                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JAN 7 1998
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 MAHBUBUR RAHMAN and SONIA
 P. RAHMAN,

          Petitioners-Appellants,

 v.                                                       No. 97-9527
                                                  Board of Immigration Appeals
 IMMIGRATION &                                         (Nos. A70 801 408,
 NATURALIZATION SERVICE,                                     A73 373 063)

          Respondent-Appellee.


                             ORDER AND JUDGMENT *


Before TACHA, BRISCOE, LUCERO, Circuit Judges.




      Mahbubur Rahman (Mahbubur) and Sonia Rahman (Sonia) appeal the

decision of the Board of Immigration Appeals (BIA) denying their applications

for asylum and withholding of deportation. We affirm.




      *
          This order and judgment is not binding precedent, except under the doctrines of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.
                                          I.

      The Rahmans are husband and wife and both are natives and citizens of

Bangladesh. Mahbubur became involved in the student wing of the Jatiyo Party

while he was a student at Titumir College in Dhaka, Bangladesh, and served as

assistant general secretary and later as general secretary. The Jatiyo Party was the

ruling party until 1991 when it lost control to the Bangladesh National Party

(National Party). Mahbubur graduated from college in 1986, but continued to be

active as a student leader of the Jatiyo Party until 1992.

      Mahbubur testified that, as he returned from work in August 1991, he was

attacked by five or six members of the National Party. The attackers used sticks

and knives and told him he would be killed if he did not cease political activities.

He escaped without serious injury when passers-by heard his screams. He was

again attacked in September 1992 with sticks and knives, and he recognized

Kamruzzaman Ratan, a famous leader of the National Party. The attackers ran

away after a crowd gathered. He was hospitalized for ten days following the

second attack, suffering epistaxis (nosebleed) and multiple bruising due to blunt

injury, and was prescribed fifteen days’ of complete bed rest upon his release. He

went into hiding upon his release from the hospital.

      Mahbubur entered the United States on January 1, 1993, and his visa

expired May 5, 1993. He filed a request for asylum on April 19, 1993, and his


                                         -2-
request was denied on March 10, 1994, by the Houston INS office. In response to

an order to show cause why he should not be deported, he conceded deportability

on December 15, 1994, and requested withholding of deportation and asylum. He

testified that if he returns to Bangladesh, he will be killed or put in jail. His

family attorney has warned him the government has issued a warrant for his arrest

on a weapons charge, of which he claims he is innocent.

      Sonia’s mother, Syeda Jahan, was vice president of the Jatiyo women’s

organization. She testified the National Party threw her out of her house,

threatened her and her children, and put her in jail in mid-May 1991, and that she

believed the National Party had beaten her son because of her political

involvement. She entered the United States in August 1991 and, on March 24,

1994, INS determined she had a well-founded fear of persecution and granted

asylum.

      Sonia testified the National Party wanted to kill her because of her

husband’s and mother’s ties to the Jatiyo Party. She went into hiding in 1991

after her mother left Bangladesh. She entered the United States on June 14, 1994,

and her visa expired on December 13, 1994. In response to an order to show

cause why she should not be deported, she filed an application for asylum and for

withholding of deportation on March 16, 1995.




                                           -3-
      A deportation hearing was conducted on April 17, 1995, for Mahbubur, but

the immigration judge (IJ) continued the case for consolidation with Sonia’s case.

Both cases were heard on January 4, 1996, and the Rahmans’ applications for

withholding of deportation and asylum were denied. The denial was affirmed by

the BIA on May 14, 1997.

                                         II.

      The Immigration and Nationality Act established a two-part test for

determining whether a deportable alien is statutorily eligible for asylum.

Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994). The alien must show he

or she is a refugee by proving either past persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion. Id. Persecution is defined as “the offensive

‘infliction of suffering or harm.’” Hadjimehdigholi v. INS, 49 F.3d 642, 646

(10th Cir. 1995) (quoting Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir. 1990)).

      If the alien establishes eligibility as a refugee, the Attorney General may, in

her discretion, grant asylum. See Castaneda, 23 F.3d at 1578. The Attorney

General may exercise her discretion to deny asylum if there is little likelihood of

present persecution. Kapcia v. INS, 944 F.2d 702, 709 (10th Cir. 1991). There is

a rebuttable presumption, however, that an alien who has experienced past

persecution has reason to fear similar persecution in the future. Id.


                                         -4-
      To establish eligibility for the withholding of deportation, an alien must

prove a “clear probability of persecution” upon deportation. Rezai v. INS, 62

F.3d 1286, 1289 (10th Cir. 1995). This “clear probability” test is more stringent

than the well-founded fear test used in the asylum context. Id. at 1289. Unlike

asylum determinations, however, the Attorney General has no discretion to deny

withholding of deportation to aliens who demonstrate eligibility. Id.

      We review factual findings by the BIA under the substantial evidence

standard and do not weigh evidence or evaluate witnesses’ credibility. Kapcia,

944 F.2d at 707. Even if we disagree with the BIA’s conclusions, we will not

reverse if its findings are supported by substantial evidence and are substantially

reasonable. Id.

                                         III.



Application of Correct Standard by IJ

      In denying the Rahmans’ applications, the IJ found they had not “submitted

a credible record.” Certified Admin. R. at 38. The IJ stated: “My finding is that

even if I can believe this story, which is hard to believe, neither respondent has

shown a well-founded fear of persecution.” Id. at 39. The Rahmans infer from

this statement that they were required to demonstrate both past persecution and a

well-founded fear of future persecution. However, to be considered a refugee, an


                                         -5-
alien need only show past persecution or a well-founded fear of future

persecution. The Rahmans argue the ruling was therefore erroneous and the BIA

erred as a matter of law in affirming the IJ’s ruling.

      The IJ specifically found a lack of credibility concerning Mahbubur’s past

persecution and that he also failed to show a well-founded fear of persecution. In

regard to Sonia, whose asylum claim was based solely on fear of persecution, the

IJ found she did not have a well-founded fear. Therefore, the necessary findings

were made. Further, the BIA clearly applied the correct law in affirming the

ruling. It found Mahbubur’s testimony, without corroborating testimony, was not

sufficiently plausible, detailed, or internally consistent to support his claim of

past persecution. The BIA also concluded neither Mahbubur nor Sonia had a

well-founded fear of persecution. The Rahmans’ argument that the BIA affirmed

an erroneous conclusion by the IJ is therefore without merit.



Findings Regarding Mahbubur by BIA

      The testimony of an applicant for asylum may be sufficient to sustain the

burden of proof, without corroboration, if the testimony is credible. 8 C.F.R. §

208.13(a). The applicant must present specific, credible evidence to support a

claim that he has been persecuted or will be persecuted if deported. Rezai, 62

F.3d at 1289. Inconsistencies in an applicant’s testimony support a conclusion


                                          -6-
that testimony is not credible. Id. (statement in asylum application that applicant

had been beaten on “one occasion” and testimony that applicant had been “beaten

up many times” supported conclusion testimony was not credible).

      Mahbubur’s testimony regarding the number of people who attacked him in

1992 was inconsistent. In his January 12, 1995, affidavit, he stated he recognized

members of the National Party and that Ratan “had with him a group of 4 to 5

younger individuals who [were] also [known] to be student[] leaders for the

[National Party].” Certified Admin. R. at 145. At his April 17, 1995, hearing,

however, he testified he saw nine or ten student leaders and that eight or nine

people attacked him. With regard to his 1991 attack, he stated in his March 31,

1993, affidavit that Monu, his best friend at one time, participated in the attack.

However, at his hearing he admitted he did not know Monu’s last name. Most

significant is the discrepancy regarding Ratan’s participation in the two attacks.

Mahbubur stated in his January 12, 1995, affidavit that he “saw no specific

leader” in the 1991 attack, but that Ratan was present at the 1992 attack. At his

hearing, he testified that Ratan, “the most famous leader” in the National Party,

was involved in both attacks.

      Mahbubur attributes some of the inconsistencies to his lack of fluency in

English. An interpreter was used at the January 4, 1996, hearing, but none was

used at the April 17, 1995, hearing. An interpreter is essential to the fundamental


                                          -7-
fairness of a deportation hearing when the alien cannot speak English fluently.

Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980). The record reveals the IJ

offered an interpreter at the April 17, 1995, hearing, but Mahbubur declined the

offer. Further, he did not raise the language problem before the BIA. Such

failure constitutes a failure to exhaust administrative remedies with respect to the

question and this court lacks jurisdiction to address the matter. Rivera-Zurita v.

INS, 946 F.2d 118, 120 n.2 (10th Cir. 1991).

      Mahbubur also submits the inconsistencies are not material to his claim for

asylum. There is no dispute with regard to the most convincing evidence of past

persecution, i.e., that he was hospitalized for ten days and then prescribed fifteen

days’ bed rest when he was discharged. The BIA rejected the claim of past

persecution on the basis that, without corroborating evidence, the testimony was

not sufficiently plausible, detailed, or internally consistent. However, the

testimony of hospitalization was corroborated by a medical report. On the other

hand, the record does not contain evidence to corroborate Mahbubur’s testimony

as to the reason for the attacks. An alien must show persecution “on account of

race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1101(a)(42). While the medical report corroborates

Mahbubur’s injuries, it does not corroborate his testimony that he was attacked

because of his membership in the Jatiyo Party or his political opinions.


                                          -8-
      The IJ found Mahbubur was lacking in credibility. “Because the

immigration judge is in the best position to evaluate an alien’s testimony, his or

her credibility determinations are to be given ‘much weight.’” Dulane v. INS, 46

F.3d 988, 998 (10th Cir. 1995) (quoting Estrada v. INS, 775 F.2d 1018, 1021 (9th

Cir. 1985)). The BIA agreed that Mahbubur had failed to provide sufficiently

credible testimony to support his claim of past persecution. To reverse the BIA,

this court must find the evidence compels a contrary conclusion. INS v. Elias-

Zacarias, 502 U.S. 478, 481 n.1 (1992). In light of Mahbubur’s inconsistent and

for the most part uncorroborated testimony regarding past persecution, we affirm

the BIA’s conclusion that Mahbubur did not prove he is entitled to refugee status

on the basis of past persecution. 1



Findings Regarding Sonia by BIA

      Sonia contends the BIA erred in concluding she did not have a well-

founded fear of persecution without making a finding of adverse credibility. The

BIA affirmed the IJ’s adverse credibility finding as to Mahbubur but it did not

make the same finding as to Sonia. The BIA did note Sonia’s testimony regarding

her husband’s hospitalization was inconsistent with the medical report. In any



      1
         The BIA also concluded Mahbubur did not have a well-founded fear of future
persecution. Mahbubur did not appeal this finding, however, and we do not address it.

                                          -9-
event, the BIA denied Sonia refugee status not because it did not believe her but

because the record did not demonstrate the Bangladesh government was inclined

to punish her because of her ties to the Jatiyo Party.

      To be entitled to refugee status on the basis of a well-founded fear of

persecution, an alien must prove the feared persecution is “on account of race,

religion, nationality, membership in a particular social group, or political

opinion.” Castaneda, 23 F.3d at 1578. Persecution on account of membership in

a particular social group encompasses persecution of an individual who is a

member of a group of persons, all of whom share a common, immutable

characteristic. Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). The shared

characteristic might be an innate one, such as sex, color, or kinship ties. Id.

      Sonia argues the IJ and the BIA failed to address her membership in a

particular social group, i.e., her family. See, e.g., Hernandez-Ortiz v. INS, 777

F.2d 509, 515 (9th Cir. 1985); Ananeh-Firempong v. INS, 766 F.2d 621, 627 (1st

Cir. 1985) (noting relevance of treatment of petitioner’s family members). She

contends the BIA never inquired as to how her relationship with her mother

affected her asylum claim.

      Both the IJ and the BIA addressed the issue of Sonia’s mother. Sonia

testified at the January 4, 1996, hearing that her mother was granted asylum.

Sonia’s application for asylum, with an affidavit explaining the circumstances of


                                         -10-
her mother’s asylum attached, was admitted into evidence. The IJ stated that he

“very carefully” considered the fact that INS had granted Sonia’s mother asylum.

Certified Admin. R. at 40. The IJ discussed Sonia’s claims that her mother had

been politically active and had been politically harassed because of her

involvement. The IJ examined the affidavit of Sonia’s mother in which she stated

the National Party threatened to kill her and kidnap her children, and that she

believed her son had been beaten by National Party members. Sonia’s affidavit

contained no assertions of threats made directly to her, however, and she later

testified that she had not been personally threatened because of her mother’s

activities.

       The BIA addressed de novo the evidence of Sonia’s fear of persecution

because of her mother’s activities. 2 The BIA reviewed evidence that Sonia’s

mother was vice president of the Jatiyo Women’s League, that her family had

been threatened with death because of her activities, and that she had been

granted asylum. There was also evidence that Sonia went into hiding after

Mahbubur left Bangladesh and that the National Party was searching for Sonia

with hopes of thereby getting Mahbubur and Sonia’s mother back in Bangladesh.




       2
         The Rahmans are troubled by the fact the BIA did not specifically refer to
Jahan’s affidavit. As the INS points out, however, this is likely because the Rahmans did
not reference the affidavit in their brief to the BIA.

                                           -11-
The BIA concluded Sonia did not have a well-founded fear of persecution as she

was not herself politically active in Bangladesh.

      The BIA reviewed the State Department’s report on human rights practices

in Bangladesh. U.S. Dep’t of State, Country Reports on Human Rights Practices

for 1994, S. Prt. 104-12 (1995) (Country Reports). While the National Party won

a plurality of seats in the 1991 election, the Jatiyo Party is a significant opposition

party with members comprising twenty to thirty percent of the country’s

legislature. Country Reports did acknowledge that “[v]iolence, often resulting in

killings, is a feature of the political process. Demonstrators from all parties, and

even within parties, often clash.” Certified Admin. R. at 135 (emphasis added).

To be eligible for asylum, however, an alien’s fear of persecution must be based

on more than general conditions of upheaval and unrest in his native country.

Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d 995, 1000 (4th Cir.

1992). The BIA concluded the record did not demonstrate the government was

inclined to punish Sonia because of her ties to the Jatiyo Party.

      Family affiliation with an unpopular political movement, standing alone, is

insufficient to warrant asylum. Refahiyat v. United States Dep’t of Justice, 29

F.3d 553, 557 (10th Cir. 1994). Further, a grant of asylum to an applicant’s

parent is relevant only to the Attorney General’s discretionary decision to grant




                                          -12-
asylum to the applicant, not to the preliminary determination of the applicant’s

refugee status. Bereza v. INS, 115 F.3d 468, 476 (7th Cir. 1997).

      More significant than the grant of asylum to Sonia’s mother is the fact that

Sonia did not leave Bangladesh until almost three years after her mother left.

Neither Sonia’s testimony nor her mother’s affidavit describes any threats or

harassment directed to Sonia subsequent to her mother’s departure. The fact that

so much time passed without incident supports the BIA’s conclusion that the

government was not inclined to punish Sonia because of her ties to the Jatiyo

Party. See Nazaraghaie v. INS, 102 F.3d 460, 463 (10th Cir. 1996) (passage of

eleven months without incident following alien’s release from jail indicated

alien’s fear of persecution was not well founded); see also Chavarria v. United

States Dep’t of Justice, 722 F.2d 666, 670-71 (11th Cir. 1984) (withholding of

deportation denied where applicant remained in Nicaragua for two years after

events which triggered persecution of fellow employees, and petitioner was not

persecuted during that two-year period).

      Finally, the Rahmans argue the BIA misapplied the criteria relevant to a

determination of well-founded fear as enunciated by the BIA in In re Mogharrabi,

19 I. & N. Dec. 436, 446, 1987 WL 108943 (B.I.A. 1987). Under Mogharrabi, the

evidence must establish:

             (1) the alien possesses a belief or characteristic a persecutor
      seeks to overcome in others by means of punishment of some sort;

                                         -13-
      (2) the persecutor is already aware, or could easily become aware,
      that the alien possesses this belief or characteristic; (3) the
      persecutor has the capability of punishing the alien; and (4) the
      persecutor has the inclination to punish the alien.

Id. at *15. The BIA assumed Sonia satisfied the second and third factors, but

found she did not possess a belief or characteristic which the government sought

to overcome by punishment. Sonia contends the government sought to overcome

in her the characteristic of membership in her mother’s family. She also

maintains the government imputed her mother’s political beliefs to her and sought

to overcome those beliefs. See Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th

Cir. 1987) (recognizing persecutor’s imputation of belief to alien can place alien

at risk). Assuming, arguendo, Sonia satisfies the first factor, she does not show

how she satisfies the fourth factor, i.e., that the National Party is inclined to

punish her. As noted, the passage of three years without incident following

Sonia’s mother’s departure supports the BIA’s conclusion that the government is

not inclined to punish Sonia because of her ties to the Jatiyo Party.

      Because Mahbubur’s testimony regarding his past persecution was

insufficient to establish eligibility for asylum, Sonia’s claim for asylum fails to

the extent it relies on her association with him. Nor, as discussed above, has

Sonia demonstrated eligibility for asylum based on her mother’s political

activities. There is substantial evidence to support the BIA’s finding that Sonia

did not have a well-founded fear of persecution upon her return to Bangladesh.

                                          -14-
      Since the Rahmans have failed to establish statutory eligibility for a grant

of asylum, i.e., that they are refugees, they cannot meet the tougher standard

required for withholding of deportation. Rezai, 62 F.3d at 1289. There is

substantial evidence to support the BIA’s denial of the withholding of

deportation.

                                        IV.

      The decision of the Board of Immigration Appeals is AFFIRMED.

Petitioners’ motion to respond to respondent’s supplemental citation is

GRANTED. Petitioners’ request to preclude our consideration of Elboukili v.

INS, 125 F.3d 861 (Table), 1997 WL 616222 (10th Cir. Oct. 7, 1997) is DENIED.

                                               Entered for the Court

                                               MARY BECK BRISCOE
                                               Circuit Judge




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