* This order and judgment is not binding precedent, e xcept under the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

### FEB 13 1998 

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

ROXANA PEREDA-ACOSTA,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 97-9508 (Petition for Review) (No. A73 373 021)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and BRISCOE, 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); 10th Cir. R. 34.1.9. The c ase 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 INS cases. Because pe titioner’s deportation proceedings commenced before April 1, 1997, IIRIRA’ s permanent “new rules” do not apply to this case. See id. § 309(c)(1). However, because the order of the Board of Immigration Appeals was filed more than th irty days after IIRIRA’s September 30, 1997 date of enactment, IIRIRA’s “transitional rules” apply. See id. § 309(c)(4); Berehe v. INS , 114 F.3d 159, 161 (10th Cir. 1997). None of the transitional rules bar petitioner from seeking judi cial review of the INS’s final order in this case.

2 Section 1105a was repealed by § 306(b) of IIRIRA. However, that repeal is not effective in cases such as this one where the transitional rules are in effect. See IIRIRA § 309(c). -2- Petitioner seeks review of a final order of the Imm igration and Naturalization Service (INS) finding her deportable and denying her request for asylum or withholding of deportation. 1 A stay of deportation was earlier granted pending the outcome of this petition for review. O ur jurisdiction over this matter arises under 8 U.S.C. § 1105a(a), 2and we affirm. Petitioner, a native and citizen of Peru, entered t he United States on May 30, 1992, as a visitor. In August of 1994, she was taken into custody by the INS and charged with deportability. Petitioner den ied deportability, and subsequently filed an application for asylum. Foll owing a hearing that concluded on April 18, 1995, the immigration judge (IJ) issue d an oral decision finding petitioner deportable and ineligible for asylum. T he Board of Immigration Appeals (BIA) summarily affirmed that decision for the reasons given by the IJ.-3-

Where, as here, the BIA adopts the decision of the IJ, we review the IJ’s decision.
See Panrit v. INS , 19 F.3d 544, 546 (10th Cir. 1994).
A. Deportability The IJ found petitioner deportable on the grounds that she was excludable at the time of entry because she did not possess a valid immigrant visa and because she procured her entry with fraudulent docu ments. In so concluding, he relied on the testimony of an INS special investigator who interviewed petitioner after she was taken into custody. The investigatortestified that, when he asked petitioner how she entered the United States, she t old him that she bought someone else’s passport for $2000 through an unknow n agency in Lima, Peru and that her picture was “photo substituted.” R. at 72 . His testimony conformed to information on a form I-213 (“Record of Deportable Alien”), see id. at 214, which he prepared following the interview. The IJ discre dited petitioner’s testimony that the passport was her own, and that the $2000 p ayment to an agency in Lima was made on her behalf by relatives for her tickets and a visa. “The government in deportation proceedings must est ablish its allegations by ‘clear, unequivocal, and convincing evidence.’” Solis-Muela v. INS , 13 F.3d 372, 375 (10th Cir. 1993) (quoting Woodby v. INS , 385 U.S. 276, 285 (1966)). We review the agency’s legal conclusions de novo an d its factual findings to determine whether they are supported by substantial evidence. See id.3 Petitioner’s brief suggests that the circumstances give rise to the specter of

possible difficulties in communication and possible errors in transcription. In particular, she notes (1) that the investigator adm itted he was not fluent in Spanish and she is not fluent in English, and (2) that the investigator generated the official I-213 on a computer following the inte rview on the basis of an I-213 he completed by hand (in what the investigator char acterized as “pretty bad” handwriting, id. at 74) during the interview.

-4- In her petition for review, petitioner challenges t he quality of the evidence underlying the IJ’s finding of deportability. Firs t, she questions the reliability of the information contained in the I-213 due to the c ircumstances under which the form was completed. 3 The IJ based his finding, however, not on the I-2 13 itself, but on the investigator’s testimony, simply noting that the I-213 conformed to his testimony. Furthermore, the record does not support the statement in petitioner’s brief that, in testifying, the investigator “relied largely upon the written statements” on the form. Petitioner’s Br. at 12. Upon inquiry, the investigator specifically testified that he had an independent r ecollection of the interview and, in particular, of petitioner’s admission as to the photo-substituted passport. See R. at 77-78 (“It’s not often that I hear somebody t ell me that, you know, they had a photo-substituted passport. Something like that usually sticks in the mind pretty well.”). Petitioner does directly challenge the re liability of the agent’s testimony as well, claiming that it was “subject to minor inc onsistencies.” Petitioner’s Br.-5-

at 12. However, her single example cannot even be fairly characterized as an inconsistency. Petitioner also challenges the IJ’s decision to acc ept the investigator’s testimony while discrediting her own. She argues that the IJ’s rationale for questioning her veracity is against the weight of the evidence, suggesting in her brief that his only basis for doing so was her prof iciency in English at the time of the hearing. We do not agree with this exegesis of the IJ’s credibility determination. While the IJ does appear to rely on petitioner’s apparent proficiency in English to support his conclusion th at a misunderstanding during the interview was unlikely, he also found it “diffi cult to believe that the [investigator] would simply pull this out of the ai r.” R. at 49. This conclusion is supported by the record. See id. at 73 (investigator’s testimony that “[i]t doesn’t do [him] any good to falsify a form like this.”). Furthermore, the IJ specifically found that “[t]he [investigator] appeared to be cre dible and businesslike in his report and in his testimony.” “[B]ecause the immig ration judge is in the best position to evaluate an alien’s testimony, his or h er credibility determinations are to be given much weight.” Dulane v. INS , 46 F.3d 988, 998 (10th Cir. 1995) (quoting Estrada v. INS , 775 F.2d 1018, 1021 (9th Cir. 1985) (further quot ation4 Petitioner argues that the judge did not have to co nclude that only one of

the parties was credible, but instead could have re conciled the testimony “[b]y accepting the proposition that a simple misunderstanding occurred at the initial interview or that a drafting error had crept into t he computer-generated version of the form when the agent transferred his notes.” Ap pellant’s Br. at 13-14. While it may be true that the testimony could have been r econciled, it is not relevant to our review.

-6- omitted)). We see no reason on this record not to accept the IJ’s credibility determination. 4 Finally, petitioner argues that the evidence relied upon by the IJ is hearsay and, as such, should not be regarded as sufficient to establish deportability. Assuming, without deciding, that petitioner correct ly characterizes the evidence as hearsay, we note that “evidentiary rules are notstrictly applied at immigration hearings.” Bauge v. INS , 7 F.3d 1540, 1543 (10th Cir. 1993). “The test fo r admissibility of evidence in a deportation hearing is whether the evidence is probative and whether its use is fundamentally fairso as not to deprive the alien of due process of law.” Id. (quotation omitted). We conclude that the evidenc e in question here was probative and its introduction wa s not fundamentally unfair. Therefore, the IJ did not err in relying on it.
B. Asylum To be eligible for asylum, petitioner must first es tablish that she is a refugee under 8 U.S.C. § 1101(a)(42)(A). See Rezai v. INS , 62 F.3d 1286, 1289-7-

(10th Cir. 1995). To do that, she “must prove eith er past ‘persecution or a wellfounded fear of persecution on account of race, rel igion, nationality, membership in a particular social group, or political opinion. ’” Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991) (quoting 8 U.S.C. § 1101(a)(42 )). “Fear of persecution is well-founded if it is subjectively genuine and obje ctively reasonable. The objective component requires [petitioner] to show a‘reasonable possibility of actually suffering . . . persecution if [she] were to return’ to the country of persecution.” Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir. 1996) (citations and quotation omitted). Petitioner bears the burde n of proving that she is a refugee. See Hadjimehdigholi v. INS , 49 F.3d 642, 647 (10th Cir. 1995); see also Rezai, 62 F.3d at 1289 (alien “must present specif ic, credible evidence to support his claim that he has been persecuted or wi ll be persecuted if deported”). The basis of petitioner’s asylum claim is her alleg ed fear of persecution by the Shining Path. In support of her application, p etitioner testified that she and others in her family were longtime members of the P artido Aprista Peroano, a political party known for its opposition to the Shi ning Path. She said that for nearly seven years, she attended a university in Li ma that was affiliated with the Partido Aprista, where she was active in the party and in the Affiliated Center of Visitation, a group that spoke out against the Shin ing Path and encouraged other students to join the Partido Aprista. She testifie d that her group was threatened-8-

by the Shining Path, and she recalled the Shining P ath taping dynamite to the doors to prevent people from attending the group’s lectures and meetings. Petitioner further testified that, following her gr aduation, she taught school in her home village outside of Lima, where she continued t o speak out in opposition to the Shining Path. Petitioner said that at the begi nning of April in 1992, she received a threat from the Shining Path at her home , a note which said “[i]f you continue talking and if you continue teaching, you will be killed.” R. at 96. Petitioner testified that she reported the threat t o police and subsequently went into hiding for twenty-two days before coming to th e United States. The IJ concluded that petitioner failed to demonstr ate a well-founded fear of persecution. He found that petitioner failed to show a fear of persecution that was nationwide, reasoning that [petitioner’s] fear of persecution was in a small v illage which was rather primitive and which was in a remote locationwhere government forces did not have much influence. The Shining Path did have influence. If the respondent were to chan ge her teaching career and live in Lima or another city where there was military presence and a stronger police presence, it is quit e unlikely that she would have to suffer such threats. R. at 54. The IJ also noted that there were “some problems in the credibility of the case,” citing petitioner’s failure to file for asylum until after she was arrested by immigration officers more than two years after h er arrival in the United States, and a letter from the school where petitioner was e mployed which indicates that5 Petitioner does not argue in her brief that the abs ence of an explicit finding

as to past persecution constitutes error, and thus we do not consider that argument in this appeal. -9- petitioner worked right up until she left the country. Finally, the IJ noted that petitioner did not give any corroborating evidence of her political affiliation and she had not shown that the Peruvian government is u nwilling or unable to protect her in other areas of the country. The IJ’s finding that petitioner is not eligible fo r asylum “must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (quotation omitted). Reversal is appropriate only if the evidence presented is “such that a reasonable factfinder would have to co nclude that the requisite fear of persecution existed.” Id. at 481 & n.1. Petitioner argues that the BIA erred in affirming the IJ’s “implied conclusion” that she failed to establish past perse cution. 5 Petitioner’s claim of past persecution is based on her testimony that at the beginning of April 1992, she received a death threat at her home from the Shinin g Path, which drove her into hiding for twenty-two days before she fled to the U nited States for safety. As indicated above, the IJ questioned petitioner’s cre dibility in this case because the record indicates that she taught right up until she left for the United States, and that she sought asylum only after she was arrested and faced possible deportation.6 We note that the document, which is purportedly a c opy of the police report

filed by petitioner following the threat, does not directly corroborate petitioner’s testimony. It speaks not of a single threat receiv ed by petitioner in April of 1992, but instead indicates that sometime in 1992, petiti oner complained that she was “continually receiving anonymous calls as well as l etters” from the Shining Path. R. at 123. -10- He also noted that the exhibit which, according to petitioner, corroborates her testimony, 6was neither authenticated by the American Consul n or by any other agency. Mindful that it is not our responsibility to weigh the evidence or evaluate the credibility of witnesses, see Kapcia , 944 F.2d at 707, we conclude that substantial evidence supports the IJ’s rejection of petitioner’s claim of past persecution. Petitioner also challenges the IJ’s conclusion thatshe could live in Lima or another metropolitan area free of persecution by th e Shining Path. She maintains that “[t]he overwhelming weight of evidence establi shes that although the Shining Path may be strongest in rural areas, it continues to perform terrorist acts within the capital of Lima and other metropolitan areas.” Petitioner’s Br. at 11. While petitioner is correct that the record includes news paper accounts of terrorist activity in Lima, the reported activity involves de tonating bombs in public places and near government and military facilities. See R. at 162 (embassies, police stations, electric power stations), 171 (banks, pol ice and military facilities), 180 (power pylons, recently privatized telephone compan ies, banks, electricity-11-

repeater station, government telecommunications tra ining center); see also id. at 189 (where State Department’s 1995 country conditio ns profile of Peru indicates that “[i]n the countryside, the guerrillas have kil led members of self-defense forces, community leaders, and political party memb ers, while in urban areas, they often use car bombs and other explosive devices in their campaign of terror.”) Although regrettable, these kinds of activities can not establish eligibility for asylum. See Figeroa v. United States, INS , 886 F.2d 76, 80 (4th Cir. 1989) (eligibility for asylum requires evidence that “the alien’s predicament is appreciably different from the dangers faced by the alien’s fellow citizens” (quotations omitted)). Our review of the record in this case reveals subst antial evidence to support the IJ’s conclusion that any danger to peti tioner is geographically limited. See generallyCuadras v. United States, INS , 910 F.2d 567, 571 n.2 (9th Cir. 1990) (evidence that danger is geographically local ized and could be avoided is relevant to the question of the existence of a well -founded fear of persecution). Most compelling is the evidence from petitioner her self. She testified at the hearing that she was active in her opposition to th e Shining Path while at the university in Lima for nearly seven years and yet w as never personally threatened.
See R. at 90, 91-92, 109. She admitted that “[s]ince they caught the leader of the Shining Path, things are controlled . . . in the do wntown.” Id. at 97. In her-12-

application for asylum, petitioner focuses on the r isk of persecution she faces in her home village because it is a “Shining Path stro nghold,” and she and members of her family “‘stand-out’” there as opponents to the Shining Path. Id. at 195. She alleges that “[i]f I returned to Peru, especial ly if I returned to my home village and district, I would be remembered as an o pponent of the Shining Path.” Id. Deportation would not require petitioner to return to her home village, however, and she has not demonstrated that she face s a risk of persecution in other areas of Peru. Furthermore, the State Department, in its 1995 country conditions profile of Peru, recognizes relocation w ithin Peru as a viable option.
See id. at 191 (stating that “internal relocation” is avai lable to many Peruvian asylum applicants because there is “no evidence that a nationwide guerrilla information network for tracking perceived opponent s exists”). On this record, we cannot conclude that “a reasonable factfinder wo uld have to conclude that the requisite fear of persecution existed.” Elias-Zaca rias , 502 U.S. at 481. Our conclusion that substantial evidence supports the IJ’s determination that petitioner did not establish a well-founded fe ar of persecution is fatal to petitioner’s claim for withholding of deportation, as well. See Casteneda v. INS , 23 F.3d 1576, 1578 (10th Cir. 1994).-13-

The petition for review is DENIED, and the BIA’s su mmary dismissal is AFFIRMED. The stay of deportation heretofore enter ed by this court is
VACATED. Entered for the Court

Mary Beck Briscoe Circuit Judge