Mickeviciute v. Immigration & Naturalization Service

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 13 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
DAIVE MICKEVICIUTE,
Petitioner,
v. No. 00-9535
(No. A72-453-377)
IMMIGRATION & (Petition for Review)
NATURALIZATION SERVICE,
Respondent.
ORDER AND JUDGMENT *
Before EBEL , KELLY , and LUCERO , Circuit Judges.
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
argument. See Fed. R. App. P. 34(f); 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This order and judgment is not binding precedent, except under the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.
Petitioner Daive Mickeviciute seeks review of the final decision by the
Board of Immigration Appeals (BIA) affirming the immigration judge’s decision
to deny petitioner’s request for asylum. Our jurisdiction over this matter arises
under 8 U.S.C. § 1105a(a) (1996). 1
We affirm.
Petitioner, a citizen of Lithuania, entered the United States as a business
visitor on June 12, 1991, and overstayed her visa. In response to a show cause
order, petitioner conceded deportability and applied for asylum on November 14,
1992. After a hearing, the immigration judge issued a decision on May 16, 1994,
denying petitioner’s request for asylum on the ground that she had not shown
a reasonable fear of persecution. The BIA dismissed petitioner’s appeal on
September 1, 2000, agreeing that she had not shown a reasonable fear of
persecution if deported.
We review the BIA’s determination of eligibility for asylum under
a substantial evidence standard. INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992).
The BIA’s decision will be upheld unless petitioner’s evidence is so compelling
1
On September 30, 1996, the President signed into law the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub. L. No. 104-208, 110 Stat. 3009-546, which limited our authority to review
immigration decisions. The new provisions do not apply here, however, because
the INS initiated petitioner’s deportation proceedings before IIRIRA’s effective
date of April 1, 1997. See id. § 309(c)(1). Although IIRIRA’s transitional rules
do apply, id. § 309(c)(4); Berehe v. INS , 114 F.3d 159, 161 (10th Cir. 1997), they
do not preclude judicial review, as the proceedings in this case are not of the type
listed in § 309(c)(4)(E) or (G).
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that no reasonable factfinder could fail to find her eligible for asylum. See id.
at 481 n.1, 483-84.
Applying these standards, we conclude the BIA’s decision is supported by
substantial evidence. Petitioner argues that the BIA erred in viewing her
economic persecution claim as arising solely from poor country conditions,
thereby ignoring evidence that she feared persecution based on her political
opinion. This is not an accurate characterization of the BIA’s decision, however.
The BIA recognized that petitioner was arguing that she feared economic
persecution based on her political opinion, but rejected this argument on the
grounds that (1) although many people were in the same position as petitioner
there were no documented reports of low-ranking party members being persecuted
after independence; (2) many members of Parliament are former members of the
communist party to which petitioner belonged; (3) her claim that she would be
persecuted by former members of the Lithuanian communist party and folk groups
was undermined by her membership in those organizations; and (4) there was no
evidence that Sajudis or pro-Russia supporters would target someone in
petitioner’s position. The BIA’s subsequent comment that asylum should not be
granted based on economic hardship relating to poor country conditions or general
civil unrest simply bolstered its decision, and was not a statement that petitioner’s
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application was based solely on these conditions. 2
Because the BIA did not
ignore undisputed evidence, and because petitioner’s evidence does not compel a
finding that she is eligible for asylum, the decision will be upheld.
The decision by the Board of Immigration Appeals is AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
2
In addition, petitioner inaccurately describes the evidence presented at the
hearing. Petitioner testified only that she would not be able to get employment
“because their unemployment rate is so high.” Aplt. App. at 57. Although she
then made some type of statement that “the people that they trust . . . can’t get the
jobs,” id. , it is unclear what she is referring to, and we need not accept her
post hoc representation that this statement meant that she would not get a job
based on her political opinions.
Also, petitioner’s witness did not directly testify that petitioner would be
unable to get a job because of her political beliefs, stating instead that petitioner
would run into trouble “when she starts working again.” Id. at 76. The closest
the witness got to a direct statement regarding economic persecution was her
testimony that she was unsure whether petitioner would find work, that in
attempting to get work she would come into contact with her former coworkers
and would “get right into the center of all these events,” and that she would be
hampered by her stay in the United States. Id.
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