                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 14 1999
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    TATYANA VLADIMIROVA
    BASOVA,

                Petitioner,
                                                          No. 98-9540
    v.                                               (INS No. A73 736 650)
                                                      (Petition for Review)
    IMMIGRATION &
    NATURALIZATION SERVICE,

                Respondent.




                              ORDER AND JUDGMENT          *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior District
Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Tatyana Vladimirova Basova, a native and citizen of Russia, has filed a

petition for review from the decision of the Immigration and Naturalization

Service (INS) that she is not entitled to political asylum or withholding of

deportation. We deny the petition.

      Ms. Basova arrived in this country in 1994 as the non-immigrant fiancée of

a United States citizen. When she arrived, she learned that her fiancée no longer

wanted to marry her. She later married a Ukranian national who is a lawful

permanent resident having been granted political asylum. He applied for an

immigrant visa for her. That application has been approved.   1



      When she learned she would not be marrying her fiancée, Ms. Basova

applied for asylum and withholding of deportation. She claimed she was eligible

for asylum because she had been repeatedly abducted and raped by members of the

Chechen mafia for over two and one-half years.

      The Immigration Judge (IJ) determined Ms. Basova did not have a well

founded fear of persecution on any of the five grounds enumerated in 8 U.S.C.




1
       Ms. Basova can only obtain her immigrant visa from a consular officer at
his/her office outside of the United States. See 8 U.S.C. § 1101(a)(16).


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§ 1101(a)(42).   2
                     He determined instead that the rapes were done on a personal

level and she was not eligible for asylum.

       On appeal, Ms. Basova argues that she qualifies for asylum under two of the

§ 1101(a)(42) grounds i.e., political opinion and membership in a particular social

group. She contends her persecution was at the hands of members of the Chechen

mafia, which due to its strength and political influence can be considered a quasi-

governmental entity. Further, she contends the government is unwilling or unable

to control the Chechen mafia.

       We review the Board of Immigration Appeals’ (BIA) determination of

issues of law de novo, and its factual findings for substantial evidence.     See

Refahiyat v. INS , 29 F.3d 553, 556 (10th Cir. 1994).      3
                                                               We must uphold the BIA’s

determination if it is “‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’”        INS v. Elias-Zacarias , 502 U.S.

478, 481 (1992) (quoting 8 U.S.C.      § 1105a(a)(4)). Indeed, we may only reverse if


2
       Section 1101(a)(42) provides that asylum may be sought as a result of
persecution “on account of race, religion, nationality, membership in a particular
social group, or political opinion.”
3
        8 U.S.C. § 1105a was repealed by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, Div. C,
Title III, § 306(b), 110 Stat. 3009. IIRIRA alters the availability, scope, and
nature of judicial review in INS cases. The repeal of    § 1105a is not effective in
this case. See id. § 1101 Effective dates, Pub.L. No. 104-208, Div. C.,    § 309 (Ms.
Basova’s deportation proceedings commenced before April 1, 1997, and the
agency’s final order was filed more than thirty days after IIRIRA’s date of
enactment). Thus, the transitional rules control.

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we determine that the evidence     compels an opposite conclusion.   See id. at 481

n.1. Thus, “[e]ven if we disagree with the Board’s conclusions, we will not

reverse if they are supported by substantial evidence and are substantially

reasonable.” Kapcia v. INS , 944 F.2d 702, 707 (10th Cir. 1991).

       “An alien facing deportation who fears persecution if deported has two

avenues of relief: asylum and withholding of deportation.”      Rezai v. INS , 62 F.3d

1286, 1288 (10th Cir. 1995). An alien requesting asylum must first establish

refugee status by proving s/he is a victim of either past “persecution or a

well-founded fear of persecution” based on any of the     § 1101(a)(42) groups.

Nguyen v. INS , 991 F.2d 621, 625 (10th Cir. 1993) (quotation omitted).

       “To prove past persecution, an asylum applicant must present specific facts

through objective evidence.”      Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir.

1996) (quotation omitted).      “Persecution has been defined as the offensive

infliction of suffering or harm and encompasses more than just restrictions or

threats to life and liberty.”   Hadjimehdigholi v. INS , 49 F.3d 642, 646 (10th Cir.

1995) (quotations omitted).

       The issue before us here is whether Ms. Basova has shown persecution due

to her political opinion or her membership in a particular social group. We cannot

address Ms. Basova’s claim that she is a member of a particular social group.

While Ms. Basova did raise this issue to the BIA, it stated that it could not address

the issue as she had “insufficiently developed and inadequately preserved” the

                                            -4-
issue for the BIA’s review. R. at 5;    cf. Rivera-Zurita v. INS, 946 F.2d 118, 120

n.2 (10th Cir. 1991) (failure to raise issue to BIA constitutes failure to exhaust

administrative remedies and deprives appellate court of jurisdiction to address

issue). The BIA further stated that even if it were to accept that Ms. Basova were

a member of a particular social group, she had “not provided sufficient testimony

and evidence” from which to infer that she was persecuted due to her membership

in that group.   R. at 5.

       To establish persecution due to political opinion, the alien must present

some evidence, either direct or circumstantial, of the    persecutor’s motive. See

Canas-Segovia v. INS , 970 F.2d 599, 601 (9th Cir. 1992). Persecution on account

of imputed political opinion, satisfies the motive requirement, whether or not that

imputation is accurate.     Id. at 601-02.

       The INS has officially recognized rape and sexual abuse as a form of

persecution . See Lopez-Galarza v. INS , 99 F.3d 954, 963 (9th     Cir. 1996) (citing

INS, Considerations for Asylum Officers Adjudicating Asylum Claims from

Women (1995)). “These guidelines direct immigration officers to recognize that

female applicants may face unique ‘gender persecution,’ which includes rape and

sexual abuse, and provides that ‘rape and other forms of severe sexual violence’

are examples of physical harm that constitutes persecution.”     Id. (quoting

guidelines at 9) (further quotation omitted).



                                             -5-
       Ms. Basova testified that she became pregnant as result of the rapes and had

an abortion. She stated that each time that she was allowed to go home, she was

threatened and told not to disclose the rape and abduction. Her parents sought

help from the local authorities but were told no help was available as they did not

“want to get extra problems on their hands.” R. at 105. She further related that

after she left Russia, the Chechen mafia burned her parents’ dacha and have

continued to call them threatening her death should she return.

       The IJ found Ms. Basova’s testimony credible. However, the IJ held that

Ms. Basova had not shown any evidence her persecutors’ motives were based on

her political opinion, imputed or otherwise. Ms. Basova testified that her

attackers never explained anything to her, but she felt that they hated her due to

how they dealt with her and called her names. Rec. at 109. She also stated that

they did not know her name until they asked her when she regained consciousness

during her first abduction.   See id. at 122. She stated that they had no preference

and kidnaped her because she was in their way and “[t]hey want to show people

how much they control the society.”    Id. at 123.

       Ms. Basova argues that she has shown political opinion persecution citing

Lazo-Majano v. INS , 813 F.2d 1432 (9th Cir. 1987), overruled on other grounds

by Fisher v. INS , 79 F.3d 955, 963 (9th   Cir. 1996). In Lazo-Majano , the court

held that the alien’s rape constituted persecution on account of her political

opinion. However, there her persecutor told the alien that he regarded her actions

                                           -6-
as subversive and he attributed the political opinion of a subversive to her. The

court held that this attribution resulted in his acts being persecution on account of

a political opinion.   See id. at 1436. No such statements were made by

Ms. Basova’s persecutors.

       Ms. Basova was treated inhumanely and has shown persecution and a fear of

future persecution in the general sense. However, she has not shown persecution

due to any of the statutory categories. While we might wish that asylum could be

granted for purely humanitarian reasons, we cannot rewrite the law or force the

INS to permit asylum under these circumstances.

       Because Ms. Basova cannot establish her entitlement to asylum, she cannot

satisfy the more stringent standard required for withholding of deportation.    See

Kapcia , 944 F.2d at 709 .

       The petition for review is DENIED.



                                                       Entered for the Court



                                                       Stephen H. Anderson
                                                       Circuit Judge




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