* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

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

### SEP 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KIDANE ARAYA,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 98-9530 (INS No. A26 611 347) (Petition for Review)

ORDER AND JUDGMENT *

Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.

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 T he case is1 Section 1105a was repealed by the Illegal Immigrati on Reform and

Immigrant Responsibility Act of 1996 (IIRIRA). How ever, the repeal is effective only as to final orders filed on or after September30, 1996. In this case the immigration judge filed his order on August 6, 1996 . This case is governed by the “transitional rules” of IIRIRA. -2- therefore ordered submitted without oral argument; petitioner’s request for oral argument is denied. Petitioner, a native Eritrean and former resident o f Ethiopia, seeks review of the Board of Immigration Appeals’ order dismissi ng his appeal from the immigration judge’s denial of his application for a sylum and withholding of deportation. Our jurisdiction over this appeal arises from 8 U.S.C. § 1105a. 1 We must uphold the agency’s determination that peti tioner is not eligible for asylum if it is “‘supported by reasonable, substant ial, and probative evidence on the record considered as a whole.’” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). The Board of Immigration Appeals (BIA) concluded th at petitioner failed to meet his burden to demonstrate a well-founded fear of persecution should he return to Eritrea. In support of this conclusion, the BIA stated that 1) petitioner had been asked by the Eritrean government to returnand work there “in spite of his political beliefs,” 2) petitioner’s affidavits did not support his claim or stated only “general opinions,” 3) the witnesses at petiti oner’s hearing failed to establish a reasonable possibility petitioner would be punish ed if he returned, and-3-

4) materials submitted by both parties failed to support petitioner’s claim of a well-founded fear of persecution. Because the BI A concluded that petitioner was not eligible for asylum, it also necessarily co ncluded that he failed to meet the higher standard of clear probability of persecu tion for purposes of withholding deportation. See Nazaraghaie v. INS , 102 F.3d 460, 465 (10th Cir. 1996). Petitioner does not challenge the BIA’s determinati on of his claim for withholding deportation. On appeal, petitioner contends that the BIA ignoredlarge parts of the record and mischaracterized that evidence it did co nsider. After careful review of the Certified Administrative Record, we agree. The determination whether a petitioner has demonstrated a well-founded fear o f persecution is a factual finding. See Nazaraghaie , 102 F.3d at 463 n.2. The BIA’s analysis in suppo rt of this factual finding consists of 1) quotations t aken out of context and contrary to the import of the affidavits or testimony from w hich they are drawn, 2) characterizations of events and evidence which a re belied by consideration of the record as a whole, and 3) statements that ignor e overwhelming evidence to the contrary. Because the BIA’s analysis in support of this factual finding is not supported by substantial evidence as required by ap plicable law, we must reverse and remand to the agency for further proceedings. See Cordero-Trejo v. INS , 40 F.3d 482, 487 (1st Cir. 1994) (stating that BIA’ s factual findings are due no-4-

deference when based on “inferences or presumptions that are not reasonably grounded in the record, viewed as a whole”). We are mindful of the standards set out in Immigration & Naturalization Service v. Elias-Zacarias , 502 U.S. 478, 483-84 (1992), stating that a petit ioner must show “that the evidence he presented was so co mpelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Application of this standard on appellate review, however, presumes that the BIA considered the record as a whole and that the factual findings und erlying the ultimate determination of asylum eligibility are supported b y reasonable, substantial, and probative evidence in that record. See id. at 481; cf. Rivas-Martinez v. INS , 997 F.2d 1143, 1148 (5th Cir. 1993) (remanding wher e INS failed to apply correct standards for asylum eligibility). For the foregoing reasons and without implying or p redicting the ultimate result of this case, the petition is GRANTED and th e decision of the BIA is REVERSED and REMANDED.

Entered for the Court

Wesley E. Brown Senior District Judge