(CITE AS: 86 F.3D 1163, 1996 WL 266496 (9TH CIR.))
Abdul Hossein SARHANGZADEH; Maryam Sarhangzadeh, Petitioners,
v. IMMIGRATION AND NATURALIZATION SERVICE,
Respondent. No. 95-70026.
United States Court of Appeals, Ninth Circuit.
Submitted May 10, 1996.*
Decided May 17, 1996.
Petition to Review a Decision of the Immigration
and Naturalization Service, Nos. A28-763-127, A28-763-128.
BIA
REVIEW DENIED.
Before: HALL, O'SCANNLAIN, and KLEINFELD, Circuit
Judges.
MEMORANDUM **
**1 Abdul Hossein Sarhangzadeh, his wife Maryam
Mootamedi, and his daughter Pooneh Sarhangzadeh ("petitioners"),1
all natives and citizens of Iran, petition this court for review of an
order of the Board of Immigration Appeals ("BIA") which dismissed their
appeal from an order of an immigration judge ("IJ") which denied their
request for asylum and withholding of deportation.2
I
A
Petitioners first argue that their due process
rights were violated because Sarhangzadeh received ineffective assistance
of counsel.3
In order to prevail on this issue, petitioners must demonstrate "not merely
ineffective assistance of counsel, but assistance which is so ineffective
as to have impinged upon the fundamental fairness of the hearing...." Magallanes-Damian
v. INS, 783 F.2d 931, 933 (9th Cir.1986). They must also show that
they were prejudiced by their attorney's errors, Mohsseni Behbahani,
796 F.2d at 251, in the sense that their rights were "violated in a manner
so as potentially to affect the outcome of the proceedings." Barraza
Rivera v. INS, 913 F.2d 1443, 1448 (9th Cir.1990) (citations, quotations
omitted). Petitioners have failed to satisfy either requirement.
First, petitioners have failed to show that
the proceedings were fundamentally unfair because of the quality of counsel's
performance. Petitioners claim that Sameni incompetently prepared Sarhangzadeh's
application, forged Sarhangzadeh's signature, and, without Sarhangzadeh's
knowledge or permission, improperly added false information to the application
which later conflicted with Sarhangzadeh's testimony and thus undermined
his credibility.4
However, they offer no evidence supporting their contention that Sarhangzadeh's
inconsistencies were entirely the result of Sameni's machinations. In addition,
the IJ repeatedly gave Sarhangzadeh an opportunity to explain the inconsistencies,
and the mere fact that the IJ remained unsatisfied with his responses does
not indicate that the proceeding was "fundamentally unfair."
Second, petitioners have failed to establish
prejudice from Sameni's alleged errors, primarily because the IJ's credibility
determination depended in part on Sarhangzadeh's admission that he improperly
stated in his asylum application that he was a member of the Bahá'í religion
because Sameni told him "if you write this down, that would help you."
In light of this admission and other inconsistencies in Sarhangzadeh's
testimony, petitioners have failed to prove that the result of the proceeding
would have been different but for Sameni's alleged errors.
B
Petitioners also argue that their due process
rights were violated because of allegedly faulty translation of their testimony
in the deportation hearing. We are not persuaded.5
In order to establish that their due process
rights were violated, petitioners must prove (1) that the interpreter performed
incompetently, and (2) that they were prejudiced by the errors. Hartooni
v. INS, 21 F.3d 336, 340 (9th Cir.1994). Petitioners have failed to
satisfy either prong.
**2 First, petitioners point to only two alleged
translation errors; however, they do not explain why the translations are
inaccurate, nor what their testimony would have been if properly translated.
Second, petitioners have completely failed to demonstrate that the result
of the proceeding might have been different if their testimony had been
translated differently. Accordingly, we reject petitioners' due process
claims.
II
Petitioners next argue that they were denied
their statutory right to present evidence because the IJ refused to allow
them to introduce into evidence certain untranslated pages from an Iranian
book purportedly listing Sarhangzadeh as a SAVAK member.
The Immigration and Nationality Act states
that an alien "shall have a reasonable opportunity ... to present evidence
on his own behalf...." 8 U.S.C. s 1252(b)(3) (1970 & Supp.1996). Petitioners
must prove that they were denied their right to present evidence and that
the violation caused them prejudice. Barraza Rivera, 913 F.2d at
1447-48 (citations omitted). Petitioners are unable to establish that the
IJ's decision violated their right to present evidence. To the contrary,
the IJ's decision was consistent with a federal regulation which requires
that documents be translated into English and accompanied by a certificate
stating that the translation is true and accurate. 8 C.F.R. s 3.33. In
addition, the petitioners cannot show prejudice, because the IJ allowed
Sarhangzadeh to testify regarding the contents of the document and discussed
the document in his opinion. As such, we find no error.
III
Petitioners also contend that the IJ abused
his discretion by failing to call, sua sponte, Sameni to the stand to clarify
the inconsistencies between Sarhangzadeh's testimony and the asylum applications
prepared by Sameni. This argument fails because, as the BIA noted, the
burden to demonstrate asylum eligibility is on petitioners, and the IJ
had no legal obligation to call Sameni.
IV
Finally, petitioners challenge the BIA's finding
that they were ineligible for asylum. This court must uphold that decision
"if it is 'supported by reasonable, substantial, and probative evidence
on the record considered as a whole.'" Ubau-Marenco v. INS, 67 F.3d
750, 754 (9th Cir.1995) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)). To obtain a reversal, petitioners must present evidence
"so compelling that no reasonable factfinder could fail to find the requisite
fear of persecution." Elias-Zacarias, 502 U.S. at 483-84.
The BIA's finding that petitioners were ineligible
for asylum was supported by substantial evidence. First, the BIA's finding
that Sarhangzadeh's testimony was not credible was fully supported by the
record. The BIA cited a number of specific inconsistencies between Sarhangzadeh's
testimony and his two asylum applications. In addition, the BIA's finding
was supported by Sarhangzadeh's admission that he voluntarily and improperly
stated in his asylum application that he was a member of the Bahá'í religion.
**3 Second, the BIA finding was supported by
the fact that petitioner lived unharmed and largely undisturbed in Iran
for eight years after the incidents in 1980 which are alleged to form the
primary basis for his claim of past persecution and his well-founded fear
of future persecution. In addition, the fact that Sarhangzadeh left Iran
in 1985, visited the United States, and voluntarily returned to Iran for
three more years before seeking asylum strongly supports the BIA's conclusion.
In sum, petitioners have failed to present evidence so compelling as to
mandate the conclusion that the BIA erred.
V
For the foregoing reasons, we deny the petition
for review.
PETITION DENIED.
C.A.9,1996. Sarhangzadeh v. I.N.S.
* This case
shall be submitted on the briefs without oral argument on Friday, May 10,
1996 in Pasadena, California pursuant to Federal Rule of Appellate Procedure
34(a) and Ninth Circuit Rule 34-4.
** This disposition
is not appropriate for publication and may not be cited to or by the courts
of this circuit except as provided by Ninth Circuit Rule 36-3.
1. Abdul Sarhangzadeh
included his wife and daughter in his application; their claims are derivative
of his claim. See 8 C.F.R. ss 208.3, 208.21.
2. We have jurisdiction
to consider the petition under 8 U.S.C. s 1105a(a). Because the BIA applied
de novo review to the IJ's findings, we review only the BIA's, and not
the IJ's, decision.
Acewicz v. INS, 984 F.2d 1056, 1059 (9th Cir.1993).
3. The right
to effective assistance of counsel in civil deportation proceedings derives
from the fifth amendment due process guarantee of a full and fair hearing.
Mohsseni
Behbahani v. INS, 796 F.2d 249, 251 n.1 (9th Cir.1986) (citations omitted).
This court reviews de novo the BIA's finding that counsel's performance
was effective. Id. at 250.
4. The BIA rejected
these arguments by noting that petitioners had failed to satisfy the standards
for proving ineffective assistance of counsel established in Matter
of Lozada, 19 I & N Dec. 637 (BIA1988). We apply different standards
in assessing ineffective assistance of counsel claims in this context.
5. The INS argues
that petitioners have waived this argument by failing to raise it below.
We choose to address it on the merits.
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