208 F.3d 323 (1st Cir. 2000), 98-1719, Morales v INS

Docket Nº:98-1719
Citation:208 F.3d 323
Case Date:April 05, 2000
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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




No. 98-1719

United States Court of Appeals, First Circuit

April 5, 2000

Heard March 9, 2000

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[Copyrighted Material Omitted]

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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 Cir., Oct. 19, 1999) (withdrawn) (emphasis added).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

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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.


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.


Morales claims that he was denied his Fifth Amendment right to a full and fair

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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...

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