Clarinda Tavu Valderrama v. Immigration and Naturalization Service

PER CURIAM Opinion; Partial Concurrence and Partial Dissent by Judge PREGERSON

PER CURIAM:

Petitioner Clarinda Tavu Valderrama (“Valderrama”), a native and citizen of the Philippines who has lived in the United States since 1991, petitions for review of a final order of deportation by the Board of Immigration Appeals (“BIA”). The BIA affirmed the Immigration Judge (“IJ”), who denied Valderrama’s application for asylum and withholding of deportation. The BIA found that Valderrama’s hearing testimony was not credible and concluded that she had not carried her burden of establishing eligibility for asylum and withholding of deportation pursuant to the Immigration and Naturalization Act (“INA”) §§ 208(a), 243(h). We have jurisdiction pursuant to 8 U.S.C. § llOSaia),1 and we *1085deny the petition.

The Attorney General has discretion to grant an alien asylum if the alien is determined to be a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A). The applicant bears the initial burden of proof in demonstrating eligibility for asylum. 8 C.F.R. § 208.13(a); Ghaly v. INS, 58 F.3d 1425, 1428 (9th Cir.1995). “Refugee status is established by evidence that an applicant is unable or unwilling to return to his home country because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). An alien may establish a well-founded fear of future persecution by proving past persecution or a “good reason” to fear future persecution. Id. at 654-55. An alien’s well-founded fear of future persecution must be both subjectively and objectively reasonable. Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998). An alien satisfies the subjective component by credibly testifying that she genuinely fears persecution. Id.

We apply the “substantial evidence test” in our review of the credibility findings underlying the BIA’s decision. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995). The BIA must have “a legitimate articulable basis to question the petitioner’s credibility, and must offer a specific, cogent reason for any stated disbelief.” Shah v. INS, 220 F.3d 1062, 1067 (9th Cir.2000) (internal quotation marks and citations omitted). Under this standard of review, we are compelled to uphold the factual findings of the BIA if those findings are supported by “‘reasonable, substantial, and probative evidence.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)).

Substantial evidence supports the BIA’s finding that Valderrama’s testimony at her deportation hearing was not credible. As the BIA noted, Valderrama’s first and second petitions for asylum differed in a material way. In Valderrama’s first petition, she stated that she had never been a member of a political group in the Philippines, while in the second petition she claimed that she was persecuted in the Philippines largely because of her membership in an anti-Communist political group. This discrepancy goes to the heart of Valderrama’s asylum claim that she was persecuted “on account of’ her political opinion. Therefore, we conclude that the BIA’s adverse credibility finding is supported by substantial evidence.

Because we hold that substantial evidence supports the BIA’s denial of asylum on the basis of its adverse credibility finding, we do not reach the issue whether the record supports the BIA’s finding that Val-derrama also lacks an objective, well-founded fear of future persecution. Pal v. INS, 204 F.3d 935, 939 (9th Cir.2000); Berroteran-Melendez v. INS, 955 F.2d 1251, 1257-58 (9th Cir.1992).

We also reject Valderrama’s claim that she is entitled to withholding of deportation. The standard for withholding of deportation is more stringent than the standard for establishing eligibility for asylum. Because Valderrama cannot meet the lower standard to demonstrate eligibility for asylum, she necessarily fails to show that she is entitled to a withholding of deportation. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir.1995).

*1086At oral argument, Valderrama’s counsel asked that we stay the mandate so that Valderrama may move to reopen her deportation proceedings with the BIA to apply for an adjustment of status based on her marriage to a United States citizen. Counsel argued that unless the mandate was stayed, Valderrama probably would be deported before the BIA could consider her motion.

One difficulty with counsel’s request is that a motion to reopen these deportation proceedings would be untimely and would have been untimely by the date on which Valderrama filed her opening brief in this court. See 8 C.F.R. § 3.2(c)(2) (providing that the BIA will not entertain a motion to reopen deportation proceedings more than ninety days after the final decision).2 We believe that it is inappropriate for this court to interfere with the normal processes of the INS and the BIA by delaying issuance of the mandate in the normal course. Doing so would provide a windfall for an alien who happens to appeal to this court, not available to aliens who do not happen to appeal. Accordingly, we decline to stay the mandate.

PETITION DENIED.

. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA”) was enacted on September 30, 1996. Pub.L. No. 104-208 (Division C), 110 Stat. 3009-546. IIRIRA repealed INA § 106(a), and replaced it with a new judicial provision at INA § 242. This repeal became effective on April 1, 1997. See IIRIRA § 309(a). However, for cases *1085where, as here, deportation proceedings began before April 1, 1997, and where the final order of deportation was issued after October 30, 1996, IIRIRA’s transitional rules provide that, with certain nonrelevant exceptions, the court of appeals has jurisdiction under the old section 106(a) of the INA. See IIRIRA §§ 309(c)(1) and (4), 110 Stat. 3009-625-26.

. The dissent asserts that Petitioner might be able to take advantage either of the general provision in § 3.2(a) or of the exception in § 3.2(c)(3)(iii), to avoid the ninety-day bar. Section § 3.2(a) pertains to the Board's discretionary own-motion authority, and the Board has given no indication that it seeks to exercise such discretion here. Section 3.2(c)(3)(iii) requires a motion agreed upon by all parties and jointly filed. The INS has discretion to join in a motion, but, similarly, has given no indication that it would exercise its discretion favorably in this case.