_____________

No. 95-1062

_____________

Ngwando Zele Nyonzele, *

*

Petitioner-Appellant, * Petition for Judicial Review

* of an Order of the Board of

v. * Immigration Appeals.

*

Immigration and Naturalization *

Service, *

 *

Respondent-Appellee. *

_____________

 Submitted: October 16, 1995

 Filed: May 14, 1996 

_____________

Before FAGG, BOWMAN, and HANSEN, Circuit Judges.

_____________

HANSEN, Circuit Judge.

Ngwando Zele Nyonzele, a citizen of Zaire, petitions for judicial

review of the decision of the Board of Immigration Appeals (BIA) finding

him deportable and denying his applications for discretionary relief.

Nyonzele concedes that he is deportable but contends that he is entitled

to discretionary relief in the form of (1) a waiver under 8 U.S.C.

§ 1186a(c)(4) of the joint petition requirement for seeking permanent

resident status, (2) a grant of asylum, or (3) the privilege of voluntary

departure in lieu of deportation. We conclude that substantial evidence

on the whole record supports the BIA's denial of discretionary relief.
2

I. BACKGROUND

In May 1986, Nyonzele, a pilot for the Zairian air force, entered the

United States for the purpose of receiving technical training offered to

foreign military personnel. Rather than return to Zaire as ordered upon

a visit from a Zairian military attache in December 1986, he fled to Texas

and later moved to Sioux City, Iowa. On August 4, 1989, Nyonzele married

a United States citizen, Betty King, whom he met through a dating service.

On the basis of this marriage, Nyonzele obtained lawful permanent resident

status on a conditional basis as of January 11, 1990. See 8 U.S.C.

§ 1186a(a) (popularly referred to as Section 216 of the Immigration

Marriage Fraud Amendments). 

To remove the condition and obtain complete lawful permanent resident

status, Nyonzele and his wife were required to file a joint petition with

the Immigration and Naturalization Service (INS) and appear together for

a personal interview approximately two years after the date when he

obtained the conditional status. See 8 U.S.C. §§ 1186a(c)(1) and

1186a(d)(2). However, Nyonzele's marriage ended in divorce on May 2, 1990,

well before the time period when a joint petition to remove the condition

from his resident status could be filed. Thus, he sought to avoid the

joint petition requirement by applying for a "hardship waiver." 8 U.S.C.

§ 1186a(c)(4). Had it been granted, this waiver would have allowed

Nyonzele to seek permanent resident status without fulfilling the joint

petition requirement if, among other things, he could demonstrate that he

entered into his "qualifying marriage . . . in good faith." Id.

Nyonzele's waiver application prompted a personal interview with an

INS examiner, who tape-recorded the interview. After the interview, the

INS district director denied Nyonzele's request for a hardship waiver of

the joint petition requirement and terminated
3

his conditional permanent resident status. The INS then initiated

deportation proceedings against Nyonzele. 

At the deportation proceedings, Nyonzele requested review of the

district director's termination of his conditional permanent resident

status, as permitted by 8 C.F.R. § 216.5(f), contending that the district

director abused his discretion by determining that Nyonzele had not entered

into his marriage in good faith. Nyonzele also submitted an application

for asylum, alleging a well-founded fear of persecution on account of

political views. Alternatively, he requested the privilege of voluntary

departure in lieu of deportation. Following a hearing, the Immigration

Judge (IJ) concluded that Nyonzele was deportable as charged and denied all

claims for discretionary relief. 

In his administrative appeal, the BIA granted Nyonzele another

hearing but ultimately dismissed the appeal, affirming the decision of the

IJ. In a written opinion, the BIA reasoned that even crediting Nyonzele's

testimony, he was not entitled to a hardship waiver of the joint petition

requirement because he failed to demonstrate a good faith qualifying

marriage. The BIA also determined that crediting Nyonzele's testimony

concerning his request for asylum, he failed to demonstrate a well-founded

fear of persecution. Finally, the BIA concluded that Nyonzele had

abandoned his claim for voluntary departure. Nyonzele seeks judicial

review. 

II. DISCUSSION

This court has jurisdiction to review "all final orders of

deportation," and "the Attorney General's findings of fact, if supported

by reasonable, substantial, and probative evidence on the record considered

as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(7). Our review of

final orders of deportation pursuant to 8 U.S.C. § 1105a(a) includes "all

determinations made during and
4

incident to the administrative proceeding . . . and reviewable together by

the [BIA]," Foti v. INS, 375 U.S. 217, 229 (1963), and "all matters on

which the validity of the final order is contingent," INS v. Chadha, 462

U.S. 919, 938 (1983) (internal quotations omitted). 

In this case, we are not asked to review the determination that

Nyonzele is deportable; instead, we are asked to review the denial of a

hardship waiver, the denial of asylum, and the denial of voluntary

departure. The BIA's denial of Nyonzele's application for asylum and his

request for voluntary departure were "determinations made during and

incident to the administrative proceeding," Foti 375 U.S. at 229, and thus,

we have jurisdiction to review them as part of the final order of

deportation. The hardship waiver is in a slightly different posture as it

was initially denied by the district director, not during deportation

proceedings. The district director's denial of a hardship waiver is not

itself appealable. 8 C.F.R. § 216.5(f). See Torabpour v. INS, 694 F.2d

1119, 1121 & n.8 (8th Cir. 1982) (holding no jurisdiction to review

district director's decision to deny a stay of deportation because "those

decisions do not fit within the parameters of section 1105a(a)").

Nevertheless, "[an] alien may seek review of the denial of a hardship

waiver in deportation proceedings," 8 C.F.R. § 216.5(f), as did Nyonzele.

Because the BIA reviewed the waiver claim during the deportation

proceedings, that decision is reviewable in this court. 

Each of Nyonzele's requests for relief is a matter statutorily vested

in the discretion of the Attorney General; therefore, our review is limited

to determining whether there has been an abuse of discretion. See 8 U.S.C.

§ 1186a(c)(4) (leaving to Attorney General's discretion the determination

of whether to remove the conditional basis for permanent residence absent

a joint petition); 8 U.S.C. § 1158(a) (leaving to Attorney General's

discretion the determination of whether to grant asylum); 8 U.S.C.

§ 1254(e)
 A petition to remove the conditional permanent resident 1

status of the alien is timely if filed within 90 days prior to

the two-year anniversary of the alien having obtained the

conditional status. 8 U.S.C. § 1186a(d)(2).

5

(leaving to Attorney General's discretion the determination of whether to

grant voluntary departure). "An abuse of discretion occurs if a decision

was without rational explanation, departs from established policies, or

invidiously discriminates against a particular race or group." Khalaj v.

Cole, 46 F.3d 828, 832 (8th Cir. 1995). An abuse of discretion also occurs

where the agency fails to consider all factors presented by the alien or

distorts important aspects of the claim. Barragan-Verduzco v. INS, 777

F.2d 424, 425 (8th Cir. 1985). 

A. Hardship Waiver under § 1186a(c)(4)

An alien may obtain lawful permanent resident status on a conditional

basis by marrying a United States citizen. 8 U.S.C. 1186a(a)(1). See

Velazquez v. INS, 876 F. Supp. 1071, 1075-76 (D. Minn. 1995) (offering an

overview of the operation of § 1186a). The conditional basis of this

status may be removed if the alien and citizen spouse file a timely joint

petition for removal of the condition and appear together for a personal

interview. 8 U.S.C. § 1186a(c)(1). When no timely joint petition is

filed, the Attorney General must terminate the permanent resident status 1

of the alien on the two-year anniversary of its receipt. 8 U.S.C.

§ 1186a(c)(2). If the alien and citizen spouse separate within the first

two years of marriage, preventing the alien from fulfilling the timely

joint petition requirement, the alien may seek discretionary removal of the

condition through a "hardship waiver," provided the alien can demonstrate,

inter alia, that "the
 A "hardship waiver" permits removal of the conditional 2

status in three circumstances:

The Attorney General, in the Attorney General's

discretion, may remove the conditional basis of the

permanent resident status for an alien who fails to

meet the requirements of paragraph (1) [a timely joint

petition and interview] if the alien demonstrates that

--

(A) extreme hardship would result if such alien is

deported,

(B) the qualifying marriage was entered into in

good faith by the alien spouse, but the qualifying

marriage has been terminated (other than through death

of the spouse) and the alien was not at fault for

failing to meet the requirements of [a timely joint

petition and interview], or

(C) the qualifying marriage was entered into in

good faith by the alien spouse and during the marriage

the alien spouse . . . was battered by or was the

subject of extreme cruelty perpetrated by his or her

spouse . . . and the alien was not at fault in failing

to meet the requirements of [a timely joint petition

and interview]. . . . 

8 U.S.C. § 1186a(c)(4). 

6

qualifying marriage was entered into in good faith." 8 U.S.C.

§ 1186a(c)(4).2

To determine whether an alien entered into marriage in good faith,

the INS considers the degree of commitment to the marriage by both parties,

including any documentation concerning their combined financial assets and

liabilities, the length of time during which they cohabited after the

marriage and after the alien obtained conditional permanent resident

status, and any other relevant evidence. 8 C.F.R. § 216.5(e)(2). Section

1186a(c)(4) explicitly provides, "The determination of what evidence is

credible and the weight to be given that evidence shall be within
7

the sole discretion of the Attorney General." 8 U.S.C. § 1186a(c)(4).

Once the alien demonstrates that he is statutorily eligible for the waiver

by showing that the marriage was entered into in good faith, the decision

of whether to grant a hardship waiver of the joint petition requirement is

also expressly committed to the discretion of the Attorney General. Id.

Here, the BIA held a hearing and issued a 17-page written opinion

discussing the evidence and explaining its decision to dismiss the appeal.

In determining that Nyonzele had not entered into his marriage in good

faith, the BIA considered and gave great weight to Nyonzele's own statement

concerning his intent at the time he entered into the marriage. During the

interview regarding his waiver application, during which he was represented

by counsel and indicated that he could speak and understand English,

Nyonzele stated that he married in order to stay in the United States. At

the BIA hearing, Nyonzele tried to explain the statement, asserting that

he could not understand English very well, that substantial portions of the

interview tape were unintelligible, and that he did not realize he could

tell the examiner he was having difficulty understanding her, all of which

the BIA found to be without merit. Nyonzele did not dispute the accuracy

of the tape transcription, only its completeness. 

The BIA also considered the degree of commitment to the marriage,

noting the chronology of the courtship, marriage, and divorce, which,

considered in its entirety, lasted less than one year. In April 1989,

Nyonzele met Betty King through a dating service. He began writing letters

to her in Galesburg, Illinois. After about four visits, she moved to Sioux

City, Iowa, to live with Nyonzele and found employment there. They married

on August 4, 1989. 

On January 11, 1990, following an interview with Nyonzele and his

wife, the INS approved Nyonzele's application for conditional
8

permanent resident status based upon the marriage. Nyonzele testified that

after he and his wife returned from the interview, she became hostile

toward him and began to change from a "nice lady" into a drug user who

wanted to kill him. (Jt. App. at 194.) Nyonzele presented a partially

written letter dated January 16, 1990, in which his wife indicated an

intent to poison him. He testified that a few days later, she threatened

him with a knife and tried to poison him by putting bleach on his

toothbrush. He tried to get his wife to see a psychiatrist but she

refused, and on January 24, 1990, he moved out and filed for divorce. His

wife continued to harass him, leaving threatening and prejudicial messages

on his answering machine, and he believed she once put sugar in the gas

tank of his car so it would not be operable. The BIA found it significant

that this "nice lady" began exhibiting hostile behavior on the very day

Nyonzele obtained conditional permanent resident status and that he filed

for divorce on January 24, 1990, only two weeks after obtaining this

immigration benefit. 

The BIA also considered Nyonzele's evidence of their shared life.

Nyonzele testified that they shared a bank account, shared living expenses,

and bought household furnishings together. However, the BIA noted that

Nyonzele offered very little evidence of a shared life. Nyonzele submitted

a lease agreement reflecting that his wife and her daughter were living

with him, and two deposit slips from a joint account. One of the deposit

slips the BIA found to be illegible and post-dates the filing of the

petition for conditional permanent residence status. The other is dated

before but close in time to the filing of the petition.

Nyonzele contends that the BIA failed to consider all of his evidence

of a shared life with his wife, arguing that in spite of his admission that

he married to stay in the United States, he also married intending to spend

his life with his wife. Our review of the record, however, convinces us

that the BIA did not overlook or
9

distort any significant evidence. Rather, we believe that Nyonzele is in

reality seeking to have us reweigh the evidence concerning their shared

life. We are not at liberty to reweigh the evidence. The governing

statute expressly vests the "sole discretion" for determining the weight

of the evidence with the Attorney General. 8 U.S.C. § 1186a(c)(4). 

Nyonzele also contends that the BIA abused its discretion in the good

faith determination by considering unconstitutional factors, consisting of

"private" marital matters such as the difference in age and socioeconomic

backgrounds between him and his wife. This contention is without merit.

The statute authorizes consideration of "any credible evidence relevant to

the application." 8 U.S.C. § 1186a(c)(4). In this case, Nyonzele's

intention at the time of the marriage was crucial to determining whether

he was eligible for a waiver of the joint petition requirement, and

therefore, the factors relating to his marital relationship that he claims

to be private were relevant to the waiver application and were properly

considered. In any event, it is clear that the BIA did not consider the

factors of which Nyonzele complains to the exclusion of all other evidence

but found them to be "valid investigative indicators of possibly fraudulent

marriages." (Petitioner's Addend. at 12.) The BIA properly considered all

of the evidence rather than focusing solely on Nyonzele's own statement of

his intent and did not consider any unconstitutional factors. Again, we

stress that we cannot dictate the weight to be given the evidence. After

carefully reviewing the administrative record, we conclude that the BIA's

findings of fact are supported by substantial evidence and are therefore

conclusive. The BIA did not abuse its discretion by denying Nyonzele a

hardship waiver on the basis that he did not demonstrate a good faith

marriage. 
10

B. Asylum

A deportable alien is eligible to seek asylum at the discretion of

the Attorney General upon proof of a "`well-founded fear of persecution on

account of race, religion, nationality, membership in a particular social

group, or political opinion.'" Hamzehi v. INS, 64 F.3d 1240, 1242 (8th

Cir. 1995) (quoting 8 U.S.C. § 1101(a)(42)(A)); 8 U.S.C. § 1158(a). "A

well-founded fear is one that is both `subjectively genuine and objectively

reasonable.'" Id. (quoting Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.

1993)). Subjectively, the alien must demonstrate with credible evidence

that he genuinely fears persecution; objectively, the alien must

demonstrate through credible, direct, and specific evidence that a

reasonable person in his position would fear persecution. Ghasemimehr, 7

F.3d at 1390. The BIA's decision that an alien is "not eligible for 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) (quoting 8 U.S.C. § 1105a(a)(4)). To overturn a

finding that an alien is not eligible for asylum, the alien must meet the

heavy burden of demonstrating that the "evidence `was so compelling that

no reasonable fact-finder could fail to find the requisite fear of

persecution.'" Hamzehi, 64 F.3d at 1242 (quoting Elias-Zacarias, 502 U.S.

at 484). 

On March 6, 1992, after the INS denied Nyonzele's request for a

waiver, he filed an application for asylum, asserting that he feared

persecution because he had refused to return to Zaire at the request of the

military attache and because his family has been singled out for

persecution based upon his father's political views. At the hearing,

Nyonzele testified that his father lost his employment and was sent into

internal exile in 1978 for having spoken against Zaire's Mobutu government.

Nyonzele participated in political demonstrations with his father in 1978

and 1980, while he was in the air force. Nyonzele suffered no persecution

for his
11

activities, but he testified that he sought to avoid identification with

his father and kept his own political views a secret. 

Nyonzele continued his military service and was selected for special

training in the United States. Nyonzele testified that he first became

fearful of the Mobutu government in December 1986, while he was

participating in special air force training at Mather Air Force Base in

California. He received a phone call from his uncle, who worked in the

Zairian Defense Ministry and allegedly had connections to Zaire's secret

police, telling him that he was about to be returned home and warning him

not to do so. Nyonzele testified that his uncle warned him that he would

have the same future as his father because he was educated and because of

his father's political problems. Two days later a high ranking military

attache flew from Washington D.C. to California and ordered Nyonzele to

return to Zaire in three days time. Fearing for his life, Nyonzele fled

to Texas and did not return to Zaire as ordered. 

On July 2, 1991, approximately five years after deserting from the

military, Nyonzele received word from his uncle that his father had been

murdered by a member of the Mobutu government's secret police while

returning home from a political demonstration. Nyonzele testified that his

family knew the alleged gunman to be a member of the secret police.

Nyonzele testified that he has had no contact with family members since

this phone call. 

Nyonzele also testified that other family members have suffered

persecution at the hands of the Mobutu government. Nyonzele testified that

his older brother, an air force pilot, died in a plane crash in 1980 with

indications of sabotage. That same year, two cousins were imprisoned

allegedly on political grounds. They were never brought to trial and died

without explanation while confined. Nyonzele presented some general

documentary evidence indicating that the Mobutu government has engaged in

many human
12

nd unauthorized detention,

and that its economy is stagnant due in part to official corruption. 

 BIA concluded that, even accepting Nyonzele's testimony a

credible, the evidence as a whole 

well-founded fear of persecution on account of Nyonzele's political views

 those of his family. We conclude that this finding is supported b

substantial evidence on the whole record. 

We r

persecution s

promoted in the air f

in spite of his father's political 

evidence of family persecution (the suspicious deaths of a brother and two

occurred over a decade ago. Nyonzele has not shown "why thes

rather dated events provide an objectively reasonable basis for a present

[im] personally and on the

basis of h[is] political opinion, . . . or on t

political opinions." Hamzehi

The only relevant facts existing at the time of his militar

desertion s

unexpected s

unrelated A

found at, given the many problems from which Zaire suffers, both

and economic, the uncle's warning could have been based on a lac

of r

safety. This finding is supported by substantial evidence. Significantly,

 testified that his siblings suffer economic persecution, and in

previous affidavit, Nyonzele indicated that if forced to return to Zaire

"My -

existent." (Jt. App. at 53.) Fears of economic hardship or
13

a lack of educational opportunities, however, do not establish a wellfounded fear of persecution. See Minwalla v. INS, 706 F.2d 831, 835 (8th

Cir. 1983) (persecution requires a threat to life or freedom; "economic

detriment is not sufficient"). 

The final event -- the allegation that Nyonzele's father was murdered

five years after Nyonzele deserted the military -- is significant. Acts

of violence against an alien's family members may demonstrate a wellfounded fear of persecution, "notwithstanding an utter lack of persecution

against the petitioner [him]self." Arriaga-Barrientos v. INS, 937 F.2d

411, 414 (9th Cir. 1991). See Makonnen v. INS, 44 F.3d 1378, 1385-86 (8th

Cir. 1995) (holding that treatment of a member of an alien's immediate

family who shares similar political views and similar political activities

is relevant to establishing well-founded fear). Evidence of isolated

violence, however, is not sufficient. Arriaga-Barrientos, 937 F.2d at 414.

"Furthermore, attacks on family members do not necessarily establish a

well-founded fear of persecution absent a pattern of persecution tied to

the petitioner[]." Prasad v. INS, 47 F.3d 336, 340 (9th Cir. 1995).

Here, there is no pattern of persecution linked to Nyonzele. His

father has allegedly been murdered for his political beliefs, but there is

no evidence to suggest that the government has any interest in persecuting

Nyonzele for his father's opinions. Likewise, there is no evidence that

any family members surviving Nyonzele's father have suffered physical

persecution by the government. 

Nyonzele asserts that the government will kill him upon his return

to Zaire out of fear that he, the oldest of the remaining three sons, will

avenge the 1991 death of his father. No evidence in the record supports

this allegation. Furthermore, the BIA found that even accepting Nyonzele's

testimony as credible, it has not been shown by credible, direct, and

specific evidence that his
14

father was murdered as alleged. Nyonzele's testimony that his uncle told

him of the murder relies solely on secondhand information that is

uncorroborated and lacking in detail. While an alien's testimony need not

always be corroborated by documentation, see Bolanos-Hernandez v. INS, 767

F.2d 1277, 1285 (9th Cir. 1985) (noting that it is unlikely that

persecutors will provide victims with affidavits of their acts), yet the

testimony offered must at least bear some degree of reliability. Skeletal

secondhand information will not satisfy the burden to demonstrate a wellfounded fear through "credible, direct, and specific evidence."

Ghasemimehr, 7 F.3d at 1390. Viewing all the evidence, the BIA did not

abuse its discretion by failing to give controlling weight to Nyonzele's

unsupported theory that the government will kill him out of fear that he

would avenge the death of his father. 

Finally, the BIA concluded that the most likely source of Nyonzele's

fear was his military desertion and the discipline he will face for

desertion upon his return to Zaire. In his affidavit accompanying the

waiver application discussed above and signed before he applied for asylum,

Nyonzele states only, "If I am returned to Zaire, I will face certain

discipline for desertion from the military." (Jt. App. at 53.) Fear of

punishment for military desertion is insufficient to establish a wellfounded fear absent evidence that the feared punishment is

disproportionately severe and is based upon the alien's religious or

political beliefs. See Alonzo v. INS, 915 F.2d 546, 548 (9th Cir. 1990).

Such proof is lacking.

After carefully reviewing the record, we conclude that Nyonzele has

not demonstrated that the evidence is "so compelling that no reasonable

fact-finder could fail to find the requisite fear of persecution."

Hamzehi, 64 F.3d at 1242 (internal quotations omitted). While Nyonzele's

fear may be subjectively genuine, it is not objectively reasonable.

Accordingly, the BIA
15

did not abuse its dis

asylum. 

C. Voluntary Departure

 BIA concluded that Nyonzele abandoned this claim in his

 appeal. Nyonzele disagrees. Nyonzele's notice of appeal

m for voluntary departure:

Finally, the

requested n

proceed to deny the same for want of good moral character.

departure to Zaire is not relief Respondent seek

since he e

Immigr Judge again finds that Respondent has offered

usible and inconsistent testimony in support of hi

request t

account in support of his asylum claim, Respondent 

to e

err Second, even if the findings were true, they

ly do not rise to the level of any of the statutor

exceptions to the finding of good moral character. . . . 

(Jt. App. at 46.) Although this statement very plainly expresses that

 of voluntary departure to

Zai his intent later becomes confusing because Nyonzele states he is

determination. (Id.

statement then renews Nyonzele's attack on the IJ's credibility findings,

 that were made in connection with his requests for a waiver and

asylum and were relied upon by the IJ to deny voluntary departure. Th

notice of appeal is not a model of clarity, as Nyonzele suggests. 

The dministrative record reveals, however, that Nyonzele did not

w, this clarifies the real

issues pealed to the BIA and shows that Nyonzele failed to pursue the
16

The BIA "cannot be expected to resolve issues that the alien should have

raised, but did not." Perez-Rodriguez v. INS, 3 F.3d 1074, 1080 (7th Cir.

1993). When an issue is abandoned before the BIA, it is not preserved for

our review. Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980), cert.

denied, 456 U.S. 994 (1982). See also Valadez-Salas v. INS, 721 F.2d 251,

252 (8th Cir. 1983) (citing Tejeda-Mata and holding that failure to raise

a claim before the IJ or BIA precludes our review because there has been

no exercise of the Attorney General's discretion to review). 

III. CONCLUSION

Finding no abuse of discretion in the BIA's decision to deny

Nyonzele’s claims for discretionary relief, we affirm. 

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.