Opinion by Judge WALLACE; Concurrence by Judge CANBY; Dissent by Judge NOONAN.
WALLACE, Circuit Judge:
Saideh Fisher and her son Kian Hosseini Lavasani are natives and citizens of Iran. On her behalf, as well as for her son, Fisher petitions for review of the Board of Immigration Appeals’ (Board) decision denying her application for asylum and withholding of deportation. The Board also denied Fisher’s application for voluntary departure pursuant to section 244(e) of the Immigration and Nationality Act (Act). 8 U.S.C. § 1254(e). We have jurisdiction over this timely appeal pursuant to 8 U.S.C. § 1105a(a). The petition is denied.
I
Fisher and her son entered the United States on April 30, 1984. Because her son’s immigration status derives from her own, our discussion will focus on the status of Fisher. 8 C.F.R. § 208.21 (1995). Although Fisher was admitted as the fiancee of a United States citizen, she did not marry her then-fiancee within the 90-day period allowed by her visa. Instead, on August 4, 1984, she married Charles Fisher (Charles), a United States citizen. They were divorced in 1987.
Prior to their divorce, Charles filed a petition in support of Fisher’s application for permanent resident status. On February 3, 1986, he withdrew the petition and filed an affidavit which stated, “I was given $500.00 to marry my wife Saideh.” According to the affidavit, a co-worker apparently told Charles that Fisher’s step-cousin, to whom she was originally engaged to be married, would pay him the $500. Charles also denied living with Fisher on a continuous basis since their marriage.
Accordingly, on February 3, 1986, the Immigration and Naturalization Service (INS) denied Fisher’s application for permanent [959]*959resident status and began deportation proceedings. Fisher conceded deportability and filed for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a), 1253(h).
An immigration judge (IJ) held two hearings, one on May 15, 1987, concerning Fisher’s application for voluntary departure, and another on September 25, 1987, concerning Fisher’s asylum application. At the May hearing, Fisher testified that she originally came to the United States to marry Robert Lavasani, her step-cousin. When she arrived, she learned that he was living with and had impregnated another woman. Upset and lonely, she testified that she then married Charles, but she denied offering him money to marry her. She suspected that Charles withdrew his petition in support of her application for permanent resident status because he “never kept his promises” and he took advantage of her.
Fisher testified that she lived with Charles as husband and wife for approximately one year. Yet in preparation for an interview conducted by INS officials to determine the validity of her marriage, Fisher testified that she reviewed potential questions and answers with Charles. She also referred to handwritten notes during the interview, which contained information including: what time she and her husband went to sleep at night, how often she saw his two daughters, what kind of food he likes, what time he comes home from work, how much money he gives her, how long they have lived in their new house, what kind of car they own, what kind of television programs he watches, his parents’ names, what clothing items he owns, and what brand of cigarettes he smokes. The notes also contained information such as her parents’ names, her own birth date, and her place of work. Fisher testified that she needed these notes because she had difficulties remembering many things, in part because of her traumatic experiences in Iran.
Charles was not available to testify at the May hearing. The INS issued a subpoena, to which he did not respond; its investigations unit attempted to locate him, but without success. An INS officer who interviewed Fisher in depth also was unavailable to testify because he had been reassigned to Alaska. Another INS officer, who interviewed Fisher briefly, testified that she told him she had a bona.fide marriage with Charles. The IJ decided that “the case will just have to stand on the evidence” presented as well as Fisher’s own testimony. Fisher’s counsel did not object.
At the September hearing on Fisher’s asylum application, she testified that she left Iran in February 1984 following three events. First, Fisher testified that she was detained and questioned by Khomeini government officials because she attended a party at a male friend’s home where she observed her host in a bathing suit. When this occurred is unclear, but she alleges to us that it was approximately six months prior to leaving Iran. Along with several other female guests, Fisher was held at the “Comite” — probably a police station — for several hours. The authorities recorded Fisher’s name. and address, and they told her that being present with a man in a bathing suit was “incorrect.” She was then released.
The next incident occurred approximately one month prior to her departure from Iran. Fisher testified that four government officials stopped her on the street and ordered her into their car at gunpoint. She said she was stopped because she “had a few pieces of hair hanging out [of her chador or veil] by mistake.” The officials told her that she was not dressed properly, returned her to her home, and admonished her not to appear on the street like that again.
The third incident occurred shortly after the “veil incident.” Fisher testified that government officials came to her father’s home, where Fisher lived, to search for political dissidents. She said that the search was a “normal” occurrence, and that she assumed the officials were looking for persons associated with her brother-in-law, who was in prison at the time. In her brief to this court, Fisher suggests that her- brother-in-law was arrested for political activities, but there was no record testimony concerning the reasons for his imprisonment. Government officials did not question or detain Fisher as a result of the search. They merely asked her to inform them if she learned of any persons who were “against the regime,” and they left.
[960]*960Fisher testified that these three events so traumatized her that she became ill, missed several months of work, and eventually left Iran. She argues that these events amount to persecution on account of her religious and political beliefs. With respect to these beliefs, Fisher testified that she did not believe in “the way [the Khomeini government] treat[s] people, the covering of the face, and the way of life” dictated by the government. When asked what might happen to her if she returned to Iran, Fisher responded that she “presumes” she would be “in a worse situation” than before she left. Significantly, Fisher did not state whether she would comply with the governmental requirements if she returned to Iran.
The IJ found Fisher’s testimony concerning her application for asylum credible, but nevertheless denied her request for asylum and withholding of deportation because she did not have a well-founded fear of persecution and did not face a clear probability of persecution. The IJ also denied Fisher’s request for voluntary departure, finding that she married Charles solely for immigration purposes. The IJ based his decision on Charles’s affidavit and Fisher’s behavior during her interview with the INS interviewing officer. He found Fisher’s testimony concerning her marriage not credible.
Fisher appealed from the IJ’s decisions to the Board, which independently reviewed the record and affirmed the IJ’s findings concerning Fisher’s application for asylum and withholding of deportation. The Board first held that general enforcement of Iran’s rules concerning the interaction between men and women and clothing restrictions, which require all women to wear “ultraconservative dress,” do not “rise to the level of persecution.” It also held that although Fisher stated she feared persecution upon return to Iran, she failed to present sufficient evidence showing how the government’s actions related specifically to her and to her beliefs. For example, the Board found that Fisher provided no evidence of how the search of the family home related to her. The Board also adopted the IJ’s findings and decision concerning Fisher’s request for voluntary departure.
A three-judge panel of this court vacated the Board’s decision and remanded, holding that (1) the Board failed to consider whether Fisher would suffer future persecution if she returned to Iran; (2) the Board improperly defined “persecution”; (3) Fisher may suffer persecution on account of her religious beliefs as a result of Iran’s enforcement of its conduct and dress rules; and (4) Fisher may face persecution on account of her political beliefs based on a “totality of the circumstances.” Fisher v. INS, 61 F.3d 1366 (9th Cir.1995). Because the three-judge panel remanded for the Board to reconsider Fisher’s application for asylum, it did not reach the issue of voluntary departure. We decided to rehear this case en banc and withdraw our panel opinion.
II
Section 208(a) of the Act, 8 U.S.C. § 1158(a), gives the Attorney General discretion to allow political asylum to any alien the Attorney General determines to be a “refugee” within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). A refugee is defined as an alien unwilling to return to his or her country of origin “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). To establish eligibility on the basis of a “well-founded fear of persecution,” Fisher’s fear of persecution must be both subjectively genuine and objectively reasonable. Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995) (Ghaly). “The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution.” Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995) (Prasad). The objective component requires a showing by credible, direct, and specific evidence in the record, of facts supporting a reasonable fear of persecution on the relevant ground. Id. Fisher has the burden of making this showing. Ghaly, 58 F.3d at 1428; 8 C.F.R. § 208.13(a) (1995).
Section 243(h) of the Act, 8 U.S.C. § 1253(h), requires the Attorney General, subject to certain exceptions not relevant [961]*961here, to withhold deportation “if the Attorney General determines that such alien’s life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” An alien is statutorily eligible for such relief if he or she demonstrates a “clear probability of persecution.” Ghaly, 58 F.3d at 1429 (internal quotation omitted). This standard is more stringent than the “well-founded fear” standard applicable to requests for asylum, and it can be met only by showing that it is more likely than not that the alien will be persecuted if deported. Id. “Therefore, failure to satisfy the lesser standard of proof required to establish eligibility for asylum necessarily results in a failure to demonstrate eligibility for withholding of deportation as well.” Id. Thus, we first focus on whether Fisher proved she was eligible for asylum.
We review the Board’s determination that Fisher failed to demonstrate a “well-founded fear of persecution,” including its factual findings, for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (Elias-Zacarias); 8 U.S.C. § 1105a(a)(4). The burden on Fisher is a heavy one. To obtain reversal, Fisher must establish that the evidence not only supports the conclusion that she suffered persecution or has a well-founded fear of persecution, but compels it. Ghaly, 58 F.3d at 1431. Fisher must demonstrate that “the evidence [she] presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817. “Phrased differently, [Fisher] must demonstrate that any reasonable factfinder would have to conclude that [she] has a well-founded fear of persecution.” Ghaly, 58 F.3d at 1431 (internal quotation omitted). We review the Board’s legal interpretations of the Act de novo, but such interpretations generally are entitled to deference under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) (Chevron). Ghaly, 58 F.3d at 1429.
Ill
We begin by reviewing the Board’s application of section 101(a)(42)(A) of the Act, which defines “refugee” as a person who has suffered persecution or has a well-founded fear of persecution. 8 U.S.C. § 1101(a)(42)(A). The Act does not define “persecution”; therefore, we must defer to the Board’s interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Romero v. INS, 39 F.3d 977, 980 (9th Cir.1994), quoting Chevron, 467 U.S. at 844, 104 S.Ct. at 2782; see also Barrera-Echavarria v. Rison, 44 F.3d 1441, 1444 (9th Cir.) (en banc) (court may not substitute its own construction of the Act for the Board’s reasonable interpretation), cert. denied, - U.S. -, 116 S.Ct. 479, 133 L.Ed.2d 407 (1995).
In interpreting the Act, the Board is bound by our earlier decisions, which define “persecution” generally as “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” See, e.g., Ghaly, 58 F.3d at 1431, quoting Prasad, 47 F.3d at 339. Persecution is an extreme concept, which ordinarily does not include “[discrimination on the basis of race or religion, as morally reprehensible as it may be.” Ghaly, 58 F.3d at 1431.
The Board’s analysis of “persecution” here is consistent with the Act and our prior decisions. The Board found that Fisher did not suffer persecution or have a well-founded fear of persecution based on the Iranian government’s enforcement of its regulations against her. The Board stated that although enforcement of Iran’s dress and conduct rules may seem harsh by Western standards, it does not “rise to the level of persecution.” This conclusion is consistent with our cases that distinguish prosecution for general crimes from persecution, as well as those that construe persecution to include mental suffering. See Abedini v. INS, 971 F.2d 188 (9th Cir.1992) (Abedini); Kovac v. INS, 407 F.2d 102 (9th Cir.1969) (Kovac).
Fisher’s assertion that the government will prosecute her for violating the dress and conduct rules does not alone [962]*962amount to persecution on account of religious or political beliefs. She “merely has established that [she]/faces a possibility of prosecution for an act deemed criminal in Iranian society, which is made applicable to all [women] in that country.” Abedini, 971 F.2d at 191. The two exceptions to the general rule that prosecution does not amount to persecution — disproportionately severe punishment and pretextual prosecution — do not apply here. See id. First, Fisher faded to show that Iran selectively enforced its regulations against her or that she received disproportionately severe punishment on account of one of the five grounds enumerated in the Act. See id. Second, she failed to establish that the regulations as applied to her were “especially unconscionable or were merely a pretext to persecute [her] for [her] beliefs or characteristics.” Id., citing Alonzo v. INS, 915 F.2d 546, 548 (9th Cir.1990) (holding that applicant must demonstrate government knew of his religious or political beliefs and attempted to conscript him in spite of those beliefs). Fisher testified that as a result of the “swimsuit incident,” she and several other females present were detained by government officials. She also testified that the “veil incident” came about only because she had mistakenly left several strands of hair outside her chador. Neither of these occurrences indicates that government officials knew of her political or religious beliefs or punished her on account of them. Nor do they indicate that she was punished as a pretext to persecute her for her beliefs.
The Board’s interpretation of persecution also is consistent with our decisions defining persecution to encompass both physical and mental suffering. See Kovac, 407 F.2d.at 106-07 (Congress’s deletion of “physical persecution” from the Act indicates persecution may include mental suffering). Based on the record Fisher established, the Board held that she failed to show any past or potential persecution, mental or physical. It found that Fisher failed to provide evidence showing that the enforcement of the dress and conduct regulations against her constituted persecution or created a well-founded fear of future persecution. See Safaie v. INS, 25 F.3d 636, 640-41 (8th Cir.1994) (general assertion that Iran’s policies are repressive or that applicant disagrees with them does not “demonstrate that [the applicant] fears particularized persecution directed at her personally on the basis of her political opinion”).
Fisher contends that although enforcement of laws such as those enforced against her could be viewed merely as harassment not reaching the level of persecution, Iran’s human rights record somehow transforms common harassment into persecution. This argument is unacceptable. The mere existence of a law permitting the detention, arrest, or even imprisonment of a woman who does not wear the chador in Iran does not constitute persecution any more than it would if the same law existed in the United States. Persecution requires the government actor to inflict suffering on account of an individual’s religious or political beliefs, race, nationality, or membership in a particular social group. See Ghaly, 58 F.3d at 1431 (defining persecution as infliction of suffering upon those who differ because of them religious or political beliefs); cf. 8 U.S.C. § 1101(a)(42)(A) (defining refugee as person who suffers persecution “on account of’ one of the five enumerated grounds). It does not include mere discrimination, as offensive as it may be. Ghaly, 58 F.3d at 1431.
Fisher has the burden of showing the requisite connection between the Iranian government’s acts and her religious or political beliefs. She must show that “the Iranian government’s potential act of persecution stemmed from its desire to single [her] out for unique punishment because of [her] actually-held or perceived-to-be-held political or religious beliefs.” Abedini, 971 F.2d at 192 n. 1; see also Elias-Zacarias, 502 U.S. at 482, 112 S.Ct. at 816 (“‘persecution on account of ... political opinion’ in § 101(a)(42) is persecution on account of the victim’s political opinion, not the persecutor’s”).
Fisher failed to show that Iran punished her because of her religious or political beliefs, or that, if she returned to Iran, she would violate the regulations because of her beliefs, thereby triggering government action. Abedini, 971 F.2d at 192 (applicant must show that the government was aware of his alleged beliefs). No evidence suggests [963]*963that Fisher ever “spoke out against the government’s political or religious practices or even publicly articulated any political or religious opinions.” Id. Although she stated that she is against the Khomeini regime and disagrees with its theory of Islam, she introduced no evidence suggesting that the three incidents she described were related to these beliefs.
There also is no evidence suggesting that if she returned to Iran, Fisher would not conform with the regulations. Indeed, she testified that the “veil incident” occurred because she mistakenly left several strands of hair outside her veil, not because she intended to make a political or religious statement. She also testified that the search of her father’s home was “a normal thing that [the government does],” which suggests no connection to her religious or political beliefs whatsoever.
Because Fisher has demonstrated only discrimination on account of her sex, not persecution on account of her religious or political beliefs, she has failed to carry her burden under Ghaly. Persecution on account of sex is not included as a category allowing relief under section 101(a)(42)(A) of the Act.
Fisher argues she did establish that enforcement of the regulations in Iran constitutes more than mere harassment. She bases her argument on information contained in the State Department’s Country Reports on Human Rights Practices for 1990, which is not part of the administrative record. The Act limits our review to the “administrative record upon which the deportation order is based and the Attorney General’s findings of fact.” 8 U.S.C. § 1105a(a)(4). See also Gomez-Vigil v. INS, 990 F.2d 1111, 1113 (9th Cir.1993) (Gomez-Vigil) (reviewing court is “not permitted to consider evidence that is not part of the administrative record”); Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980) (reviewing court does not conduct factfinding in the first instance), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982); Rybachek v. United States Environmental Protection Agency, 904 F.2d 1276, 1296 n. 25 (9th Cir.1990) (“Judicial review of agency actions should generally be confined to the original record upon which the actions were based.”). To the extent our prior decisions may be interpreted as authorizing us to take judicial notice of information not part of the administrative record or not previously submitted to the Board, they are overruled as inconsistent with the Act and prior precedent. These decisions include Ubau-Marenco v. INS, 67 F.3d 750, 759 (9th Cir.1995) (taking judicial notice of State Department Country Reports where INS did not object); Nasseri v. Moschorak, 34 F.3d 723, 727 (9th Cir.1994) (taking judicial notice of “background evidence” offered by petitioner); Shirazi-Parsa v. INS, 14 F.3d 1424, 1428 (9th Cir.1994) (Shirazi-Parsa) (suggesting that this court may take judicial notice even if Board did not abuse its discretion in declining to do so); Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987) (taking judicial notice of reports supporting petitioner’s asylum claim).
Fisher could have requested the Board to take administrative notice of the Country Report, but she did not. If she had, and the Board refused, we would review the Board’s action for an abuse of discretion. Shirazi-Parsa, 14 F.3d at 1428. Here, there is no such abuse because Fisher never offered the 1990 Country Report or the facts contained in it to the Board. See Liu v. Waters, 55 F.3d 421, 427 (9th Cir.1995) (Board is “not required independently to take administrative notice of [country] conditions” where petitioner “provided no such information”). Because we are limited to reviewing the facts considered by the Board, we are statutorily prevented from taking judicial notice of the Country Report. See id. (taking judicial notice only of materials applicant presented to the Board for administrative notice). If Fisher believes the 1990 Country Report or other documents are material to her asylum application, her only course is to file a motion to reopen her deportation proceedings pursuant to 8 C.F.R. §§ 3.2, 208.19 (1995).
Fisher also argued that the State Department’s Country Reports on Human Rights Practices for 1986 should be considered part of the administrative record because the IJ relied on a portion of it in rendering his decision. In rejecting Fisher’s argument that she was fired from her teaching position in Iran solely because she is a [964]*964woman, the IJ stated that the 1986 Country Report provides no evidence that the government routinely fires women from teaching jobs. At oral argument before the en banc court, Fisher suggested that because the IJ relied on a portion of the 1986 Country Report, the entirety of the Report should be made part of the administrative record.
INS regulations provide that Department of State comments requested by the IJ in particular cases become part of the administrative record. 8 C.F.R. § 208.11(c) (1995). Here, the IJ did not request any such comments from the Department of State, and the IJ’s reliance on the 1986 Country Report, which contains generally applicable information, cannot be construed as State Department comments within the meaning of the regulations.
We may review out-of-record evidence only where (1) the Board considers the evidence; or (2) the Board abuses its discretion by failing to consider such evidence upon the motion of an applicant. See Shirazi-Parsa, 14 F.3d at 1428. Allowing the Board to consider out-of-record evidence only on motion of the applicant is consistent with the Act’s placement of the burden of proof on the applicant’s shoulders and with an analogous federal evidentiary rule. Federal Rule of Evidence 106 expresses the “rule of completeness,” which states: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.” See Charles A. Wright & Kenneth W. Graham, Jr., 21 Federal Practice and Procedure §§ 5071-79 (1977 & Supp.1995). Where an applicant requests the Board to take administrative notice of evidence on which the IJ relied, we will review a refusal to do so for an abuse of discretion. Shirazi-Parsa, 14 F.3d at 1428; see also Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991) (Board “has the power to conduct a de novo review of the record ... and independently to determine the legal sufficiency of the evidence”).
Fisher could have requested either the IJ or the Board to supplement the administrative record with the 1986 Country Report; she did neither. Her appeal brief to the Board contested neither the IJ’s finding that she was not dismissed from her teaching position solely because of her status as a woman, nor the IJ’s reliance on parts of the 1986 Country Report which she now claims support her asylum application. There is no evidence that the Board took into account the 1986 Country Report, and its decision is “sufficient for us to conduct our review and to be assured that the petitioner’s case received individualized attention.” Ghaly, 58 F.3d at 1430; see also id. (Board is not required to indicate with specificity the weight it accorded certain exhibits). We will not create a new administrative record on appeal by reviewing evidence that the Board did not consider. See Gomez-Vigil, 990 F.2d at 1113.
This is not a case such as Gomez-Vigil, where the Board took administrative notice of certain facts without providing the petitioner an opportunity to rebut the noticed facts. Id. at 1114. In this case, Fisher did not request the IJ to include the entirety of the Country Report. In addition, she had ample opportunity to request consideration of the Country Report and to rebut the IJ’s findings in her appeal to the Board, but she failed to do so. We will not remand this case to the Board for it to consider evidence Fisher failed to present. Roque-Carranza v. INS, 778 F.2d 1373, 1373-74 (9th Cir.1985); cf. Rivera-Cruz v. INS, 948 F.2d 962, 967 (5th Cir.1991) (asylum applicant cannot raise new evidence on appeal from Board’s decision to contest officially noticed facts).
In sum, the Board’s decision concluding that Fisher failed to show she suffered persecution or had a well-founded fear of persecution on account of her political or religious beliefs is supported by substantial evidence. Fisher failed to allege acts constituting persecution, and she failed to show that the Iranian government took action against her because of her political or religious beliefs. Indeed, the record indicates that Fisher received routine punishment for violating generally applicable laws. Thus, she failed to carry her burden by not presenting evidence “such that a reasonable factfinder would have to conclude that the requisite fear of persecu[965]*965tion existed.” Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815. Because Fisher failed to satisfy the lesser standard of proof required to establish eligibility for asylum, she necessarily failed to demonstrate eligibility for withholding of deportation. Ghaly, 58 F.3d at 1429.
IV
The Board also adopted the findings and decision of the IJ denying Fisher voluntary departure pursuant to 8 U.S.C. § 1254(e). We therefore review the IJ’s decision. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995). We examine whether the IJ actually exercised his discretion and whether he did so in an arbitrary and capricious manner. Abedini, 971 F.2d at 193. The IJ need only support his conclusion with a “reasoned explanation based on legitimate concerns.” See id.
Section 101(f)(6) of the Act states that “one who has given false testimony for the purpose of obtaining any benefits under [the Act]” cannot be regarded as possessing “good moral character” and thus is statutorily ineligible for voluntary departure. 8 U.S.C. § 1101(f). The IJ found that Fisher lacked “good moral character” because she entered into a sham marriage with Charles. He supported this finding with a “reasoned explanation” by considering Charles’s affidavit and Fisher’s preparation for her interview with the INS. Fisher asserted that she did not know that someone paid Charles $500 to marry her, and that she had legitimate reasons for having notes containing the answers to questions the INS would ask her at her interview. The IJ, however, found Fisher’s testimony concerning her marriage not credible, and we must afford this finding “substantial deference.” De Valle v. INS, 901 F.2d 787, 792 (9th Cir.1990) (internal quotations omitted). Based on the record, we cannot say that the IJ’s denial of voluntary departure is not supported by a “reasoned explanation based on legitimate concerns.”
Fisher argues that the IJ’s decision is “arbitrary and capricious” because the IJ relied on hearsay evidence — Charles’s affidavit. She cites Cunanan v. INS, 856 F.2d 1373 (9th Cir.1988), for the proposition that the IJ abuses his discretion when he relies on hearsay evidence, because such out-of-court statements preclude the petitioner from confronting her witnesses. Cunanan, however, recognizes that “[i]n deportation proceedings, the test for admissibility is whether the hearsay statement is ‘probative’ and whether its admission is ‘fundamentally fair.’ ” Id. at 1374, quoting Baliza v. INS, 709 F.2d 1231, 1233 (9th Cir.1983) (Baliza).
The affidavit was clearly probative of an issue in the case; the question is whether it was fundamentally unfair for the IJ to rely on it. In Baliza, we held that admission of a hearsay affidavit was fundamentally unfair because the government made no reasonable effort to produce the declarant. Baliza, 709 F.2d at 1234. Here, the INS made reasonable efforts to find Charles before the hearing. In addition, Fisher’s counsel could have objected to the IJ’s reliance on the available evidence. The IJ stated that “the case will just have to stand on the evidence.” He then said that “if either party wishes to question [Fisher] about her role in [the marriage], that’s fine.... I’ll consider that [testimony] as well.” In response, Fisher’s counsel stated, “That’s what I’d like to do, Your Honor,” and he proceeded to elicit testimony from Fisher. The IJ’s reliance on Charles’s affidavit was not “fundamentally unfair” under these circumstances.
PETITION DENIED.