* This order and judgment is not binding precedent, e xcept under the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

### JUL 13 2000 

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

GHINTARAS GRAZHEES; ALMA GRAZHEES,

Petitioners,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 99-9532 ( No. A71 978 749) (Petition for Review)

ORDER AND JUDGMENT *

Before BRORBY , ANDERSON , and MURPHY , 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 8 U.S.C. § 1105a was amended by the transitional ru les in the Illegal

Immigration Reform and Immigrant Responsibility Actof 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009 (1996), which now governs judicial review. “Because petitioners’ deportation proceedings comme nced before April 1, 1997, IIRIRA’s permanent ‘new rules’ do not apply to this case,” however, IIRIRA’s “transitional rules” apply “because the BIA’s orderwas filed more than thirty days after IIRIRA’s September 30, 1996 date of enactment.” Rivera-Jimenez v. INS , No. 97-9513, 2000 WL 710502, at *1 n.1 (10th Cir. J une 2, 2000).

2 Alma Grazhees’s application for asylum and withhold ing of deportation is derivative of her husband’s application. See 8 U.S.C. § 1158(b)(3). -2- Petitioners Ghintaras and Alma Grazhees seek reviewof the Board of Immigration Appeals’ (BIA) decision affirming the I mmigration Judge’s denial of their applications for asylum and withholding of de portation under the Immigration and Nationality Act (INA). We exercise our jurisdiction under 8 U.S.C. § 1105a, 1 and affirm. Petitioners, natives and citizens of Lithuania, cam e to the United States in September 1991 on nonimmigrant visitor visas. In S eptember 1992, they were placed in deportation proceedings for overstaying t heir visas. Petitioners conceded deportability and sought asylum based on M r. Grazhees’s anticommunist political views and his persecution for t hose views in his home country. 2 In June 1993, after a hearing at which only Mr. G razhees testified, the Immigration Judge issued an oral decision denying p etitioners’ application for asylum and withholding of deportation. The Immigration Judge’s decision was3 The Immigration Judge did not find Mr. Grazhees’s testimony credible. See

Admin. R. at 32.

4 The State Department’s 1991 Country Reports describ es the changing situation in Lithuania after Lithuanian authorities ultimately took over the government apparatus from severely repressive Soviet rule. See Admin. R. at 89-96. Among other things, the new government inst ituted laws intended to protect the rights of Lithuanian citizens. See id. at 91. In addition “[f]reedom of speech, press, assembly, association, and religion are provided in law and (continued...) -3- based on the State Department’s assessment of Lithu ania in its Country Reports on Human Rights Practices for 1991 and 1992 (Country Reports), submitted by the INS as proof of changed country conditions, the State Department’s advisory opinion, and the Immigration Judge’s doubts about M r. Grazhees’s credibility.
See Admin. R. at 31-33. According to his testimony and statement in supportof his asylum application, Mr. Grazhees’s departure from Lithuani a was precipitated by his arrests for political activity, interrogations, beatings, suspicious car accident, and, ultimately, dismissal from his job in 1991. Credit ing his testimony for purposes of the appeal before it, the BIA assumed Mr. Grazhe es had met his burden to show past persecution. 3 See id. at 3. It found, however, that, based on the Country Reports, the conditions in Lithuania had ch anged since petitioners’ departure, and noted that petitioners failed to pre sent any probative documentary evidence to the contrary. 4 See id. Hence, the BIA concluded that the INS4 (...continued)

respected in practice.” Id. The 1992 Country Reports notes that many of the officials elected into the Lithuanian government ha led from the former communist party, see id. at 83, but the government was committed to recogni zing individual rights and freedoms, see id. at 84-88.

5 The State Department’s March 29, 1997 advisory opin ion characterizes Mr. Grazhees’s political activity and fear of perse cution as relating to the former occupying Soviet military and security forces. See Admin. R. at 97. Mr. Grazhees contested this characterization on appeal to the BI A, claiming his activity related to communist domination and that he suffered and fe ared suffering at the hands of Lithuanian communists. See id. at 12-13. -4- rebutted the presumption that Mr. Grazhees had a we ll-founded fear of future persecution, arising out of his past persecution, a nd that petitioners did not qualify for asylum or withholding of deportation. See id. at 3-4. In reaching this decision, the BIA did not rely on the advisory opin ion of the Department of State, prepared for this case. 5 See id. at 3. Asylum and withholding of deportation are the two avenues of relief available to a deportable alien who claims he will be persecuted if deported. See Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). In order to be eligible for asylum, an alien must first establish refugee status. See id. The Attorney General can then exercise discretion to grant asylum to an otherwise deportable alien. See 8 U.S.C. § 1158(b)(1). In order to garner refugee status, an alien must establish “he is unable or unwilling to return to ‘any country of such person’s nationality . . . because of [past] persecution or a well-founded fear of persecution-5-

on account of race, religion, nationality, membersh ip in a particular social group, or political opinion.’” Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir. 1996) (quoting 8 U.S.C. § 1101(a)(42)(A)). “[T]he well-f ounded fear of persecution standard . . . require[s] a subjective ‘fear’ comp onent and an objective ‘well-founded’ component.” Kapcia , 944 F.2d at 706. The subjective component is not relevant unless the alien has proved the objective component. See id. It is the applicant’s burden to meet this objective compo nent with “credible, direct, and specific evidence in the record.” Nazaraghaie , 102 F.3d at 462 (quotation omitted). “The BIA’s finding that appellant was not eligible for asylum ‘must be upheld if supported by reasonable, substantial, andprobative evidence on the record considered as a whole.’” Id. at 463 (quoting INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992)). “This court reviews the BIA ’s legal determinations de novo.” Rivera-Jimenez v. INS , 2000 WL 710502, at *2. “We will, however, accord deference to the BIA’s legal determinations unless they are clearly contrary to the statute’s language or to congressional intent.” Id. On appeal, petitioners argue that: (1) the regulati on found at 8 C.F.R. § 208.13(b)(1) and the statutory definition of refu gee found at 8 U.S.C. § 1101(a)(42)(A) are inconsistent; and (2) the BIA abused its discretion by not-6-

undertaking the “compelling reasons” analysis foundin 8 C.F.R. § 208.13(b)(1)(ii). Petitioners failed to raise either of these issues to the BIA. See Admin. R. at 5-17. As a result, they did not exhaust their a dministrative remedies and we do not have jurisdiction to consider these issues. See Nguyen v. INS , 991 F.2d 621, 623 n.3 (10th Cir. 1993) (stating that this court d oes not address issues not raised on appeal to the BIA); see also Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991) (“The failure to raise an issue on appea l to the [BIA] constitutes failure to exhaust administrative remedies with respect to that question and deprives the Court of Appeals of jurisdiction to hear the matter .”). Because the BIA was empowered to consider both of petitioners’ issues–s ince neither are constitutionally based–petitioners’ issues do not f all within the exception to administrative waiver. See Akinwunmi v. INS , 194 F.3d 1340, 1341 (10th Cir. 1999) (“Courts have carved out an exception to the exhaustion requirement for constitutional challenges to the immigration laws, because the BIA has no jurisdiction to review such claims.”).-7-

We AFFIRM the BIA’s decision denying petitioners’ application for asylum and withholding of deportation.

Entered for the Court

Wade Brorby Circuit Judge