Aung Kyaw Thu v. John D. Ashcroft , 103 F. App'x 56 ( 2004 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-2218
    ___________
    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    General of the United States,           *   [UNPUBLISHED]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.                *
    ___________
    Submitted: May 7, 2004
    Filed: June 28, 2004
    ___________
    Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
    ___________
    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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