* This order and judgment is not binding precedent, except under the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 Monti L. Belot, District Judge, United S tates District Court for the District of Kansas, sitting by designation. 

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

### MAY 22 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANDREI VLADIMIR FRANTSOUZOV, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 00-9506 (BIA File No. A72 451 760 )

ORDER AND JUDGMENT *

Before SEYMOUR , Circuit Judge, McWILLIAMS , Circuit Judge, and BELOT , District Judge. **

This is an immigration case. Andrei Vladimir Frants ouzov (“Petitioner”), now a thirty-year old native and citizen of Russia, entered the United States on or about February 17, 1991 pursuant to a valid non-imm igrant visitor’s visa. He1 At the time Petitioner submitted an application f or asylum he was not represented by legal counsel.

2 Under the regulations promulgated by the Attorney General, applications for asylum are treated as simultaneous applications for withholding of deportation. See 8 C.F.R. §208.3(b). -2- was authorized to remain in the United Stated until August 6, 1992. On about May 18, 1992, prior to the expiration date on his v isa, Petitioner submitted an application for asylum with the Houston Asylum Offi ce of the Immigration and Naturalization Service (“INS”). 1 Following an interview concerning his application for asylum, he was sent a notice of int ent to deny, and he replied to that notice by submitting additional documents. Th e application for asylum was later referred to the Immigration Court through the issuance of an Order to Show Cause, dated October 9, 1992. The show cause orderalleged that Petitioner was deportable because he had remained in the United St ates longer than authorized. Appearing pro se before Immigration Judge G. McKenzie Rast in Denve r, Colorado on January 6, 1993, Petitioner admitted th e allegations in the show cause order and conceded his deportability, but, atthe same time, asked permission to renew his application for asylum. 2 A hearing on the merits of Petitioner’s application was conducted before Judge Rast on August 20, 1993. At that hearing the Judge accepted into evidence various documents, and heard testimony from the Pet itioner and two supporting witnesses. At the conclusion of that hearing Judge Rast denied Petitioner’s-3-

application for asylum, and granted him the privile ge of voluntary departure until September 20, 1993. At this juncture, Petitioner r etained legal counsel and a timely Notice of Appeal was filed on August 27, 199 3, with the Board of Immigration Appeals (“Board”). Six and one-half years later, on February 15, 2000, the Board filed its decision and order wherein it affirmed the decision of the Immigration Judge, adopted his findings and conclusions “as our own” and dismissed the appeal. On March 7, 2000, Petitioner filed in this Court a Pet ition for Review of the Board’s dismissal of his appeal from the decision of the Im migration Judge. Subsequent thereto, Petitioner submitted to the Board a motion to reopen his case, the motion being supported by three hundred and fifty pages of supplemental documentation concerning events occurring during the six and one- half years his appeal was pending before the Board. That motion is pending b efore the Board. As above indicated, Petitioner conceded his deportability, since he had overstayed his visa’s expiration date, and at the h earing before the Immigration Judge on August 20, 1993, the only issue was Petiti oner’s right to asylum status. As concerns the asylum aspect of this case, in Sadeghi v. Immigration & Naturalization Service , 40 F.3d 1139, 1142 (10th Cir. 1994), we spoke as follows: The granting of asylum under 8 U.S.C. §1158(a) is a

two-step process. First, the alien must prove stat utory3 To same effect, see Hadjimehdigholi v. Immigration and Naturalization

Service , 49 F.3d 642 (10th Cir. 1995). -4-

eligibility for asylum by establishing that he or s he is a refugee. Second, if the alien establishes refugee status, the Attorney General then applies her discretion to grant or deny asylum. Kapcia v. INS, 944 F.2d 702, 706, 708 (10th Cir. 1991). We are only concerned with the f irst step in this appeal. “To establish refugee status, the alien must prove either past ‘persecution or a well-founded fear of persecution on account of race, religion, nationali ty, membership in a particular social group, or politic al opinion.’” Id. at 706 (quoting 8 U.S.C. §1101(a)(42)). The “well-founded fear of persecution” standard, wi th which we are concerned in this appeal, involves bot h a subjective “fear” component, and an objective “well

founded” component. The subjective component requires that the alien’s fear be genuine. However , this component is not relevant until the alien proves th e objective component. Id. The alien has the burden of proving the objective component through credible, direct, and specific evidence of facts that would support a reasonable f ear that he faces persecution Id. at 707, 708. We review the Board’s findings to determine whether reasonabl e, substantial and probative evidence supports them an d may reverse only if petitioner presented evidence t hat compels the conclusion he has a well-founded fear o f persecution based on a statutory factor. INS v. EliasZacarias , 502 U.S. 478 (1992). 3 At the conclusion of the hearing before the Immigration Judge on August 20, 1993, the Judge in an oral decision held that P etitioner was deportable, which had been conceded. After reviewing in some detail the evidentiary matter, the-5-

Judge then concluded, in effect, that Petitioner ha d failed to show that he had been subjected to past persecution in Russia or that there was a well-founded fear of future persecution in Russia should he be return ed, which fear was subjectively genuine and objectively reasonable. A ccordingly, the Judge held that the Petitioner had failed to show that he was a “refugee” and therefore was ineligible for asylum or withholding of deportation

. Petitioner’s evidence at the hearing showed that in March or April, 1990 he took a brief trip to Germany. After returning to Russia from Germany he was twice interrogated by the KGB. The first intervie w occurred shortly after he returned from Germany and concerned his trip. Thatinterview lasted for some 20-30 minutes. Apparently Petitioner had no partic ular information of interest to the KGB concerning his trip, which, according to th e Petitioner, seemed to irk the KGB. In November 1990, after he had obtained h is visa to come to the United States he was again interviewed, for 20-30 m inutes by the KGB, this time concerning, inter alia , his forthcoming visit to the United States. Peti tioner testified that after he came to the United States, former agents of the KGB, the KGB having been disbanded in the change in governme nt in Russia, questioned his mother, had searched her apartment, and general ly inquired of her about his plans, all in a threatening manner. Petitioner als o indicated that some of his correspondence between himself and his mother had n ot been delivered and that a4 Both parties agree that this Court has jurisdicti on to hear Petitioner’s

Petition to Review the Board’s Decision and Order. In this regard, we recognize that on September 30, 1996, the President signed in to law the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“I IRIRA”), Pub. L. 104-208, 110 Stat. 3009 (1996). The statute contains signif icant amendments to the Immigration and Naturalization Act, including a pro vision repealing Immigration and Naturalization Act §106 and replacing it with anew “permanent” judicial review provision to be codified at 8 U.S.C. §1252, et seq. This “permanent” (continued...) -6- phone call to his mother had been disconnected. On e of Petitioner’s witnesses, a student of Russian government, testified that afterthe KGB was disbanded some of its former members, acting outside the law as “o utlaws,” continue to harass others, possibly hoping to extort money from them. As indicated, the Immigration Judge concluded that such evidence did not show past persecution or a subjectively genuine and objectively reasonable f ear of future persecution should Petitioner be returned to Russia. The Board, on appeal by the Petitioner from the Imm igration Judge’s decision, affirmed the Judge’s decision. Specifica lly, the Board concluded that Petitioner “failed to demonstrate that he suffered past persecution or has a wellfounded fear of future persecution in Russia on acc ount of his race, religion, nationality, membership in a particular social grou p, or political opinion.” Our study of the record convinces us that the Board did not err in refusing to overrule the Immigration Judge since the record and the applicable authorities support his decision. 4 The Board is not required to discuss every piece of4 (...continued)

judicial review Section does not apply to this case although IIRIRA’s “transition” rules for judicial review do apply in cases such as this where the Board’s order was issued on or after October 31, 1996, in adminis trative proceedings that were commenced before April 1, 1997. See IIRIRA §§ 306(c)(1) and 308(a). As indicated, the Board’s opinion was filed after Octo ber 1996 and the administrative proceeding commenced when an Order t o Show Cause issued on October 9, 1992. -7- evidence when it renders a decision. Hadjimehdigholi v. Immigration & Naturalization Service , 49 F.3d 642, 648 n. 2 (10th Cir. 1995). We may r everse the Board only if the Petitioner has presented evid ence that “compels the conclusion that he has a well-founded fear of perse cution based on a stated statutory factor.” Sadeghi, 40 F.3d at 1142. The Petitioner’s evidence in the instant case did not compel either the Immigration Judge or the Board to find his entitlement to asylum, or withholding of deportatio n. The Board’s Decision and Order is affirmed.
ENTERED FOR THE COURT Robert H. McWilliams Senior Circuit Judge