
USCA1 Opinion

	




          August 4, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-2323                                     VOJTECH KUBEC,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                 ____________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                 ____________________                                        Before                              Torruella, Selya and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Vojtech Kubec on brief pro se.            _____________            Frank  W. Hunger,  Assistant  Attorney General,  David  J.  Kline,            ________________                                 ________________        Assistant  Director, Office  of Immigration  Litigation, and  David V.                                                                      ________        Bernal,  Attorney, Office  of Immigration Litigation,  Civil Division,        ______        Department of Justice, on brief for respondent.                                 ____________________                                 ____________________                      Per Curiam.   Petitioner, Vojtech  Kubec, a  native                      __________            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                                                                   ___            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                                         -2-            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.                                         __                      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                                                                      ___            Gebremichael  v. INS,  10 F.3d  28, 35  (1st Cir. 1993).   In            ____________     ___            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.                         ___                                 _________            INS, 976  F.2d 754,  758 (1st  Cir. 1992);  Alvarez-Flores v.            ___                                         ______________            INS, 909 F.2d 1, 3 (1st Cir. 1990).            ___                      "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,                                         -3-                                         -3-                      nationality,  membership in  a particular                      social group, or political opinion."            Ravindran,   976   F.2d   at   758  (quoting   8   U.S.C.                _________            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                                             ___ ____________            3;   Ravindran,  976  F.2d  at  758.    The  fear  of  future                 _________            persecution standard  has both a subjective  and an objective            component.   Ravindran, 976 F.2d at  758; Alvarez-Flores, 909                         _________                    ______________            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            _________            determination  that petitioner  was not  a refugee  under the            substantial evidence standard.  See Alvarez-Flores,  909 F.2d                                            ___ ______________            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.                                                            ___            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                                         -4-                                         -4-            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,                                         -5-                                         -5-            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                         _________            has  failed to  exhaust his  administrative remedies  and has            waived review of these issues.  See id.                                            ___ ___                      The basis  for the immigration  judge's findings is            the Country Reports on Human Rights Practices for 1990 of the                __________________________________________________            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                           _________________            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                                         -6-                                         -6-            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            ________________            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.                                         ___                      Based  on the  above,  we cannot  say that  the BIA            lacked a substantial basis  for its finding that petitioner's                                         -7-                                         -7-            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                                            ________            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,                                                    ___  ____  _________            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                                          ______________                                         -8-                                         -8-            (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-                                                     ___  ____   ________            Barrientos  v. United States INS, 937 F.2d 411, 414 (9th Cir.            __________     _________________            1991)  (violence  against  family  insufficient  to establish            persecution   unless  evidence   shows   a  pattern   closely            associated  with the  petitioner);  Zalega v.  INS, 916  F.2d                                                ______     ___            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                                                                      ___            INS v.  Elias-Zacarias, 112  S. Ct.  812, 817  (1992).   As a            ___     ______________            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.                                                 ______                                         -9-                                         -9-
