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                           United States Court of Appeals
                                    Tenth Circuit
                                     NOV 29 2001
                                   PATRICK FISHER
                               FOR THE TENTH CIRCUIT
         PATRICIO LOBOS,                  
         v.                                         No.  01-9501
                                                (BIA No. A70-569-987)
         IMMIGRATION &  NATURALIZATION          (Petition for Review)
         Before KELLY, BALDOCK, 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.

         (1)     This order and judgment is not binding precedent, except under the 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.
              Petitioner Patricio Lobos, a Chilean citizen and native who has conceded 

         deportability, appeals from the decision of the Board of Immigration Appeals 

         denying his petition for asylum and for withholding of deportation.  Exercising 

         jurisdiction under 8 U.S.C. . 1105a(a) (1995),(1) we deny the petition for review.

                         I.  Relevant facts and proceedings

              On December 28, 1991, petitioner entered the United States as a visitor. 

         Because he stayed longer than the six months authorized by his visa, the 

         Immigration and Naturalization Service (INS) instituted deportation proceedings 

         against him, after which petitioner applied for asylum and withholding of 


               Petitioner claimed that he had endured past persecution and feared future 

         persecution in Chile because of his political opinion and support of former 

         president Augusto Pinochet.  As support, petitioner provided testimony that in 

         February 1991, he was abducted by a group of armed men, beaten, and threatened 

         that, if he and his father (the secretary of the national Railway Labor Union) 

         continued their opposition to President Aylwin, they would be killed.  At his 

         hearing, petitioner testified that his abductors were left-wing members of the 

         government.  The immigration judge noted, however, that the newspaper clipping 

         petitioner used to support his allegations stated that his abductors were extreme 

         leftist terrorists, not government agents, and was apparently based upon 

         petitioner's account of the abduction.  R. at 52.  The judge also found that the fact 

         that petitioner did not leave Chile to come to the United States for ten months 

         after the incident notwithstanding that his visa was issued in August 1991 

         indicated that his fear of persecution was not substantial or genuine.  The 

         immigration judge concluded that petitioner had not suffered past persecution 

         from governmental agents.

              As to the issue of future persecution, the judge questioned petitioner's 

         credibility based upon many inconsistencies in his testimony.  He noted that 

         petitioner's father had stayed in Chile without suffering actual persecution from 

         the government and had continued working in his job.  The judge also took
         (1)     As we recently explained,
         [i]n 1996, 8 U.S.C.  1105a was repealed by section 306(b) of the 
         Illegal Immigration Reform and Immigrant Responsibility Act 
         (IIRIRA), Pub.L. No. 104208, 110 Stat. 3009.  IIRIRA dramatically 
         changed the scope and nature of judicial review in exclusion cases. 
         But because the INS commenced deportation proceedings against the 
         petitioner before IIRIRA's effective date, April 1, 1997, and the final 
         deportation order was entered after October 31, 1996, our review is 
         governed by the preIIRIRA rulesas amended by IIRIRA's 
         transitional rules.  See IIRIRA 306(c)(1), reprinted as amended in 
         8 U.S.C.  1252 note; IIRIRA 309(a), (c)(1) & (4), reprinted as 
         amended in 8 U.S.C. 1101 note.  Under the transitional rules,  
         1105a remains in effect but for minor procedural amendments.
         Woldemeskel v. INS, 257 F.3d 1185, 1187 n.1 (10th Cir. 2001).
         judicial notice of the Country Reports on Human Rights Practices for 1993 for 

         Chile, which were prepared by the United States Department of State.  The report 

         stated that the current government was not responsible for any political killings or 

         disappearances.  See R. at 101-03.  The report also noted that the 1993 Chilean 

         government, which is now a "constitutional democracy," id. at 106, "includes 

         many human rights leaders and victims in important positions."  Id. at 103. 

         According to the report, the judiciary was still dominated in 1993 by appointees 

         of former president Pinochet's regime, id. at 104, a fact favorable to petitioner.  

         The new regime also limited the jurisdiction of military courts over the 

         prosecution of political crimes, id., which was another fact indicating that judicial 

         persecution would be unlikely.

              The judge considered that there had been two successive free elections 

         electing civilian presidents since 1990 and that human rights inquiries had 

         been centered on prior administrations, including former president Pinochet's. 

         The political entity petitioner had been involved with in 1991 no longer 

         independently existed, having joined with a larger political group.  The 

         immigration judge determined that, because petitioner's father was retiring within 

         the year and would no longer have the same kind of political influence, any 

         threats based upon his father's support of Pinochet would decrease or disappear. 

         Thus, the immigration judge concluded that petitioner's fears of future
         persecution were overstated and that country conditions had changed.  Finally, the 

         judge believed that, if petitioner had really come to the United States out of a 

         genuine fear of persecution, he would have immediately applied for asylum 

         instead of waiting ten months after his visa ran out.

              In August 1994, the immigration judge denied petitioner's application, 

         concluding that he had not established statutory eligibility for asylum.  The judge 

         granted the government's request for voluntary departure on or before October 1, 

         1994.  In an order dated December 18, 2000, the Board of Immigration Appeals 

         (BIA) affirmed the immigration judge's decision and this petition for review 

                                  II.  Discussion

              An application for asylum involves two steps.  First, the applicant must 

         prove statutory eligibility by establishing refugee status.  8 C.F.R. . 208.13(a); 

         Kapcia v. INS, 944 F.2d 702, 706 (10th Cir. 1991).  To do so, the applicant must 

         demonstrate 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."  8 U.S.C. . 1101(a)(42)(A). 

         "Persecution" means the "infliction of suffering or harm upon those who differ 

         (in race, religion, or political opinion) in a way regarded as offensive" and
         "encompasses more than just restrictions or threats to life and liberty."  Baka v. 

         INS, 963 F.2d 1376, 1379 (10th Cir. 1992) (quotations omitted). 

              Analysis of a claim based on a "well-founded fear of [future] persecution" 

         includes a subjective and an objective component.  Kapcia, 944 F.2d at 706.  The 

         applicant proves the objective component by "credible, direct, and specific 

         evidence in the record, of facts that would support a reasonable fear that the 

         petitioner faces persecution."  Id. at 706 (quotation omitted); see also 8 C.F.R. . 

         208.13(b)(2)(i)(B) (applicant must prove "reasonable possibility" of future 

         persecution).  If an objective basis is shown, the applicant must further show that 

         his subjective fear is genuine.  Kapcia, 944 F.2d at 706.

              If an applicant demonstrates statutory eligibility based on past persecution, 

         however, a rebuttable presumption of a reasonable fear of future persecution 

         arises.  8 C.F.R. . 208.13(b)(1); Nazaraghaie v. INS, 102 F.3d 460, 462 (10th Cir. 

         1996).  To rebut the presumption, the INS must establish by a preponderance of 

         evidence that the applicant no longer has a well-founded fear of persecution 

         because country conditions have changed.  8 C.F.R. . 208.13(b)(1)(i)(A); 

         Nazaraghaie, 102 F.3d at 462.  "[T]he immigration judge or [the BIA] may 

         take administrative notice of changed circumstances in appropriate cases, such as 

         where the government from which the threat of persecution arises has been
         removed from power."  Kapcia, 944 F.2d at 709 (quotations and emphasis 


              If the applicant proves eligibility for refugee status, in the second step 

         of the application process, the Attorney General exercises "extremely broad" 

         discretionary judgment to grant or deny asylum.  Id. at 708.  

              A.  Standard of Review

              We apply a substantial evidence standard to the BIA's resolution of the 

         question whether an asylum applicant has established refugee status.

              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 by [the applicant] was such 
              that a reasonable factfinder would have to conclude that the requisite 
              fear of persecution existed.
         INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation omitted) (quoting 

         8 U.S.C. . 1105a(a)(4) (1995)).  We will not, therefore, "weigh the evidence 

         or . . . evaluate the witnesses' credibility."  Kapcia, 944 F.2d at 707 (quotations 

         omitted).  At the second step, we review the BIA's discretionary decision to deny 

         asylum for abuse of discretion.  Id. at 708.  We will not substitute our judgment 

         for that of the BIA, but we do require a "rational connection between the facts 

         found and the choice made."  Id. (quotations omitted).

              B.  Analysis

                   1.  Asylum.  Petitioner claims that he has proven that he was 

         persecuted in the past by the Chilean government so as to create an unrebutted 

         presumption of fear of future persecution.  We have carefully reviewed the record 

         and hold that the BIA's factual and credibility determinations discussed, supra, 

         are supported by substantial evidence on the whole record.

              Petitioner also claims that he has proven a well-founded fear of future 

         persecution, entitling him to a grant of asylum and withholding of deportation. 

         Petitioner may prove a well-founded fear of persecution based on his political 

         opinion in either of two ways:  by demonstrating that he would be personally 

         singled out for persecution in Chile if he returned, or by showing a reasonable 

         fear of persecution because of his membership in a group subject to "a pattern or 

         practice of persecution."  8 C.F.R. . 208.13(b)(2)(iii)(A)-(B); Woldemeskel v. 

         INS, 257 F.3d 1185, 1190 (10th Cir. 2001).  The group must consist "of persons 

         similarly situated to [him] on account of . . . political opinion." 

         8 C.F.R. . 208.13(b)(2)(iii)(A); Woldemeskel, 257 F.3d at 1190-91.

              The BIA concluded that petitioner failed to meet his burden of proof under 

         either approach, and we agree.  Petitioner failed to show particularized 

         persecution by the government targeted at him or his family.  Petitioner's father's 

         affidavit states only that he has been "put off" in his career, whatever that means,
         because he is not "a participant to the current government," that someone had 

         thrown rocks against his house, and that he and his wife had received unspecified 

         "threats and insults over the telephone."  R. at 110.  Petitioner admitted that, 

         although his father was still actively opposed to leftist government, he still 

         worked in the national railroad company.  R. at 76.  Thus, the record only 

         supports a finding that petitioner may experience political alienation and threats 

         because he disagrees with what he perceives to be the current government's 

         policies.  See Woldemeskel, 257 F.3d at 1191-92 (noting that disagreement with 

         governmental policies and termination of employment is insufficient to support a 

         grant of asylum); Baka, 963 F.2d at 1379 (well-founded fear must be based on 

         more than just restrictions or threats to life and liberty).

              The record also supports the BIA's decision that petitioner did not meet his 

         burden to establish a well-founded fear of persecution based upon a practice of 

         persecuting members of his political group.  See Woldemeskel, 257 F.3d at 1191 

         ("A pattern or practice of persecution has been defined as something on the order 

         of organized or systematic or pervasive persecution.") (quotation omitted).  We 

         agree with the BIA that petitioner's objective evidence indicates that persecutions 

         and killings of individuals who had supported Pinochet were conducted by leftists 

         terrorists and not by the Chilean government, and that the government had 

         prosecuted those suspected in the killings.  Petitioner simply provided no
         evidence that individuals or groups supportive of Pinochet's former government 

         now, or have ever, suffered systematic or pervasive persecution from the new 


                   2.  Withholding of deportation.  Petitioner has likewise failed to 

         show entitlement to withholding of deportation.  In order to demonstrate such 

         eligibility, the applicant must establish a "clear probability of persecution" 

         through presentation of "evidence establishing that it is more likely than not that 

         [the applicant] would be subject to persecution on one of the specified grounds." 

         INS v. Stevic, 467 U.S. 407, 429-30 (1984).  Because substantial evidence 

         supports the BIA's decision denying his asylum claim, petitioner clearly could not 

         carry his burden under the more stringent standard required for withholding of 

         deportation.  See Woldemeskel, 257 F.3d at 1193.

              We accordingly DENY the petition for review and AFFIRM the BIA's 

         decision to deny asylum and withholding of deportation and to grant voluntary 


                                                 Entered for the Court
                                                 Bobby R. Baldock
                                                 Circuit Judge