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                           United States Court of Appeals
                                    Tenth Circuit
                                     JUN 27 2001
                                   PATRICK FISHER
                               FOR THE TENTH CIRCUIT
         REGINA TAMOSHAITYTE,             
         v.                                          No. 00-9533
                                                  (No. A72-453-376)
         IMMIGRATION &  NATURALIZATION          (Petition for Review)
         Before HENRY, BRISCOE, and MURPHY, 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 petition for review.  See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).  The 

         case is therefore ordered submitted without oral argument.

              Petitioner Regina Tamoshaityte filed this petition for review of the 

         decision of the Immigration and Naturalization Service (INS) that she is not

         (1)     This order and judgment is not binding precedent, except under the 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.  
         eligible for political asylum.  Following review of the administrative record and 

         consideration of the parties' arguments, we conclude that the INS was correct to 

         deny the petition.(1)

              Petitioner, a citizen of Lithuania, arrived in the United States in 1991. 

         She applied to the INS for political asylum in November 1992, claiming fear of 

         persecution because of her involvement with the Communist Party.  The agency 

         denied her asylum request in July 1993.  The INS then served petitioner with an 

         order to show cause as to why she should not be deported for overstaying her 

         visa.  She conceded deportability, but again sought asylum.

              Following an evidentiary hearing, the immigration judge (IJ) denied 

         petitioner's application for asylum in 1994.  Petitioner appealed to the Board of 

         Immigration Appeals (BIA).  The BIA issued a per curiam decision in August 

         2000, dismissing her appeal of the IJ's decision.  The BIA stated it had reviewed 

         the record, concluded that the IJ correctly analyzed the case, and adopted the IJ's 

         decision as its own.

               To qualify for a grant of asylum, petitioner "must establish that [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.'"  Rezai v. INS, 62 F.3d 1286, 1289 (10th Cir. 

         1995) (quoting 8 U.S.C. . 1101(a)(42)(A)).  Where, as here, the BIA adopts the 

         decision of the IJ, we review the IJ's decision.  See Panrit v. INS, 19 F.3d 544, 

         546 (10th Cir. 1994).  We review the IJ's factual finding that an alien is not a 

         refugee for substantial evidence.  Rezai v. INS, 62 F.3d 1286, 1289 (10th Cir. 

         1995).  We will uphold the IJ's conclusion if it is supported by "reasonable, 

         substantial, and probative evidence on the record considered as a whole" and will 

         not reverse unless the asylum applicant presents evidence "so compelling that no 

         reasonable factfinder could fail to find the requisite [persecution or] fear of 

         persecution."  INS v. Elias-Zacarias, 502 U.S. 478, 481, 484 (1992).  We review 

         the IJ's legal determinations de novo, but will accord deference to its legal 

         determinations unless they are clearly contrary to the statute's language or to 

         congressional intent.  Rivera-Jimenez, 214 F.3d at 1216.

              In her second asylum application, petitioner claimed that after Lithuania 

         regained its independence from the Soviet Union, she turned over files to the 

         (1)     The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
         (IIRIRA) alters the availability, scope, and nature of judicial review in INS cases. 
         Because petitioner'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, transitional IIRIRA rules apply in this case.  RiveraJimenez v. 
         INS, 214 F.3d 1213, 1215 n.1 (10th Cir. 2000) (per curiam).  The transitional 
         rules do not bar petitioner from seeking judicial review of the INS's final order in 
         this case.  Id.
         press exposing certain Lithuanian political leaders as former members of the 

         KGB.  She claimed that bodyguards and an aide of one such politician went to 

         her home and demanded the files at gunpoint.  She claimed that she was summoned
		  to the aide's office two weeks later and detained without food or sleep 

         for two days and threatened with imprisonment in a mental hospital.  She 

         contends this politician might assassinate her in revenge if she returned 

         to Lithuania.

              The IJ determined that petitioner's claims of past persecution were not 

         credible because she never mentioned any allegations concerning the KGB files, 

         the detention or the alleged threats in her first asylum application, prepared with 

         the assistance of counsel, or in her affidavit accompanying her application or in 

         her interview with the INS asylum officer.  The IJ also did not believe her 

         testimony that she was afraid to tell the asylum officer about these allegations of 

         persecution in light of her current assertion that these events caused her to leave 

         Lithuania.  The IJ also concluded that petitioner had failed to establish a 

         well-founded fear of future persecution because the claimed accusations no 

         longer had any impact on any politician's reputation and petitioner's claimed role 

         in any accusations was insufficient to cause anyone to seek revenge against her.

              Petitioner claims the IJ improperly based his credibility determination on 

         what amounts to an "irrebuttable presumption" that her original counsel provided 

         effective assistance in prosecuting her initial asylum application.  Appellant's Br. 

         at 15.  Petitioner misconstrues the basis of the IJ's determination.  The IJ's 

         credibility determination was based not just on petitioner's failure to make known 

         these claims of persecution in the initial asylum application prepared with
         counsel, but also her own failure to mention these claims in her affidavit and 

         during her asylum interview, coupled with the inherent unbelievability of aspects 

         of her testimony.  Contrary to petitioner's assertion, the IJ did make a de novo 

         determination of petitioner's credibility and eligibility for asylum and did not 

         inappropriately base his determination on the denial of her initial application. 

         See 8 C.F.R. . 208.2(b) (1991) (immigration judge to review asylum claims de 


              Petitioner contends that the IJ inappropriately denied her application based 

         on his determination that she was not the prime mover in the exposure of former 

         KGB agents.  Regulations provide that the IJ "shall not require the applicant to 

         provide evidence that [s]he would be singled out individually for persecution" if 

         [s]he establishes [her] inclusion in and identification with "similarly situated" 

         groups of persons against which there is a "pattern or practice" of persecution.  

         8 C.F.R. . 208.13(b)(2)(i).  The evidence before the IJ showed that accusations 

         of KGB involvement by Lithuanian officials had been widespread in the years 

         following Lithuania's independence.  The IJ found no evidence of harm or 

         persecution against anyone else who had made similar accusations of KGB 

         involvement, and determined that petitioner was unlikely to be singled out as 

         a target of persecution in the future because of her claimed role in accusing 

         a handful of officials.  The IJ correctly identified and applied the standards for
         determining whether a well-founded fear of future persecution has been shown. 

         Hadjimehdigholi v. INS, 49 F.3d 642, 649 (10th Cir. 1995).

              In making its determination that there was no evidence of repression in the 

         then-current government of Lithuania, the IJ relied in part on the State 

         Department's assessment of conditions in Lithuania in its Country Report on 

         Human Rights Practices for 1993.  The IJ is free to treat the information in 

         Country Reports as evidence, 8 C.F.R. . 208.12(a), and petitioner was given 

         notice and an opportunity to respond to the Country Report, see Kowalczyk v. 

         INS, 245 F.3d 1143, 1147-48 (10th Cir. 2001) (requiring INS to provide notice 

         and opportunity to respond before taking administrative notice of facts during 

         immigration proceedings).  Contrary to petitioner's contention, the IJ did not rely 

         exclusively on this evidence.  The IJ also considered the testimony of an expert 

         witness, the testimony of each witness and all of the documentary evidence. 

         We find nothing improper in the IJ's use of the Country Report.  Petitioner's 

         remaining arguments essentially contend the IJ gave too much weight to her 

         inability to provide documentary support for her allegations and insufficient 

         weight to the testimony of herself and her husband.  We may not reweigh 

         the evidence or determine the credibility of witnesses.  Refahiyat v. INS, 29 F.3d 

         553, 556 (10th Cir. 1994).

              The evidence does not compel a conclusion that petitioner suffered past 

         persecution or has a well-founded fear of future persecution if she is deported.
         Elias-Zacarias, 502 U.S. at 483-84.  Therefore, we AFFIRM the IJ's decision 

         denying petitioner's request for asylum.  


                                                 Entered for the Court
                                                 Robert H. Henry
                                                 Circuit Judge