In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3836
Svetlana Galina and Viatcheslav Galin,
Petitioners,
v.
Immigration and Naturalization Service,
Respondent.
Petition to Review an Order of the
Board of Immigration Appeals.
Argued April 17, 2000--Decided May 22, 2000
Before Posner, Chief Judge, and Fairchild and Diane
P. Wood, Circuit Judges.
Posner, Chief Judge. Svetlana Galina and her
husband have been ordered deported to Latvia.
Although the Board of Immigration Appeals found
that she had been persecuted in Latvia, from
which the couple fled to the United States in
1994, the Board denied their application for
asylum on the ground that she can have no
reasonable fear of persecution if she is returned
to Latvia because conditions there have changed
for the better since 1994. For this conclusion
the Board relied entirely on statements of which
it took administrative notice that are contained
in the U.S. State Department's 1998 "Country
Report" for Latvia.
Galina worked as a secretary to an official,
named Baumaniis, of Latvia's "Green Party" (also
known as LNIM). The party's platform advocated
making Latvia a home for all nationalities. About
a third of the population consists of Russians
who (or the parents of whom), in accordance with
a Soviet policy of Russifying conquered
territories, moved to Latvia in the wake of the
Soviet Union's takeover of the country in 1940.
The Russian inhabitants of Latvia are greatly
resented by the native Latvians, and unlike the
latter must apply to become Latvian citizens.
Their applications are being processed slowly,
and as of two or three years ago 30 percent of
the Latvian population were still noncitizens.
The Green Party opposed, or at least purported
to oppose, this xenophobic policy. One day in
September 1993 Boumaniis accidentally left a
folder on Galina's desk. She looked inside and
discovered a 20-page list of names and addresses
of persons who were to be considered subject to
being deported and having their property
confiscated. All the names on the list were
Russian or Jewish. (Galina is both. Any Jew
living in Latvia was likely to have been part of
the Russian immigration, since the native Jewish
population of Latvia had been wiped out by the
Nazis, see generally Kalejs v. INS, 10 F.3d 441,
443 (7th Cir. 1993), who conquered Latvia in 1941
and retained control of it until almost the end
of the war.) Galina confronted Baumaniis about
the list, which she suspected had been compiled
by leaders of the party. He rebuffed her
questions and told her it was none of her
business and she should forget about its
existence. The atmosphere in the office
immediately turned hostile to her, she was given
no new assignments, and she quit after three
weeks. Shortly afterwards she began receiving
threatening phone calls. Two men approached her
in the lobby of her apartment building, demanding
the list. Her daughter was attacked on the way
home from school, and a phone call to Galina
linked the attack to the list. Her husband was
attacked by men who came to their apartment and
made taunting remarks about their daughter. In
April of the following year Galina was abducted
by uniformed men, tied to a tree in a remote
area, threatened with a gun, and told to leave
Latvia. The threatening phone calls continued.
All this occurred against a background of other
outrages committed against the Russian residents
of Latvia. The couple didn't think it would do
them any good to complain to the police about the
abduction and the other violence visited on the
family, since only Latvian citizens are permitted
to be policemen and since she suspected that her
abductors were the agents of powerful people.
However, Galina's husband did report the
threatening phone calls to the police, who
located one of the callers, and the calls
stopped.
Two months after Galina's abduction, she left
for the United States. Her husband, who was again
receiving threatening phone calls, soon followed.
(The daughter remains in Latvia.) Galina is
stateless, since as a Russian not living in
Latvia when the Soviet Union annexed it in 1940
(she had not yet been born), she is not a Latvian
citizen. Her husband is stateless too. He does
not claim to have been persecuted, like his wife;
but as her husband he is entitled to asylum if
she is. 8 U.S.C. sec.sec. 208.20(a), 1158(b)(3);
Nenadovic v. INS, 108 F.3d 124, 125 n. 1 (7th
Cir. 1997); Duarte de Guinac v. INS, 179 F.3d
1156, 1158 n. 3 (9th Cir. 1999).
Under the applicable regulations, once an asylum
seeker is found to have been persecuted in the
country to which he or she has been ordered
deported, the burden shifts to the immigration
authorities to prove that she has no well-founded
fear of further persecution. 8 C.F.R. sec.sec.
208.13(b)(1)(i), (ii); Asani v. INS, 154 F.3d
719, 722 (7th Cir. 1998); Bradvica v. INS, 128
F.3d 1009, 1012 (7th Cir. 1997); Chanchavac v.
INS, 207 F.3d 584, 589, 592 (9th Cir. 2000). The
Board found that burden discharged here by
information, of which it took administrative
notice, found in the State Department's 1998
country report on Latvia. The Board said that the
report revealed "an improved human rights
situation in Latvia," noting that "a free and
fair election occurred" in 1996 and that the
government of Latvia "generally respected the
human rights of its citizens and the large
resident noncitizen community," i.e., the
Russians. "Although certain human rights abuses
occur, in most instances the government" (in the
words of the country report as quoted by the
Board) "'took disciplinary action, against those
responsible' for the abuses." The Board also
opined that the action taken by the police in
response to Mr. Galin's complaint about the
threatening calls cast doubt on the couple's
claim that the police were unwilling to protect
them from violence arising from her having seen
the list of persons whom the Green Party
apparently wanted to see deported in the teeth of
its proclaimed policy of tolerance.
The Board's analysis was woefully inadequate,
indicating that it has not taken to heart
previous judicial criticisms of its performance
in asylum cases. See, e.g., Chitay-Pirir v. INS,
169 F.3d 1079, 1081 (7th Cir. 1999); Stankovic v.
INS, 94 F.3d 1117, 1120 (7th Cir. 1996); Hengan
v. INS, 79 F.3d 60, 63-64 (7th Cir. 1996);
Salameda v. INS, 70 F.3d 447, 449, 451 (7th Cir.
1995); Bastanipour v. INS, 980 F.2d 1129, 1133
(7th Cir. 1992); Colmenar v. INS, No. 98-70422,
2000 WL 376671, at *4 (9th Cir. Apr. 14, 2000);
de la Llana-Castellon v. INS, 16 F.3d 1093, 1097-
98 (10th Cir. 1994). The elementary principles of
administrative law, the rules of logic, and
common sense seem to have eluded the Board in
this as in other cases. We are being blunt, but
Holmes once remarked the paradox that it often
takes a blunt instrument to penetrate a thick
hide.
The fact that the police had responded to Mr.
Galin's call in 1993 or 1994 might be a reason to
find that his wife had not been a victim of
persecution after all, since a finding of
persecution ordinarily requires a determination
that government authorities, if they did not
actually perpetrate or incite the persecution,
condoned it or at least demonstrated a complete
helplessness to protect the victims. E.g., Bucur
v. INS, 109 F.3d 399, 403 (7th Cir. 1997); Hengan
v. INS, supra, 79 F.3d at 62; Borja v. INS, 175
F.3d 732, 735 n. 1 (9th Cir. 1999) (en banc);
Aguilar-Solis v. INS, 168 F.3d 565, 573 (1st Cir.
1999). But the Board found that Galina had been a
victim of persecution notwithstanding the police
response to her husband's call, and this implies
that if she were returned to Latvia and subjected
to the same treatment (or worse--since her
persecutors wanted her out of Latvia, and so may
kill her if they can't keep her out of the
country), it would still be persecution, even if
the police might take some action against
telephone threats.
Next, the Board misapplied the doctrine of
administrative (sometimes called "official")
notice. Like its more familiar cousin, judicial
notice, the doctrine authorizes the finder of
fact to waive proof of facts that cannot
seriously be contested E.g., Petrovic v. INS, 198
F.3d 1034, 1038 (7th Cir. 2000); Gonzalez v. INS,
77 F.3d 1015, 1024 (7th Cir. 1996); Kaczmarczyk
v. INS, 933 F.2d 588, 593-94 (7th Cir. 1991);
Rivera-Cruz v. INS, 948 F.2d 962, 966-67 (5th
Cir. 1991). Some of the facts recited in the
State Department's 1998 country report on Latvia
are of this character, such as the fact that
Latvia regained its independence from the Soviet
Union in 1991. But the facts on which the Board
relied are not. In fact they aren't facts at all,
but either summaries of Latvian laws (or other
official pronouncements) or State Department
statements of opinion the precise meaning and
factual basis of which are obscure, such as that
Latvia had a "free and fair" parliamentary
election in 1996 or that human rights are
"generally respected." Since the Board is not
cabined by the rules of evidence, it is free to
treat the information in country reports as
evidence, 8 C.F.R. sec. 208.12(a); Dobrota v.
INS, 195 F.3d 970, 974 (7th Cir. 1999); Vaduva v.
INS, 131 F.3d 689, 691 (7th Cir. 1997), but it is
not free to give conclusive weight to statements
in those reports that not only are not
incontestable, but also are not even facts.
Dobrota v. INS, supra, 195 F.3d at 974;
Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.
1997); Borja v. INS, supra, 175 F.3d at 738;
Gailius v. INS, 147 F.3d 34, 46 (1st Cir. 1998);
Fergiste v. INS, 138 F.3d 14, 19 (1st Cir. 1998);
Vallecillo-Castillo v. INS, 121 F.3d 1237, 1239-
40 (9th Cir. 1996); de la Llana-Castellon v. INS,
supra, 16 F.3d at 1098.
The Board ought by this time to realize,
moreover, that in the case of countries that are
friendly to the United States, such as Latvia,
the State Department's natural inclination is to
look on the bright side. Gramatikov v. INS,
supra, 128 F.3d at 620; Gailius v. INS, supra,
147 F.3d at 46. We do not think the 1998 country
report for Latvia can fairly be described as a
whitewash, since it has rather tart things to say
about the country's judiciary, which it calls
inefficient and corrupt, and about prison
conditions, which it describes as deplorable, and
about the prevalence of child prostitution, and
about human rights abuses by police and members
of the security apparatus (remember it said only
that human rights are "generally respected"). The
country report is evidence and sometimes the only
evidence available, but the Board should treat it
with a healthy skepticism, rather than, as is its
tendency, as Holy Writ.
The Board's worst error, a rather astounding
lapse of logic, remains to be mentioned. The
Board relied on the 1998 country report to show
that the persecution by the Greens that drove
Galina and her husband out of Latvia in 1994 is
unlikely to recur. But we cannot find anything in
the report that bears on that question. No doubt
the general situation with regard to respect for
human rights is relevant, but the Board
mischaracterized the report in saying that it
revealed an "improved human rights situation in
Latvia." There is nothing about improvement. It
does say such things as that there was a free and
fair election in 1996, but it does not say that
there was not a free and fair election in 1993 or
1994. It says that human rights are generally
respected but not that they are more respected
than they were when Galina and her husband were
being persecuted. If conditions relevant to that
persecution are unchanged since 1994, the Board
had no basis for concluding that the couple has
no well-founded fear of persecution if they are
sent back to Latvia.
The general point is that if the Board is going
to rely on a recent country report to establish
current conditions in the country, the proper
baseline for comparison is not the asylum
seeker's testimony, but an earlier country
report. Remember that the Board accepted Galina's
testimony. So if the 1994 country report was as
rosy as the 1998 one, this would show not that
Galina has no well-founded fear of further
persecution should she be returned to Latvia, but
that the earlier report was incomplete.
The 1994 country report is in the record, and at
argument the immigration service's lawyer told us
that we should assume the Board read it and
compared it with the 1998 report and on the basis
of that comparison concluded that the human
rights situation in Latvia that would confront
Galina on her return had indeed improved. We
doubt that it would be a realistic assumption,
considering that the immigration service's brief
does not mention the 1994 report. Yet we might
indulge the assumption, or invoke the doctrine of
harmless error, if a reading of the 1994 report
made clear that there had been significant
changes bearing on the reasonableness of the
couple's fear of persecution--changes so great
that it would indeed be unreasonable of them to
fear being persecuted if they go back. But the
report does not make that clear. For example, it
states that "free and fair" parliamentary
elections were held in 1993. It makes comments
similar to those in the 1998 report about the
police and security forces sometimes operating
extraconstitutionally. There are no material
differences, and so the Board's conclusion that
the situation has so improved that Galina and her
husband can return to Latvia without fear of
further persecution has no basis. Neither report
mentions the Green Party, and this is another
reason to question the adequacy of the country
reports to determine the risk of persecution; the
reports are brief and general, and may fail to
identify specific, perhaps local, dangers to
particular, perhaps obscure, individuals.
The shortcomings of these reports, which we have
been emphasizing in this opinion, are especially
germane when, as in this case, the burden of
persuasion is on the immigration authorities
rather than the alien. The burden was not
carried--the presumption of a well-founded fear
of persecution was not rebutted--and so the
Board's order must be reversed and the case
remanded for further proceedings consistent with
this opinion.
Reversed.