Unpublished Disposition, 862 F.2d 875 (9th Cir. 1986)

MEMORANDUM^* 

Petitioner is a native and citizen of El Salvador. On August 23, 1985 the INS issued an order to show cause against petitioner. The order charged that petitioner entered the United States near San Ysidro, California without inspection in violation of 8 U.S.C. § 1251(a) (2). Petitioner appeared at a group preliminary deportation hearing convened September 18, 1985 in El Centro, California. Petitioner was not represented by counsel but an interpreter of Spanish was provided. The IJ explained to the group that he was to decide if each person was in the United States illegally and whether "there is anything in the law that would save you from a deportation order." The IJ then addressed each person individually regarding attorney representation. The IJ noted that petitioner had received an attorney information sheet on August 23 and had received a continuance on September 4 so he could obtain counsel. The IJ then gave petitioner another attorney information sheet and asked petitioner if he had obtained a lawyer. Petitioner answered that he had not. The IJ then addressed the group advising them that they were each entitled: to one reasonable postponement to obtain counsel, to confront evidence against them, to present evidence and if found to be in the United States illegally to be considered for relief from deportation. The group stated that they all understood these rights. Later in the hearing, the IJ explained to a group including petitioner that he would question them as to whether they had permission to enter the United States, choice of a country of deportation, fear of returning home, family in the United States, and funds to pay voluntary departure costs. The group indicated they all understood. Petitioner individually admitted to the elements of deportability, stated that he wished to apply for asylum, refused to designate a country of deportation and indicated he could not pay for voluntary departure costs. The IJ concluded the hearing by giving petitioner an I-589 form, which is an application for asylum and for withholding of deportation.

Petitioner's hearing resumed on March 11, 1986 in San Diego, California with a different IJ. An interpreter of Spanish was employed and again petitioner lacked representation. Following an exchange between the IJ and petitioner, wherein the IJ inquired of petitioner's efforts to obtain counsel the IJ concluded that petitioner had been given "a full and fair opportunity to obtain an attorney in this case."

Petitioner submitted no written evidence on the subject of asylum. Petitioner's application for asylum, which was not complete stated that petitioner was subject to "a death order" because two groups, government and guerrilla were searching for him. As required by 8 C.F.R. Sec. 208.7 petitioner's application had been submitted for an advisory opinion to the State Department's Bureau of Human Rights and Humanitarian Affairs (BHRHA). The BHRHA, in a letter dated February 7, 1986 found that petitioner had "failed to establish a well-founded fear of persecution upon return to El Salvador."

Petitioner testified that he had only one direct contact with the guerrillas. In January 1981 the guerrillas asked petitioner to "go with" or "follow" them but petitioner told them that he would not involve himself with them. In April or May of 1982 the guerrillas went to look for petitioner at his home but he successfully avoided them. Petitioner stated that he only knew of one time when the guerrillas went to his home to look for him. Petitioner alleged that the guerrillas detained his father in an effort to ascertain where petitioner was hiding. The guerrillas apparently released petitioner's father upon the request of petitioner's sister. Petitioner implied in his testimony that the guerrillas were persecuting him because they had his name as a man who had been patrolling with the government.

Petitioner also testified that "the government" came to his home twice in April or May of 1982. These persons were looking for him because petitioner didn't want to continue patrolling. However, after twice stating that the government visited his home twice, petitioner began describing a third government visit. Petitioner claimed that on this visit, which occurred in July, 1982, the government had his name on a list as a guerrilla and that they were no longer looking for him because of desertion from patrolling duty. That time petitioner claimed: "They were going to look for me to see what they were going to do with me." Later in his testimony petitioner changed the date of the third visit to June 1982 and embellished the story by stating that the soldiers told his sister that "they had me on their list to kill." Petitioner also stated that he left El Salvador one week after this third visit by the government. When the IJ pointed out that this meant that petitioner had stayed in El Salvador for over a year after the soldiers last came to his house, since petitioner's I-589 indicated he didn't leave El Salvador until July 1983, petitioner commented "I have told you ... June of 1983." And only after the IJ insisted that petitioner had dated the event as occurring in June 1982 did petitioner remark, "I was confused regarding the dates."

Petitioner admitted that although he passed through Mexico en route to the United States he did not inquire about its asylum laws and that he had sent several hundred dollars back to his family during the period in which he was employed in the United States. When asked if he had funds to pay his way out of this country, petitioner responded "I don't have a nickel."

At the conclusion of the March 11, 1986 hearing, the IJ entered his decision ordering petitioner's deportation to El Salvador. The IJ found petitioner ineligible for voluntary departure because he had no funds. He also denied withholding of deportation and asylum while specifically applying the "lesser standard of proof" required at that time by this Court and since endorsed by the Supreme Court in Cardoza-Fonseca. The IJ noted that "conditions in an alien's homeland indicative [of] generalized violence don't satisfy the conditions that an alien would be singled out for persecution." The IJ grounded his denial of relief on two separate bases. First, pointing to petitioner's demeanor and his "conflicting and implausible" "overall story" as well as the fact that petitioner failed to present the letters supposedly stating that both the government and guerrillas were still seeking him, the IJ found lack of credibility. Among the details of petitioner's narrative which the IJ found implausible were (1) that guerrillas searching for petitioner would wait outside his house all night instead of approaching the house and entering and (2) that, if afraid of them, petitioner bluntly would tell the guerrillas that he was not interested in becoming involved with them. The IJ alternatively denied relief because "even accepting ... [petitioner's] claim ... that the government of El Salvador is seeking him out for desertion ... this does not constitute ... a basis to seek political asylum or withholding of deportation."

Petitioner appealed the IJ's decision to the BIA on March 18, 1986 alleging six reasons for the appeal: (1) erroneous adverse credibility finding; (2) denial of due process; (3) errors in evidentiary rulings; (4) abuse of discretion in denial of asylum; (5) failure to base denial of withholding on substantial, reasonable, and probative evidence; and (6) abuse of discretion in denial of voluntary departure. Violations of due process alleged in petitioner's brief included inadequate translating, denial of assistance of counsel, failure of the IJ to adequately discuss the right to counsel and the nature of deportation proceedings, failure of the IJ to "carry out his duty to seek out all relevant information and to assist ... [petitioner] in producing it" and improper conduct of the IJ whom petitioner claims "prevented ... [him] from presenting a complete coherent case."

The BIA rendered its decision on September 12, 1986. The BIA concluded that petitioner had full benefit of due process of law. The Board found no support in the record for any claim of inadequate translation stating that there was no evidence suggesting that petitioner misunderstood any significant question asked of him. The Board also found no impairment of the right to counsel reminding petitioner that he is not legally entitled to appointment of counsel at government expense but only to a reasonable opportunity to arrange for representation on his own.

The BIA likewise concluded that there was no improper conduct on the part of the IJ. The Board found that the transcript of the proceedings indicated that the IJ adequately explained the nature and purpose of the deportation hearing. The Board found petitioner's contention that the IJ failed to seek out all relevant information patently without merit since the burden of eligibility for relief is on the alien and that it is well-established that the IJ's role is not that of advocate for the alien. Petitioner's contentions that the IJ demonstrated improper bias by intimidating petitioner and interfering with his testimony was found to be baseless. The Board further concluded that the failure to show petitioner the BHRHA letter was harmless error and also found no prejudicial error in the failure to advise petitioner of the privilege of voluntary departure.

Finally, the BIA upheld the IJ's determination that petitioner's testimony was not credible. The Board concluded that petitioner had not been singled out for persecution but rather was the victim of "the generally reported condition of anarchy and lawlessness and political and economic disorder prevalent in El Salvador today and inflicted on the population as a whole...."

Right to Counsel

The right to counsel is guaranteed by the sixth amendment of the United States Constitution. A deportation hearing is a proceeding that is civil, not criminal, in nature. Trias-Hernandez v. INS, 528 F.2d 366, 368 (9th Cir. 1975). Constitutional due process requirements under the Fifth Amendment are satisfied by a full and fair hearing. The Sixth Amendment's guarantee of the right to counsel is not applicable to deportation proceedings. Ramirez v. INS, 550 F.2d 560 (1977); Martin-Mendoza v. INS, 499 F.2d 918 (9th Cir. 1974), cert. denied, 419 U.S. 1113 (1975); Murgia Melendrez v. INS, 407 F.2d 207 (9th Cir. 1969).

Congress has accorded to aliens the privilege of being represented in deportation hearings at no expense to the government. 8 U.S.C. § 1252(b) (2); In re Santos, Int.Dec. 2969; 8 C.F.R. Sec. 292.1 (1987). An alien must be informed that he may seek representation and must be afforded a reasonable opportunity to arrange for it. The government is not responsible if due to lack of funds, lack of initiative or any other impediment, an alien fails to arrange for representation within a reasonable period of time.

A review of the record reveals that petitioner was adequately informed of his rights concerning representation at the deportation hearing and was afforded more than a reasonable opportunity to arrange such representation. On August 23, 1985 petitioner was served with an Order to Show Cause which enumerates in English the petitioner's rights at the hearing including the privilege to be represented at no expense to the government by an attorney or other individual authorized and qualified to represent others in immigration proceedings, his right to present evidence and witnesses and his right to cross-examine any witnesses presented by the government. The INS stamp on the Order indicates that these advisements were read to petitioner in Spanish, his native tongue. The Order also indicates by an INS stamp that the petitioner was provided with a bilingual attorney information sheet, to aid him in his search for representation if he wished to be represented.

Petitioner's deportation hearing commenced on September 4, 1985 but was continued for two weeks to afford him the opportunity to secure representation. 8 C.F.R. Sec. 242.13. Petitioner was again provided with a bilingual attorney information sheet. At the September 18, 1985 hearing petitioner was asked if he had obtained representation and he replied that he had not.¹  Petitioner, then deemed to be representing himself, admitted the allegations in the Order to Show Cause thereby conceding deportability. The proceedings were continued again to permit the petitioner an opportunity to apply for asylum and withholding of deportation.

Six months later on March 11, 1986, the proceedings reconvened, this time with a different IJ, but still petitioner appeared without representation. The IJ asked petitioner if he had been given the opportunity to locate counsel to which petitioner replied "yes" and explained that he had tried without success to contact an attorney. The IJ specifically asked petitioner if he was prepared to speak for himself, petitioner replied in the affirmative.² 

Colindres-Aguilar v. INS, 819 F.2d 259, 260 (9th Cir. 1987), and Castro-O'Ryan v. INS, 821 F.2d 1415, 1420 (9th Cir. 1987), are relied on by petitioner. Colindres-Aguilar and Castro-O'Ryan, however, are factually inapposite. In each of those cases the alien had obtained some form of assistance from counsel. In Colindres-Aguilar the alien had consulted with an attorney and that attorney had filed a notice of entry of appearance of which the IJ was not aware. No notice of the alien's continued hearing was sent to his counsel. At the reconvened hearing the alien was without counsel. This case is also distinguishable because no inquiry was made by the IJ as to whether the alien had counsel or waived the right to counsel. The Court held that:

[T]he immigration judge should have first made some brief inquiry as to whether petitioner wished to have representation before proceeding with the continued deportation hearing. It is only after such an inquiry that the immigration judge could have decided whether petitioner waived his right to counsel ...

819 F.2d at 261.

In the instant case, the IJ made several inquiries and even one continuance for the purpose of affording petitioner opportunities to obtain representation. Petitioner did not avail himself of these opportunities.

In Castro-O'Ryan the alien had counsel initially but counsel withdrew after the deportation hearing had commenced. The alien affirmatively requested to have counsel of his choice and the IJ never ruled on that request effectively denying it. 821 F.2d at 1420. In the instant case unlike Castro-O'Ryan, the opportunity to obtain counsel was not prevented. Rather, opportunities to obtain counsel were heavily promoted from the time the Order to Show Cause was issued, through the hearings and the opportunity also existed in the six-month period afforded the petitioner to apply for asylum, withholding of deportation or both. Furthermore, it should be noted petitioner never affirmatively asked for counsel as Castro-O'Ryan did.

Finally, Reyes-Palacios v. INS, 836 F.2d 1154 (9th Cir. 1988), cited at oral argument, is also inapposite. Reyes-Palacios had obtained counsel, but counsel was not present at the deportation hearing. The IJ insisted on proceeding without counsel. At the asylum hearing, a different IJ failed to ask if the alien wanted representation. There was no mention of counsel at all. 836 F.2d at 1155. The IJs in the instant case made thorough inquiries about whether petitioner wanted representation.

Other Due Process Issues

Petitioner raises a list of other occurrences and purported deficiencies which he alleges amount to a deprivation of his due process rights.

1. Petitioner questions the fairness of his hearing as it was held with eleven other respondents. Consolidated hearings, held to promote administrative efficiency, are not a per se violation of due process. U.S. v. Barraza-Leon, 575 F.2d 218, 220 (9th Cir. 1978). Matter of Taerghodsi, 16 I & N Dec. 260 (BIA 1977). The immigration judge reviewed the nature and rights of the hearing with the group, but individually talked to petitioner about whether he had representation, how he entered the U.S., selection of a country of deportation, whether he wished to apply for asylum, whether he had relatives in the U.S., and whether he had the necessary funds to pay his way home. Petitioner cannot show that he was denied fundamental fairness because his hearing was conducted with a group rather than individually.

2. Petitioner raises the specter that he received less than competent translation. Nothing in the record suggests marked or prejudicial mistranslations. Petitioner bears the burden to show mistranslations of a prejudicial nature and he has failed to meet that burden.

3. Likewise petitioner's allegation that the immigration judge was intimidating or harassing is without merit. This court cannot intone intimidation and harassment into the written transcript. Without more than what is transcribed, we conclude there is not even a scintilla of suspect questioning tactics by the immigration judge.

4. Petitioner contends that the immigration judge did not carry out his duty to seek out all relevant information and to assist petitioner in producing it. No such burden exists for the immigration judge. The burden to prove eligibility for asylum and withholding of deportation is on the alien. 8 C.F.R. Sec. 242.17(c) (1986); Matter of Acosta, Int. Dec. 2986 (BIA 1985). The Order to Show Cause explicitly invites the petitioner to meet his burden:

You should bring with you any affidavits or other documents which you desire to have considered in connection with your case. If any document is in a foreign language, you should bring the original and certified translation thereof. If you wish to have the testimony of any witness considered, you should arrange to have such witnesses present at the hearing.

Petitioner had ample opportunity to present evidence and witnesses on his behalf and he failed to do so.

5. Petitioner contends that the failure of the immigration judge to show him the BHRHA letter was also a denial of due process. Regulations provide that the petitioner shall be given an opportunity to inspect, explain, and rebut a BHRHA advisory opinion. 8 C.F.R. Sec. 208.10(b). We affirm the BIA decision which found that the immigration judge's actions in this regard were harmless error given that petitioner was provided a full and fair opportunity to present his asylum claim and that the immigration judge did not rely on the BHRHA opinion, which is merely advisory in nature, in determining that petitioner had failed to demonstrate a well-founded fear of persecution.

6. Petitioner next alleges that he was not advised by the immigration judge of his right to voluntary departure and that the failure to so advise was a deprivation of due process. The opportunity of departing voluntarily from the United States is a privilege that may be granted to one who otherwise would be expelled. 2 Gordon & Rosenfield, Immigration Law & Procedure Sec. 7.2 (1988). The remedy of voluntary departure is a privilege, not a right, and is granted in the discretion of the Attorney General. Regulations do not require than an alien be advised of the privilege of voluntary departure. 8 C.F.R. Sec. 242.17(b) (1987). The regulations do require that the alien "shall have the burden of establishing that he is eligible for any requested benefit or privilege ..." 8 C.F.R. Sec. 242.17(e) (1987). When petitioner was asked if he could pay his own way out of the United States he replied that he had no money. Since eligibility for voluntary departure includes having "immediate means with which to depart promptly from the United States," 8 C.F.R. Sec. 244.1 (1987), the immigration judge was correct in determining that petitioner was ineligible for this form of relief, and he did not err in not advising petitioner of this remedy.

7. Petitioner contends that the BIA's failure to consider two declarations, one from petitioner and one from a Mario Galvez, was a deprivation of due process.

Petitioner's assertion is not completely correct. The BIA explicitly acknowledged in its decision that it considered petitioner's declaration when it stated that "any alleged misunderstandings or significant inaccuracies that may have occurred have been clarified in the appellate brief filed with the instant appeal to which is appended a declaration by the (petitioner) setting forth the factual basis of his asylum and withholding claims." As to the Galvez declaration the BIA stated:

[C]ounsel for the [petitioner] has submitted an affidavit from one Mario Galvez who avers that because El Salvadorans tend to attach less importance to times and dates of events than do Americans, they also tend to remember such dates with less specificity than do Americans. This declaration, of course, constitutes newly submitted evidence and is not properly before the Board on its appellate review of this case. (citation omitted). Consequently, we need not address the validity of the assertions contained therein or assess the qualifications and expertise of the maker of these statements.

It thus appears that the BIA did consider petitioner's declaration, although it did not consider the Galvez declaration. The Board though was not compelled to examine the newly-presented declaration.

8. Finally, petitioner contends that he was unaware of the nature of the proceedings and that the duty of the INS to assist an alien in obtaining representation varies with the location.

The IJ meticulously described the nature and purpose of the proceeding and petitioner's rights. The Board correctly pointed out that "the transfer and detention of an alien at a particular facility is well within the province of the Attorney General to decide" citing to Rios-Berrios v. INS, 776 F.2d 859, 863 (9th Cir. 1985). Petitioner's reliance on Rios-Berrios is misplaced. Rios-Berrios does not impose a heightened duty on the INS, but does require that in a certain set of circumstances that it is particularly important that an alien be given a reasonable time to obtain representation. The case holds that five working days between issuance of an Order to Show Cause and an initial hearing, followed by two continuances of one working day each, is not reasonable. Rios-Berrios, 776 F.2d at 862-63. However, in this case petitioner received considerably more time than the amount in Rios-Berrios.

An alien has been denied the full and fair hearing which due process provides only if the thing complained of causes the alien to suffer some prejudice. Nicholas v. INS, 590 F.2d 802, 809 (9th Cir. 1979). Nothing of which petitioner complains here concerning his hearings before the two immigration judges caused him to suffer any prejudice.³ 

The IJ's Credibility Findings

Credibility findings of the BIA and the immigration judge are reviewed under the substantial evidence standard. Turcios v. INS, 821 F.2d 1396 (9th Cir. 1987); Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir. 1984). Because the immigration judge is in the best position to evaluate an alien's testimony, his or her credibility determinations are to be given much weight. Estrada v. INS, 775 F.2d 1018, 1021 (9th Cir. 1985); Phinpathya v. INS, 673 F.2d 1013, 1019 (9th Cir. 1981); Martinez-Sanchez v. INS, 790 F.2d 1396, 1400 (9th Cir. 1986).

In Turcios this court held that " [a]lthough an immigration judge's credibility findings are granted substantial deference by reviewing courts ... a trier of fact who rejects a witness's positive testimony because in his or her judgment it lacks credibility should offer a specific cogent reason for [his] disbelief." 821 F.2d at 1399. See also Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986).

The immigration judge in this case did provide specific cogent reasons for his disbelief of petitioner's testimony. Among the specific cogent reasons the IJ offered for his lack of credibility finding were:

1. Petitioner's testimony that his mother had sent him letters telling him that both the guerrillas and the government continued to look for him and petitioner's concomitant inability to produce even one of those letters.

2. Petitioner's inability to explain the discrepancy in dates as to when the government came looking for him as a deserter--a one year discrepancy.

3. Inconsistencies in petitioner's testimony that the guerrillas had both sought him out and not sought him out and discrepancies in the dates they allegedly had sought him out.

4. Petitioner's assertion that guerrillas who came to seek him out waited outside his house all night and approached the house in the morning rather than approaching the house at night upon their arrival.

5. Petitioner's purported reply to the guerrillas when they came to recruit him that he had no interest in involving himself in guerrilla activities.

6. Inconsistencies between petitioner's testimony and his declarations.

An alien's testimony may be discredited by inconsistent statements. Artiga-Turcios v. INS, 829 F.2d 720, 723 (9th Cir. 1987); Platero-Cortez v. INS, 804 F.2d 1127, 1131 (9th Cir. 1986).

In addition to inconsistencies in petitioner's testimony the IJ considered petitioner's demeanor during the course of his testimony and concluded that petitioner was not worthy of belief in his story.

This court has held that credibility assessments based on demeanor are the province of the IJ:

An immigration judge alone is in a position to observe an alien's tone and demeanor, to explore inconsistencies in testimony, and to apply workable and consistent standards in the evaluation of testimonial evidence. He is, by virtue of his acquired skill, uniquely qualified to decide whether an alien's testimony has about it the ring of truth. The courts of appeals should be far less confident of their ability to make such important, but often subtle, determinations.

Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985).

We also find significant the fact that petitioner failed to give any details on his asylum application of his purported persecution by the government and the guerrillas. Petitioner's lengthy testimony on this persecution is inconsistent with the blanks on his asylum application. Such an inconsistency is sufficient grounds to assess petitioner as lacking credibility. Saballo-Cortez, 761 F.2d at 1263-64.

On the record before this court, we affirm the BIA's decision affirming the IJ's finding that petitioner lacked credibility.

Eligibility for Relief

Petitioner claims that the Board applied the wrong standards in evaluating his asylum claim.

This court reviews the BIA's factual determinations denying withholding of deportation pursuant to 8 U.S.C. § 1253(h) under the substantial evidence test. Florez-DeSolis v. INS, 796 F.2d 330, 333 (9th Cir. 1986); McMullen v. INS, 658 F.2d 1312, 1316-17 (9th Cir. 1981).

In reviewing the denial of an asylum application pursuant to 8 U.S.C. § 1158(a), this Court utilizes a two-tier review, reflecting the burden on the alien applicant to demonstrate both (1) statutory eligibility and (2) entitlement to relief as a matter within the discretion of the Attorney General. Estrada, 775 F.2d at 1021; Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir. 1984).

The determination of whether an alien qualifies as a refugee and is thus eligible for asylum is reviewed under the substantial evidence standard. Review is confined to the administrative record and is highly deferential. McMullen, 658 F.2d at 1316; Espinoza-Martinez v. INS, 754 F.2d 1536, 1539-40 (9th Cir. 1985). The substantial evidence standard requires that the BIA's conclusion be substantially reasonable in light of the evidence presented. Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir. 1986).

Claims to withholding of deportation pursuant to 8 U.S.C. § 1253(h) are subject to the "clear probability" test. Petitioner must demonstrate that it is "more likely than not" that he will be persecuted if he is returned to his home country. INS v. Stevic, 467 U.S. 407, 424 (1984). Claims to asylum, however, are subject to the "well-founded fear" standard under which petitioner must show that persecution is "a reasonable possibility." INS v. Cardoza-Fonseca, 107 S. Ct. 1207, 1217-18.

The Board stated in its decision that petitioner "has failed to establish a case of well-founded fear of persecution in El Salvador in accordance with the standard set forth by the Ninth Circuit."

By this very language, therefore, it is clear that the Board applied the proper standard to petitioner's asylum claim. We affirm on that issue.

Furthermore, this court affirms the BIA's conclusion that petitioner did not demonstrate a well-founded fear. Petitioner's burden is to present facts that would give "rise to an inference that the applicant has been or has good reason to fear that he or she will be singled out for persecution ..." Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd INS v. Cardoza-Fonseca, 107 S. Ct. 1207 (1987). Petitioner must prove that his fear is both subjectively genuine and objectively reasonable." Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir. 1986). To satisfy the requirement of being "singled out," the petitioner must show that his predicament is appreciably different from the dangers faced by the petitioner's fellow citizens. Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986). The "singling out" must be shown to be due to one of the five grounds enumerated in the statute: race, religion, nationality, membership in a particular social group or political opinion.

Petitioner has failed to meet his burden. He has not demonstrated a well-founded fear of persecution. Petitioner was sought by the government for desertion from military service not for one of the five statutory grounds. Likewise petitioner has failed to show a well-founded fear of guerrilla-instigated persecution. Petitioner's testimony was conflicting as to whether he believed the guerrillas wanted to harm him. That guerrillas detained petitioner's father does not mean, of necessity, that the guerrillas were seeking out petitioner.

We affirm the decision of the BIA.

AFFIRMED.