Laurent v. Ashcroft, 03-1275.

• Decision Date: 27 February 2004
• Docket Number: No. 03-1275.,03-1275.
• Citation: 359 F.3d 59
• Parties: Nerlande Jean LAURENT, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — First Circuit

359 F.3d 59

Nerlande Jean LAURENT, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 03-1275.

United States Court of Appeals, First Circuit.

Submitted December 15, 2003.

Decided February 27, 2004.

Joan M. Altamore on brief, for petitioner.

Peter D. Keisler, Assistant Attorney General, Civil Division, Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, and Brenda M. O'Malley Attorney, Office of Immigration Litigation, on brief, for respondent.

Before SELYA, Circuit Judge, COFFIN and CYR, Senior Circuit Judges.

SELYA, Circuit Judge.

Nerlande Jean Laurent, a citizen of Haiti, seeks judicial review of a final order of the Board of Immigration Appeals (BIA) denying her application for asylum and withholding of deportation. She asserts that the BIA erred in refusing to find that the Immigration Judge (IJ) had (i) violated her due process rights while conducting the removal proceedings, and (ii) incorrectly determined that the petitioner had not presented sufficient credible evidence to support her claim for asylum and withholding of deportation.¹ Finding these arguments unpersuasive, we uphold the BIA's order.

I. BACKGROUND

The petitioner initially filed for asylum in May of 1999. She retained Guantanamo Consultants, Inc. (Guantanamo) to prepare her application and paid that firm $500. In that application, she claimed that she had been raped, beaten, and threatened with death due to her and her family's political ties with a deposed dictator (Jean-Bertrand Aristide). She further claimed that she had entered the United States illegally in 1998 to escape political persecution.

In July of 1999, an asylum officer interviewed her and found both her application and her confirmatory testimony lacking in credibility. Two months later, the Immigration and Naturalization Service (INS) initiated removal proceedings against the petitioner. At her removal hearing, she admitted that she was removable as charged and resubmitted the same application for asylum. On January 23, 2001, however, she amended her application and totally repudiated her original claims of political persecution. She grounded her amended application on claims of persecution and abuse arising out of her membership in a particular social group, i.e., women being victimized by domestic violence.

On October 16, 2001, the IJ held a hearing on the petitioner's amended application. At the time, the petitioner disclaimed her original application, stating that the bogus allegations of political persecution had been invented by Guantanamo and that Guantanamo had given her a cassette tape that she had parroted in attempting to answer the questions asked during her initial interview. The true story, she said, was that she had been physically, sexually, and emotionally abused by one Benold Jean-Louis from 1987 to 1992. She went on to say that she had come to the United States in 1992, with a fraudulent passport, to escape from this unwholesome relationship. The alleged mistreatment included forced abortions and underwriting other women's abortions at Jean-Louis's insistence. She did not report any of these events to authorities; in her view, doing so would have been futile given the status of women in Haiti.

Strangely, however, the petitioner's flight did not end her relationship with Jean-Louis. She admitted that she maintained telephone contact with him throughout her stay in the United States. Moreover, she testified that Jean-Louis wanted her to get a green card so that she could continue to support him. Accordingly, she married Ronel Remi in 1995 (on Jean-Louis's recommendation) in the hope that he would help her secure a green card. Remi did not deliver, and the petitioner divorced him in 1997.

In July of 1999, Jean-Louis visited the petitioner in the United States. He remained for about a month. The following April, the petitioner gave birth to Jean-Louis's child. Jean-Louis then returned to the United States for a month-long visit with the petitioner.

In the face of this testimony, the IJ found that the petitioner's credibility had been compromised both by her original (false) application and by her lies to the asylum officer. He further found that there was no corroboration for her claims of abuse, and that the fact that she persisted in maintaining a relationship with Jean-Louis throughout her stay in the United States undermined her testimony. Accordingly, he denied her application for asylum. The BIA summarily affirmed the IJ's ruling.

II. ANALYSIS

We examine sequentially the petitioner's claims that the BIA erred in approving (i) the IJ's conduct of the hearing, and (ii) his denial of the asylum claim.

A. Fairness of the Hearing.

The petitioner argues that the IJ violated her Fifth Amendment right to due process by refusing to hear pertinent testimony and by exhibiting bias against her. We review de novo the question of whether a judicial officer's conduct violates due process. Aguilar-Solis v. INS, 168 F.3d 565, 568 (1st Cir.1999). After careful perscrutation of the transcript, we find no due process violation here.

The petitioner complains that the IJ interrupted pertinent lines of questioning, denying her the right to a full and fair hearing. That complaint is more cry than wool. A party is entitled to a fair hearing, not a perfect one, and within wide margins — not approached here — a judge's efforts at routine administration of court proceedings do not offend principles of fundamental fairness. See Logue v. Dore, 103 F.3d 1040, 1045 (1st Cir.1997).

This does not mean, of course, that judges have carte blanche to act arbitrarily or to cross the line that separates judicial officers from litigants. A judge must maintain a standard of balance and impartiality, and a reviewing court will look to the facts of each particular case to determine whether the judge's actions unfairly prejudiced any of the parties. See id. We find no such undue prejudice here.

The petitioner cites three specific instances in which (she says) the IJ's interjections were prejudicial to her cause. First, the IJ attempted to prod her attorney past introductory matters, beseeching him, inter alia, to "get into what happened." Viewed in context, this statement and others like it were apt — and there is nothing to suggest that they foreclosed pertinent testimony. An immigration judge's broad discretion easily encompasses such things as endeavoring to expedite trial proceedings. Aguilar-Solis, 168 F.3d at 568. Any perceived brusqueness was, therefore, merely a symptom of the IJ's impatience. See Morales v. INS, 208 F.3d 323, 327-28 (1st Cir.2000).

The second instance of allegedly impermissible conduct involves the IJ's statement that he did not want to hear details of the abuse. A closer look at the record reveals that this comment occurred at the tail end of the petitioner's direct testimony and followed a thorough airing of her allegations of rapes, beatings, and other mistreatment at Jean-Louis's hands. In virtually the same breath, the IJ acknowledged that he understood fully the petitioner's contention that she had been raped, beaten, and abused by Jean-Louis. Common sense suggests that trial judges must be accorded considerable leeway in cutting off cumulative or redundant testimony, and the case law so holds. See, e.g., Desjardins v. Van Buren Cmty. Hosp., 969 F.2d 1280, 1281 (1st Cir.1992) (per curiam). The IJ did not misuse this discretion by refusing to allow the petitioner to repastinate soil already well turned. See Aguilar-Solis, 168 F.3d at 568.

The third incident of allegedly prejudicial conduct occurred when the IJ refused to take testimony by telephone from a clinical psychologist, Muriel Weckstein. In the petitioner's view, this testimony was vital because it was not until she consulted with Weckstein that she realized that she was a victim of domestic abuse and was able to relate this tale to her attorney.

The supposed blocking of Weckstein's testimony is a non-issue. First, there is considerable room to doubt whether Weckstein was available to testify telephonically when the request was made (the petitioner apparently had arranged with Weckstein to hold herself available by telephone on the day of the hearing from 10:00 a.m. to 11:00 a.m., but no mention of having her testify was made to the IJ until 11:20 a.m). Second, Weckstein's affidavit — her statement of opinion as to the petitioner's condition — was in the record and was fully considered by the IJ (who noted, inter alia, several discrepancies between the petitioner's testimony and statements she had made to Weckstein). Because the IJ received and considered this evidence, the petitioner's due process rights were not abridged.

This leaves the petitioner's allegations of bias. These allegations have their genesis in the IJ's statement, prior to the commencement of the removal hearing, that he would not have allowed the petitioner to file a second asylum application. The petitioner asseverates that this statement demonstrates that the IJ had formed an adverse opinion about her credibility before taking any evidence.

The record belies the petitioner's claim. The IJ made it very clear that he was merely voicing his disagreement with the procedure that had been employed to authorize the filing of the second asylum application. As he explained, "what I do is I take an affidavit from the [petitioner] indicating what the different facts are and why the first application was incorrect." It hardly can be deemed a violation of due process for a presiding judge to comment upon the procedure used to compile the record before him. Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).²

B. The Merits.

We turn now to the petitioner's challenge to the BIA's denial of her claim for asylum. In order to establish eligibility for asylum, an alien bears the burden of demonstrating that she is a refugee. See 8 U.S.C. § 1158(b)(1); 8...