                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           OCT 9 2002
                               FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    ANDREI IGOSHIN; ELENA
    IGOSHIN; JULIA IGOSHIN,

                Petitioners,                              No. 01-9527
                                                    (BIA Nos. A72 449 618,
    v.                                                    A72 453 306
                                                        & A72 450 957)
    IMMIGRATION &                                     (Petition for Review)
    NATURALIZATION SERVICE,

                Respondent.


                               ORDER AND JUDGMENT         *




Before HENRY , ANDERSON , and HARTZ , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Petitioners Andrei and Elena Igoshin and their daughter Julia seek review

of the Immigration Judge’s (IJ) determination that they are not eligible for asylum

and withholding of deportation. We deny the petition.

      Petitioners are Russian nationals who became members of the Church of

Jesus Christ of Latter Day Saints (LDS) in 1991.   1
                                                       Prior to 1991, they were not

members of any religious group. A few weeks after being baptized into the LDS

church, Mr. Igoshin was summoned to the police station to have his passport

checked. At that time, he was informed by an official of the Russian Bureau of

State Security (KGB) that LDS missionaries were actually agents of foreign

governments and were engaged in espionage. He was asked to cooperate by

disclosing information about their activities. He refused. He was asked twice

more and again refused.

      After that, he began receiving harassing phone calls, up to several times a

day. The harassment became more intense and Mr. Igoshin was told he would

lose his job if he did not cooperate. He again refused and lost his job a few days

later. Mr. Igoshin then began receiving anonymous calls threatening his life. In

December, 1991, he was accosted and beaten in the stairway of his apartment

building. He then attempted to apply for an exit visa, but was denied permission.



1
      This recitation of facts was accepted by the IJ and the BIA who found that
Mr. Igoshin’s testimony was fully credible.

                                           -2-
He eventually obtained one through the black market. Mr. Igoshin arrived in the

United States in January 1992 with authorization to remain until July 1992.

Mrs. Igoshin and their daughter arrived in July 1992 with authorization to remain

until January 1993.

       Mr. Igoshin applied for political asylum and withholding of deportation

shortly after his arrival.   See Petitioners’ Br., Ex. A at 1 (Form I-589). In his

application, Mr. Igoshin stated that he was applying for asylum because he feared

he would be persecuted and possibly imprisoned if he were to return to Russia due

to the fact that he had “refused to cooperate with the KGB in informing on

American LDS missionaries.”        Id. at 3.

       The BIA determined that the Igoshins were not eligible for asylum or

withholding of deportation. The BIA agreed with Mr. Igoshin that he had

probably been harassed, lost his job, and was beaten due to his refusal to spy on

the LDS missionaries. The BIA concluded, however, that the harassment did not

occur on account of his religion. The BIA noted that impediments to religious

freedom were due to the Russian Orthodox Church’s attempts to retain

membership and not from the government or KGB. The BIA concluded that

Mr. Igoshin’s fear of future persecution was insupportable.

       On appeal, petitioners raise ten issues. These issues can be summarized as

urging that the BIA’s decision should be reversed because, contrary to the BIA’s


                                               -3-
conclusion, petitioners did establish both past persecution and a well-founded fear

of future persecution based on their religion and membership in a particular social

group.

         The Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(IIRIRA) “altered the availability, scope, and nature of judicial review in INS

cases.” Rivera-Jimenez v. INS , 214 F.3d 1213, 1215 n.1 (10th Cir. 2000).

Because petitioners’ deportation proceedings began before April 1, 1997, and the

BIA’s decision was entered more than thirty days after IIRIRA’s enactment date

of September 30, 1996, IIRIRA’s transitional rules apply.        Id.

         An asylum applicant must first prove “statutory eligibility by establishing

refugee status.”    Woldemeskel v. INS , 257 F.3d 1185, 1188 (10th Cir. 2001).

The applicant can accomplish this by establishing “either past persecution or a

well- founded fear of future persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion,” as manifested by an

infliction of suffering or harm which is regarded as offensive and involves “more

than just restrictions or threats to life and liberty.”   Id. (quotation omitted).

               Analysis of a claim specifically based on a well-
               founded fear of future persecution includes both a
               subjective and an objective component. The applicant
               must first prove an objective basis by credible, direct,
               and specific evidence in the record, of facts that would
               support a reasonable fear that the petitioner faces
               persecution. If an objective basis exists, the applicant
               must show her subjective fear is genuine.

                                                -4-
Id. at 1188-89 (quotations and citation omitted).

       We apply a substantial evidence standard to the BIA’s resolution of
       the first step of an asylum claim . . . . The BIA’s determination that
       the applicant is not eligible for asylum must be upheld if supported
       by reasonable, substantial, and probative evidence on the record
       considered as a whole. It can be reversed only if the evidence
       presented . . . was such that a reasonable factfinder would have to
       conclude that the requisite fear of persecution existed. We will not,
       therefore, weigh the evidence or . . . evaluate the witnesses’
       credibility.

Id. at 1189 (quotations omitted).

       Petitioners attempted to show they were eligible for asylum or withholding

of deportation because they were persecuted on account of their religion.          See

8 U.S.C. § 1101(a)(42)(A). Such persecution need only be “         a motive for the

persecution in question; it need not be the     sole motive.” Navas v. INS , 217 F.3d

646, 656 (9th Cir. 2000) .

       Mr. Igoshin testified he did not believe he was persecuted on religious

grounds, but because he refused to be a spy and to provide the KGB with

information about the missionaries who were believed to be spies, Admin. R.

at 145, although he believed his religion indirectly caused his persecution,        id. at

162. The KGB did not ask him questions about Russian Mormons.               Id. at 165.

Further, the Igoshins were not prohibited from practicing their faith.         Id. at 182.

       The record supports the BIA’s conclusion that the mistreatment Mr. Igoshin

suffered at the hands of the KGB was due to his failure to cooperate as a spy and


                                              -5-
was not due to his religion. The missionaries were believed to be spies because

they were American. Mr. Igoshin failed to establish “with the degree of clarity

necessary to permit reversal of a BIA finding to the contrary” that he either was

persecuted or has a well-founded fear of future persecution because of his

religion, rather than because of his refusal to spy for the KGB.    E.g. , INS v.

Elias-Zacarias , 502 U.S. 478, 483 (1992).

       Because petitioners cannot establish their entitlement to asylum, they

cannot satisfy the more stringent standard required for withholding of deportation.

See Woldemeskel , 257 F.3d at 1193.

       The petitions for review are DENIED.


                                                        Entered for the Court



                                                        Stephen H. Anderson
                                                        Circuit Judge




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