904 F. 2d 710 - Marosek v. US Immigration and Naturalization Service

MEMORANDUM**

Substantial evidence supports the agency's conclusion that Marosek failed to demonstrate a well-founded fear of persecution stemming from his affiliation with Solidarity. The IJ rejected petitioner's allegations of fear on credibility grounds, finding that Marosek, a seaman, spent long periods of time outside Poland. While Marosek claimed to fear returning to Poland, the IJ concluded that this was inconsistent with the fact that he routinely did return, and that he regularly flew to major Western cities (including London, Frankfurt and Amsterdam) to get to and from his ship, yet never sought asylum in any of these places. AR 145-46, 154-61. This conclusion is in accord with our prior cases. See Saballo-Cortez v. INS, 761 F.2d 1259, 1266 (9th Cir.1985) (IJ may conclude that a petitioner's testimony is not credible where it is "internally inconsistent or lack[s] the ring of truth").

While past persecution, even absent a well-founded fear of future persecution, may create refugee status, Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988), substantial evidence supports the BIA's conclusion that the government's past treatment of Marosek did not rise to the level of persecution. Marosek's two brief detentions and a search of the apartment where he was staying may not accord with our notions of individual freedom, but they fall short of "the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive." Id. at 727 (internal quotations omitted). Marosek's allegation that he was beaten could have constituted persecution, but the BIA found it not credible, as petitioner referred to it only briefly at his hearing and not at all in his application for asylum. See AR 134, 172. While Marosek faults the IJ for not asking more questions about the beating, petitioner fails to specify what additional testimony he might have presented. See BIA Decision at 4.

Finally, we agree with the BIA that Marosek was afforded a full and fair opportunity to present his asylum claim. The IJ granted Marosek a three-month continuance to obtain counsel and provided him with a list of free legal service programs, but Marosek decided not to get a lawyer. "Consequently, the IJ had no option but to proceed to the hearing of evidence on the merits of the case." Vides-Vides v. INS, 783 F.2d 1463, 1470 (9th Cir.1986). At the hearing, the IJ asked questions through an interpreter that developed Marosek's claims. While petitioner contends that the IJ's questions and the interpreter's translating skills were deficient, he does not specifically describe what evidence he might otherwise have presented.1 Petitioner has therefore failed to show prejudice flowing from any of the alleged procedural deficiencies.

AFFIRMED.