194 F. 3d 7 - Juan Antonio Morales v. Immigration and Naturalization Service

Petitioner, Juan Antonio Morales ("Morales"), seeks judicial review of a final order issued by the Board of Immigration Appeals ("BIA"), affirming an Immigration Judge's ("IJ") decision which denied his application for asylum and withholding of deportation. Morales claims that the IJ violated his Fifth Amendment right to due process of law when he precluded the petitioner from fully testifying as to his asylum petition. Morales also asserts that the IJ ignored substantial documentary and testimonial evidence which corroborated his claim for asylum. Morales further claims that the BIA failed to rectify those violations when it dismissed his appeal. Finding those arguments unpersuasive, we affirm the BIA's order and deny Morales' petition for review.

Morales, a native and citizen of Guatemala, entered the United States without inspection on May 10, 1992. On April 11, 1995, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause why Morales should not be deported. Subsequently, Morales filed a petition for political asylum.1

In his affidavit in support of his application for political asylum, Morales alleged that he was persecuted in Guatemala because of his association with a labor union. Morales worked as a machine operator for Industria Centro Americana Debedrio, S.A. (Cavisa), in Guatemala City from 1980 until 1990. In 1990, the ownership of the company changed and the representatives of the union demanded better working conditions and higher pay. When the demands were refused, the union leaders declared a strike and the gates to the factory were locked.2 Morales was detained with the other 700 workers in the factory until "[t]he gates were finally unlocked, and [he] managed to escape."

Although Morales never returned to the company, he claimed that for the next two years, he "encountered problems because of [his] involvement in the labor dispute." Morales left Guatemala and arrived in the United States on May 10, 1992. In his affidavit, Morales claimed that if he were forced to return to Guatemala, he would be "persecuted because of the mistaken belief by Guatemalan military and government authorities that [he] supported the labor unrest at [his] former job."

After a hearing, the IJ determined that Morales was "only barely associated with the union" and his "minimal involvement in the union" would not impute to him a political opinion that would be the basis for persecution. The IJ also determined that "[i]f indeed the security forces of Guatemala wished to persecute or punish this gentleman, they could have easily done so." Therefore, the IJ denied Morales' application for political asylum and withholding of deportation, but granted voluntary departure in lieu of deportation.

Morales appealed the IJ's decision to the BIA, arguing that the IJ erred by concluding that Morales did not establish eligibility for asylum and withholding of deportation. Morales also argued that the IJ denied him a fair trial. The BIA dismissed the appeal, finding that Morales had not met his burden of proving his eligibility for asylum and withholding of deportation and that his hearing met due process standards. This appeal followed.

Morales claims that he was denied his Fifth Amendment right to a full and fair hearing3, and his statutory right to a reasonable opportunity to defend himself in his deportation hearing4because the IJ precluded him from testifying and ignored substantial documentary and testimonial evidence which corroborates his claims for asylum. Morales further claims that the BIA erred in implicitly adopting the IJ's credibility determination. Finally, Morales asserts that the BIA erred when it held that Morales was not eligible for political asylum or withholding of deportation.

Morales argues that the IJ violated his Fifth Amendment rights when he "cut short" Morales' direct examination, cross-examination and redirect examination, and precluded him from addressing fundamental elements of his claim for asylum. We review the question of whether an administrative law judge violated a party's due process rights de novo. See Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir. 1999).

After careful evaluation of the record, we are convinced that Morales received a fair hearing and was not deprived of his due process rights. The record reflects that, although the IJ may have been somewhat impatient, he did not deny Morales a full and fair hearing on his asylum application. See Iliev v. INS, 127 F.3d 638, 643 (7th Cir. 1997) ("Although the Immigration Judge may have been 'brusque,' and perhaps could have achieved his objective in a more courteous manner, it is difficult to say on the cold record that his approach warrants criticism; certainly, he did not deny a fair trial.") (footnote omitted).

A party is entitled to a fair trial and nothing more. See Logue v. Dore, 103 F.3d 1040, 1045 (1st. Cir. 1997) (finding that the petitioner "received a fair trial, albeit not a perfect or an unblemished one"). The Supreme Court has held that "expressions of impatience, dissatisfaction, annoyance, and even anger . . . are within the bounds of what imperfect men and women . . . sometimes display. A judge's ordinary efforts at courtroom administration - even a stern and short-tempered judge's ordinary efforts at courtroom administration - remain immune." Liteky v. United States, 510 U.S. 540, 555-56 (1994).

Morales argues that "he was not permitted a reasonable opportunity to present evidence on his own behalf. . . . [and h]is hearing, therefore, did not constitute a 'full and fair' hearing within the meaning of the Fifth Amendment." (Pet'r's Br. at 14.) Morales argues that the IJ "cut short" his direct examination and asked for cross-examination to begin. The record contradicts this contention.

The record reveals that the IJ allowed Morales to testify on direct examination without interruption. Morales testified to the date and place of his birth, as well as his entrance into the United States. He testified about his work in Guatemala and his association with the union. Morales further testified that he left Guatemala because he was afraid of being harmed as a result of his association with the union. Morales testified to the relationship between the union and the Guatemalan military and government.

After this testimony concluded, the IJ said, "I think I understand the fact pattern. Why are you afraid to go back now?" Morales then testified that he feared, because of his participation in the union, that the government authorities want to harm him. When Morales finished testifying about why he was afraid to return to Guatemala, the IJ asked for cross-examination. There was no objection by Morales' attorney which would have indicated to the IJ that perhaps Morales was not through with his testimony or that he was being "cut short." Morales' attorney did not indicate that there was additional testimony to corroborate his client's claim for asylum.

Morales claims that "[h]e was not . . . provided an opportunity to testify as to his union membership, the persecution of his fellow union members, or the relationship between the factory owners and the Guatemalan government. Nor was he able to provide a full, detailed description of the many instances of harassment and violence which form the basis for his asylum claim." (Pet'r's Br. at 17.) The record discloses, however, that Morales did testify to all of those things. Morales testified about his association with the union and about the persecution of the members of the labor union. He also testified about the relationship between the factory owners and the Guatemalan government and he detailed instances when he was personally harassed. Morales' attorney also made offers of proof as to those same circumstances and the offers of proof were accepted as true by the IJ.

Moreover, the only instance of the IJ "cutting short" Morales' testimony was during cross-examination. At that point, it was the INS' attorney who objected, not Morales' attorney. In fact, when the IJ indicated that cross-examination was finished, he turned to Morales' attorney and asked, "What did you want to bring out now? We have to do it quickly." Thereupon, Morales' attorney dictated those facts which he wanted to present to the IJ. This offer of proof was accepted as true by the IJ.

Morales further contends that his due process rights were violated when the IJ ignored substantial documentary and testimonial evidence which supported his claim for asylum. Morales argues that the IJ "was remarkably unresponsive. . . . [and d]espite repeated attempts [his attorney] was unable to direct the Judge's attention to the first page of the supporting documentation[.]" (Pet'r's Br. at 21.) Our review of the record, however, shows that there is no indication that the IJ ignored substantial evidence. In fact, after Morales' attorney directed the IJ's attention to the documentation, the IJ responded, "I'm looking at [it] - it's Amnesty International 1996."

Furthermore, this court has held that each piece of evidence need not be discussed in a decision. "Where, as here, the Board has given reasoned consideration to the petition, and made adequate findings, we will not require that it address specifically each claim the petitioner made or each piece of evidence the petitioner presented." Martinez v. INS, 970 F.2d 973, 976 (1st Cir. 1992). Morales' claim that the IJ and the BIA violated his due process rights when they ignored substantial documentary and testimonial evidence is without foundation.

We find that the IJ provided Morales with a full and fair hearing on his asylum petition. As we held in Aguilar-Solis, "the IJ's neutrality cannot seriously be doubted. Even if viewed through a jaundiced eye, the transcript reflects nothing more sinister than a modicum of impatience. This is not the stuff from which a due process violation can be fashioned." Aguilar-Solis, 168 F.3d at 569. Though the IJ may have been somewhat impatient during the hearing, his neutrality cannot be questioned. The record reflects that Morales had the opportunity, albeit through counsel, to present his claim for asylum. Morales argues that it is insufficient "to satisfy due process that Mr. Morales' attorney was permitted to introduce portions of the excluded testimony into the administrative record as offers of proof." (Pet'r's Br. at 19 n.6) (citing Vissian v. INS, 548 F.2d 325, 330 (10th Cir. 1977)). That argument fails because Vissian is fundamentally distinct from the instant case. In Vissian, the "isolated offer of proof . . . was summarily rejected in the immigration judge's decision . . . ." Vissian, 548 F.2d at 330 (emphasis added). Here, the offers of proof made by Morales' attorney were accepted as true.

Morales further claims that the BIA erred when it implicitly adopted the IJ's determination that Morales was not a credible witness. The BIA did not, itself, make a credibility finding; it adopted, as it had a right to do, the credibility finding of the IJ. The BIA held that "even if we were to credit his testimony and assume that he had a well-founded fear of persecution when he left Guatemala in 1992, the respondent did not adequately demonstrate before the Immigration Judge that he presently has a well-founded fear of persecution in his homeland." Finding that Morales did not meet his burden of proving his eligibility for asylum, the BIA dismissed his appeal.

Morales claims that the BIA erred when it held that Morales was not eligible for political asylum or withholding of deportation. To be eligible for political asylum, an alien must demonstrate that he is a refugee. See 8 U.S.C. § 1158(b)(1) (1996); 8 C.F.R. § 208.13 (a) (1997). A "refugee" is defined as:

any person who is outside any country of such person's nationality or . . . is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A) (1998).

"[T]o obtain judicial reversal of the BIA's determination, he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).

We review the Board's findings directly, mindful that in contemplation of law [the findings of the IJ] have become the [Board's]. We review a Board decision to deny an application for asylum deferentially. We will affirm if the Board's conclusion is supported by reasonable, substantial, and probative evidence on the record considered as a whole.

Vasquez v. INS, 177 F.3d 62, 64 (1st Cir. 1999) (alterations in original) (internal quotation marks omitted). "[I]f the petitioner is to prevail, the administrative record, viewed in its entirety, must compel the conclusion that he is asylum-eligible." Aguilar-Solis, 168 F.3d at 569.

The BIA held that Morales "was not a victim of persecution prior to his departure from Guatemala years ago. . . . [and] did not adequately demonstrate before the Immigration Judge that he presently has a well-founded fear of persecution in his homeland." To reverse the BIA, this court must find that the evidence presented by Morales was so compelling that "no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 484. Morales failed to meet this burden.

In his application for political asylum, Morales claimed that he was persecuted in Guatemala because of his association with the Cavisa labor union. Morales claimed that he "was often followed by soldiers as [he] commuted in [his] car . . . and [he] received several anonymous notes and telephone calls that accused [him] of being a subversive and threatened harm to [his] family." He also claimed that "a car with blackened windows pulled up next to [him] and stopped. . . . and a uniformed man pointed a rifle at [him]."

At the hearing before the IJ, Morales testified that "some unknown people followed [him]", and he "[thought] those people were in the army because of the type or class of weapons they carried, and they attempted [to enter the place where he parked his car.]" Morales testified that he was never arrested or imprisoned, but claimed that he was shot at by unknown men. He claims that this evidence requires a determination that "he suffered past persecution at the hands of Guatemalan governmental agents on account of his union membership and imputed political opinion." (Pet'r's Br. at 55.) We do not agree. After review of the record, we find that the evidence does not compel a finding that Morales was persecuted on account of his association with the labor union.

There is some confusion in the record as to whether Morales was a union member or was merely associated with the union simply because of his employment at the factory. Nonetheless, it is evident that Morales was not an active participant in union activities. Though union meetings were held twice a week, Morales only attended two meetings per year. Morales held no official position in the union and was not a leader or organizer of the union strike at the factory.

After Morales fled the factory during the strike, he left his job, and therefore his association with the union, and moved to a farm outside Guatemala City, leaving his wife and children behind. For the next two years, Morales worked on the farm which was located over an hour away from the factory. Morales testified that while he was working on the farm, he "was followed by some men that allegedly . . . belonged to the army because of the types of weapons they carried." At that time, Morales was no longer working at the factory and was no longer associated with the labor union.

The documentary evidence submitted by Morales, consisting of human rights reports and the like, does not compel the finding that Morales suffered past persecution. Arguably, these documents undermine Morales' claim for asylum. They indicate that the unionists harmed were primarily leaders or active members of the union. Morales, however, was neither a leader of the union nor an active participant in its activities. The IJ doubted whether the events alleged by Morales actually occurred "because of the implausibility of the contentions." "If indeed the security forces of Guatemala wished to persecute or punish this gentleman, they could have easily done so."

Morales claimed that he was persecuted in Guatemala because of his association with the union. Morales claims that "it is only logical to infer that [his] persecution stemmed from his involvement with Cavisa's union." (Pet'r's Br. at 58.) While the IJ might possibly have drawn that inference, he "chose to draw a contrary, equally plausible inference. Such choices are a factfinder's prerogative. Where, as here the constellation of facts and circumstances alleged by an asylum applicant, together with the other record evidence, supports two or more competing inferences, the IJ's choice among those inferences cannot be deemed erroneous." Aguilar-Solis, 168 F.3d at 571. Although Morales' association with the union may have played a part in the incidents alleged, the record does not compel that finding. The contrary, equally plausible inference is that Morales was not persecuted in Guatemala and his reason for stating that he was persecuted is his desire to remain in the United States.

The IJ ultimately determined that Morales failed to demonstrate that he was targeted because of his "minimal involvement" with the union and denied his application for asylum. Substantial evidence in the record supports this finding and we must decline Morales' invitation to overturn that decision.

To prove a well-founded fear of persecution, the "applicant's fear must be both genuine and objectively reasonable." Aguilar-Solis, 168 F. 3d at 572 (citing Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990)). The applicants must prove that "it is more likely than not that they will be persecuted if deported." INS v. Cardoza-Fonseca, 480 U.S. 421, 450 (1987). "The BIA and many courts of appeals (including this court) narrow the relevant inquiry to whether a reasonable person in the asylum applicant's circumstances would fear persecution on account of a statutorily protected ground." Aguilar-Solis, 168 F.3d at 572. Applying this standard, Morales fails to demonstrate a well-founded fear of persecution. The BIA determined that Morales "did not adequately demonstrate before the Immigration Judge that he presently has a well-founded fear of persecution in his homeland." Substantial evidence in the record supports that conclusion.

Morales explained that he is afraid to return to Guatemala because he believes that the government and military authorities will harm him because he was a member of the union. There is no evidence, however, to support this uncorroborated testimony of the applicant. The documentary evidence indicates that although some union members may have been persecuted, those harmed were primarily union leaders or active members. There is no evidence which corroborates Morales' allegations that he was personally followed, harassed or threatened, or would be in the future.

The BIA determined that Morales suffered from neither past persecution on account of his association with the labor union nor a well-founded fear of future persecution if he were returned to Guatemala. After careful review of the record, we find that there is substantial evidence to support such determinations and the evidence does not compel us to hold differently. Accordingly, the petition for review is denied and the BIA's order is affirmed.

Affirmed.