United States Court of Appeals
SEP 13 2001
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
v. No. 00-9535
IMMIGRATION & NATURALIZATION (Petition for Review)
ORDER AND JUDGMENT(1)
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.
Petitioner Daive Mickeviciute seeks review of the final decision by the
Board of Immigration Appeals (BIA) affirming the immigration judge's
(1) This order and judgment is not binding precedent, except under the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.
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 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,
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
(1) On September 30, 1996, the President signed into law the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),
Pub.L.No. 104208, 110 Stat. 3009546, 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).
bolstered its decision, and was not a statement that petitioner's 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.
(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 posthoc 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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