168 F.3d 565 (1st Cir. 1999), 98-1484, Aguilar-Solis v. I.N.S.

Docket Nº:98-1484.
Citation:168 F.3d 565
Case Date:February 26, 1999
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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168 F.3d 565 (1st Cir. 1999)

Reynaldo AGUILAR-SOLIS, Petitioner,



No. 98-1484.

United States Court of Appeals, First Circuit

February 26, 1999

Heard Dec. 10, 1998.

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[Copyrighted Material Omitted]

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Vincent J. Cammarano for petitioner.

Elizabeth A. Welsh, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, with whom Frank W. Hunger, Assistant Attorney General, Civil Division, and Mark C. Walters, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

Before SELYA, Circuit Judge, GIBSON, [*] Senior Circuit Judge, and LIPEZ, Circuit Judge.

SELYA, Circuit Judge.

Reynaldo Aguilar-Solis (Aguilar), an El Salvadoran national, solicits judicial review of a final order of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of deportation. He claims that the hearing officer's heavy-handedness abridged his right to due process, that the BIA's rejection of his application lacked record support, and that Congress's enactment of the Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA), Pub.L. No. 105-100, 111 Stat. 2193 (Nov. 19, 1997), as amended by Act of Dec. 2, 1997, Pub.L. No. 105-139, 111 Stat. 2644, calls into constitutional question the BIA's disposition of his case. Finding these arguments unpersuasive, we uphold the BIA's order.


The petitioner claims that he fled to the United States from his native land in 1985 to avoid persecution on account of his (and his family's) political views. 1 Instead of seeking political asylum immediately after his illegal

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entry, the petitioner knowingly purchased a bogus social security card and parlayed it into a driver's license and, ultimately, employment. At some point, he met a woman (also an illegal alien from El Salvador) and returned home with her in December 1990 to be married. Prior to departing, the petitioner paid $3,000 to buy a fake temporary resident alien card, notwithstanding his present insistence that the couple intended to reside permanently in El Salvador.

During the petitioner's nuptial stay, friends and family allegedly informed him that members of a guerilla organization, the FMLN, were making inquiries. He testified that these warnings precipitated his abrupt return to the United States. Immigration officials apprehended him at the Miami International Airport in February 1991 as he attempted to enter the United States by using the fraudulent card. Instead of seeking asylum, he elected to withdraw his application for entry. He thereupon returned to El Salvador and, the following month, made a surreptitious border crossing near San Diego, California. He then paid to have his bride smuggled into the country.

Some four years later, the Immigration and Naturalization Service (INS) apprehended the petitioner and began proceedings to deport him on the ground that he had entered the United States illegally. 2 See 8 U.S.C. § 1251(a)(1)(B). The petitioner conceded deportability, but requested political asylum and withholding of deportation or, in the alternative, voluntary departure. At the conclusion of the hearing, the Immigration Judge (IJ) issued an adverse bench decision. The petitioner sought review, arguing that the IJ's conduct at the hearing violated his right to due process and that the evidence mandated a grant of asylum. In a per curiam opinion, the BIA rejected both contentions.


We address in sequence the petitioner's claims that the BIA erred (i) in its condonation of the IJ's conduct, and (ii) in its denial of his asylum claim. We then turn to the petitioner's blunderbuss constitutional challenge (raised for the first time in this venue).

A. Fairness of the Hearing.

The petitioner argues that the IJ's handling of his case compromised the fundamental fairness of the hearing. Specifically, he asserts that the IJ cross-examined him, interrupted his testimony, and suggested lines of inquiry to the INS's attorney. This course of conduct, he says, prevented him from building a consistent, detailed evidentiary record and reflected an impermissible bias. We review the question of whether an administrative law judge's conduct violates a party's due process rights de novo. See Ivezaj v. INS, 84 F.3d 215, 220 (6th Cir.1996); Hartooni v. INS, 21 F.3d 336, 339 (9th Cir.1994).

We have carefully examined the hearing transcript and find no constitutional infirmity. An immigration judge, like other judicial officers, possesses broad (though not uncabined) discretion over the conduct of trial proceedings. See Iliev v. INS, 127 F.3d 638, 643 (7th Cir.1997); cf. Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997) (discussing discretion possessed by federal district judge). During the three-day hearing in this case, the IJ appears to have used that discretion suitably and to have provided the petitioner with every opportunity to make his case.

To be sure, the IJ attempted to move things along by preventing repetitive testimony and encouraging the parties to stipulate to undisputed facts. In doing so, however, she imposed no unreasonable restrictions on the petitioner's presentation of either testimonial or documentary proof. Moreover, she afforded each witness (the petitioner included) the opportunity to testify fully and

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facilitated the petitioner's efforts to reconcile conflicting answers that he had given in three separate asylum applications.

The petitioner's complaints that the IJ interrupted his testimony and cross-examined him do not withstand scrutiny. The record reveals that the IJ interrupted only to clarify responses or to return strayed questioning to a relevant line of inquiry. A judge who plays an active, but even-handed, role in keeping the focus of the inquiry sharp is to be commended, not condemned. See Logue, 103 F.3d at 1045. By like token, the IJ's cross-examination was wholly consistent with the requirements of the Immigration and Nationality Act (the Act). See 8 U.S.C. § 1252(b) ("The immigration judge shall ... receive evidence, interrogate, examine, and cross-examine the alien or witnesses.").

We do not mean to suggest that the Act relieves immigration judges of their responsibility to function as neutral and impartial arbiters. Notwithstanding the statutory directive, immigration judges must assiduously refrain from becoming advocates for either party. Here, however, 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. See Liteky v. United States, 510 U.S. 540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (holding that charges of judicial bias and partiality cannot be established solely by "expressions of impatience, dissatisfaction, annoyance, and even anger"); Logue, 103 F.3d at 1045 (similar).

To say more would be supererogatory. The short of it is that the IJ conducted the proceedings in this case in a balanced, thoroughly professional manner. No more is exigible: a party to an immigration case, like any other litigant, is entitled to a full and fair hearing--not an idyllic one.

B. Asylum.

Before us, the petitioner does not press for voluntary departure, but, rather, seeks political asylum and withholding of deportation. We need discuss only the asylum claim. 3

As a prerequisite to asylum eligibility, an alien bears the burden of establishing that he is a refugee. See 8 U.S.C. § 1158(b)(1); 8 C.F.R. § 208.13(a). The Act...

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