_____________ 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 judicia l review of the decision of the Board of Immigration Appeals (BIA) finding him dep ortable 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

. § 1186 a(c)(4) of the joint petition requirement for seeking permanen t 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, enter ed 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 Decem ber 1986, he fled to Texas and later moved to Si oux 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 Immigratio n Marriage Fraud Amendments).
To remove the condition and obtain complete lawful permanent re sident 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 h e obtai ned the conditional status. See 8 U.S.C. §§ 1186a(c)(1) an d 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 th e joint petition requir ement by applying for a "hardship waiver." 8 U.S.C. § 1186a(c )(4). Had it been granted, this waiver would have allowe d Nyonze le to seek permanent resident status without fulfilling the join t 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

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his co nditional permanent resident status. The INS then initiate d deportation proceedings against Nyonzele.

At the deportation proceedings, Nyonzele requested review of th e dis trict director's termination of his conditional permanent residen t 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 entere d into his marriage in good faith. Nyonzele also submitted an application for asy lum, alleging a well-founded fear of persecution on account o f political views. Alternatively, he requested the privilege of voluntary dep arture in lieu of deportation. Following a hearing, the Immigratio n Judge (IJ) concluded that Nyonzele was deportable as charged and denied al l claims for discretionary relief.

In his administrative appeal, the BIA granted Nyonzele anothe r hearing but ultimately dismissed the appeal, aff irming 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 requir ement because he failed to demonstrate a good faith qualifyin g marria ge. The BIA also determined that crediting Nyonzele's testimon y concerning his request for asylum, he failed to demonstrate a well-founded fear of persecution. Finally, the BIA concluded that Nyonzele ha d abando ned his claim for voluntary departure. Nyonzele seeks judicia l review.

II. DISCUSSION

This court has jurisdiction to review "all final orders o f deportation," and "the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considere d as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(7). Our review of final orders of depor tation 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 o n 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 tha t Nyonzele is deportable; instead, we are asked to review the denial of a hardship waiver, the denial of asylum, and the denial of voluntar y departure. The BIA's denial of Nyonzele's application for asylum and his
re quest for voluntary departure were "determinations made during an d 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 o f deportation. The hardship waiver is in a slight ly different posture as it
was in itially denied by the district director, not during deportatio n 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, 112 1 & n.8 (8th Cir. 1982) (holding no jurisdiction to revie w district director's d ecision to deny a stay of deportation because "those decisi ons do not fit within the parameters of section 1105a(a)")

. Neverthele ss, "[an] alien may seek review of the denial of a hardshi p waiver in deportationproceedings," 8 C.F.R. § 216.5(f), as did Nyonzele. Becaus e the BIA reviewed the waiver claim during the deportatio n 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 limite d to determining whether there has been an abuse of discretion. See 8 U.S.C

. § 1186a(c)(4) (leavin g to Attorney General's discretion the determination of whether to remove the conditional basis for permanent residence absent
a jo int petition); 8 U.S.C. § 1158(a) (leaving to Attorney General' s discre tion 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 depar ture). "An abuse of discretion occurs if a decision
was without rational explanation, departs from established policies, o r invidiously discrimin ates against a particular race or group." Khalaj v. Cole , 46 F.3d 828, 832 (8th Cir. 1995). An abuse of discretion also occur s where the agency fails to consider all factors presented by the alien or dis torts important aspects of the claim. Barragan-Verduzco v. INS , 77 7 F.2d 424, 425 (8th Cir. 1985).

A. Hardship Waiver under § 1186a(c)(4)
An alien may obtain lawful permanent resident status on a condi tional basis by marrying a United States citizen. 8 U.S.C. 1186a(a)(1). Se e Velazquez v. INS , 876 F. Supp. 1071, 1075-76 (D. Minn. 1995) (offering an
ove rview of the operation of § 1186a). The conditional basis of thi s status may be removedif the alien and citizen spouse file a timely joint petition for removal of the condition and appear together for a personal int erview. 8 U.S.C. § 1186a(c)(1). When no timely joint petition i s filed, t he 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 th e alien and citizen spouse separate within the first two years of marriage, preventing the alien from fulfilling the timel y joint petition requirement, the alien may seek discretionary removal of th e 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 qualif ying marriage was entered into in good faith." 8 U.S.C

. § 1186a(c)(4). 2

To deter mine 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 com bined financial assets and liabili ties, the length of time during which they cohabited after th e
ma rriage and after the alien obtained conditional permanent residen t 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 i s credible and the weight to be given that evidence shall be within

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

. Once the alien demonstrates that he is statutori ly eligible for the waiver by showing that the m arriage was entered into in good faith, the decision of whether to grant a hardship waiver of the joi nt 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 opinio n discussing the evidence and explaining its decis ion to dismiss the appeal. In de termining that Nyonzele had not entered into his marriage in goo d faith, the BIA considered and gave great weight to Nyonzele's own statemen t concerning his intent at the time he entered into the marriage. During th e interview regarding his waiver application, during which he was represente d by c ounsel 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 th e interview tape were unintelligible, and that he did not realize he could tell the examiner he was having difficulty under standing her, all of which the BIA found to be w ithout merit. Nyonzele did not dispute the accuracy of the tape transcription, only its completeness.

The B IA 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 letter s to her in Galesburg, Illinois. After about four visits, she moved to Sioux City, Iowa, to live with Nyonzele and found employment there. They marrie d on August 4, 1989.

On Ja nuary 11, 1990, following an interview with Nyonzele and hi s wife, the INS approved Nyonzele's application for conditional

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permanent resident status based upon the marriage. Nyonzele testified tha t after he a nd his wife returned from the interview, she became hostil e towa rd him and began to change from a "nice lady" into a drug user wh o wanted to kill him. (Jt. App. at 194.) Nyonzele presented a partiall y written le tter dated January 16, 1990, in which his wife indicated a n intent to poison him. He testified that a few days later, she threatened himwith a knife and tried to poison him by putting bleach on hi s toothbrush. He tried to get his wife to see a psychiatrist but sh e refused, and on January 24, 1990, he moved out a nd filed for divorce. His wife continued to harass him, leaving threatenin g and prejudicial messages
on his answering machine, and he believed she once put sugar in the ga s tank of his car so it would not be operable. Th e BIA found it significant that this "nice lady" began exhibiting hostile behavior on the very da y Nyonzele obtained con ditional permanent resident status and that he filed for divorce on January 24, 1990, only two weeks after obtaining thi s 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 tha t Nyonzele offered very little evidence of a shared life. Nyonzele submitte d
a lease agreement reflecting that his wife and her daughter were livin g with him, and two dep osit slips from a joint account. One of the deposit slips the BIA found to be illegible and post-dates the filing of th e 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 ev idence of a shared life with his wife, arguing that in spite of his admission tha t he married to stay in the United States, he also married intending to spen d his life with his wife. Our review of the record, however, convinces us that the BIA did not overlook or

### 9

distort any significa nt evidence. Rather, we believe that Nyonzele is in
rea lity seeking to have us reweigh the evidence concerning their share d life. We are not at liberty to reweigh the evidence. The governin g 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 th e good faith determination by considering unconstitutio nal factors, consisting of "private" marital mat ters 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 cre dible 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 el igible for a waiver of the joint petition requirement, an d therefore, the factors relating to his marital r elationship that he claims to be private were relevant to the waiver application and were properl y considered. In any event, it is clear that the BIA did not consider the factors of which Nyonzele complains to the exclu sion of all other evidence but found them to be "valid investigative indicators of possibly fraudulen t marriages." (Petitioner's Addend. at 12.) The BIA properly considered al l of the evidence rather than focusing solely on N yonzele'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 t he administrative record, we conclude that the BIA's findings of fact are supported by substantial evidence and are therefore conclusiv e. The BIA did not abuse its discretion by denying Nyonzele a har dship waiver on the basis that he did not demonstrate a good fait h marriage.

### 10 B. Asylum

A depor table alien is eligible to seek asylum at the discretion o f the Attorney General upon proof of a "`well-foun ded fear of persecution on account of race, reli gion, nationality, membership in a particular social group, or political opinion.'" Hamzehi v. INS , 64 F.3d 1240, 1242 (8t h 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 objectivel y reasonable.'" Id. (quoting Ghasemimehr v. INS , 7 F.3d 1389, 1390 (8th Cir

. 1993)). Subjectively, the alien must demonstrate with credible evidence that h e genuinely fears persecution; objectively, the alien mus t 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 asylu m must b e upheld if `supported by reasonable, substantial, and probativ e evidence on the record considered as a whole.'" INS v. Elias-Zacarias , 50 2 U.S
. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). To overturn a finding that an alienis not eligible for asylum, the alien must meet the heavy burden of demonstrating that the "evidence `was so compelling that
no reaso nable fact-finder could fail to find the requisite fear o f persecution.'" Hamzehi , 64 F.3d at 1242 (quotin g Elias-Zacarias , 502 U.S. at 484).

On March 6, 1992, after the INS denied Nyonzele's request for a waiv er, he filed an application for asylum, asserting that he feare d persecution because he had refused to return to Zaire at the request of th e mi litary attache and because his family has been singled out fo r persecu tion 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 participatedin political demonstrations with his father in 1978 and 1980, while he was in the air force. Nyonze le 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 serv ice and was selected for special training in the United States. Nyonzele testified that he first becam e fearful o f the Mobutu government in December 1986, while he wa s participating in special air force training at Mather Air Force Base i n Califor nia. He received a phone call from his uncle, who worked in th e Zairian Defense Ministry and allegedly had connections to Zaire's secret police, telling him t hat he was about to be returned home and warning him not to do so. Nyonze le 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 att ache flew from Washington D.C. to California and ordered Nyonzele t o 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 th e military, Nyonzele received word from his uncle that his father had been murdered by a member of the Mobutu government's secret police whil e returning home from a political demonstration. Nyonzele testified that hi s family kn ew the alleged gunman to be a member of the secret police

. Nyonzele testified that he has had no contact with family members sinc e this phone call.

Nyo nzele also testified that other family members have suffere d persecution at the hands of the Mobutu government. Nyonzele testified tha t his older brother, anair force pilot, died in a plane crash in 1980 with indicat ions of sabotage. That same year, two cousins were imprisone d allegedly on political grounds. They were never brought to trial and died wi thout explanation while confined. Nyonzele presented some genera l 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.

BI A 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 d eaths of a brother and two

occurred over a decade ago. Nyonzele has not shown "why thes rather dated events p rovide 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, bot h

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

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a lack of educational opportunities, however, do not establish a well

founded fear of perse cution. See Minwalla v. INS , 706 F.2d 831, 835 (8th Cir

. 1983) (persecution requires a threat to life or freedom; "economi c detriment is not sufficient").
The final event -- the allegation that Nyonzele's father was mu rdered five years after Nyonzele deserted the military -- is significant. Acts of viol ence against an alien's family members may demonstrate a well

founded fear of persecution, "notwithstanding anutter lack of persecution agains t the petitioner [him]self." Arriaga-Barrientos v. INS , 937 F.2 d 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 immediat e family who shares similar political views and si milar political activities is rel evant to establishing well-founded fear). Evidence of isolate d violence, however, is not sufficient. Arriaga-Barrientos , 937 F.2d at 414

. "Furth ermore, 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. Hi s father has allegedly been murdered for his polit ical beliefs, but there is no evidence to suggest that the government has a ny interest in persecuting Nyonzele for his father's opinions. Likewise, there is no evidence that any fam ily members surviving Nyonzele's father have suffered physica l persecution by the government.

Nyonzele asserts that the government will kill him upon his retur n 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, an d specific evidence that his

### 14

father was murdered a s alleged. Nyonzele's testimony that his uncle told him o f the murder relies solely on secondhand information that i s uncorroborated and lacking in detail. While an alien's testimony need not always be corroborated by documentation, see Bol anos-Hernandez v. INS , 767 F. 2d 1277, 1285 (9th Cir. 1985) (noting that it is unlikely tha t persecutors will provide victims with affidavits of their acts), yet the testimony offered must at least bear some degree of reliability. Skeletal secondhand informatio n will not satisfy the burden to demonstrate a wellfoun ded fear through "credible, direct, and specific evidence. " Ghasemi mehr , 7 F.3d at 1390. Viewing all the evidence, the BIA did no t 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 fo r deser tion upon his return to Zaire. In his affidavit accompanying th e waiver application discussed above and signed before he applied for asylum , Nyo nzele states only, "If I am returned to Zaire, I will face certai n discipline for desertion from the military." (Jt. App. at 53.) Fear of punish ment for military desertion is insufficient to establish a well

founded fear absent evidence that the feared punishment i s dispro portionately severe and is based upon the alien's religious o r political beliefs. S ee Alonzo v. INS , 915 F.2d 546, 548 (9th Cir. 1990). Such proof is lacking.

After car efully reviewing the record, we conclude that Nyonzele has not demonstrated that the evidence is "so compelling that no reasonabl e fact-f inder could fail to find the requisite fear of persecution. " Hamzehi , 64 F.3d at 1 242 (internal quotations omitted). While Nyonzele's fear m ay 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 hi s appeal. Nyonzele disagrees. Nyonzele's notice of appeal m for voluntary departure:
Finally, the requ ested 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 offere d usible and inconsistent testimony in support of hi re quest t account in support of his asylum claim, Respondent to e err Second, even if the findings were true, the y

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 tha t of voluntary departure to Zai his intent later becomes confusing because Nyonzele states he i s 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 no t w, this clarifies the real issues pealed to the BIA and shows that Nyonzele failed to pursue th e

### 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 BI A, it is not preserved for our review. Tejeda-M ata v. INS , 626 F.2d 721, 726 (9th Cir. 1980), cert. denied , 456 U.S. 994 (1982). See also Valadez-S alas 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 den y Nyonzele’s claims for discretionary relief, we affirm.

A true copy.

Attest:

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