Araya v. Immigration & Naturalization Service, (10th Cir. 1999)

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UNITED

STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

KIDANE ARAYA,

Petitioner,

v.

IMMIGRATION &

NATURALIZATION SERVICE,

Respondent.

No.

98-9530

(INS No. A26 611 347)

(Petition for Review)

ORDER AND JUDGMENT
name="txt*">(*)

Before ANDERSON and KELLY, Circuit Judges,

and BROWN,(**) Senior

District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument; petitioner's request for oral

argument is denied.

Petitioner, a native Eritrean and former resident of Ethiopia, seeks review

of the Board of Immigration Appeals' order dismissing his appeal from the

immigration judge's denial of his application for asylum and withholding of

deportation. Our jurisdiction over this appeal arises from 8 U.S.C. § 1105a.
href="#N_1_a" name="txt1a">(1)

We must uphold the agency's determination that petitioner is not eligible for

asylum if it is "'supported by reasonable, substantial, and probative evidence on

the record considered as a whole.'" INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (quoting 8 U.S.C. § 1105a(a)(4)).

The Board of Immigration Appeals (BIA) concluded that petitioner failed to

meet his burden to demonstrate a well-founded fear of persecution should he

return to Eritrea. In support of this conclusion, the BIA stated that 1) petitioner

had been asked by the Eritrean government to return and work there "in spite of

his political beliefs," 2) petitioner's affidavits did not support his claim or stated

only "general opinions," 3) the witnesses at petitioner's hearing failed to establish

a reasonable possibility petitioner would be punished if he returned, and

4) materials submitted by both parties failed to support petitioner's claim of

a well-founded fear of persecution. Because the BIA concluded that petitioner

was not eligible for asylum, it also necessarily concluded that he failed to meet

the higher standard of clear probability of persecution for purposes of withholding

deportation. See Nazaraghaie v. INS, 102 F.3d 460, 465 (10th Cir. 1996).

Petitioner does not challenge the BIA's determination of his claim for

withholding deportation.

On appeal, petitioner contends that the BIA ignored large parts of the

record and mischaracterized that evidence it did consider. After careful review

of the Certified Administrative Record, we agree. The determination whether

a petitioner has demonstrated a well-founded fear of persecution is a factual

finding. See Nazaraghaie, 102 F.3d at 463 n.2. The BIA's analysis in support

of this factual finding consists of 1) quotations taken out of context and contrary

to the import of the affidavits or testimony from which they are drawn,

2) characterizations of events and evidence which are belied by consideration of

the record as a whole, and 3) statements that ignore overwhelming evidence to the

contrary. Because the BIA's analysis in support of this factual finding is not

supported by substantial evidence as required by applicable law, we must reverse

and remand to the agency for further proceedings. See Cordero-Trejo v. INS,

40 F.3d 482, 487 (1st Cir. 1994) (stating that BIA's factual findings are due no

deference when based on "inferences or presumptions that are not reasonably

grounded in the record, viewed as a whole").

We are mindful of the standards set out in Immigration & Naturalization

Service v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992), stating that a petitioner

must show "that the evidence he presented was so compelling that no reasonable

factfinder could fail to find the requisite fear of persecution." Application of this

standard on appellate review, however, presumes that the BIA considered the

record as a whole and that the factual findings underlying the ultimate

determination of asylum eligibility are supported by reasonable, substantial,

and probative evidence in that record. See id. at 481; cf.

Rivas-Martinez v. INS,

997 F.2d 1143, 1148 (5th Cir. 1993) (remanding where INS failed to apply correct

standards for asylum eligibility).

For the foregoing reasons and without implying or predicting the

ultimate

result of this case, the petition is GRANTED and the decision of the BIA is

REVERSED and REMANDED.

Entered for the Court

Wesley E. Brown

Senior District Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. 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.

**. Honorable Wesley E. Brown, Senior

District Judge, United States District

Court for the District of Kansas, sitting by designation.

1. Section 1105a was repealed by the

Illegal Immigration Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). However, the repeal is effective

only as to final orders filed on or after September 30, 1996. In this case the

immigration judge filed his order on August 6, 1996. This case is governed by

the "transitional rules" of IIRIRA.

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