Kazlauskas v. I.N.S.

• Decision Date: 05 April 1994
• Docket Number: No. 92-70665,92-70665
• Citation: 46 F.3d 902
• Parties: Giedrius Leo KAZLAUSKAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 902

46 F.3d 902

Giedrius Leo KAZLAUSKAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 92-70665.

United States Court of Appeals Ninth Circuit.

Submitted April 5, 1994. ^*

Decided Jan. 27, 1995.

Judith L. Wood, Los Angeles, CA, for petitioner.

Karen Fletcher Torstenson, Office of Immigration Litigation, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before: HUG, WIGGINS, and NOONAN, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Petitioner Giedrius Leo Kazlauskas was found deportable by an immigration judge ("IJ") and Kazlauskas' applications for asylum and temporary withholding of deportation were denied. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision, and Kazlauskas appeals. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a, and we affirm.

FACTS

Kazlauskas was born in Kaunas, Lithuania in 1964, when that country was controlled by the Soviet Union. Kazlauskas' father had been a dissident and political prisoner in Soviet labor camps, where he died in 1975. Kazlauskas was religious and resisted participation in programs sponsored by the Communist Party. As a result, he was ostracized, harassed by his teachers and peers, and prevented from advancing to the university.

Kazlauskas came to this country in 1980, at the age of sixteen. Shortly thereafter, he developed a drinking problem. In 1983, he was twice convicted of burglary. His mother was granted asylum as a refugee in 1984, but Kazlauskas failed to attend the hearing at which he, too, could have been granted asylum. Since then, he has become sober and has held a steady job that allows him to help his mother with her bills.

The INS began deportation proceedings against Kazlauskas on December 11, 1989. The order to show cause alleged that Kazlauskas was deportable because he overstayed his visa and because he had been convicted of two crimes of moral turpitude, in violation of 8 U.S.C. Sec. 1251(a)(2) and (4) (now renumbered as 8 U.S.C. Sec. 1251(a)(1)(C)(i) and (2)(A)(ii)). Kazlauskas conceded his deportability, but he requested asylum under 8 U.S.C. Sec. 1158(a) ("section 208") and temporary withholding of deportation under 8 U.S.C. Sec. 1253(h) ("section 243(h)"). After a preliminary hearing, the IJ solicited the opinion of the State Department concerning Kazlauskas' requests. On March 12, 1990, the State Department responded that it believed that Kazlauskas had a well-founded fear of persecution if he returned to Lithuania.

When the hearing reconvened on October 22, 1990, the IJ requested another State Department opinion because of changes that recently had occurred in Lithuania. That opinion, dated April 30, 1991, stated that "the situation in the Baltic republics is still very fluid," and that "it is not possible to predict what would await [Kazlauskas] if he were obliged to return" to Lithuania. Kazlauskas' hearing resumed on April 8, 1992. The IJ denied Kazlauskas' requests for asylum and temporary withholding of deportation. The BIA affirmed the IJ's decision and adopted the IJ's reasoning. Kazlauskas appeals, arguing that the treatment that he suffered while a youth in Lithuania and the likelihood of persecution if he returns merit relief from deportation.

DISCUSSION

I. DENIAL OF APPLICATION FOR ASYLUM

A. Standard of Review

Because the BIA did not independently review Kazlauskas' case and instead adopted the IJ's opinion, we review the decision of the IJ. See Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir.1993). We review a denial of asylum for an abuse of discretion. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). The factual findings underlying the decision are reviewed for substantial evidence, and the IJ's determination should not be reversed absent compelling evidence of persecution. See INS v. Elias-Zacarias, 502 U.S. 478, 480-81, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Ghebllawi v. INS, 28 F.3d 83, 85-86 (9th Cir.1994).

B. Kazlauskas' Asylum Application

A two-step inquiry is required in evaluating an applicant's request for asylum. Barraza Rivera v. INS, 913 F.2d 1443, 1449 (9th Cir.1990). First, the applicant must establish his eligibility for asylum by demonstrating that he meets the statutory definition of a "refugee." Id.; 8 U.S.C. Sec. 1158(a) (asylum is only available if the applicant is a "refugee" as defined by 8 U.S.C. Sec. 1101(a)(42)(A)). ¹ Refugee status may be established by a showing of either past persecution or likely future persecution. Acewicz v. INS, 984 F.2d 1056, 1061-62 (9th Cir.1993); Berroteran-Melendez, 955 F.2d at 1255 & n. 3 (citing Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988)); Matter of Chen, 1989 WL 331860, Interim Dec. 3104, 1989 BIA LEXIS 10, at * 4-* 6 (B.I.A. Apr. 25, 1989); see 8 U.S.C. Sec. 1101(a)(42)(A) (defining a refugee as one who is unable or unwilling to return to his country of origin "because of persecution or a well-founded fear of persecution") (emphasis added).

The second question is whether the eligible applicant is entitled to asylum as a matter of discretion. 8 U.S.C. Sec. 1158(a); ² INS v. Stevic, 467 U.S. 407, 423 n. 18, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984); Barraza Rivera, 913 F.2d at 1449. At this second step, prospective questions about the potential effects of the applicant's return to his country of origin again are relevant, even if the applicant established his eligibility for asylum by showing only past persecution. See Matter of Chen, 1989 WL 331860, 1989 BIA LEXIS 10, at * 6 ("[i]f an alien establishes that ... he is eligible for a grant of asylum[,] [t]he likelihood of present or future persecution then becomes relevant as to the exercise of discretion, and asylum may be denied as a matter of discretion if there is little likelihood of present persecution").

While the oral decision of the IJ in this case is not a model of clarity, we conclude that Kazlauskas' request for relief from deportation was properly denied. The IJ's opinion states the correct two-step inquiry and it does address the relevant factors of Kazlauskas' case.

The IJ stated that Kazlauskas was "statutorily as well as discretionarily ineligible for asylum." We read this statement as a conclusion by the IJ that Kazlauskas demonstrated neither his eligibility nor his entitlement to asylum. We do not decide whether the IJ correctly determined that Kazlauskas was statutorily ineligible for asylum because we conclude that the IJ permissibly found asylum unwarranted as a matter of discretion.

In determining whether to grant asylum as a discretionary matter, the likelihood of future persecution is a particularly important factor to consider. See Matter of Pula, 19 I. & N. Dec. 467, 474 (1987). The IJ concluded that Kazlauskas does not have a well-founded fear of persecution if he returns to Lithuania, and we agree.

To establish a well-founded fear of persecution, Kazlauskas must show both that he has a genuine fear, and that his fear is objectively reasonable. See Berroteran-Melendez, 955 F.2d at 1256. The IJ exhaustively explained why Kazlauskas could not meet the objective element in light of the dramatic political and social changes in the Baltic Republics. ³ We find substantial evidence to support the IJ's conclusion. ⁴ The IJ based his analysis on the 1991 State Department Country Report on Human Rights Practices, which has been described as "the most appropriate and perhaps the best resource" for "information on political situations in foreign nations." Rojas v. INS, 937 F.2d 186, 190 n. 1 (5th Cir.1991); see also Getachew v. INS, 25 F.3d 841, 847-88 (9th Cir.1994) (disputing BIA's description of the political climate in Ethiopia based on the differing analysis contained in the State Department's country report). The State Department report provided the most up-to-date information about conditions in Lithuania and it described a country that had changed dramatically since the August 1991 failed coup in the Soviet Union. Since then, the Lithuanian authorities had fully assumed the reigns of government, enacted numerous laws to protect individual rights, improved the conditions of Lithuanians who had been imprisoned during Soviet control, and discontinued many of the former Soviet practices of surveillance and control. There had been no reports of conduct by the Lithuanian authorities similar to the repressive and abusive conduct by former Soviet authorities.

Absent a likelihood of future persecution, asylum is warranted for "humanitarian reasons" only if Kazlauskas demonstrates that in the past "[he] or his family has suffered 'under atrocious forms of persecution.' " Acewicz, 984 F.2d at 1062 (quoting Matter of Chen, 1989 WL 331860, 1989 BIA LEXIS 10, at * 8 (internal quotation omitted)). In Matter of Chen, 1989 WL 331860, the BIA concluded that sufficiently atrocious persecution had been shown where a Chinese Christian had been tortured, harassed, confined, and denied food and medical attention since the age of eight. 1989 WL 331860, 1989 BIA LEXIS 10, at * 9-* 14. We do not attempt to define the minimum showing of "atrocity" necessary to warrant a discretionary grant of asylum based on past persecution alone. We merely hold that the IJ did not abuse his discretion by concluding that the harassment and ostracism Kazlauskas suffered is not such "atrocious" past persecution as to warrant a discretionary grant of asylum. ⁵

If an IJ fails to consider factors that are relevant to the asylum application, it abuses its discretion. Castro-O'Ryan v. INS, 847 F.2d 1307, 1314 (9th Cir.1987). That is not the case here, however. The IJ considered both favorable and unfavorable factors, including the likelihood of persecution if Kazlauskas returns to Lithuania, the severity of Kazlauskas' and his family's past persecution, his alcohol rehabilitation, the circumstances surrounding his departure from Lithuania and his...