Morales v. INS

United States Court of Appeals
For the First Circuit

No. 98-1719

JUAN ANTONIO MORALES,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS

Before

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

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.

April 5, 2000
 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(withdrawn) (emphasis added).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

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 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

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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

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“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

1
Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well
established that the Fifth Amendment entitles aliens to due
process of law in deportation proceedings.”).

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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).

28 U.S.C. § 1229a(b)(4)(B) (Supp. II 1996).

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 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

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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

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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

claimed he was personally harassed. Morales' attorney also made

offers of proof as to those same circumstances which were

accepted as true by the IJ.

The only instance of the IJ “cutting short” Morales'

testimony was during cross-examination. The IJ cut off

questioning of Morales by the INS attorney, saying “[y]ou're

done. . . . I've heard enough.” But the IJ then gave Morales'

attorney an opportunity to present additional evidence, turning

to him asking “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, who accepted this

offer of proof as true. Morales' attorney made no objection to

this procedure.

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 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.”

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

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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, there is no evidence of

bias or unfairness. The record reflects that Morales had the

opportunity, on direct and cross examination and by his

attorney's offers of proof, to present fully 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 explicitly accepted as

true.

III. POLITICAL ASYLUM

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

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demonstrate that he is a refugee. See 8 U.S.C. § 1158(b)(1)

(Supp. II 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) (Supp. II 1996).

“[T]o obtain judicial reversal of the BIA's

determination, [Morales] 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) (citation and 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.

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 Asylum eligibility may be established by demonstrating

either past persecution or a well-founded fear of future

persecution. See Aguilar-Solis, 168 F.3d at 572. 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.

Past Persecution

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].”

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 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

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moved to a farm outside Guatemala City, leaving his wife and

children behind. For the next two years, Morales worked on a

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,

consisted of human rights reports, U.S. State Department

documents and other authoritative reports. It does not compel

the finding that Morales suffered past persecution on the basis

of political opinion. Arguably, these documents undermine

Morales' claim for asylum. They indicate that the unionists

harmed were primarily leaders or active members of the union.

Morales 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

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“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 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.

Well-Founded Fear of Persecution

To prove a well-founded fear of persecution, the

“applicant's fear must be both genuine and objectively

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reasonable.” Aguilar-Solis, 168 F.3d at 572 (citing Alvarez-

Flores, 909 F.2d at 5). But the applicants need not prove “that

it is more likely than not that they will be persecuted if

deported.” Cardoza-Fonseca, 480 U.S. at 450. “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.

The documentary evidence indicates, however, 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.

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 The BIA determined that Morales had not suffered past

persecution by reason of his association with the labor union.

it also found that Morales did not have a reasonable well-

founded fear of future persecution if he were returned to

Guatemala. In order to reverse we must find that the evidence

presented was so compelling that no reasonable fact-finder could

fail to find that Morales was persecuted on the basis of

political opinion or had a well-founded fear of such

persecution. See Elias-Zacarias, 502 U.S. at 483-84; Ravindran

v. INS, 976 F.2d 754, 758 (1st Cir. 1992). Morales has failed

to meet this burden. Morales has failed to establish that

Guatemalan authorities were aware that he had once belonged to

the Cavisa union member or that he was even marginally involved

in the union's 1990 strike. Even if Guatemalan authorities knew

Morales had been a Cavisa union member who was involved in the

1990 strike, the evidence does not suggest that they would

punish him today.

IV. IMPUTED POLITICAL OPINION

“'[A]n imputed political opinion, whether correctly or

incorrectly attributed, may constitute a reason for political

persecution within the meaning of the Act.'” Vasquez, 177 F.3d

at 65) (quoting Ravindran, 976 F.2d at 760); see also Alvarez-

Flores, 909 F.2d at 4. There is no doubt that asylum can be

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granted if the applicant has been persecuted or has a well-

founded fear of persecution because he is erroneously thought to

hold a particular political opinion. The question is whether

the evidence shows that an anti-government, or subversive,

political opinion was attributed to Morales because of his

involvement with the Cavisa labor union. The same evidence

already discussed is void of any suggestion or reasonable

inference that Guatemalan authorities imputed a political

opinion to Morales. Morales argues that his brief participation

in the union strike is a basis for an inference from which it

could be found that the government authorities thought he was a

subversive.

In addition to Morales' testimony about being followed

by persons he thought, or assumed, were members of the

Guatemalan Army there are only two other pieces of evidence

bearing on this issue. Both are Amnesty International reports.

The first, dated February 9, 1990, states, inter alia: “Amnesty

International has received reports that leaflets warning that

the leadership of the [Cavisa] union would be held responsible

if any damage were caused to the plant.” (Emphasis added). As

we have already noted, Morales was not a leader of the union in

any sense of the word and could not reasonably be thought to be

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one. Indeed, Morales himself denied that he was an active union

member.

The second Amnesty International report is dated July

2, 1990. It states that the Cavisa Union members occupied the

factory for over four months. It goes on to state that at the

end of this period, the union members were “violently dislodged

from the factory by regular and anti-riot police units” and that

many of the workers were photographed while leaving the plant,

and “made to fill in a form giving personal details, and then

they were kicked and beaten with truncheons by the police.” The

report also states that the workers continued to protest outside

the factory and reportedly were further threatened.

There is no doubt that the Guatemalan government was,

to say the least, hostile to the union. The evidence is clear,

however, that Morales was not in the factory when the

authorities dislodged the union workers. It is not reasonable

to conclude that somehow he was tarred by the same anti-union

brush that the government used against the workers that actively

participated in the four month takeover of the factory. No

matter how generously we interpret the evidence in favor of

Morales, it cannot be held to contribute any basis for a

political opinion imputed by the Guatemalan authorities to

Morales.

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 We understand and sympathize with Morales' desire to

remain in the United States. The evidence and the applicable

law in this case, however, compel us to rule otherwise. After

careful review of the record, we find that there is substantial

evidence to support the findings and rulings of the BIA and the

evidence does not compel us to hold otherwise. Petition for

review is denied. The BIA is affirmed.

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