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Kazlauskas v. Immigration & Naturalization Service

filed*fn*: January 27, 1995.

GIEDRIUS LEO KAZLAUSKAS, PETITIONER,
v.
IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A29-206-531.

Before: Procter Hug, Jr., Charles Wiggins, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Wiggins; Dissent by Judge Noonan.

Author: Wiggins

WIGGINS, Circuit Judge:

OVERVIEW

Petitioner Giedrius Leo Kazlauskas was found deportable by an immigration Judge ("IJ") and Kazlauskas' applications for asylum and temporary withholding of deportation were denied. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision, and Kazlauskas appeals. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we affirm.

FACTS

Kazlauskas was born in Kaunas, Lithuania in 1964, when that country was controlled by the Soviet Union. Kazlauskas' father had been a dissident and political prisoner in Soviet labor camps, where he died in 1975. Kazlauskas was religious and resisted participation in programs sponsored by the Communist Party. As a result, he was ostracized, harassed by his teachers and peers, and prevented from advancing to the university.

Kazlauskas came to this country in 1980, at the age of sixteen. Shortly thereafter, he developed a drinking problem. In 1983, he was twice convicted of burglary. His mother was granted asylum as a refugee in 1984, but Kazlauskas failed to attend the hearing at which he, too, could have been granted asylum. Since then, he has become sober and has held a steady job that allows him to help his mother with her bills.

The INS began deportation proceedings against Kazlauskas on December 11, 1989. The order to show cause alleged that Kazlauskas was deportable because he overstayed his visa and because he had been convicted of two crimes of moral turpitude, in violation of 8 U.S.C. § 1251(a)(2) and (4) (now renumbered as 8 U.S.C. § 1251(a)(1)(C)(i) and (2)(A)(ii)). Kazlauskas conceded his deportability, but he requested asylum under 8 U.S.C. § 1158(a) ("section 208") and temporary withholding of deportation under 8 U.S.C. § 1253(h) ("section 243(h)"). After a preliminary hearing, the IJ solicited the opinion of the State Department concerning Kazlauskas' requests. On March 12, 1990, the State Department responded that it believed that Kazlauskas had a well-founded fear of persecution if he returned to Lithuania.

When the hearing reconvened on October 22, 1990, the IJ requested another State Department opinion because of changes that recently had occurred in Lithuania. That opinion, dated April 30, 1991, stated that "the situation in the Baltic republics is still very fluid," and that "it is not possible to predict what would await [Kazlauskas] if he were obliged to return" to Lithuania. Kazlauskas' hearing resumed on April 8, 1992. The IJ denied Kazlauskas' requests for asylum and temporary withholding of deportation. The BIA affirmed the IJ's decision and adopted the IJ's reasoning. Kazlauskas appeals, arguing that the treatment that he suffered while a youth in Lithuania and the likelihood of persecution if he returns merit relief from deportation.

Discussion

I. DENIAL OF APPLICATION FOR ASYLUM

A. Standard of Review

Because the BIA did not independently review Kazlauskas' case and instead adopted the IJ's opinion, we review the decision of the IJ. See Campos-Granillo v. INS, 12 F.3d 849, 852 (9th Cir. 1993). We review a denial of asylum for an abuse of discretion. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir. 1992). The factual findings underlying the decision are reviewed for substantial evidence, and the IJ's determination should not be reversed absent compelling evidence ...


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