political
asylum claims involves a two-step process: (1) a
determination of statutory eligibility; and (2) a
discretionary decision whether to grant asylum. See
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Gebremichael v. INS, 10 F.3d 28, 35 (1st Cir. 1993). In
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relation to the first step, petitioner bears the burden of
establishing that he is a "refugee" within the meaning of
Section 101(a)(42) of the Immigration and Naturalization Act
(the Act). See 8 C.F.R. 242.17(c)(4)(iii); Ravindran v.
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INS, 976 F.2d 754, 758 (1st Cir. 1992); Alvarez-Flores v.
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INS, 909 F.2d 1, 3 (1st Cir. 1990).
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"Refugee" is defined, in relevant part,
as any alien who is unwilling or unable
to return to his country "because of
persecution or a well-founded fear of
persecution on account of race, religion,
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nationality, membership in a particular
social group, or political opinion."
Ravindran, 976 F.2d at 758 (quoting 8 U.S.C.
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1101(a)(42)(A)).
To show that he is a refugee, petitioner can rely
on past persecution or on a well-founded fear of future
persecution on the basis of one of the five grounds
enumerated in 1101(a)(42)(A). See Gebremichael, 10 F.3d at
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3; Ravindran, 976 F.2d at 758. The fear of future
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persecution standard has both a subjective and an objective
component. Ravindran, 976 F.2d at 758; Alvarez-Flores, 909
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F.2d at 5. That is, the fear must be genuine and petitioner
must show "`credible, direct, and specific evidence'" of
facts that would establish the reasonableness of his fear.
Ravindran, 976 F.2d at 758 (citation omitted). We review the
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determination that petitioner was not a refugee under the
substantial evidence standard. See Alvarez-Flores, 909 F.2d
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at 3. Thus, we will affirm the BIA's decision if "supported
by reasonable, substantial, and probative evidence on the
record considered as a whole. . . . " See 8 U.S.C.
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1105a(a)(4).
Petitioner claims that he has presented sufficient
evidence, based on the nature of his political opinions, to
establish a well-founded fear of persecution. First, he
states that his grandfather's mill was confiscated by the
communist governmental authorities in 1953 and that these
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authorities imprisoned his grandfather for four years. This
persecution, petitioner alleges, resulted in limited
educational and vocational opportunities for petitioner's
mother, as well as for the entire family. Specifically,
petitioner refers to an incident that occurred in 1987. At
this time, petitioner and his brother approached the
government about starting their own business. According to
petitioner, they were informed that membership in the
Communist Party would "greatly" improve their chances of
success.
In determining that petitioner did not have a well-
founded fear of persecution, the immigration judge relied on
the change in the government in Czechoslovakia since the
occurrence of the above events.
I take judicial notice that
Czechoslovakia, at the present time, is a
free and independent country. I take
judicial notice that the Russian Army has
left the territory of Czechoslovakia and
that democratic institutions have been
instituted in Czechoslovakia and that
Czechoslovakia has an independent
democratic government with democratic
institutions in place since the Soviet
Forces have left Czechoslovakia, and that
there have been elections, and that free
elections have resulted in a free
democratic government being installed in
Czechoslovakia.
Petitioner objects to the "judicial notice" by the
immigration judge of these facts. He argues that the judge
went beyond what is "commonly acknowledged" and, instead,
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expressed his own, personal opinion. Further, petitioner
claims that he was not given a sufficient opportunity to
rebut this information. However, petitioner failed to raise
these arguments in his brief in support of his appeal to the
BIA. "Issues not raised before the [BIA] may not be raised
for the first time upon judicial review of the [BIA's]
decisions." Ravindran, 976 F.2d at 761. Thus, petitioner
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has failed to exhaust his administrative remedies and has
waived review of these issues. See id.
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The basis for the immigration judge's findings is
the Country Reports on Human Rights Practices for 1990 of the
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Department of State, admitted, without objection, as exhibit
5 at the hearing. In addition to the facts stated by the
judge, the Country Reports provides the following
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information. After the elections in 1990, legislation was
enacted which provided for the rights of assembly, free
speech and association. All known political prisoners were
freed and, in 1990, there were no reports of torture or other
cruel, or degrading, punishments. The Soviet Ministry of
Interior, which had been used as "an instrument to control
the population," was abolished. Limitations on private
enterprises were removed and efforts are being made to
establish a market economy. Individuals are permitted to,
and, in fact, do, express their political opinions and engage
in criticism of the present government. Finally, citizens
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who had left the country during the communist regime are free
to return to Czechoslovakia.
In an effort to rebut this information, petitioner
opines that these changes are only superficial.
Specifically, he asserts that it is likely that the previous
communist officials still control the government, the economy
and the local bureaucracies. Thus, he asserts, the "day-to-
day" operation of governmental agencies is the same as it was
under the Soviet regime. Petitioner concludes that he still
would be prevented from securing any economic gain if he
returned and that because of his anti-communist beliefs,
still would be at a high risk of persecution.
He also argues that two letters -- one from his
mother and the other from a friend -- provide specific facts
that should be credited over the general conclusions of the
Country Reports. These letters, admitted as exhibits 3 and
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4, recite that disorder prevails in Czechoslovakia and that
the government has not changed. Also, petitioner's mother
writes that incompetent people run the government, that
criticism is not tolerated and that if individuals return
from the West, they are seen as criminals and become the
targets of witchhunts and vindictive acts.
III.
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Based on the above, we cannot say that the BIA
lacked a substantial basis for its finding that petitioner's
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fears were not well-founded. Without determining whether
petitioner's allegations even amount to "persecution," we
note that the only evidence of specific acts on the part of
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the government occurred before the change in government in
1990. Petitioner's family continues to live in
Czechoslovakia without having suffered any instances of
persecution. Petitioner has been allowed by the authorities
to travel to this country; he also took trips to Hungary,
Germany and Yugoslavia. While petitioner remained in this
country, his wife was freely permitted to travel between the
United States and Czechoslovakia with no adverse
consequences.
Petitioner's testimony and the two letters contain
only conclusory statements that circumstances have not
changed. The general references to disorder and to the
status of refugees returning to Czechoslovakia from the West
are not supported by particular incidents or names, dates and
additional relevant information. This court and others have
upheld the BIA's denial of asylum claims in cases where the
evidence has been far more compelling. See, e.g., Ravindran,
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976 F.2d at 759 (imprisonment of petitioner by government for
three days, search of family home, the witnessing by
petitioner of random acts of violence by the majority ethnic
group and persecution of petitioner's uncle were insufficient
to establish refugee status); Alvarez-Flores, 909 F.2d at 5-6
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(the detention of petitioner, once by the guerrillas in El
Salvador and once by the military, insufficient to show a
well-founded fear of persecution). See also Arriaga-
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Barrientos v. United States INS, 937 F.2d 411, 414 (9th Cir.
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1991) (violence against family insufficient to establish
persecution unless evidence shows a pattern closely
associated with the petitioner); Zalega v. INS, 916 F.2d
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1257, 1260 (7th Cir. 1990) (persecution is not demonstrated
despite repeated detentions and interrogations of petitioner
where no formal charges were filed).
In conclusion, petitioner has failed to present any
"compelling" evidence such that "no reasonable factfinder
could fail to find the requisite fear of persecution." See
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INS v. Elias-Zacarias, 112 S. Ct. 812, 817 (1992). As a
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result, he does not qualify for political asylum under
Section 208(a) of the Act, 8 U.S.C. 1158(a).
The petition for review is denied.
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