Marlene Guadalupe Hernandez-flores, Petitioner-appellant, v. Immigration and Naturalization Service, Respondent-appellee, 132 F.3d 39 (9th Cir. 1997)

Before: SCHROEDER and KOZINSKI, Circuit Judges, and WHYTE,^*** District Judge.

MEMORANDUM^* 

Acknowledging problems with the immigration judge's decision, the BIA examined Hernandez's evidence and claims de novo. In such circumstances, we only review the BIA's decision; errors by the immigration judge are rendered harmless. See Elnager v. INS, 930 F.2d 784, 787 (9th Cir. 1991). The BIA made no specific finding regarding Hernandez's credibility, but concluded that she had failed to provide evidence of a well-founded fear of persecution based on her political opinion, actual or imputed, or on her membership in a social group. We could only reverse the BIA's determination if the evidence were so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Hernandez offers no persuasive reason--supported by the record--to think that standard has been met here.

Hernandez argues that, after finding flaws in the immigration judge's decision, the BIA should have remanded the case to a new immigration judge. But, " [a]lthough the BIA has the discretionary power to remand a case ... the federal regulations and case law do not require that it do so." Elnager, 930 F.2d at 787.

In her reply brief, Hernandez tries to introduce evidence of her brother's successful asylum application. However, we held in Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc), that our review is limited to the administrative record upon which deportation was based; we may not consider new factual material produced on appeal.

AFFIRMED.