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JUL 13 2000
PATRICK FISHER
Clerk
No. 99-9532
( No. A71 978 749)
(Petition for Review)
Respondent.
ORDER AND JUDGMENT
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal.
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
and affirm.
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The Immigration Judge did not find Mr. Grazheess testimony credible.
Admin. R. at 32.
3
See
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rebutted the presumption that Mr. Grazhees had a well-founded fear of future
persecution, arising out of his past persecution, and that petitioners did not
qualify for asylum or withholding of deportation.
decision, the BIA did not rely on the advisory opinion of the Department of State,
prepared for this case.
See id. at 3.
See
Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). In order to be eligible for
asylum, an alien must first establish refugee status.
See
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is not relevant unless the alien has proved the objective component.
See id. It is
the applicants burden to meet this objective component with credible, direct,
and specific evidence in the record.
omitted).
The BIAs finding that appellant was not eligible for asylum must be
upheld if supported by reasonable, substantial, and probative evidence on the
record considered as a whole.
U.S. 478, 481 (1992)). This court reviews the BIAs legal determinations de
novo. Rivera-Jimenez v. INS , 2000 WL 710502, at *2. We will, however,
accord deference to the BIAs legal determinations unless they are clearly
contrary to the statutes language or to congressional intent.
Id.
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See Admin. R.
at 5-17. As a result, they did not exhaust their administrative remedies and we do
not have jurisdiction to consider these issues.
623 n.3 (10th Cir. 1993) (stating that this court does not address issues not raised
on appeal to the BIA); see also Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th
Cir. 1991) (The failure to raise an issue on appeal to the [BIA] constitutes failure
to exhaust administrative remedies with respect to that question and deprives the
Court of Appeals of jurisdiction to hear the matter.). Because the BIA was
empowered to consider both of petitioners issuessince neither are
constitutionally basedpetitioners issues do not fall within the exception to
administrative waiver.
1999) (Courts have carved out an exception to the exhaustion requirement for
constitutional challenges to the immigration laws, because the BIA has no
jurisdiction to review such claims.).
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Wade Brorby
Circuit Judge
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