Morales v. INS, 98-1719

• Decision Date: 09 March 2000
• Docket Number: No. 98-1719,98-1719
• Citation: 208 F.3d 323
• Parties: (1st Cir. 2000) JUAN ANTONIO MORALES, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 323

208 F.3d 323 (1st Cir. 2000)

JUAN ANTONIO MORALES, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.

No. 98-1719

United States Court of Appeals For the First Circuit

Heard March 9, 2000

Decided April 5, 2000

[Copyrighted Material Omitted] Maureen O'Sullivan, with whom Harvey Kaplan, Ilana Greenstein, Jeremiah Friedman and Kaplan, O'Sullivan & Friedman, Llp, were on brief for petitioner.

Brenda M. O'Malley, Attorney, with whom David W. Ogden, Acting Assistant Attorney General, and Terri J. Scadron, Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, were on brief for respondent.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

Bownes, Senior Circuit Judge.

We granted Juan Antonio Morales' petition for rehearing because in our original opinion, issued on October 19, 1999, we misstated in part the burden of proof required to prove a well-founded fear of persecution by applicants if they are deported to their homeland. We stated:

To prove a well-founded fear of persecution, the "applicant's fear must be both genuine and objectively reasonable." [Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st Cir. 1999)] (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, 107 S.Ct. 1207, 94 L.Ed.2d 434 (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.

Morales v. INS, 1999 WL 897658, at *6 (1st. Cir., Oct. 19, 1999) (withdrawn) (emphasis added).

We agree with the petitioner that in INS v. Cardoza-Fonseca, the Court held the contrary of what we said it did. It stated:

Whether or not a "refugee" is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported.

480 U.S. at 450 (emphasis added). Two issues were addressed in the rehearing briefs: the burden of proof required for showing a well-founded fear of persecution; and the application of the doctrine of imputed political opinion.

At oral argument, petitioner argued the same issues he had raised and argued the first time around and the government replied in kind. We think it advisable, therefore, to revisit all of the issues raised originally because they bear on the two issues before us.

I. BACKGROUND

Before we address the issues, we recount the background facts. 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. The Immigration Judge ("IJ") considered Morales' petition for political asylum to be a request for withholding of deportation as well.

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. Morales was detained in the factory with the other 700 workers until "[t]he gates were finally unlocked, and [he] managed to escape." The record reveals that although the strike lasted for at least several weeks, Morales was able to flee the factory after he was there one week.

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." As already noted, 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 Immigration Judge 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." 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 Board of Immigration Appeals ("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, violating his right to due process. 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.

II. DENIAL OF DUE PROCESS

Morales claims that he was denied his Fifth Amendment right to a full and fair hearing¹ and his statutory right to a reasonable opportunity to defend himself in his deportation hearing² because the IJ precluded him from testifying and ignored substantial documentary and testimonial evidence which corroborates his claims for asylum.

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, 168 F.3d at 568.

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 contends that the IJ "cut short" his direct examination and directed that cross-examination 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 would 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 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. At oral argument, the argument was made by Morales that his attorney intended to develop the facts more fully on redirect examination. This was a strategic choice that cannot now be erased. Moreover, the record discloses that Morales' attorney was given an opportunity after cross examination to augment the evidence, which was done by offers of proof.

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...