USCA1 Opinion

August 4, 1994
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 93-2323
VOJTECH KUBEC,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Torruella, Selya and Stahl,
Circuit Judges.
______________
____________________

Vojtech Kubec on brief pro se.

_____________
Frank W. Hunger, Assistant Attorney General, David J. Kli
________________
______________
Assistant Director, Office of Immigration Litigation, and David
_____
Bernal, Attorney, Office of Immigration Litigation, Civil Divisi

______
Department of Justice, on brief for respondent.
____________________
____________________

Per Curiam.
__________
and citizen
review of

Petitioner, Vojtech

of Czechoslovakia,
the decision of

Kubec, a

has filed this

the Board of

native

petition for

Immigration Appeals

(BIA) denying his

application for political

U.S.C.

Petitioner also claims that the BIA abused

its

1158(a).

discretion in

immigration

judge

accepting

asylum.

certain findings

concerning

the

present

See
___

made by

nature

of

the
the

government in Czechoslovakia.
I.
_
Petitioner

was

born

in

1961

in

Plzen,

Czechoslovakia.

He attended school there and, at the time he

left Czechoslovakia in 1989, was working as a technician at a

recording

studio.

He

Czechoslovakia and

is

has one

married

to another

citizen

child.

His mother,

of

father and

sister still live in Czechoslovakia (now the Czech Republic).

Petitioner
1989,

as

permitted
petitioner

entered

nonimmigrant

to

remain here

never

left

the United
visitor

until

this

and Naturalization

show

why

cause

response,

for

pleasure;

February

1990.

country.

Immigration

petitioner

States,

As

Service issued

should not

be

in August
he

was

However,

result,

the

an order

to

deported.

In

petitioner filed applications for political asylum

and withholding of deportation.

A

deportation hearing

Petitioner admitted

the facts

was
in the

held on

May 6,

1991.

show cause order

and

-2-

conceded deportability.
the immigration
the

At

the conclusion of

judge rendered

applications for

political

the hearing,

an oral decision;
asylum and

he denied

withholding

of

deportation.

The judge determined that petitioner had failed

to demonstrate that
founded fear
The

he would

of persecution

immigration judge

if returned

did

grant

voluntary departure in lieu

1254(e)(1).

be persecuted or

had a

well-

to Czechoslovakia.

petitioner's request

of deportation.

See 8
___

for

U.S.C.

The BIA, in a short order, affirmed the judge's

decision.
II.
__
The
asylum

administrative

claims

involves

determination
discretionary
Gebremichael
____________
relation

of

decision
v. INS,
___

that he

Section 101(a)(42)
(the

Act).

INS, 976
___

See
___

two-step

statutory
whether

to
28, 35

grant

political
(1)

and

(2)

asylum.

(1st Cir. 1993).

step, petitioner bears

is a

of

process:

eligibility;

10 F.3d

to the first

establishing

consideration

a
a
See
___
In

the burden of

"refugee" within the

meaning of

of the Immigration and Naturalization Act

8 C.F.R.

F.2d 754,

758 (1st

242.17(c)(4)(iii); Ravindran v.
_________
Cir. 1992);

Alvarez-Flores v.
______________

INS, 909 F.2d 1, 3 (1st Cir. 1990).

___
"Refugee" is defined, in relevant part,
as any alien who is unwilling or unable
to return to his country "because of
persecution or a well-founded fear of
persecution on account of race, religion,

-3-

-3-

nationality, membership in a particular

social group, or political opinion."
Ravindran,
976
_________
1101(a)(42)(A)).

F.2d

To show
on

on

enumerated in
3;

758

the

or

on a

basis

of

1101(a)(42)(A).

Ravindran,
_________

(quoting

that he is a refugee,

past persecution

persecution

at

976

persecution standard

F.2d

at

petitioner can rely

well-founded
one

of

U.S.C.

the

fear of

future

five

grounds

See Gebremichael, 10 F.3d at

___ ____________
758.

The

has both a subjective

fear

of

future

and an objective

component.

Ravindran, 976 F.2d at

_________

F.2d at

That is, the fear must be genuine and petitioner

must

5.

show

facts that

"`credible,

direct, and

would establish

758; Alvarez-Flores, 909

______________

specific

the reasonableness of

Ravindran, 976 F.2d at 758 (citation omitted).

_________
determination

evidence'" of

that petitioner

substantial evidence standard.

was not

his fear.

We review the

a refugee

See Alvarez-Flores,
___ ______________

under the
909 F.2d

at 3.

Thus, we will affirm

by reasonable,
record

the BIA's decision if "supported

substantial, and

considered

as a

probative

whole. .

evidence on

. "

See 8
___

the

U.S.C.

1105a(a)(4).
Petitioner claims that
evidence, based
establish
states

he has presented sufficient

on the nature of his

a well-founded

that his

fear

of persecution.

grandfather's mill

communist governmental

political opinions, to
First,

was confiscated

authorities in

1953

he

by the

and that

these

-4-4-

authorities imprisoned his grandfather

persecution,
educational
mother, as

petitioner
and

for

petitioner refers to an
this

time,

petitioner

government about
petitioner,

they

alleges,

vocational

well as

for four years.

resulted

opportunities for

the entire

family.

limited

petitioner's
Specifically,

incident that occurred in 1987.

and

his

brother

starting their own business.

were

in

informed

that

This

approached

At
the

According to

membership

in

the

Communist Party

would

"greatly" improve

their

chances

of

success.
In determining that petitioner did not have a wellfounded fear of persecution,
the

change in

the

the immigration judge relied on

government in

Czechoslovakia since

the

occurrence of the above events.

I
take
judicial
notice
that
Czechoslovakia, at the present time, is a
free and independent country.
I take
judicial notice that the Russian Army has
left the territory of Czechoslovakia and
that democratic institutions have been
instituted in Czechoslovakia and that
Czechoslovakia
has
an
independent
democratic government with
democratic
institutions in place since the Soviet
Forces have left Czechoslovakia, and that
there have been elections, and that free
elections
have
resulted in
a free
democratic government being installed in
Czechoslovakia.
Petitioner objects to the "judicial notice"
immigration judge of these
went beyond

what is

facts.

"commonly

He argues that

acknowledged" and,

by the

the judge
instead,

-5-5-

expressed

his

own, personal

opinion.

Further, petitioner

claims

that he

was not

given

rebut this information.

a sufficient

opportunity to

However, petitioner failed to raise

these arguments in his brief in support of his appeal

to the

BIA.

raised

"Issues not raised before

for the

first

decisions."
has

time

upon

Ravindran,
_________

failed to

the [BIA] may not be

judicial review

976 F.2d at

exhaust his

761.

the

Thus,

[BIA's]

petitioner

administrative remedies

waived review of these issues.

The basis

of

and has

See id.
___ ___

for the immigration

judge's findings is

the Country Reports on Human Rights Practices for 1990 of the

__________________________________________________
Department of
5 at the

State, admitted, without objection, as exhibit

hearing.

judge,

the

After the

which

speech and

addition to the

Country
Reports
_________________

information.
enacted

In

facts stated by

provides

the

elections in 1990,

provided for

association.

the

rights

All known

the

following

legislation was

of assembly,

free

political prisoners were

freed and, in 1990, there were no reports of torture or other

cruel,

or degrading,

Interior,
the

punishments.

which had been

population,"

was

The Soviet

used as "an

abolished.

enterprises

were

removed

establish a

market economy.

and

Ministry of

instrument to control

Limitations

efforts are

on

being

Individuals are

private
made

to

permitted to,

and, in fact, do, express their political opinions and engage

in criticism

of the

present government.

Finally, citizens

-6-6-

who had left the country during the communist regime are free
to return to Czechoslovakia.
In an effort to rebut this information,
opines

that

these

changes

Specifically, he asserts that it

are

only

petitioner
superficial.

is likely that the previous

communist officials still control the government, the economy

and the local

bureaucracies.

Thus, he asserts, the "day-to-

day" operation of governmental agencies is the same as it was

under the

Soviet regime.

Petitioner concludes that he still

would

prevented from

securing any

be

returned

and

that because

of

economic gain

his anti-communist

if he

beliefs,

still would be at a high risk of persecution.

He
mother
that

also argues

that two letters

-- one

from his

and the other from a friend -- provide specific facts

should be credited over the

Country Reports.
________________
4, recite

These letters,

general conclusions of the

admitted as exhibits 3 and

that disorder prevails in

the government

has not

changed.

Czechoslovakia and that

Also,

petitioner's mother

writes

that incompetent

criticism
from

is not

the West,

people

run

tolerated and
they are

the

that if

seen as

government,

that

individuals return

criminals and

become the

targets of witchhunts and vindictive acts.

III.
___
Based

on the

above,

lacked a substantial basis

we cannot

say that

the BIA

for its finding that petitioner's

-7-7-

fears

were

not well-founded.

petitioner's allegations
note that the

even

occurred before

Petitioner's

Czechoslovakia

without

family
having

persecution.

Petitioner has

to travel to

this country;

Germany and

amount to

determining whether
"persecution,"

only evidence of specific acts on

________

the government
1990.

Without

Yugoslavia.

the change in
continues
suffered

any

we

the part of
government in

to

live

instances

in
of

been allowed by the authorities

he also took

trips to

While petitioner remained

Hungary,
in this

country, his wife was freely permitted

United

States

and

Czechoslovakia

to travel between the

with

no

adverse

consequences.
Petitioner's
only

conclusory

changed.

The

testimony and the two letters contain

statements
general

that

circumstances

references to

status of refugees returning

disorder

have

not

and to

the

to Czechoslovakia from the West

are not supported by particular incidents or names, dates and

additional relevant information.
upheld the BIA's denial

This court and others have

of asylum claims in cases

evidence has been far more compelling.

where the

See, e.g., Ravindran,

___ ____ _________

976 F.2d at 759 (imprisonment of petitioner by government for

three

days,

search

of

family

petitioner of random acts of

home,

the

witnessing

by

violence by the majority ethnic

group and persecution of petitioner's uncle were insufficient

to establish refugee status); Alvarez-Flores, 909 F.2d at 5-6
______________

-8-8-

(the detention of

petitioner, once by

the guerrillas in

El

Salvador and

once by

well-founded

fear

Barrientos
__________
1991)

of

the military, insufficient

persecution).

See
___

to show

also
____

Arriaga________

v. United States INS, 937 F.2d 411, 414 (9th Cir.

_________________

(violence

persecution

against

unless

family

evidence

insufficient
shows

petitioner);

associated

with the

1257, 1260

(7th Cir. 1990) (persecution

despite repeated detentions

to establish

pattern

Zalega v.
______

closely

INS, 916
___

F.2d

is not demonstrated

and interrogations of petitioner

where no formal charges were filed).

In conclusion, petitioner has failed to present any
"compelling"

evidence such

could fail to find

INS v.
___

that

"no reasonable

factfinder

the requisite fear of persecution."

812, 817

(1992).

As a

qualify for

political

asylum

under

Section 208(a) of the Act, 8 U.S.C.

1158(a).

result,

Elias-Zacarias, 112
______________
he

does

not

S. Ct.

See
___

The petition for review is denied.

______

-9-9-