Ozdemir v. I.N.S. , 40 F.3d 384 ( 1995 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 94-40315
Summary Calendar
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SEYHHAMAT OZDEMIR,
Petitioner,
VERSUS
IMMIGRATION & NATURALIZATION SERVICE,
Respondent.
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Petition for Review of an Order
of the Board of Immigration Appeals
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(November 1, 1994)
Before DUHÉ, WIENER, and STEWART, Circuit Judges.
PER CURIAM:
Petitioner Seyhhamat Ozdemir's applications for asylum and
withholding of deportation were denied by the Board of Immigration
Appeals (BIA). Ozdemir petitions us to review the BIA's decision.
We dismiss his petition.
FACTS
Ozdemir, a twenty-six year old ethnic Kurd, is a citizen of
Turkey. Turkish police arrested him on March 16, 1992, after he
participated in a Kurdish anti-government demonstration. The
police detained him for three days, during which time they beat him
on the soles of his feet. The police interrogated him about his
participation in terrorist organizations. Ozdemir testified that
he is a member of the TKP, an organization that uses peaceful means
to combat discrimination against Kurds, and not a member of the
PKK, a terrorist organization. The police released Ozdemir, and he
participated in no further demonstrations. Nevertheless, the
police twice questioned him after terrorist incidents occurred in
Istanbul. Ozdemir left Turkey on February 17, 1993, and entered
the United States illegally.
DISCUSSION
We review factual conclusions of the BIA for substantial
evidence. Silwany-Rodriguez v. INS, 975 F.2d 1157, 1160 (5th Cir.
1992). We will affirm the BIA's decision unless the evidence
compels a contrary conclusion. Id.
The BIA concluded that Ozdemir had not suffered past
persecution on account of political opinion. The BIA based its
conclusion on two grounds: (1) it found that Ozdemir's testimony
was not credible; and (2) even if he was credible, Ozdemir had not
suffered past persecution on account of political opinion.
The BIA reviews the record de novo and may make its own
credibility determinations. Damaize-Job v. INS, 787 F.2d 1332,
1338 (9th Cir. 1986). Generally, we review only the decision of
the BIA. Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.
1991). In this case, however, the immigration judge (IJ) found
Ozdemir to be a credible witness. If the credibility
determinations of the IJ and the BIA conflict, we may consider
both. McMullen v. INS, 658 F.2d 1312, 1318 (9th Cir. 1981).
We need not decide the credibility issue because, even given
Ozdemir's testimony, we conclude that he did not suffer past
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persecution on account of political opinion. The BIA found that
the police interrogated Ozdemir because they were seeking
information on terrorist organizations such the PKK. The Supreme
Court requires a petitioner for asylum to prove that a group in his
country will persecute him because of his political opinion. INS
v. Elias-Zacarias, 112 S. Ct. 812, 816 (1992). The record shows
that numerous terrorists incidents occurred in Istanbul. The
police were searching for information relating to these incidents.
They did not interrogate Ozdemir because he was Kurdish or because
he wanted discrimination against Kurds to end. They were searching
for information on terrorist organizations. We conclude that
substantial evidence exists to support the BIA's conclusion of no
past persecution on account of political opinion.
Ozdemir also applied for withholding of deportation. The
burden of proof for withholding of deportation, however, is higher
than that for asylum. See INS v. Cardoza-Fonseca, 480 U.S. 421,
449 (1987). Thus, Ozdemir cannot succeed on his application for
withholding of deportation if he fails on his application for
asylum.
Lastly, Ozdemir would have us apply the Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment. We have no jurisdiction to decide this issue because
it was not raised to the BIA. Townsend v. INS, 799 F.2d 179, 182
(5th Cir. 1986).
For the foregoing reasons, Ozdemir's petition is DISMISSED.
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