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Koszynski v. United States Immigration and Naturalization Service

*fn* submitted: March 23, 1993.

GREZEGORZ KOSZYNSKI, PETITIONER,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A22-463-808

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

MEMORANDUM

Grezegorz Koszynski, a native and citizen of Poland, petitions for review of the Board of Immigration Appeals' ("BIA") order affirming the immigration Judge's ("IJ") decision finding Koszynski deportable and denying Koszynski's requests for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We deny the petition for review.

I

Administrative Notice

Koszynski contends the BIA erred by deciding his case based on political considerations rather than on an individual basis.*fn1 He refers to the BIA's taking of administrative notice of political changes that have occurred in Poland since 1989.

The BIA is entitled to take administrative notice of Solidarity's participation in Poland's new coalition government and of Lech Walesa's election as president. Acewicz v. INS, 984 F.2d 1056, slip op. 969, 977 (9th Cir., 1993). Nevertheless, due process may require the BIA to provide the petitioner an opportunity to rebut the noticed facts. Castillo-Villagra v. INS, 972 F.2d 1017, 1029 (9th Cir. 1992). Due process does not, however, require the BIA to provide an opportunity to rebut facts that are "legislative, indisputable, and general." Id.

Here, Koszynski had ample opportunity to argue before the IJ and the BIA that his fear of persecution remained well-founded despite the change in government.*fn2 See Castillo-Villagra, 972 F.2d at 1029. Thus, he was not denied due process. See Acewicz, No. 91-70257, slip op. at 978. Accordingly, the BIA did not abuse its discretion by taking administrative notice of the changed conditions in Poland and of the effect of the changes on Koszynski's fear of persecution. See id.

II

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). 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 v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988) (quotations omitted).

Koszynski's request for asylum is based in part on his fear that, as a member of Solidarity, he will be persecuted if he returns to Poland. Nevertheless, substantial evidence supports the BIA's determination that Koszynski has failed to demonstrate a well-founded fear of persecution based on his membership in Solidarity. See Acewicz, No. 91-70257, slip op. at 974-78. We therefore agree with the BIA that Koszynski has failed to establish statutory eligibility for asylum on that basis.

Koszynski also contends that he should be granted asylum based on past persecution by the Communist government. Past persecution alone, independent of a well-founded fear of future persecution, is enough to establish eligibility for asylum. Desir, 840 F.2d at 729. "The BIA may [exercise its discretion to] grant asylum for humanitarian reasons, where an applicant or his [or her] family has suffered under atrocious forms of persecution, even where ...


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