* This order and judgment is not binding precedent, e xcept under the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

### JUN 27 2001 

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

REGINA TAMOSHAITYTE,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 00-9533 (No. A72-453-376) (Petition for Review)

ORDER AND JUDGMENT *

Before HENRY , BRISCOE , 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 petition for review. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral ar gument.1 The Illegal Immigration Reform and Immigrant Respon sibility Act of 1996

(IIRIRA) alters the availability, scope, and nature of judicial review in INS cases. Because petitioner’s deportation proceedings commen ced before April 1, 1997, and the agency’s final order was filed more than th irty days after IIRIRA’s date of enactment, transitional IIRIRA rules apply in this case. Rivera-Jimenez v. INS , 214 F.3d 1213, 1215 n.1 (10th Cir. 2000) (per curiam). The transitional rules do not bar petitioner from seeking judicial review of the INS’s final order in this case. Id. -2- Petitioner Regina Tamoshaityte filed this petition for review of the decision of the Immigration and Naturalization Service (INS) that she is not eligible for political asylum. Following review of the administrative record and consideration of the parties’ arguments, we conclude that the INS was correct to deny the petition. 1 Petitioner, a citizen of Lithuania, arrived in the United States in 1991. She applied to the INS for political asylum in Nove mber 1992, claiming fear of persecution because of her involvement with the Communist Party. The agency denied her asylum request in July 1993. The INS th en served petitioner with an order to show cause as to why she should not be dep orted for overstaying her visa. She conceded deportability, but again soughtasylum. Following an evidentiary hearing, the immigration j udge (IJ) denied petitioner’s application for asylum in 1994. Petit ioner appealed to the Board of Immigration Appeals (BIA). The BIA issued a per curiam decision in August 2000, dismissing her appeal of the IJ’s decision. The BIA stated it had reviewed-3-

the record, concluded that the IJ correctly analyze d the case, and adopted the IJ’s decision as its own. To qualify for a grant of asylum, petitioner “must establish that [she] is a refugee by proving either past persecution or a ‘ well-founded fear of persecution on account of race, religion, nationali ty, membership in a particular social group, or political opinion.’” Rezai v. INS , 62 F.3d 1286, 1289 (10th Cir. 1995) (quoting 8 U.S.C. § 1101(a)(42)(A)). 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). We review the IJ’s factual f inding that an alien is not a refugee for substantial evidence. Rezai v. INS , 62 F.3d 1286, 1289 (10th Cir. 1995). We will uphold the IJ’s conclusion if it is supported by “reasonable, substantial, and probative evidence on the record c onsidered as a whole” and will not reverse unless the asylum applicant presents ev idence “so compelling that no reasonable factfinder could fail to find the requis ite [persecution or] fear of persecution.” INS v. Elias-Zacarias , 502 U.S. 478, 481, 484 (1992). We review the IJ’s legal determinations de novo, but will acc ord deference to its legal determinations unless they are clearly contrary to the statute’s language or to congressional intent. Rivera-Jimenez , 214 F.3d at 1216. In her second asylum application, petitioner claime d that after Lithuania regained its independence from the Soviet Union, sh e turned over files to the-4-

press exposing certain Lithuanian political leaders as former members of the KGB. She claimed that bodyguards and an aide of on e such politician went to her home and demanded the files at gunpoint. She claim ed that she was summoned to the aide’s office two weeks later and detained with out food or sleep for two days and threatened with imprisonment in a mental hospit al. She contends this politician might assassinate her in revenge if she returned to Lithuania. The IJ determined that petitioner’s claims of past persecution were not credible because she never mentioned any allegation s concerning the KGB files, the detention or the alleged threats in her first a sylum application, prepared with the assistance of counsel, or in her affidavit acco mpanying her application or in her interview with the INS asylum officer. The IJ also did not believe her testimony that she was afraid to tell the asylum of ficer about these allegations of persecution in light of her current assertion that these events caused her to leave Lithuania. The IJ also concluded that petitioner h ad failed to establish a well-founded fear of future persecution because the claimed accusations no longer had any impact on any politician’s reputation and p etitioner’s claimed role in any accusations was insufficient to cause anyone to see k revenge against her. Petitioner claims the IJ improperly based his credi bility determination on what amounts to an “irrebuttable presumption” that her original counsel provided effective assistance in prosecuting her initial asy lum application. Appellant’s Br.-5-

at 15. Petitioner misconstrues the basis of the IJ ’s determination. The IJ’s credibility determination was based not just on pet itioner’s failure to make known these claims of persecution in the initial asylum application prepared with counsel, but also her own failure to mention these claims in her affidavit and during her asylum interview, coupled with the inher ent unbelievability of aspects of her testimony. Contrary to petitioner’s asserti on, the IJ did make a de novo determination of petitioner’s credibility and eligi bility for asylum and did not inappropriately base his determination on the denial of her initial application. See 8 C.F.R. § 208.2(b) (1991) (immigration judge to re view asylum claims de novo). Petitioner contends that the IJ inappropriately den ied her application based on his determination that she was not the prime mov er in the exposure of former KGB agents. Regulations provide that the IJ “shall not require the applicant to provide evidence that [s]he would be singled out in dividually for persecution” if [s]he establishes [her] inclusion in and identification with “similarly situated” groups of persons against which there is a “patternor practice” of persecution. 8 C.F.R. § 208.13(b)(2)(i). The evidence before th e IJ showed that accusations of KGB involvement by Lithuanian officials had been wi despread in the years following Lithuania’s independence. The IJ found n o evidence of harm or persecution against anyone else who had made similar accusations of KGB involvement, and determined that petitioner was unl ikely to be singled out as-6-

a target of persecution in the future because of he r claimed role in accusing a handful of officials. The IJ correctly identifie d and applied the standards for determining whether a well-founded fear of future p ersecution has been shown. Hadjimehdigholi v. INS , 49 F.3d 642, 649 (10th Cir. 1995). In making its determination that there was no evide nce of repression in the then-current government of Lithuania, the IJ reliedin part on the State Department’s assessment of conditions in Lithuania in its Country Report on Human Rights Practices for 1993 . The IJ is free to treat the information in Country Reports as evidence, 8 C.F.R. § 208.12(a), and petitioner was given notice and an opportunity to respond to the Country Report , see Kowalczyk v. INS , 245 F.3d 1143, 1147-48 (10th Cir. 2001) (requiring INS to provide notice and opportunity to respond before taking administrativenotice of facts during immigration proceedings). Contrary to petitioner’s contention, the IJ did not rely exclusively on this evidence. The IJ also consider ed the testimony of an expert witness, the testimony of each witness and all of the documentary evidence. We find nothing improper in the IJ’s use of the Country Report . Petitioner’s remaining arguments essentially contend the IJ gave too much weight to her inability to provide documentary support for her al legations and insufficient weight to the testimony of herself and her husband. We may not reweigh-7-

the evidence or determine the credibility of witnesses. Refahiyat v. INS , 29 F.3d 553, 556 (10th Cir. 1994). The evidence does not compel a conclusion that peti tioner suffered past persecution or has a well-founded fear of future pe rsecution if she is deported. Elias-Zacarias , 502 U.S. at 483-84. Therefore, we AFFIRM the IJ’ s decision denying petitioner’s request for asylum.

Entered for the Court

Robert H. Henry Circuit Judge