* This order and judgment is not binding precedent, e xcept under the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

### SEP 3 1997 

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

AMIN MALOUKH,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 96-9524 (Petition for Review) (No. A28-542-882)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 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, and the final decision of the INS issued before October 31, 1996, neither IIRIRA’s pe rmanent “new rules,” nor its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1) & (4), as amended Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in notes to 8 U.S.C. §§ 1101, 1252. In contrast, provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 132, 110 Stat. 1214, apply to INS cases commenced, like this one, before AEDPA ’s enactment on April 24, 1996, see Fernandez v. INS , 113 F.3d 1151 (10th Cir. 1997), but none of these provisions appear pertinent to this petition for re view, which does not involve deportation for criminal activity.

-2- Petitioner seeks review of a final order of the Imm igration and Naturalization Service (INS) denying his applicatio n for asylum or withholding of deportation. 1 The Board of Immigration Appeals (BIA) concluded he had not shown the requisite “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1101(a)(42)(A) (defining “refu gee” status), and denied relief accordingly, see Castaneda v. INS , 23 F.3d 1576, 1578 (10th Cir. 1994) (failure to satisfy definition of refugee precludes asylum and, a fortiori, withholding of deportation). The BIA upheld the decision of the I mmigration Judge (IJ), who had found petitioner’s evidence insufficient to est ablish either past or feared future persecution on account of political opinion or religion. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a) and 28 U.S.C. § 158, and we affirm.-3-

Petitioner is a Palestinian who lived in Israel unt il he entered the United States on a student visa. Due to family financial difficulties, he stopped attending school and instead obtained unauthorized employment . In January 1995, he pled guilty to using a false social security number in v iolation of 42 U.S.C. § 408(a)(7)(B) and making false statements in violation of 18 U.S.C. § 1001. Both charges arose because petitioner obtained unauthorized employment. Thereafter, deportation proceedings were commenced against him for failing to maintain nonimmigrant student status. Petitioner c onceded deportability, but applied for asylum or withholding of deportation. He alleged, among other things, past persecution and a well-founded fear of future persecution by Hamas, a Palestinian terrorist group. The IJ held a hearing on the application for asylumor withholding of deportation, and the parties presented the followin g evidence. In 1990, petitioner began attending Hebrew University in Jerusalem. Wh ile there, he became affiliated with a group called “two states for two people.” This group espoused views contrary to those of Hamas. As a result of i nteracting with this group, he began to oppose Hamas’ use of violence and terroris m. See R. at 132-33. Petitioner stated that, while in school, he tried t o encourage people to reject Hamas and he criticized Hamas’ use of terrorism. S ee id. at 133. In 1991, Hamas members spray painted petitioner’s home and warned him to stop speaking against-4-

Islam and to drop out of school. See id. Members of the “two states for two people” group visited petitioner at his home. Hama s believed they were undercover police and threatened petitioner’s life if he continued to attend Hebrew University. See id. at 49, 134. Subsequently, seven men kidnapped him in the middle of the night, took him to the mountai ns, beat him, and accused him of collaborating with the Israeli authorities by re porting the names of two Hamas members to the Israelis. See id. at 67, 133-34. Petitioner testified the men directed him to quit school or face hanging on an “ electric collar” for collaborating with the Israelis. See id. at 134. Petitioner stated that he tried to convince them that he was not a collaborator and th at they were entitled to their own beliefs. See id. (“I tried to convince them I’m not a collaborator, that my, what I believe is wrong and what maybe you believe is correct but let me have what I believe and I will keep what you believe . . . .”). Petitioner was able to escape from them, although as he was doing so, he w as shot in the hip. See id. at 134-35. He testified he escaped because he knew co llaborators are killed. See id. Thereafter, petitioner stopped attending Hebrew Uni versity and obtained a job with the help of his Palestinian cousin, who was inthe Israeli secret service. See id. at 135-36. In August 1992, with a Jordanian trave l document, he entered the United States on a nonimmigrant student visa.-5-

In November 1992, Hamas fire bombed his family’s st ore leaving a message that spies deserve to be burned. See id. at 75, 95, 97, 145-46. A letter from petitioner’s sister indicated the bombing occu rred because Hamas suspected he had reported names of its members to Israeli authorities to obtain an exit visa.
See id. at 97. In January 1994, another cousin of petitioner, who lived in California and who had returned from a trip to Israel, informed pe titioner that his mother said he should not return to Israel because he is wanted byHamas and because his family was repudiating him for his religious conversion fr om Islam to Christianity. See id. at 68, 92, 95, 97. His mother indicated to him ina phone call in January 1994 that Hamas was still looking for him. See id. at 148. Petitioner stated that he feared persecution and even death from Hamas due to his religious conversion, which occurred in January or February of 1995. See id. at 48, 138-39. Contrary to his assertions to the men who kidnappedand beat him, petitioner admitted, before the IJ, that he collabo rated with the Israelis. See id. at 133. He did so to obtain a work application and a change of address in Israel.
See id. at 77, 96. He testified that Hamas thought he col laborated with Israeli authorities to obtain permission to attend Hebrew U niversity, see id. at 129-30, and his sister, in a letter, stated Hamas also beli eved he collaborated to obtain an exit visa, see id. at 97.-6-

Based on this evidence, the IJ determined petitione r did not have a past or a well-founded fear of persecution based on his polit ical opinion or religion. See id. at 106-07. On appeal, the BIA concluded petitione r did not have a past or a well-founded fear of persecution because Hamas targ eted petitioner due to his collaboration activities, not due to any political opinion. See id. at 8-9. The BIA further determined that petitioner failed to show that neither the Israeli government nor the Palestinian Authority were unabl e or unwilling to protect him from Hamas. See id. at 9-10. The BIA gave little weight to petitioner ’s claim of religious persecution, considering it to be suspectsince his conversion from Islam to Christianity did not occur until after deportati on proceedings had commenced and he was convicted of two fraud offenses. See id. at 10. Also, the BIA found that petitioner failed to provide any evidence regarding persecution of religious
converts. See id. “An alien facing deportation who fears persecution if deported has two avenues of relief: asylum and withholding of deportation.” Rezai v. INS , 62 F.3d 1286, 1288 (10th Cir. 1995). The grant of asylum r equires first that the alien establish refugee status “by proving either past pe rsecution or a ‘well-founded fear of persecution on account of race, religion, n ationality, membership in a particular social group, or political opinion.’” I d. at 1289 (quoting 8 U.S.C. § 1101(a)(42)(A)). If the alien establishes refuge e status, the Attorney General-7-

has discretion to grant or deny asylum. See Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir. 1996). Because the BIA determined p etitioner did not prove he is a refugee, we are concerned here with the first ste p. See Hadjimehdigholi v. INS , 49 F.3d 642, 646 (10th Cir. 1995). Petitioner claims refugee status for past persecuti on and a well-founded fear of persecution. He bears the burden of provin g that he is a refugee. See id. at 647; see also Rezai , 62 F.3d at 1289 (“alien must present specific, cr edible evidence to support his claim that he has been pers ecuted or will be persecuted if deported”). “To prove past persecution, an asylum applicant mus t present specific facts through objective evidence.” Nazaraghaie , 102 F.3d at 462 (quotation omitted). “If the applicant meets this burden, a well-foundedfear of persecution is presumed; the presumption is rebutted if a preponde rance of the evidence indicates that since the time the persecution occurred, country conditions have changed such that the applicant’s fear is no longerwell-founded.” Id. (citing 8 C.F.R. § 208.13(b)(1)(i)). “The ‘well-founded fear of persecution’ standard . . . involves both a subjective ‘fear’ component, and an objective ‘well -founded’ component.” Sadeghi v. INS , 40 F.3d 1139, 1142 (10th Cir. 1994). The alien m ust prove the objective component by “credible, direct, and speci fic evidence of facts that-8-

would support a reasonable fear that he faces perse cution.” Id. A one in ten possibility of persecution may constitute a reasonable possibility. See Nazaraghaie , 102 F.3d at 462 (citing INS v. Cardoza-Fonseca , 480 U.S. 421, 431 (1987)). “Persecution has been defined as the offe nsive infliction of suffering or harm and encompasses more than just restrictions orthreats to life and liberty.” Hadjimehdigholi , 49 F.3d at 646 (quotation omitted). The subjecti ve component, which is not relevant until the objective componentis proven, requires that the alien’s fear be genuine. See Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). The BIA’s determination that an alien is not a refu gee will be upheld if it is “‘supported by reasonable, substantial, and probati ve evidence on the record considered as a whole.’” See INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). We will reverse the BIA’s decision only if the evidence compels a conclusion that the alien has pr oven refugee status. See id. at 481 n.1, 483-84. Petitioner first argues on appeal that the BIA erre d in determining he was not persecuted on account of one of the protected g rounds. He believes that persecution for collaboration and persecution on ac count of one of the five statutorily protected grounds are not mutually excl usive and, instead, there can be multiple motives for persecution. Because petition er was warned not to speak against Islam or Hamas, and he disagreed with Hamas ’ political philosophy,-9-

petitioner believes he showed political and religio us persecution. Also, petitioner contends that collaboration is inherently political

. The relevant inquiry is “whether the persecution analien fears is on account of his political opinion [or religion] or . . . on account of his actions . . . .” Adhiyappa v. INS , 58 F.3d 261, 266 (6th Cir. 1995) (citing EliasZacarias , 502 U.S. 478). “The statute provides protection only where the past or anticipated persecution is on account of political opinion, regardless of whether the persecuted acts on that opinion . . . .” Id. at 268. Persecution on account of political opinion means persecution on account of the victim’s, not the persecutor’s, political opinion. See Elias-Zacarias , 502 U.S. at 482. As the BIA stated, the record indicates that member s of Hamas harassed petitioner to protect Hamas because they believed h e informed Israeli authorities about its members, not due to any political opinion s or religious beliefs petitioner held. Retaliation for being a collaborator is not one of the listed statutory grounds for refugee status. Cf. Adhiyappa , 58 F.3d at 268 (list does not include individuals persecuted because their actions tend t o obstruct activity of politically-motivated groups). The record shows pe titioner collaborated for his own personal benefit. Cf. id. at 267 (person might inform government official of names of members of terrorist group for reasons oth er than political opinion).2 The deferential substantial evidence standard makes sense

where, as here, the determination hinges on the mot ivations of the persecutors, who are not before the court, as illum inated by the motivations of the alien. Motivations are easily s ubject to reinterpretation and characterization upon recollec tion, and professions that a certain opinion motivated conduc t are difficult to refute. Because the credibility of the asylum seek er is critically important, deference to the Board’s determination i s appropriate.
See Adhiyappa , 58 F.3d at 267-68. -10- Although petitioner states he spoke against Hamas t o friends and family,

see R. at 49, the record does not indicate that petiti oner was involved in any political activities. The threats he received almo st exclusively refer to his attendance at Hebrew University and his collaborati on with Israeli authorities. Furthermore, the State Department Report states that Palestinians are killing other Palestinians for collaborating with Israelis. See R. at 199-200, 202. Petitioner did not present evidence that Hamas was persecuting Palestinians or students who were not collaborators. See Adhiyappa , 58 F.3d at 268. The record does not indicate petitioner collaborated even in part basedon his political opinions or religion. Thus, we conclude there is substantial evidence 2to support the BIA’s decision that petitioner was threatened by Hamas fo r his collaboration activities and not based on the statutory categories of politi cal opinion or religion. See id. ; see also Elias-Zacarias , 502 U.S. at 483 (petitioner must establish persec ution-11-

because of political opinion, not because of refusa l to join guerrillas); Bartesaghi-Lay v. INS , 9 F.3d 819, 823 (10th Cir. 1993) (affirming BIA’s finding of no refugee status because possible persecution w as based on petitioner’s refusal to participate in drug smuggling, not polit ical opinion); Adhiyappa , 58 F.3d at 267-68 (no persecution based on politica l opinion where petitioner informed government of terrorist group members pres umably to improve job situation and avoid government retribution). Our r eview of the record therefore does not compel the conclusion that petitioner has a past or a well-founded fear of persecution based on religious or political persecution by Hamas. See Elias-Zacarias , 502 U.S. at 481. Petitioner argues that the BIA’s determination thathe did not prove that Hamas is a group the Israeli government or Palestin ian Authority cannot control was made in violation of his due process rights andthat the evidence shows, on the contrary, that Hamas is such a group. These ar guments, however, are only relevant after an alien shows persecution based on political opinion or religion.
See Bartesaghi-Lay , 9 F.3d at 822 (alien may establish eligibility fo r asylum if he establishes persecution “from a non-government agen cy which the government is unwilling or unable to control”); Rodriguez-Rivera v. United States Dep’t of Immigration & Naturalization , 848 F.2d 998, 1005-06 (9th Cir. 1988) (addressing only whether alien established well-founded fear of persecution from-12-

non-government entity, and, because alien failed to do so, not reaching issue of control). Because petitioner did not show such per secution, we need not address this argument. Petitioner contends that if he was not persecuted o n account of his religious and political views, he was persecuted for belongin g to a social group of collaborators. In his application for asylum or wi thholding of deportation, petitioner checked the box indicating he was persec uted for being a member of a social group. See R. at 64. In his brief before the BIA, however, p etitioner argued only political opinion and religious persecution. See id. at 16. Because a petitioner must exhaust administrative remedies, se e 8 U.S.C. § 1105a(c), a jurisdictional requirement, and may not raise an is sue for the first time on judicial review, petitioner waived his right to be heard on this claim. See Ravindran v.
INS , 976 F.2d 754, 761 (1st Cir. 1992). Accordingly, we lack jurisdiction to consider any claim alleging persecution based on me mbership in a social group.
See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991) (failing t o raise issue on appeal to Board is failure to exhaust admi nistrative remedies and appellate court lacks jurisdiction to hear matter). Petitioner’s fear of future religious persecution due to his conversion to Christianity is not well-founded. The BIA determin ed that petitioner’s conversion was not sincere. We do not evaluate a witness’s cr edibility. See Kapcia ,-13-

944 F.2d at 707. Furthermore, no evidence supporte d petitioner’s personal fear that Hamas would persecute him for this reason. Th e State Department Report did not indicate that Hamas was persecuting Palesti nians who converted to Christianity. Because the mere assertion of affili ation with a religion is insufficient to establish persecution on that groun d, see Refahiyat v. INS , 29 F.3d 553, 557 (10th Cir. 1994), petitioner has not met h is burden of proving a well-founded fear of religious persecution. We conclude petitioner did not meet the standard fo r establishing eligibility for asylum. In failing to do so, he also cannot me et the more rigorous standard for withholding of deportation. See Castaneda , 23 F.3d at 1578. The decision of the Board of Immigration Appeals is AFFIRMED.

Entered for the Court

David M. Ebel Circuit Judge