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Cotuna v. United States Immigration and Naturalization Service

*fn* submitted: March 23, 1993.


On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A26-096-664

Before: Wallace, Chief Judge, Farris and Brunetti, Circuit Judges.


Floare Cotuna, a native and citizen of Romania, petitions for review of the Board of Immigration Appeals' (BIA) order affirming the immigration Judge's (IJ) decision finding Cotuna deportable and denying Cotuna's applications for asylum and withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a(a). We deny the petition for review.


Standard of Review

We review the BIA's denial of asylum for abuse of discretion. Acewicz v. INS, No. 91-70257, slip op. 969, 978 (9th Cir. Feb. 4, 1993). We review de novo the BIA's determinations on questions of law. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988). We review the BIA's factual findings under the substantial evidence standard. Id. Under this standard, we must determine whether, based on the record considered as a whole, the BIA's decision was supported by reasonable, substantial, and probative evidence. INS v. Elias-Zacarias, 112 S. Ct. 812, 815 (1992). If an alien seeks reversal of the BIA's finding that she failed to establish that she had a well-founded fear of persecution, she must show that the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Id. at 815 & n.1. "An IJ's credibility findings are given substantial deference by the reviewing court, but must be supported by a specific, cogent reason for the disbelief." Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992) (quotations omitted).


Asylum/Withholding of Deportation

Section 208(a) of the Refugee Act of 1980 ("Act"), 8 U.S.C. § 1158(a), authorizes the Attorney General, in her discretion, to grant asylum to an alien who is a "refugee." A refugee is defined in the Act as an alien who is unable or unwilling to return to his or her home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).

To establish eligibility for asylum based on a well-founded fear of persecution, an applicant must demonstrate a fear that is both subjectively genuine and objectively reasonable. Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991). An applicant's "candid, credible and sincere testimony demonstrating a genuine fear of persecution" satisfies the subjective component of the standard. See Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987) (quotations omitted). The objective component requires "a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988) (per curiam) (quotations and emphasis omitted).

An alien is entitled to withholding of deportation pursuant to 8 U.S.C. § 1253 (h) if he or she establishes a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 413 (1984); Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988). The "clear probability" standard applicable to withholding of deportation is more stringent than the "well-founded fear" standard applicable to asylum claims. De Valle v. INS, 901 F.2d 787, 790 (9th Cir. 1990). Accordingly, an alien who fails to meet the "well-founded fear" standard required for asylum also fails to meet the "clear probability" standard required for withholding of deportation. Berroteran-Melendez, 955 F.2d at 1258.

Here, Cotuna's request for asylum is based on her fear that if she returns to Romania, she will be persecuted on account of religion. Cotuna testified that she is a Baptist, her father is a Baptist minister, and she has been persecuted throughout her life for her religious beliefs. She testified that she was detained by the government in 1985 and that she lost her job as a teacher due to religious persecution.

The lJ found that Cotuna lacked credibility, and the BIA upheld this finding. The IJ pointed out numerous inconsistencies and partial truths in Cotuna's testimony. For example, although Cotuna claimed she lost her job due to religious persecution, she apparently left her job because she got married and her husband lived in a distant city. Although she testified she had difficulty at her job due to her religion, she worked for the same company for 13 years, and accumulated enough vacation time to take a trip to the United States. Further, she was arrested and detained in 1985 because she and her husband were accused of theft. The IJ also found that the fact that she applied for asylum three days after entering this country undermined her claim that she came here for a three-month vacation. In addition, the IJ based his adverse credibility determination on Cotuna's demeanor.

Upon reviewing the record, we are satisfied that the IJ's adverse credibility determination is well-supported and we will not disturb it. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985) (IJ is in unique position to evaluate credibility and court of appeals should be reluctant to overturn IJ's credibility determination). Further, substantial evidence supports the BIA's determination that Cotuna has failed to demonstrate a well-founded fear of persecution based on religion. See Acewicz, No. ...

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