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Melichar v. Immigration and Naturalization Service

*fn* submitted seattle washington: March 3, 1993.


Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A15-284-664

Before: Wright, Canby and Reinhardt, Circuit Judges


Jiri Melichar, a native and citizen of the former Czechoslovakia, petitions for review of a decision of the Board of Immigration Appeals ("BIA") upholding an immigration Judge's denial of his application for asylum and withholding of deportation. We deny the petition for review.

In September 1989, Melichar entered the United States as an officer aboard a Czechoslovak merchant marine ship. He deserted the ship in Louisiana and travelled to Seattle. In November 1989, Melichar filed an application for asylum and withholding of deportation in which he alleged that he had been persecuted in Czechoslovakia because of both his refusal to join the Communist Party and his religious beliefs. In February 1990, a hearing was held before an immigration Judge ("IJ"). Melichar was represented by counsel, and the proceedings were translated from English to Czech. The IJ denied Melichar's application for asylum and withholding of deportation, but granted him voluntary departure. Melichar's appeal to the BIA was dismissed in May 1991. Melichar filed a timely petition for review.

I. Denial of Asylum

Melichar contends that the BIA erred when it ruled that he failed to present sufficient evidence of past persecution or a well-founded fear of future persecution to establish his eligibility for asylum. We disagree.

We review the BIA's denial of asylum for an abuse of discretion. Abedini v. INS, 971 F.2d 188, 191 (9th Cir. 1992). The factual findings underlying the BIA's decision are reviewed under the substantial evidence standard. Id. We will reverse the BIA's decision only if the evidence presented by the petitioner is so compelling that a reasonable factfinder would have to find the requisite fear of persecution. Id. (citing INS v. Zacarias, 112 S. Ct. 812, 815, 817 (1992)). An alien may establish eligibility for asylum on the basis of either past persecution or a well-founded fear of future persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987); Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988).

The statutory term "persecution" or "well founded fear of persecution" has been defined in this Circuit as encompassing more than just restrictions or threats to life and liberty. Most simply, we have stated that persecution involves "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive."

Desir, 840 F.2d at 726-27 (citations omitted).

At the hearing before the IJ, Melichar testified that he was born in Czechoslovakia and had lived there his entire life. His parents, wife, and children remain in Czechoslovakia. Melichar stated that he did not belong to any political organizations in Czechoslovakia, nor was he involved in any anti-government activities. He began working as a crewman in the merchant marine in 1979 and was promoted to second mate sometime after 1986. He testified that during his ten years in the merchant marine, he was often offered membership in the Communist Party, but he always refused. In his written application, Melichar stated that the captain of the ship questioned him repeatedly about his refusal to join the party and forced him to sign a statement to document his refusal. At the hearing, Melichar alleged that his refusal to join the Party caused him "many little bothers"; for example, he could not enroll his children in kindergarten and his job was endangered. Nevertheless, he admitted that he had never actually lost his job and, in fact, he had been promoted. In both his written application and his hearing testimony, Melichar alleged that when he was in Czechoslovakia on leave from the ship, he was questioned by Communist Party officials, his apartment was searched by the secret police, and his telephone was tapped.

Melichar's application also stated that he was a devout Catholic, but he was unable to practice his religion openly in Czechoslovakia and had been reprimanded by the ship's captain for attending church services in various foreign port cities. Furthermore, he testified that approximately five months before he deserted the ship, the captain warned him that he might lose his job if he continued to attend church services. He admitted, however, that during his previous 9 1/2 years on the ship, no one had bothered him about his religion. Finally, Melichar testified that if he returned to Czechoslovakia, he would not have a job because he had deserted the ship.

The BIA reviewed this evidence and concluded that Melichar had neither established a well-founded fear of persecution nor demonstrated past persecution sufficient to justify asylum on humanitarian grounds. In particular, the BIA noted that (1) Melichar's testimony regarding the alleged searches of his apartment and wiretaps on his phone lacked specific details; (2) despite his refusal to join the Communist Party, Melichar had been employed on the ship for ten years; and (3) his parents, wife, and children remained in Czechoslovakia "without any apparent difficulties from the authorities." We conclude that the BIA did not abuse its discretion by denying asylum to Melichar. Substantial evidence supports its decision that his experiences in Czechoslovakia did not amount to persecution within the meaning of the Immigration and Nationality Act. See Desir, 840 F.2d at 729.*fn1

Melichar's reliance on In re Chen, Interim Decision 3104 (BIA 1989), is misplaced. In Chen, the BIA ruled that where an alien or his family has suffered "atrocious forms of persecution," humanitarian considerations may warrant a grant of asylum "even if there is no likelihood of future persecution." Id., slip op. at 5. Melichar's allegations of persecution do not even come close to the level of mistreatment suffered by Chen and his family. Accordingly, the BIA ...

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