* This order and judgment is not binding precedent, e xcept under the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

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

### DEC 31 1998 

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

ABDULLA OMER ABDULRAHMAN,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 97-9571 Petition for Review (No. A72 378 515)

ORDER AND JUDGMENT *

Before PORFILIO , BARRETT , and KELLY , 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. 34.1.9. Th e case is therefore ordered submitted without oral argument.1 The Illegal Immigration Reform and Immigrant Respon sibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, alte rs the availability, scope and nature of judicial review in immigration cases. Ho wever, because petitioner’s deportation proceedings commenced before April 1, 1 997, and the INS issued its final decision before October 31, 1996, neither IIRIRA’s permanent “new rules,” nor its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1) & (4), as amended by Pub. L. No. 104 -302, § 2, 100 Stat. 3657, set out in notes to 8 U.S.C. §§ 1101, 1252. We the refore apply pre-IIRIRA standards. -2- Petitioner Abdulla Omer Abdulrahman petitions this court for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration Judge’s (IJ) denial of his requests for political asylum under 8 U.S.C. § 1158, for withholding of deportation und er 8 U.S.C. § 1253(h), and for voluntary departure under 8 U.S.C. § 1254(e). We affirm. 1 The BIA found that the facts petitioner presented i n support of his request for asylum differed entirely from those he had pres ented in a prior application. In the prior application, which he signed in 1992, petitioner stated that he was born in Jeddah, Saudi Arabia on April 29, 1978, aft er his family, including his father, fled from Somalia. He indicated that he wa s a member of the Isaak clan, that his father had been involved in the Somali Nat ional Movement, and that his entire family left Somalia on May 12, 1975, prior t o his birth. He further stated that while he considered himself stateless, he was born and raised in Saudi Arabia. The Immigration and Naturalization Service (INS) denied the 1992 application for asylum on November 16, 1993.-3-

In his second application for asylum, at issue here , petitioner stated that he was born in Mogadishu, Somalia, on October 3, 1978. He identified himself as a member of the Hawiye clan through his mother. He i ndicated that he, his sisters, and one of his brothers departed from Somalia for S audi Arabia when he was eight or ten years old because of the mistreatment they received from Ali Mahdi Mohammed’s soldiers. He stated that his father, anIsaak, belonged to Mohammed Farah Aideed’s faction in Somalia but repo rtedly had been killed. Petitioner’s testimony before the IJ was generally consistent with the representations in his second application. The BIA agreed with the IJ that petitioner’s testim ony in connection with his second application was not credible. The BIA f ound that petitioner was born in Saudi Arabia, not Somalia, and is a national of both Somalia and Saudi Arabia. The BIA concluded that petitioner presented no evid ence that he could not safely return to Saudi Arabia and therefore did not qualif y as a “refugee” entitled to asylum. See Rezai v. INS , 62 F.3d 1286, 1288 (10th Cir. 1995). Moreover, the BIA found there was no evidence that Saudi Arabia w ould not accept petitioner, and he was therefore not eligible for withholding o f deportation. Finally, the BIA found that petitioner had lied at the hearing on hi s second application and was therefore not “a person of good moral character” entitled to voluntary departure. See 8 U.S.C. §§ 1101(f)(6); 1254(e)(1).-4-

In this appeal, petitioner contends that the BIA er red as a matter of law in affirming the IJ’s adverse credibility finding; that he was denied due process when the INS conducted its initial political asyluminterview on his first application without a guardian ad litem present; th at absent the finding of adverse credibility the record supports his well-founded fe ar of persecution and his eligibility for asylum in the United States; that t he BIA abused its discretion in considering him a dual national of Saudi Arabia andSomalia; and that the INS argued without basis that he can return to Saudi Ar abia despite his firm statements to the contrary. We review for substantial evidence the BIA’s determ inations that petitioner is not a “refugee” eligible for asylum, see INS v. Elias-Zacarias , 502 U.S. 478, 481 & n.1 (1992), and that he is not a person of “g ood moral character” entitled to voluntary departure, see Rivera-Zurita v. INS , 946 F.2d 118, 120 (10th Cir. 1991). We review de novo the BIA’s determinations on questions of law. See Refahiyat v. United States Dep’t of Justice, I.N.S. , 29 F.3d 553, 556 (10th Cir. 1994). Where a petitioner has failed to establish his eligibility for asylum, he is presumptively not entitled to withholding of deportation. See Nazaraghaie v. INS , 102 F.3d 460, 465 (10th Cir. 1996). Having reviewed the entire record applying the abov e standards of review, we conclude that the BIA’s decision is supported bysubstantial evidence and that-5-

it correctly applied the appropriate legal standard s. The BIA’s order dismissing petitioner’s appeal from the IJ’s decision is there fore AFFIRMED.

Entered for the Court

John C. Porfilio Circuit Judge