*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 7 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ MASIH YUNUS; RAHKIL YUNUS; HINA YUNUS; SANA YUNUS; ZARA YUNUS, Petitioners,

v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 98-9535 (Immigration & Naturalization Service) (INS Nos. A71 034 046 A71 034 050 A71 034 081 A71 034 082 A71 034 083)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , EBEL , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 Congress repealed 8 U.S.C. § 1105a by passing the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (“Act”), 8 U.S.C. § 1252, et seq. SeePub. L. 104-208, Div. C., Title III § 306(b), Sept. 30, 1996, 110 Stat. 3009-12, § 242(b). However, for purposes of certain cases, jurisdiction under § 1105a still applies. Specifically, it applies in cases where, like here, the alien’s administrative proceeding commenced before April 1, 1997. Id. at § 306(c)(1). Because the final deportation order was issued after October 31, 1996, our jurisdiction under 8 U.S.C. § 1105a(a) is subject to the Act’s “transitional rules” for judicial review. See id. at § 309(c)(4).

-2- Petitioners Mr. Masih Yunus, Mrs. Rahkil Yunus, andtheir daughters, Hina, Sana, and Zara Yunus, are citizens of Pakista n seeking review of a final order by the Board of Immigration Appeals. We exer cise jurisdiction pursuant to 8 U.S.C. § 1105a(a) 1 and affirm.

A. Background On June 20, 1991, Mr. Yunus and his family entered the United States on six-month, non-immigrant visitors’ visas. After th e visas expired, Mr. Yunus applied for asylum and withholding deportation unde r 8 U.S.C. § 1158, based on alleged past and future religious persecution. The rest of the Yunus family sought derivative status. After the government denied the application, Mr. Yunus and his family sought administrative review before a United States Department of Justice immigration judge. During the subsequent deportati on hearings, Mr. Yunus testified that while living in Pakistan, he success fully obtained an education and employment as a pharmacist and his wife obtained employment as an assistant-3-

nurse. However, Mr. Yunus testified he and his fam ily were forced to flee Pakistan for life and liberty because of the discri mination they suffered as Presbyterian Christians in a predominantly Muslim n ation. The alleged discrimination included threats of violence from Mu slims who on one occasion entered their home and threatened them, and on anot her occasion, broke Mr. Yunus’ car windshield before he managed to flee. I n addition, Mr. Yunus anticipates his family will be “more intensely pers ecuted” if they return to Pakistan because after coming to the United States his family became Mormon, a group Muslims persecute in the same way they persec ute Jews.

In support of his fear of future persecution, Mr. Y unus provided alleged copies of Pakistan government documents, including a warrant for his arrest dated February 2, 1995, and a detention order sentencing him to three years detention on his arrest. Based on these documents, Mr. Yunus testified he believes authorities or radical Muslims will kill him if he returns to Pakistan.

Prior to rendering a decision, the immigration judg e ordered a forensics report and an opinion from the United States State Department on the authenticity of the arrest warrant and detention order. Subsequ ently, the government submitted an “e-mail” from the State Department’s l iaison officer with the-4-

Immigration and Naturalization Service’s forensics document laboratory, stating a report had been prepared that concluded the two doc uments were fraudulent. The liaison officer noted that in Pakistan, a district magistrate cannot detain anyone for longer than three months, making the authentici ty of the three-year detention order extremely suspect. With respect to the arres t warrant, he noted the signature on the warrant was attributed to a magist rate judge who did not exist. Finally, he stated the seals and signatures on both documents were fraudulent and concluded that no exemplars were available for furt her verification purposes because the format of these documents varied with t he issuing office.

The immigration judge issued a decision finding Mr. and Mrs. Yunus’ testimony credible, and accepting their conversion to the Mormon faith as sincere. Nevertheless, he determined the problems the Yunus family previously faced in Pakistan did not constitute persecution. As for future persecution, he found both the arrest warrant and detention order fraudulent, and therefore determined Mr. Yunus and his family did not have a reasonable fearof future persecution. For these reasons, the immigration judge denied the app lication for asylum and withholding of deportation.

Mr. Yunus and his family appealed the denial of the ir application to the2Mr. Yunus submitted a letter from his attorney in Pakistan verifying the charges

against him. The Board found this document had little probative value.

3 By finding Mr. Yunus did not suffer past discrimination and did not have a reasonable fear of future persecution, the Board implicitly found that Mr. Yunus did not qualify for “refugee” status. -5- Board of Immigration Appeals, for the United States Department of Justice, which affirmed the of the immigration judge’s decision. On de novo review, it determined the prior acts of discrimination and har assment experienced by the Yunus family in Pakistan did not rise to the level required to show “past persecution.” After finding the arrest warrant and detention order were fraudulent, the Board determined Mr. Yunus failed t o provide relevant evidence of future persecution or otherwise show a reasonabl e fear of future persecution. 2

On appeal, Mr. Yunus and his family contend the Boa rd erred in finding Mr. Yunus is not a “refugee” for the purposes of 8 U.S.C. § 1101(a)(42). 3 Specifically, they claim the Board erred in: (1) f inding the past treatment of Mr. Yunus did not rise to the level of persecution; (2 ) finding Mr. Yunus “does not have a reasonable fear of future persecution;” and (3) “relying on a mere summary of an official report,” which they claim constitute s hearsay and is the product of a flawed and inadequate investigation.-6-

We review questions of law determined by the Board of Immigration Appeals de novo , and its factual findings regarding Mr. Yunus’ status as a “refugee” under the substantial evidence rule. Refahiyat v. Immigration & Naturalization Serv. , 29 F.3d 553, 556 (10th Cir. 1994). To establish refugee status, Mr. Yunus must prove either past “persecuti on or a well-founded fear of persecution on account of race, religion, nationali ty, membership in a particular social group, or political opinion.” 8 U.S.C. § 11 01(a)(42); Hadjimehdigholi v. Immigration & Naturalization Serv. , 49 F.3d 642, 646 (10th Cir. 1995).

Based on a review of the record and the arguments o n appeal, we determine Mr. Yunus has not shown that either he or his famil y experienced past persecution or have a well-founded fear of future persecution o n account of their religion. Mr. Yunus’ assertion of his family’s minority relig ious status, and the past discrimination he and his family experienced, are i nsufficient to constitute persecution. See, e.g., Refahiyat , 29 F.3d at 557 (holding Christian status insufficient to withhold deportation to Iraq); Bucur v. Immigration & Naturalization Serv. , 109 F.3d 399, 402 (7th Cir. 1997) (holding Eastern Orthodox religion inadequate to withhold deportatio n to Romania). The threats made against Mr. Yunus and his family do not establ ish past persecution; persecution encompasses more than threats to life a nd liberty. See-7-

Hadjimehdigholi, 49 F.3d at 646.

As for the Board’s reliance on the liaison officer’ s “e-mail” in finding the arrest warrant and detention order fraudulent, we n ote that evidentiary rules are not strictly applied in immigration hearings. See Bauge v. Immigration & Naturalization Serv. , 7 F.3d 1540, 1543 (10th Cir. 1993). The test for admissibility of evidence in a deportation hearing is whether the evidence is probative and its use is fundamentally fair. Id. In this case, we conclude the email constituted fundamentally fair and probative e vidence which Mr. Yunus did not sufficiently rebut.

For these reasons, and substantially the same reaso ns set forth in the Board’s Order dated August 21, 1998, attached heret o, we determine Mr. Yunus is not a “refugee” for the purposes of 8 U.S.C. § 1158 (a).

The decision of the Board is AFFIRMED

.

Entered by the Court: WADE BRORBY United States Circuit JudgeAttachment not available electronically.