Laurent v. Ashcroft

United States Court of Appeals
For the First Circuit

No. 03-1275

NERLANDE JEAN LAURENT,

Petitioner,

v.

JOHN ASHCROFT, ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER

OF THE BOARD OF IMMIGRATION APPEALS

Before

Selya, Circuit Judge,

Coffin and Cyr, Senior Circuit Judges.

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.

February 27, 2004
 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

1
If the BIA's rejection of the petitioner's asylum claim
withstands review, her claim for withholding of deportation also
must fail. See Ipina v. INS, 868 F.2d 511, 515 (1st Cir. 1989).
Accordingly, we refer, for the most part, only to her asylum claim.

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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.

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 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.

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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

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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

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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

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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 (1994).2

2
In all events, the mere fact that a judge forms a preliminary
opinion about the facts based on an initial review of the record
does not render a proceeding fundamentally unfair. Judges quite
properly may form opinions before the end of a bench trial. See
Liteky, 510 U.S. at 555 ("[O]pinions formed by the judge on the
basis of facts introduced or events occurring in the course of the
current proceedings . . . do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible.").

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 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 C.F.R. § 208.13(a).

"Refugee" is defined in the Act as a person who cannot or will not

return to her country of nationality "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). In the case at hand, the IJ

found that the petitioner failed to establish either past

persecution or a well-founded fear of future persecution based on

one of the five enumerated grounds. The BIA adopted this finding.

We test its provenance.

The Act requires that the BIA's findings of fact be

upheld "unless any reasonable adjudicator would be compelled to

conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B). This is a

deferential standard that permits reversal on insufficiency grounds

only when the record evidence points unerringly in the opposite

direction. INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992).

In other words, for the petitioner to succeed in her sufficiency-

of-the-evidence challenge, "the administrative record, viewed in

its entirety, must compel the conclusion that [s]he is asylum

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eligible." Aguilar-Solis, 168 F.3d at 569. The record here is

inadequate to this task.

The petitioner's claim revolves around her story of

physical, sexual, and emotional abuse at the hands of Jean-Louis.

She deems this abuse tantamount to a showing that she was

persecuted on account of her membership in a particular social

group: women subject to domestic violence. This claim is suspect

on its face. See Lukwago v. Ashcroft, 329 F.3d 157, 170-72 (3d

Cir. 2003) (discussing what constitutes a particular social group).

We need not probe that point too deeply, however, because the

record supports the IJ's determination that the petitioner's

credibility was severely impaired and that her evidence, to the

extent it was credible at all, did not establish past persecution.3

The petitioner asserts that her testimony, together with

the State Department country conditions reports (Haiti) for 1999

and 2000, demands a finding of past persecution. We do not agree.

An immigration judge does not have to accept every witness's

testimony at face value. To the precise contrary, a central part

of a trial judge's job is to evaluate a witness's veracity.

Aguilar-Solis, 168 F.3d at 570-71.

3
We discuss the IJ's findings because they have become the
BIA's. Where, as here, the BIA conducts a de novo review of the
record, independently validates the sufficiency of the evidence,
and adopts the IJ's findings and conclusions, the IJ's findings
become the BIA's. See Aguilar-Solis, 168 F.3d at 570 n.4; see also
8 U.S.C. § 1252(b)(4)(A).

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 We add, moreover, that a witness's demeanor is often a

critical factor in determining her truthfulness. See Cordero-Trejo

v. INS, 40 F.3d 482, 491 (1st Cir. 1994). Where, as here, the

judicial officer who saw and heard the witness makes an adverse

credibility determination and supports that determination with

specific findings, an appellate court should treat that

determination with great respect. See Nasir v. INS, 122 F.3d 484,

486 (7th Cir. 1997). Nothing in the record before us suggests that

we should not honor the credibility determination made below. We

explain briefly.

In evaluating the petitioner's credibility, the IJ found

that her admittedly fraudulent original application, coupled with

her rehearsed (and equally false) testimony at her initial asylum

interview, fairly illustrated her propensity to dissemble under

oath. This negative impression was reinforced by the fact that the

petitioner had married Remi for the express purpose of obtaining a

green card (and, thus, skirting the law). The IJ found the

petitioner's new story equally suspect: she had maintained

continuous communication with her alleged batterer even after

traveling over sixteen hundred miles to a foreign land and had

never once complained to the authorities (either in Haiti or in the

United States) about him. Finally, citing book and verse, the IJ

also found that the account given by the petitioner to the clinical

psychologist was inconsistent with her testimony at the hearing.

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Because the record amply supports these findings, the IJ's

credibility determination must stand.

The short of the matter is that, based on the

petitioner's previous prevarication and the inconsistencies in her

account, the IJ had good reason to doubt her veracity. His finding

that she did not carry the burden of proof on the issue of past

persecution follows readily from her lack of credibility. Because

the evidence does not compel a contrary conclusion, this

determination passes muster.4

That holding does not end our journey. A second way in

which an alien may establish a right to asylum is by showing a

well-founded fear of future persecution. Here, too, the

petitioner's lack of credibility is critically important.

The standard for proving a well-founded fear of future

persecution has both objective and subjective components. See

Alvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990). In order to

establish asylum eligibility, an applicant must not only harbor a

4
The petitioner suggests that this determination is undercut
by the IJ's failure to take into account the State Department
reports of conditions in Haiti. That suggestion lacks force. To
be sure, these reports document widespread violence against Haitian
women and note that victims often do not report such abuse. As
such, the reports tend to make the petitioner's story more
credible. But such generalized information cannot be allowed to
trump the IJ's specific, well-substantiated finding that the
petitioner was spinning a yarn. See, e.g., Fesseha v. Ashcroft,
333 F.3d 13, 20 (1st Cir. 2003) (explaining that evidence of
country conditions does not establish a prima facie case of asylum
eligibility when petitioner has not established that she,
personally, would be targeted).

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genuine fear of future persecution, but also must establish an

objectively reasonable basis for that fear. Id. The petitioner

fails to meet the second part of this binary standard.

From an objective standpoint, an applicant for asylum

must show by credible evidence that her fear of future persecution

is reasonable. See id. Taken at face value, the appellant's

position — that she fears future persecution at Jean-Louis's hands,

yet maintained continuous contact with him after her emigration —

is unconvincing. And there is no need to take that position at

face value: the only particularized evidence in the record tending

to prove a likelihood of future persecution is the petitioner's

testimony — and the IJ deemed that testimony incredible. Because

that credibility determination is fully supportable, see supra,

there is no hook on which to hang a well-founded fear of future

persecution.

III. CONCLUSION

We need go no further. We conclude, without serious

question, that the petitioner received a fair hearing, consistent

with the dictates of the Due Process Clause, and that the BIA's

rejection of her claims for asylum and withholding of deportation

are supported by substantial evidence in the record. No more is

exigible.

Affirmed.

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