Aguilar-Solis v. INS, 168 F.3d 565, 1st Cir. (1999)
Aguilar-Solis v. INS, 168 F.3d 565, 1st Cir. (1999)
Aguilar-Solis v. INS, 168 F.3d 565, 1st Cir. (1999)
3d 565
I. BACKGROUND
The petitioner claims that he fled to the United States from his native land in
1985 to avoid persecution on account of his (and his family's) political views.1
Instead of seeking political asylum immediately after his illegal entry, the
petitioner knowingly purchased a bogus social security card and parlayed it into
a driver's license and, ultimately, employment. At some point, he met a woman
(also an illegal alien from El Salvador) and returned home with her in
December 1990 to be married. Prior to departing, the petitioner paid $3,000 to
buy a fake temporary resident alien card, notwithstanding his present insistence
that the couple intended to reside permanently in El Salvador.
During the petitioner's nuptial stay, friends and family allegedly informed him
that members of a guerilla organization, the FMLN, were making inquiries. He
testified that these warnings precipitated his abrupt return to the United States.
Immigration officials apprehended him at the Miami International Airport in
February 1991 as he attempted to enter the United States by using the
fraudulent card. Instead of seeking asylum, he elected to withdraw his
application for entry. He thereupon returned to El Salvador and, the following
month, made a surreptitious border crossing near San Diego, California. He
then paid to have his bride smuggled into the country.
Some four years later, the Immigration and Naturalization Service (INS)
apprehended the petitioner and began proceedings to deport him on the ground
that he had entered the United States illegally.2 See 8 U.S.C. 1251(a)(1)(B).
The petitioner conceded deportability, but requested political asylum and
withholding of deportation or, in the alternative, voluntary departure. At the
conclusion of the hearing, the Immigration Judge (IJ) issued an adverse bench
decision. The petitioner sought review, arguing that the IJ's conduct at the
hearing violated his right to due process and that the evidence mandated a grant
of asylum. In a per curiam opinion, the BIA rejected both contentions.
II. ANALYSIS
5
We address in sequence the petitioner's claims that the BIA erred (i) in its
condonation of the IJ's conduct, and (ii) in its denial of his asylum claim. We
then turn to the petitioner's blunderbuss constitutional challenge (raised for the
first time in this venue).
The petitioner argues that the IJ's handling of his case compromised the
fundamental fairness of the hearing. Specifically, he asserts that the IJ cross-
examined him, interrupted his testimony, and suggested lines of inquiry to the
INS's attorney. This course of conduct, he says, prevented him from building a
consistent, detailed evidentiary record and reflected an impermissible bias. We
review the question of whether an administrative law judge's conduct violates a
party's due process rights de novo. See Ivezaj v. INS, 84 F.3d 215, 220 (6th
Cir.1996); Hartooni v. INS, 21 F.3d 336, 339 (9th Cir.1994).
8
10
The petitioner's complaints that the IJ interrupted his testimony and crossexamined him do not withstand scrutiny. The record reveals that the IJ
interrupted only to clarify responses or to return strayed questioning to a
relevant line of inquiry. A judge who plays an active, but even-handed, role in
keeping the focus of the inquiry sharp is to be commended, not condemned.
See Logue, 103 F.3d at 1045. By like token, the IJ's cross-examination was
wholly consistent with the requirements of the Immigration and Nationality Act
(the Act). See 8 U.S.C. 1252(b) ("The immigration judge shall ... receive
evidence, interrogate, examine, and cross-examine the alien or witnesses.").
11
We do not mean to suggest that the Act relieves immigration judges of their
responsibility to function as neutral and impartial arbiters. Notwithstanding the
statutory directive, immigration judges must assiduously refrain from becoming
advocates for either party. Here, however, the IJ's neutrality cannot seriously be
doubted. Even 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. See Liteky v. United States, 510 U.S.
540, 555-56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994) (holding that charges of
13
B. Asylum.
14
Before us, the petitioner does not press for voluntary departure, but, rather,
seeks political asylum and withholding of deportation. We need discuss only
the asylum claim.3
15
16
17
1. Past Persecution. Congress has not defined the term "persecution" and the
courts thus far have failed to achieve a general consensus on its meaning and
scope in this context. Generalities abound. We know, for example, that
persecution encompasses more than threats to life or freedom, see INS v.
Stevic, 467 U.S. 407, 428 n. 22, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), but
less than mere harassment or annoyance, see Balazoski v. INS, 932 F.2d 638,
642 (7th Cir.1991). Between these broad margins, courts have tended to
consider the subject on an ad hoc basis. See, e.g., Marquez v. INS, 105 F.3d
374, 379 (7th Cir.1997).
18
This case does not require that we etch a more precise configuration. Even if
we assume, for argument's sake, that the acts alleged here could fall into the
elusive realm of "persecution," the record supports the IJ's multi-pronged
finding that the petitioner's credibility was impaired and that his evidence, to
the extent credible at all, lacked the specificity required to establish the
requisite nexus between the alleged acts and one of the five statutorily protected
grounds. 4
19
We turn first to the proof. In support of his claim of past persecution, the
petitioner testified to the following. His family owned a plantation in
Chalatenango. During the civil war that rocked El Salvador from 1979 to 1992,
the region became a stronghold for the FMLN--a left-wing insurgent group that
aspired to topple the national government. Until his death in 1982, the
petitioner's father managed the family farm and also dabbled in local politics.
His membership in a series of political parties (most notably, the ARENA
party) placed him on the opposite end of the political spectrum from the
FMLN. There is no evidence, however, that the petitioner (or any family
member other than his father) was more than marginally involved in political
activities or held office in any political organization.
20
Despite this lack of personal involvement, the petitioner contends that the
FMLN targeted him and his family, even after his father's death, for special
attention. According to his account, the first sign of harassment occurred in
1980 when FMLN guerrillas took him, his older brother, and several others into
the woods and attempted to recruit them. The petitioner responded neutrally to
the recruitment effort, stating only that he would think about it. No one was
threatened or physically harmed. During the early 1980s, the petitioner's family
received numerous threats (from unspecified sources), but these also came to
naught.
21
22
Concerned about their safety, the petitioner's family temporarily moved to the
capital, San Salvador. Thereafter, they lived in both regions, shuttling back and
forth from San Salvador to Chalatenango. During this nomadic period, the
family home in Chalatenango was destroyed, although the record contains no
clear indication as to when, how, why, or by whom. Finally, in 1985, FMLN
guerrillas ambushed a truck which the petitioner's older brother was driving
from San Salvador to Chalatenango, and killed him. At that point, the petitioner
fled the country.
23
The petitioner maintains that this evidence, virtually all of which comes from
his own mouth, demanded a finding of past persecution. We do not agree. We
recognize, of course, that "[t]he testimony of the applicant, if credible, may be
sufficient to sustain the burden of proof without corroboration." 8 C.F.R.
208.13(a). This does not mean that a reviewing court must take every
applicant's uncontradicted testimony at face value, for testimony sometimes is
internally inconsistent or belied by the prevailing circumstances. Furthermore, a
witness's demeanor is often a critical factor in determining his veracity. See
Cordero-Trejo v. INS, 40 F.3d 482, 491 (1st Cir.1994). And when a hearing
officer who saw and heard a witness makes an adverse credibility
determination and supports it with specific findings, an appellate court
ordinarily should accord it significant respect. See Nasir v. INS, 122 F.3d 484,
486 (7th Cir.1997); NLRB v. Horizons Hotel Corp., 49 F.3d 795, 799 (1st
Cir.1995). While the obligation to defer should not be confused with an
obligation to rubber-stamp the hearing officer's credibility call, such a
determination merits judicial approbation as long as the findings on which it
rests have sufficiently sturdy roots in the administrative record.
24
This is such a case. In making her credibility judgment, the IJ emphasized the
petitioner's acquisition of an ersatz temporary resident alien card in 1990 and
the improbability of his claim that he did not know the card was bogus. She
also pointed out that the circumstances surrounding the purchase belied the
petitioner's story: he obtained the card through a Brazilian intermediary whose
last name he professed not to recall, never stepped foot in a government office,
paid $3,000 in cash for the document, and traveled from Boston to Miami to
procure it. Moreover, the timing of this illegal purchase undermined a second
aspect of the petitioner's tale: he claimed that he had intended a permanent
return to El Salvador in 1990--but this claim does not jibe with the significant
investment he made in fraudulent documentation just prior to his departure.
25
about when he first entered the United States, see supra note 1--coupled with
the absence of plausible explanations for the incongruities, amply justified the
IJ's conclusion that the petitioner's testimony lacked credibility.
26
27
On the petitioner's version, when the FMLN attempted to recruit him in 1980,
he never divulged his political leanings, and the guerrillas expressed no
awareness of them. Thus, the incident is not significantly probative. See EliasZacarias, 502 U.S. at 482, 112 S.Ct. 812 (holding that "the mere existence of a
generalized 'political' motive underlying the guerillas' [actions] is inadequate"
to establish persecution on account of political opinion). This is especially
important because the record contains no evidence, subsequent to the 1980
incident, of any harassment that is even arguably linked to the petitioner's
political views.
28
The petitioner's father's participation in, and personal support for, ARENA--a
political party in ideological opposition to the FMLN--does not trip the balance.
While the IJ might have drawn an inference that the FMLN targeted the
petitioner because of his membership in a social group (i.e., his family), she
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. Cf. 3-E Co. v. NLRB, 26 F.3d 1,
3 (1st Cir.1994) (explaining that a reviewing court will not disturb an ALJ's
credibility determination "so long as [it] represents a choice between two fairly
conflicting views"). A fortiori, the record does not compel a conclusion that the
guerrillas persecuted the petitioner because of his family status.
29
The petitioner next adverts to his service in the CDP from 1982 to 1984. He
suggests that this assignment marked him, in the guerrillas' eyes, as a political
adversary. By his own testimony, however, the CDP's exclusive function was to
protect citizens from guerrilla attacks. Danger resulting from participation in
general civil strife, without more, does not constitute persecution. See
Finally, the petitioner contends that the anonymous threats that he received
from time to time signaled his own jeopardy, and that his peril escalated upon
the slaying of his older brother. Danger is one thing, but cause and effect is a
quite different concept. On the record as it stands, there is nothing that forges
an inexorable link between either the threats or the murder and political
opinion. As to the former, the IJ plausibly suggested that, given the substantial
land holdings of the petitioner's family, such threats, if received at all, could
just as easily have represented attempts by the guerrillas to garner financial
support for their movement. As to the latter, the decedent's role as commander
of the CDP might well have aroused in certain FMLN members a personal
animosity that accounted for the attack. In short, while the petitioner's (and his
older brother's) political opinions may have played a part in these untoward
incidents, the record does not mandate a finding to that effect.
31
We need not add hues to a rainbow. The IJ viewed the petitioner's evidence of
past persecution through a prism of warranted dubiety and found it inadequate.
We cannot say that this determination was clearly wrong or, put another way,
that the evidence compelled a finding that the petitioner had suffered past
persecution on account of his (or his family's) political views.
32
33
34
34
well-founded fear of persecution is somewhat less than the classic "more likely
than not" formulation. See INS v. Cardoza-Fonseca, 480 U.S. 421, 450, 107
S.Ct. 1207, 94 L.Ed.2d 434 (1987). Beyond a tentative suggestion that a
"reasonable possibility" of persecution may capture the essence of the legal
standard, id. at 440, 107 S.Ct. 1207, the Court has not been markedly more
precise. 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. See Novoa-Umania v. INS, 896 F.2d 1, 2, 3 (1st Cir.1990); CarcamoFlores v. INS, 805 F.2d 60, 68 (2d Cir.1986); Guevara Flores v. INS, 786 F.2d
1242, 1249 (5th Cir.1986); Matter of Mogharrabi, 19 I. & N. Dec. 439, 445
(BIA 1987). Viewed against this backdrop, the IJ's determination that the
petitioner failed to show a well-founded fear of future persecution passes
muster.
35
36
The record demonstrates unequivocally that El Salvador's civil war ended over
six years ago, when the United Nations (U.N.) brokered the peace accords of
1992. The petitioner's self-proclaimed nemesis, the FMLN, metamorphosed
into a legitimate political party at that time. State Department reports indicate
that, by 1995, the drumbeat of politically motivated murders had become
inaudible--so much so that the Security Council withdrew the U.N.'s observer
mission. These developments reflect a direct (and radical) change in the
circumstances that the petitioner alleges led him to bolt.
37
In rebuttal, the petitioner offers more cry than wool. He points first to the vague
threats that his family and friends relayed to him during his 1990 return to El
Salvador, and speculates that members of the FMLN still sought to harm him at
that time. This is unabashed surmise. Equally as important, because these
events antedated the 1992 peace accords, their relevance has been marginalized
by the intervening changes.
38
With respect to post-peace accords evidence, the petitioner hawks six loosely
related items: (i) conclusory testimony elicited from his sister, a United States
resident since 1988, to the effect that peril awaits him in El Salvador, and (ii) a
Two additional considerations drive home the frailties of the petitioner's proof. 6
First, the petitioner has another sister and two other brothers who continue to
live tranquilly in El Salvador, and have done so throughout the duration of his
expatriation. The petitioner has not provided a satisfactory differentiation of his
situation from that of his siblings. Without some explanation, the fact that close
relatives continue to live peacefully in the alien's homeland undercuts the
alien's claim that persecution awaits his return. See Cuadras v. INS, 910 F.2d
567, 571 (9th Cir.1990); Matter of A-E-M-, Int. Dec. 3338 (BIA 1998) (en
banc). Second, the political party with which the petitioner alleges affiliation,
ARENA, convincingly prevailed in the 1994 national elections and remains in
control of the government. Although action by non-governmental entities can
constitute persecution, see, e.g., Velarde v. INS, 140 F.3d 1305, 1311-13 (9th
Cir.1998), the law requires at least some showing that the alleged persecutors
are not subject to the government's control, see Llana-Castellon v. INS, 16 F.3d
1093, 1097-98 (10th Cir.1994). In this instance, the record is barren of any
indication why a presumably friendly government would be unable to protect a
returning Aguilar from fringe renegades.
40
To sum up, the IJ found that the petitioner's meager basis for fear of future
persecution failed to refute the overwhelming record evidence of changed
country conditions. Because substantial evidence supports this finding, it
deserves our approbation. In turn, this finding renders the petitioner ineligible
for a discretionary grant of political asylum.7
41
42
The last matter to which we must attend concerns the petitioner's newly minted
challenge to the constitutionality of NACARA. NACARA 202 permits
certain deportable aliens from Nicaragua and Cuba to apply for adjustment of
status, and section 203 affords certain Guatemalans, Salvadorans, and Eastern
Europeans applying for suspension of deportation the benefit of the pre-IIRIRA
rules for calculating physical presence in the United States. Congress explained
that it was providing this particularized relief to (i) classes of aliens who had
taken unusual risks in escaping from oppressive governments, and (ii) those
whose countries had been profoundly ravaged by war. See 143 Cong. Rec.
S12261-62 (daily ed. Nov. 9, 1997) (statement of Sen. Abraham).
43
The petitioner conclusorily condemns the legislation on four grounds: (1) that
the Act violates the Equal Protection Clause; (2) that it deprives persons of
liberty without due process; (3) that it abridges speech and assembly in
contravention of the First Amendment; and (4) that it contravenes the
Constitution's Ex Post Facto proscription. The petitioner fails to develop these
arguments. He likewise fails to connect the legislation to his asylum application
in even the most rudimentary way or to indicate how he has standing to raise
the claims that he advances.
44
45
The petition for review is denied and the BIA's order is affirmed.
The record indicates that the petitioner gave conflicting accounts about his
original entry date, raising the possibility that he entered the United States for
the first time in 1980 or 1982, rather than in 1985. Although we need not
resolve these seeming contradictions, we regard them as germane to the issue of
the petitioner's credibility
The standard for a grant of asylum is easier to meet than that for nonrefoulment
To the extent that the letters hint at any reasons for continuing danger, they
suggest increased crime and lingering personal animosities. Neither of these
concerns connect the petitioner's fear to one of the statutory grounds
There is arguably a third such consideration. BIA precedent holds that when the
alleged persecutor is a non-governmental force, a well-founded fear of
persecution is to be gauged on a country-wide basis, not on the basis of
problems that are endemic to particular locales. See Matter of C-A-L-, Int. Dec.
3305 (BIA 1997) (en banc). Here, State Department reports confirm that the
peace implementation process has been faster and more complete in some
regions than in others, and no record evidence supports a conclusion that the
petitioner could not relocate safely to another region within El Salvador (say,
San Salvador). However, the courts have not readily accepted the BIA's
country-wide analysis. See, e.g., Singh v. Ilchert, 63 F.3d 1501, 1510-11 (9th
Cir.1995) (finding that an applicant is not required to demonstrate a countrywide fear of persecution to establish asylum eligibility, at least after he has
demonstrated past persecution). We need not resolve the question today, as the
BIA's disposition of this case is fully supportable without any consideration of
whether the petitioner's fear is locality-specific