Baka v. I.N.S.

• Decision Date: 13 May 1992
• Docket Number: No. 91-9533,91-9533
• Court: U.S. Court of Appeals — Tenth Circuit
• Parties: Istvan BAKA, Eva Baka, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Page 1376

963 F.2d 1376

Istvan BAKA, Eva Baka, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 91-9533.

United States Court of Appeals, Tenth Circuit.

May 13, 1992.

Daniel F. Boyle, Denver, Colo., for petitioners.

Stuart M. Gerson, Asst. Atty. Gen., Civil Div., Richard M. Evans, Asst. Director, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice, Washington, D.C., for respondent.

Before MOORE, TACHA, and BRORBY, Circuit Judges.

PER CURIAM.

Petitioners Istvan Baka and his wife Eva Baka appeal from an order of the Board of Immigration Appeals (Board) affirming the judgment of the immigration judge (IJ) which denied the Bakas' applications for asylum and withholding of deportation and granted their application for voluntary departure. ¹ We affirm.

On June 8, 1988, the Bakas and their son, Istvan Baka, Jr. ² were admitted to this country from Hungary on B-2 visitor visas. Having overstayed their authorized visit in violation of 8 U.S.C. § 1251(a)(2), deportation proceedings were commenced. The Bakas conceded deportability, but applied for asylum and withholding of deportation.

After a hearing before the IJ, the Bakas' applications were denied. They were granted voluntary departure.

On appeal, the Board affirmed the immigration judge's order after taking administrative notice of the fact that the Hungarian government has been "dismantled" and that Hungary is now a "western-style parliamentary democracy." Administrative R. at 11 (citing to Hungary: Country Papers and Fact Sheet, December 1990, Bureau of European and Canadian Affairs, United States Department of State). The Board held that the Bakas had failed to establish an objective basis for their fear of persecution and there was no indication asylum should be granted for humanitarian reasons.

On appeal, the Bakas argue that the Board improperly took administrative notice of the fact that the Communist party was no longer in total control of the Hungarian government. They also argue that the Board imposed the improper burden of proof of past persecution on the Bakas consequently denying them asylum for humanitarian reasons.

"[T]he Immigration and Nationality Act has provided two methods through which an otherwise deportable alien who claims that he will be persecuted if deported can seek relief." INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1209, 94 L.Ed.2d 434 (1987). The Attorney General, at his discretion, may grant asylum to an alien who is unwilling or unable to be repatriated due to past "persecution or a well-founded fear of [future] persecution" in accordance with 8 U.S.C. § 1101(a)(42). Id. Under 8 U.S.C. § 1253(h), however, the Attorney General must withhold deportation of an alien who shows that his life or freedom would be threatened if he were to be deported. Id. Thus, the Act establishes "a broad class of refugees who are eligible for a discretionary grant of asylum, and a narrower class of aliens who are given a statutory right not to be deported to the country where they are in danger." Id. at 424, 107 S.Ct. at 1209.

"The alien bears the burden of proof in the deportation proceedings." Kapcia v. INS, 944 F.2d 702, 707 (10th Cir.1991). The alien must prove eligibility for asylum "by establishing that he or she is a refugee. To establish refugee status, the alien must prove 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.' " Id. at 706 (quoting 8 U.S.C. § 1101(a)(42)). We review the Board's findings of whether the alien met his burden under the substantial evidence standard. Id. at 707.

In attempting to meet his burden, the alien must establish a "well-founded fear of persecution." Persecution has been defined "as the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive. ' "Persecution" or "well-founded fear of persecution" encompass[es] more than just restrictions or threats to life and liberty.' " Zalega v. INS, 916 F.2d 1257, 1260 (7th Cir.1990) (quoting among others Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988)) (citation omitted).

The Bakas attempted to establish their fear of future persecution not only by reference to past instances of alleged persecution, see infra, but also by noting that they had called their employers upon their arrival in the United States informing them that they would not be returning to Hungary. The Bakas also stated that they feared they would be unable to obtain employment upon their return. Potential job loss or generalized economic disadvantage, however, does not equal persecution. See Zalega, 916 F.2d at 1260 (termination of employment alone not economic persecution). The Bakas also stated that they feared retaliation because they had been out of the country over ninety days.

The Board rejected the Bakas' claim of fear of future persecution by taking official notice of the changes in the Hungarian government. The Bakas argue that the Board should not have taken official notice because the changes are not common knowledge. The Bakas argue that the Board engaged in insufficient rule making and, therefore, could not reasonably interpret the facts. The Bakas further argue that the changes in Hungary are volatile, are not well understood by reasonable people, are not quantifiable or qualifiable as to the plain meaning of attendant practical consequences, and the meaning of the downfall of Communist influence is subject to dispute and uncertainty.

"An agency such as the Board may take 'official notice' of 'commonly acknowledged facts, [and] ... technical or scientific facts that are within the agency's area of expertise.' " Kapcia, 944 F.2d at 705 (quoting McLeod v. INS, 802 F.2d 89, 93 n. 4 (3d Cir.1986)). " 'The Board's notice of current events bearing on an applicant's well-founded fear of persecution ... falls within this accepted category.' " Kapcia, 944 F.2d at 705 (quoting Kaczmarczyk v. INS, 933 F.2d 588, 593-94 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 583, 116 L.Ed.2d 608 (1991)). The taking of such notice is "committed to the broad discretion of...