Aguilar-Solis v. INS

• Court: Court of Appeals for the First Circuit
• Decided: February 26, 1999
• Docket: 98-1484
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1484



                     REYNALDO AGUILAR-SOLIS,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                           Respondent.


PETITION FOR REVIEW OF AN ORDER

               OF THE BOARD OF IMMIGRATION APPEALS


Before



                      Selya, Circuit Judge,

                                

                 Gibson,* Senior Circuit Judge,

                                

                   and Lipez, Circuit Judge.


Vincent J. Cammarano for petitioner.

     Elizabeth A. Welsh, Senior Litigation Counsel, Office of

Immigration Litigation, United States Department of Justice, with

whom Frank W. Hunger, Assistant Attorney General, Civil Division,

and Mark C. Walters, Assistant Director, Office of Immigration

Litigation, were on brief, for respondent.


February 26, 1999


_____________

*Hon. John R. Gibson, of the Eighth Circuit, sitting by

designation.  SELYA, Circuit Judge.  Reynaldo Aguilar-Solis (Aguilar),

an El Salvadoran national, solicits judicial review of a final

order of the Board of Immigration Appeals (BIA) denying his

application for asylum and withholding of deportation.  He claims

that the hearing officer's heavy-handedness abridged his right to

due process, that the BIA's rejection of his application lacked

record support, and that Congress's enactment of the Nicaraguan

Adjustment and Central American Relief Act of 1997 (NACARA), Pub.

L. No. 105-100, 111 Stat. 2193 (Nov. 19, 1997), as amended by Act

of Dec. 2, 1997, Pub. L. No. 105-139, 111 Stat. 2644, calls into

constitutional question the BIA's disposition of his case.  Finding

these arguments unpersuasive, we uphold the BIA's order.

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.  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.  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

     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).

                   A.  Fairness of the Hearing.

     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).

     We have carefully examined the hearing transcript and

find no constitutional infirmity.  An immigration judge, like other

judicial officers, possesses broad (though not uncabined)

discretion over the conduct of trial proceedings.  See Iliev v.

INS, 127 F.3d 638, 643 (7th Cir. 1997); cf. Logue v. Dore, 103 F.3d

1040, 1045 (1st Cir. 1997) (discussing discretion possessed by

federal district judge).  During the three-day hearing in this

case, the IJ appears to have used that discretion suitably and to

have provided the petitioner with every opportunity to make his

case.

     To be sure, the IJ attempted to  move things along by

preventing repetitive testimony and encouraging the parties to

stipulate to undisputed facts.  In doing so, however, she imposed

no unreasonable restrictions on the petitioner's presentation of

either testimonial or documentary proof.  Moreover, she  afforded

each witness (the petitioner included) the opportunity to testify

fully and facilitated the petitioner's efforts to reconcile

conflicting answers that he had given in three separate asylum

applications.

     The petitioner's complaints that the IJ interrupted his

testimony and cross-examined 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.  SeeLogue, 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.").

     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 (1994) (holding that charges of judicial bias and

partiality cannot be established solely by "expressions of

impatience, dissatisfaction, annoyance, and even anger"); Logue,

103 F.3d at 1045 (similar).

     To say more would be supererogatory.  The short of it is

that the IJ conducted the proceedings in this case in a balanced,

thoroughly professional manner.  No more is exigible:  a party to

an immigration case, like any other litigant, is entitled to a full

and fair hearing   not an idyllic one.



                           B.  Asylum.

     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.

     As a prerequisite to asylum eligibility, an alien bears

the burden of establishing that he is a refugee.  See 8 U.S.C. 

1158(b)(1); 8 C.F.R.  208.13(a).  The Act defines "refugee" as a

person who cannot or will not return to his country of nationality

or avail himself of that country's protection "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(42)(A).  The IJ

concluded that the petitioner failed to establish either past

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

of one of the five enumerated grounds, and the BIA concurred.

     The BIA's decision must be upheld if "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole."  8 U.S.C.  1105a(a)(4).  The Supreme Court

has interpreted this deferential standard to permit reversal of a

BIA decision on sufficiency grounds only when the record evidence

would compel a reasonable factfinder to make a contrary

determination.  See INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1

(1992).  For purposes of this case, the Elias-Zacarias standard

signifies that, if the petitioner is to prevail, the administrative

record, viewed in its entirety, must compel the conclusion that he

is asylum-eligible.  We conclude that the evidence falls far short

of this target.

     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 (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).

     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.

     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.

     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.

     In 1982, the government encouraged formation of local

groups, which came to be called the Civil Defense Patrol (CDP), to

defend against the guerrillas.  The local branch of the CDP

comprised 15 to 20 members.  The petitioner's older brother

commanded the unit and the petitioner served in it.  According to

the petitioner, the CDP engaged the guerrillas in several armed

confrontations between 1982 and 1984 (at which time the guerrillas

seized firm control of the region and the CDP disbanded).

     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.

     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  Nasirv. 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.

     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.

     These, and other, inconsistencies   such as the

petitioner's admitted purchase of fraudulent documentation on an

earlier occasion, the factual variances between the petitioner's

second and third asylum applications, and his changing stories

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.

     An asylum applicant must carry the devoir of persuasion

as to his eligibility.  See 8 C.F.R.  208.13(a).  To the extent

that the petitioner's testimony about what had occurred in the

1980-1985 time frame could be credited, the IJ supportably found

that it lacked the requisite degree of specificity to sustain the

petitioner's burden of proof.  In particular, the vague evidence of

alleged persecution that the petitioner adduced failed to establish

a sufficient nexus between the events that he described and any

ground enumerated in 8 U.S.C.  1101(42)(A).

     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 Elias-Zacarias, 502 U.S. at

482 (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.

     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.

     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 Martinez-Romero v. INS, 692 F.2d 595,

595-96 (9th Cir. 1982); Matter of Rodriguez-Majano, 19 I. & N. Dec.

811, 816 (BIA 1988).  The petitioner introduced no evidence about

the motivation behind these attacks, and without some proof that

the guerrillas were attempting to harm or oppress the townspeople

on account of their political opinions, the record cannot

conceivably compel a conclusion that enlistment in the CDP

subjected its members to politically-inspired persecution. 

     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.

     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.

     2.  Well-Founded Fear of Persecution.  A second way in

which an alien may establish asylum eligibility is by demonstrating

a well-founded fear of future persecution.  Even setting the

petitioner's damaged credibility to one side, his evidence on this

issue is insubstantial and contradicted by significant proof of

changed country conditions.

     The standard for proving a well-founded fear of future

persecution contains both subjective and objective components.  SeeAlvarez-Flores v. INS, 909 F.2d 1, 5 (1st Cir. 1990).  That is to

say, the asylum applicant's fear must be both genuine and

objectively reasonable.  See id.  Because we find it dispositive,

we focus primarily on the reasonableness prong.

     The degree of probability required to establish the

objective component of a 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 (1987).  Beyond a

tentative suggestion that a "reasonable possibility" of persecution

may capture the essence of the legal standard, id. at 440, 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);

Carcamo-Flores 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.

     Changed country conditions often speak volumes about the

objective reasonableness of an alien's fear that persecution lurks

should he return to his homeland.  See, e.g., Kazlauskas v. INS, 46

F.3d 902, 906 (9th Cir. 1995).  So it is here:  the evidence

indicating that conditions in El Salvador have stabilized is highly

persuasive, and the BIA's conclusion that this proof outweighed the

petitioner's conclusory assertions of continuing danger is

therefore supported by substantial evidence.

     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.

     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.

     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 compendium of five letters sent to him by persons still living in

El Salvador.  We have reviewed these materials and find them

inconsequential; neither the testimony nor the correspondence

contains specifics as to the nature of any danger, the identity of

any potential malefactors, or the reasons why people might wish to

harm the petitioner.  Moreover, the sister's testimony is rank

hearsay (she, herself, has not been in El Salvador for over a

decade), and the source of the letter-writers' knowledge is

obscure.  Unverified statements such as these are entitled to very

little weight in the asylum calculus.

     Two additional considerations drive home the frailties of

the petitioner's proof.  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.

     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.

                C.  The Constitutional Challenge.

     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).

     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.

     This scattershot assault, wholly unsupported by coherent

argumentation, can be rejected out of hand.  See United States v.

Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997) (explaining that

this court has "steadfastly deemed waived issues raised on appeal

in a perfunctory manner, not accompanied by developed

argumentation"); Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st

Cir. 1990) (similar).  "It is not enough merely to mention a

possible argument in the most skeletal way, leaving the court to do

counsel's work."  United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990).  Consequently, we need go no further.



     The petition for review is denied and the BIA's order is

affirmed.