Ebrahim SADEGHI, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent, 40 F.3d 1139

TACHA, Circuit Judge. Ebrahim Sadeghi has petitioned this court to review the final deportation order and denial of application for asylum entered by the Board of Immigration Appeals (BIA). We exercise jurisdiction pursuant to 8 U.S.C. § 1105a(a), and affirm. Petitioner, an Iranian native, entered the United States as a visitor on April 8, 1988, and overstayed his visa. On June 22, 1989, he was served with an order to show cause alleging his deportability. Petitioner conceded deportability but requested asylum and withholding of deportation.

At a hearing before an Immigration Judge (IJ), petitioner presented evidence that he has been a member of an anti-government group called the Iran Freedom Society (renamed the National Movement of the Iranian Resistance or NAMIR after the 1979 revolution) since he was a student in the 1960s. He became a high school principal in Iran in the 1970s. He discouraged his teachers from teaching the students about the Islamic religion because he did not agree with it. The government took no action against him for doing so. In 1978 he went to France with his wife and children to further his education.

He returned to Iran in August 1982 without his family. He thought the regime was not that strong and could be overthrown in a few months. He discovered that the country was being run on Islamic principles. In December 1982 he obtained a teaching job through a former student who had been appointed by the Islamic government as a high school principal. He obtained the job despite his anti-Islamic views because it was assumed he had or would change his views. Petitioner hinted to his students about his anti-Islamic views.

At some point a fourteen-year-old student, Hassan, told petitioner he was going to fight in the Iraqi war because he wanted to be a “martyr for God.” Cert.Admin.R. at 61. Petitioner begged the student not to go. He believes the student reported this to authorities. In April 1983, a group of national guards with guns came to the school looking for him. They stated they were there to get him because he was against the government and the Islamic revolution. He escaped out a side door, did not return home, and through friends was able to obtain an exit permit.

Petitioner left for France in May 1983, where he remained until 1988. He did not seek asylum from France. He now thinks France is not a safe country for him because Iranians have been killed and terrorized there, although his wife and daughter continue to live there. He came to the United States in 1988 to visit his son, and was looking into applying for asylum before he was arrested. He believes that he will be arrested, tortured, or killed by the current Iranian regime if he returns to Iran.

Two witnesses claiming to be former members of the Iranian military or police, Reza Massihzadeh and Gholam Hossein Moham-madi Pank, presented evidence that petitioner’s name appeared on a list of individuals wanted by the Iranian government. Massi-hzadeh believes that petitioner would be arrested immediately if he returned to Iran. Mohammadi testified that petitioner is wanted by the government and should not go back to Iran.

Petitioner also submitted a letter from Hassan Khaleghi, a former Iranian Air Force colonel, agreeing that petitioner’s name was on a list of persons wanted by the Iranian government, and that petitioner would be arrested if he returned to Iran. He submitted an affidavit from a former student, Shahriar Zahed, verifying the April 1983 incident with the governmental agents, and stating that petitioner remains on a “wanted” list because he is considered a radical who advocates the overthrow of the current Islamic regime.

Zahed has no doubt that petitioner would be subjected to persecution because of his political beliefs if he were to return to Iran. Finally, petitioner submitted a letter from NAMIR stating that all Iranians fleeing the country because of their anti-governmental activities will face imprisonment or death should they return. NAMIR further stated that the possibility of such treatment being applied to petitioner is very serious. The Bureau of Human Rights and Humanitarian Affairs (BHRHA) submitted an advisory opinion.

In its opinion, the allegations in petitioner’s application, along with information about country conditions and other relevant factors available to the Department of State, failed to constitute a valid claim of persecution. The IJ framed the decisive issue as whether petitioner’s fear was a fear of prosecution for opposing his student’s service in the Iraqi war, or a fear of persecution.

Although the IJ found petitioner’s evidence credible, and believed he had a legitimate fear of returning to Iran, the IJ did not think this fear was based on persecution due to race, religion, nationality, membership in a social group, or political opinion. He therefore denied the application for asylum and withholding of deportation, but granted voluntary departure. On appeal, the BIA agreed petitioner failed to prove the Iranian government’s attempt to arrest him was with an intent to persecute. As an alternative basis for its decision, it parted with the IJ and found petitioner’s evidence not fully credible.

It therefore dismissed the appeal. The granting of asylum under 8 U.S.C. § 1158(

a) is a two-step process. First, the alien must prove statutory eligibility for asylum by establishing that he or she is a refugee. Second, if the alien establishes refugee status, the Attorney General then applies her discretion to grant or deny asylum. Kapcia v. INS, 944 F.2d 702, 706, 708 (10th Cir.1991).

We are only concerned with the first step in this appeal. “To establish refugee status, the alien must prove either past ‘persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Id. at 706 (quoting 8 U.S.C. § 1101(a)(42)). The “well-founded fear of persecution” standard, with which we are concerned in this appeal, involves both a subjective “fear” component, and an objective “well-founded” component. The subjective component requires that the alien’s fear be genuine.

However, this component is not relevant until the alien proves the objective component. Id. The alien has the burden of proving the objective component through credible, direct, and specific evidence of facts that would support a reasonable fear that he faces persecution. Id. at 707, 708. We review the Board’s findings to determine whether reasonable, substantial and probative evidence supports them and may reverse only if petitioner presented evidence that compels the conclusion he has a well-founded fear of persecution based on a statutory factor. INS v.

Elias-Zacarias, 502 U.S. 478, - & n. 1, 112 S.Ct. 812, 815 & n. 1, 117 L.Ed.2d 38 (1992). Petitioner challenges the finding that he had not established the objective component of the well-founded fear of persecution standard. He argues that he presented evidence the Iranian government sought him out and placed his name on a list not for purposes of criminal prosecution but rather to persecute him because of his political and religious beliefs. He notes that not all criminal arrests are legitimate prosecutions but rather may be due to political and religious beliefs, citing Blanco-Lopez v.

INS, 858 F.2d 531 (9th Cir.1988). While we have no quarrel with the proposition that not all arrests are related to legitimate criminal prosecutions, the question is whether petitioner’s evidence compels the conclusion that his attempted arrest and placement on the “wanted” list were for persecution because of a statutory factor. Petitioner testified that the governmental forces stated they were looking for him because he was “against [the] government and against [the] Islamic revolution and Islam.” Cert.Admin.R. at 63.

However, there was no evidence that petitioner’s being against the government referred to anything other than his counseling a student not to fight in the Iraqi war,

an act which the BIA reasonably could have inferred was illegal in Iran; or that the governmental forces were doing anything other than attempting to effect a legitimate arrest. Prosecution for illegal activities “is a legitimate government act and not persecution as contemplated by the Act.” Kapcia, 944 F.2d at 708. More specifically, “a sovereign nation enjoys the right to enforce its laws of conscription, and ... penalties for evasion are not considered persecution.” M.A. v. United States INS, 899 F.2d 304, 312 (4th Cir.1990).

As petitioner had the burden of proof, he had the burden of proving that the Iranian government sought him for purposes of persecution, rather than for the legitimate purpose of criminal prosecution. His evidence does not compel the conclusion that he was sought for persecution rather than prosecution.

Petitioner raises the following arguments for the first time in his reply brief: that he is a member of a group targeted for persecution, thereby satisfying the test in 8 C.F.R. § 208.13(b)(2)(i); and that he was a conscientious objector to military conscription and the Iranian government therefore did not have a legitimate basis for prosecution. However compelling these arguments may be, we generally do not consider issues raised for the first time in a reply brief, Boone v.

Carlsbad Bancorporation, Inc., 972 F.2d 1545, 1554 n. 6 (10th Cir.1992), except when those issues relate to jurisdictional requirements, see Murphy v. Derwinski, 990 F.2d 540, 543 n. 8 (10th Cir.1993). As none of these arguments go to jurisdiction, we do not consider them. Petitioner also argued for the first time in his reply brief that the INS failed to follow its own precedent, In re Soleimani, Interim Dee. 3118 at 10-11 (Bd.Immigration App.1989), which requires that foreign law be proven by the party seeking to rely on it.

However, petitioner appears to have been responding to the INS’s argument that, despite a lack of evidence, the BIA was entitled to draw a reasonable inference that Iran had laws which would punish interference with its wartime efforts. Br. for Respondent at 23-24. We therefore review the contention. See In re Wildman, 859 F.2d 553, 555-56 n. 4 (7th Cir.1988) (holding where appellee raises argument not addressed by appellant in opening brief, appellant may respond in reply brief). In In re Soleimani, the alien had carried her burden of proving refugee status in an asylum proceeding. Interim Dec. 3118 at 6.

The question then was whether she had become firmly resettled in another country. The Immigration Judge had found that the alien had been offered permanent resettlement under Israel’s Law of Return. Id. at 10. The BIA concluded, however, that there was nothing in the record, beyond the BHRHA’s perfunctory reference to the existence of this law, documenting its nature and purpose or specific provisions. Id. “Absent any such documentation, the Board cannot find that the respondent had been offered permanent resettlement in Israel within the meaning of the firm resettlement concept.” Id.

Then, relying on In re Annang, 14 I & N Dec. 502 (Bd.Immigration App.1973), the BIA concluded that “[floreign law is a matter to be proven by the party seeking to rely on it.” In re Soleimani, Interim Dec. 3118 at 10-11. It noted that the INS had submitted nothing of record regarding Israel’s Law of Return. Id. at 11.

In re Annang, 14 I & N Dec. at 503, held that a petitioner has the burden of establishing eligibility for benefits under the immigration laws and in such proceedings, “the law of a foreign country is a question of fact which must be proved by the petitioner if he relies on it to establish eligibility for an immigration benefit.” Placing the burden of proving foreign law on a petitioner is consistent with the general rule that the petitioner bears the burden of proof.

However, requiring the INS to present proof of the laws it claims the Iranian government was attempting to enforce would impermissibly shift the petitioner’s burden of proving a well-founded fear of persecution to the INS to disprove the claim. We refuse to apply In re Soleimani to require that the burden of proving Iranian law be placed on the INS. Substantial evidence supports the Board’s finding that petitioner’s evidence did not establish a well-founded fear of persecution for purposes of asylum.

We therefore need not address whether the Board properly questioned the credibility of petitioner’s evidence, or whether he met the tougher standard for withholding of deportation, see Nguyen v. INS, 991 F.2d 621, 626 (10th Cir.1993). AFFIRMED. . After examining the briefs and administrative record, this panel has determined unanimously that oral argument would not materially assist the determination of this petition for review. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.