Giedrius Leo Kazlauskas v. Immigration & Naturalization Service

46 F.3d 902, 95 Cal. Daily Op. Serv. 687, 95 Daily Journal DAR 1237, 1995 U.S. App. LEXIS 1530, 1995 WL 29717
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 27, 1995
Docket92-70665
StatusPublished
Cited by300 cases

This text of 46 F.3d 902 (Giedrius Leo Kazlauskas v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Giedrius Leo Kazlauskas v. Immigration & Naturalization Service, 46 F.3d 902, 95 Cal. Daily Op. Serv. 687, 95 Daily Journal DAR 1237, 1995 U.S. App. LEXIS 1530, 1995 WL 29717 (9th Cir. 1995).

Opinions

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 Ka-zlauskas 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 [905]*90512, 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 stifi 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'5 decision and adopted the IJ'5 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 of persecution. See INS v. Elias-Zacarias, 502 U.S. 478, 480-81, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992); Ghebllawi v. INS, 28 F.3d 83, 85-86 (9th Cir.1994).

B. Kazlauskas' Asylum Application

A two-step inquiry is required in evaluating an applicant's request for asylum. Barraza Rivera v. INS, 913 F.2d 1443, 1449 (9th Cir.1990). First, the applicant must establish his eligibility for asylum by demonstrating that he meets the statutory, definition of a "refugee." Id.; 8 U.S.C. § 1158(a) (asylum is only available if the applicant is a "refugee" as defined by 8 U.S.C. § 1101(a)(42)(A)).1 Refugee status may be established by a showing of either past persecution or likely future persecution. Acewicz v. INS, 984 F.2d 1056, 1061-62 (9th Cir.1993); Berroteran-Melendez, 955 F.2d at 1255 & n. 3 (citing Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988)); Matter of Chen, 1989 WL 331860, Interim Dec. 3104, 1989 BIA LEXIS 10, at *4-*6 (B.I.A. Apr. 25, 1989); see 8 U.S.C. § 1101(a)(42)(A) (defining a refugee as one who is unable or unwilling to return to his country of origin "because of persecution or a well-founded fear of persecution") (emphasis added).

The second question is whether the eligible applicant is entitled to asylum as a matter of discretion. 8 U.S.C. § 1158(a); 2 INS v. Stevic, 467 U.S. 407, 423 n. 18, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984); Barraza Rivera,, 913 F.2d at 1449. At this second step, prospective questions about the potential effects of the applicant's return to his country of origin again are relevant, even if the applicant established his eligibifity for asylum by showing only past persecution. See Matter of Chen, 1989 WL 331860, 1989 BIA LEXIS 10, at *6 ("[i]f an alien establishes that . . . he is eligible for a grant of asylum[,] [t]he likelihood of present or future persecution then becomes relevant as to the exercise of discretion, and asylum may be [906]*906denied as a matter of discretion if there is little likelihood of present persecution”).

While the oral decision of the IJ in this case is not a model of clarity, we conclude that Kazlauskas’ request for relief from deportation was properly denied. The IJ’s opinion states the correct two-step inquiry and it does address the relevant factors of Kazlauskas’ case.

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46 F.3d 902, 95 Cal. Daily Op. Serv. 687, 95 Daily Journal DAR 1237, 1995 U.S. App. LEXIS 1530, 1995 WL 29717, Counsel Stack Legal Research, https://law.counselstack.com/opinion/giedrius-leo-kazlauskas-v-immigration-naturalization-service-ca9-1995.