Aung Kyaw Thu v. John D. Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2218
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Aung Kyaw Thu, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board of
* Immigration Appeals.
John D. Ashcroft, Attorney *
General of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: May 7, 2004
Filed: June 28, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Aung Kyaw Thu, a citizen of Burma (a.k.a. Myanmar), petitions for review of
an order of the Board of Immigration Appeals (BIA) affirming, without comment, an
Immigration Judge’s (IJ’s) denial of Thu’s application for asylum. After careful
review of the record, we deny the petition because substantial evidence on the record
as a whole supports the denial of asylum. See Menendez-Donis v. Ashcroft, 360 F.3d
915, 918-19 (8th Cir. 2004) (standard of review).
In Burma in1988, Thu participated in student demonstrations, and twice police
arrested and abused Thu, along with other student demonstrators. Thu’s jailers
accused him of being “anti-peace” (rather than anti-government), and there is no
evidence the police singled out Thu for arrest and abuse, or treated Thu differently
than other detained protesters on account of Thu’s political opinions. Hence, the IJ’s
finding that Thu did not suffer past persecution is supported by substantial evidence
on the record considered as a whole. See Abdel-Masieh v. United States INS, 73 F.3d
579, 582-84 (5th Cir. 1996) (petitioner was twice arrested, detained, and beaten for
participating in demonstrations against the government; BIA did not err in concluding
petitioner did not suffer past persecution because, inter alia, he was not singled out
and arrested because of his political or religious beliefs he was not treated differently
than other participants, and authorities apparently were unaware of his identity). We
also conclude that the evidence was not so compelling that no reasonable factfinder
could fail to find the requisite fear of future persecution. It was not unreasonable for
the IJ to deem it unlikely that the current Burmese government will recognize Thu as
a participant in the 1988 student demonstrations, especially considering that Thu had
not previously been singled out for arrest, and the IJ's conclusion is also supported
by evidence that Thu was able to live safely in a different part of Burma from 1988
to 1991. See Safaie v. INS, 25 F.3d 636, 639-40 (8th Cir. 1994) (to prove well-
founded fear of persecution, asylum applicant must show that fear is subjectively
genuine and that reasonable person in same circumstances would fear persecution if
returned to native country).
We also reject Thu’s argument that the IJ denied him due process. See United
States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995) (establishment of
fundamentally unfair deportation hearing in violation of due process requires showing
both of fundamental procedural error and resulting prejudice). The IJ did not exhibit
any bias against Thu; rather the IJ stated he would not make a decision before Thu
finished presenting his case. Although the IJ often requested evidence to corroborate
Thu’s testimony, the IJ was only fulfilling his duty to develop the record, see 8 U.S.C.
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§ 1229a(b)(1) (during removal proceeding, IJ “shall . . . receive evidence, and
interrogate, examine, and cross-examine the alien and any witnesses”), and in any
event, the IJ did not discredit any of Thu’s testimony for lack of corroborating
evidence. Even though the IJ frequently interrupted Thu’s counsel and ultimately
asked a majority of the questions, Thu was not prevented from presenting his case,
as his counsel was not prohibited from pursuing any particular line of questioning.
Cf. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (finding due process
violation where proceeding was so fundamentally unfair that alien was prevented
from reasonably presenting his case; remanding where IJ indicated he had prejudged
merits of case, and refused to let alien testify about any material included in written
asylum application).
Accordingly, we deny the petition.
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