Mamedov, Jannet v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 03-1393, 03-1394 & 03-1395
AHMED MAMEDOV, OQULSHEKER MAMEDOV,
and JANNET MAMEDOV,
Petitioners,
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent.
____________
On Petitions for Review of an Order of
the Board of Immigration Appeals.
Nos. A 75 319 524–26.
____________
ARGUED OCTOBER 5, 2004—DECIDED NOVEMBER 1, 2004
____________
Before POSNER, KANNE, and WOOD, Circuit Judges.
POSNER, Circuit Judge. The Mamedov family was ordered
removed after its claim for asylum was rejected. The family
comes from Turkmenistan, one of the formerly Soviet
republics in central Asia, like the better known Kazakhstan
and Uzbekistan. The overwhelming majority of its people
are Turkmens of the Muslim faith. Jews are distinctly un-
popular, and only about a thousand remain. Ahmed
2 Nos. 03-1393, 03-1394 & 03-1395
Mamedov’s father was a Turkmen, presumably Muslim al-
though this is not certain, but Mamedov’s mother was Jewish
and he was raised as a Jew. He claims that whenever an
employer or coworker discovered that he was a Jew, he was
fired, and likewise his wife because she is a Muslim married
to a Jew and many Muslims disapprove strongly of mixed
marriages. Cf. Guchshenkov v. Ashcroft, 366 F.3d 554, 556 (7th
Cir. 2004); Kuhai v. INS, 199 F.3d 909, 910 (7th Cir. 1999). He
also claims to have been beaten by police officers because of
his being Jewish. At their asylum hearing the Mamedovs
submitted affidavits from seven refugees from Turkmenistan
who are in mixed marriages and who have been granted
asylum in the U.S. The affidavits describe firings and beatings.
One of the seven, a former schoolmate of Mamedov named
Feriants, stated that he was “personally familiar with the
fact that Ahmed is Jewish and that this created a very
substantial problem for him in Turkmenistan.” The record
contains a corroborating affidavit from a political science
professor.
As in a number of recent cases, the opinion by the immi-
gration judge, whose denial of asylum the Board of
Immigration Appeals affirmed without issuing its own
opinion, is unreasoned. See, e.g., Yu-Ti Lian v. Ashcroft, 379
F.3d 457, 459 (7th Cir. 2004); Guchshenkov v. Ashcroft, supra,
366 F.3d at 559; Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.
2004). But here we note a further problem that we had not
heretofore been aware of. Immigration judges characteristi-
cally issue oral rather than written opinions—that we knew
and while it is not an ideal practice, it is common enough
even among federal district judges and we do not wish to
suggest that it is irregular. The wrinkle is that no copy,
either paper or electronic, of the opinion is given to either
the parties or the immigration judge until and unless the alien
files a notice of appeal to the Board of Immigration Appeals.
The copy of the opinion that appears in the appendix to the
Nos. 03-1393, 03-1394 & 03-1395 3
petitioner’s brief in this court contains handwritten correc-
tions, evidently by the judge. The copy is not dated. The
notice of appeal had to be and was filed within 30 days of
the rendition of the immigration judge’s oral opinion and
order, but we do not know how long after that the judge
edited the opinion. Most of his changes are purely technical,
but where the transcribed opinion states that “it is unclear
that the attack [by the police on Mamedov] was based solely
on the fact that the respondent’s mother possessed a Jewish
nationality,” the immigration judge wrote in, after “solely,”
“or in [sic] even partially.”
That was a substantive change, and there is no indication
that the immigration judge was merely recalling a passage
from his oral opinion that had somehow not been transcribed.
Rewriting an already issued opinion when the author later
discovers that there is going to be an appeal invites criticism
similar to that leveled against the use of nunc pro tunc orders
to rewrite history. See, e.g., Central Laborers’ Pension, Welfare
& Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999);
Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995);
Transamerica Ins. Co. v. South, 975 F.2d 321, 325 (7th Cir.
1992); Sierra Club v. Whitman, 285 F.3d 63, 67 (D.C. Cir.
2002). In the case of appeals from district courts to courts of
appeals, although the district judge can correct a clerical
error at any time, Fed. R. Civ. P. 60(a), he cannot alter his
judgment after the notice of appeal is filed, because the notice
transfers the case from the district court’s jurisdiction to that
of the court of appeals. Griggs v. Provident Consumer Discount
Co., 459 U.S. 56, 58 (1982) (per curiam). The immigration
service has no similar rule; and amending an opinion after
the appeal is taken is not the same as amending the judg-
ment, but in general it is a bad practice for a judge to
continue working on his opinion after the case has entered
the appellate process, except in emergency situations requir-
ing the issuance of the judgment in advance of the prepara-
4 Nos. 03-1393, 03-1394 & 03-1395
tion of the opinion. The practice presents the losing party
with a moving target. A regulation of the immigration service
requires the immigration judge to “review the transcript [of
his oral decision] and approve the decision” only if a “tran-
scription of an oral decision is required,” 8 C.F.R. § 1003.5(a),
which would ordinarily be only if an appeal is taken. But the
regulation does not indicate whether changes to the opinion,
beyond merely the correction of typographical and gram-
matical or other technical errors, are appropriate.
Reviewing and evaluating the evidence, the immigration
judge stated that Mamedov’s internal passport identified him
as a Turkmen rather than a Jew but that he “considered
himself Jewish because that was his mother’s nationality.”
Jewishness is not a nationality, but an ethnicity and a reli-
gion, and Mamedov practiced Judaism. This is important
because if the only respect in which Mamedov is Jewish is
that his mother was (and of course the name he goes by is
his father’s Turkmen name, not a recognizably Jewish name),
it might as the immigration judge thought be unlikely that
Mamedov’s coworkers and employers would know that he
was Jewish.
The immigration judge noted that Mamedov “testified
that someone at his place of employment saw him leaving
a synagogue and then when he was asked about this, he
could not deny his mother’s nationality or that he was
Jewish.” The judge did not quite say that he didn’t believe
that Mamedov had attended a Jewish religious service,
though he seemed skeptical; instead he noted that Mamedov
admitted “that there were no synagogues in Ashgabat [the
capital of and largest city in Turkmenistan, where he lived],
that there was no practicing rabbi’s [sic], and that what he
meant to say [was] that there was a meeting he attended in
someone’s apartment.” Since “he only bumped into his co-
worker on the street . . . how would this coworker know that
Nos. 03-1393, 03-1394 & 03-1395 5
[Mamedov] was attending a religious meeting in someone’s
private apartment.” However, there is no evidence that the
(informal) synagogue was in an apartment; the word
Mamedov used was “house” (or at least that was the
translation—Mamedov testified in Russian). Nor is there any
evidence that Mamedov merely “bumped into his coworker
on the street.” Mamedov’s testimony was that people knew
that the house was a meeting place for Jews and that the
coworker saw him there (presumably saw him enter or
leave) and drew the obvious conclusion.
The immigration judge also was mistaken when he rejected
Feriants’s affidavit on the ground that the affidavit “indi-
cates . . . that {Mamedov] suffered harm, was fired from a
job, was unable to maintain regular employment, was un-
able to rely on the protection from the police, and exper-
ienced personal and substantial injuries at the hands of
people in Ashgebat who hated Jews,” when “obviously, Lev
Feriants would not be aware of any of these facts [since] he
last saw the [Mamedovs] in the 1980’s in Turkmenistan.”
But the only purpose for which the affidavit was offered was
to prove that Mamedov was Jewish, something the immi-
gration judge may have doubted (he referred for example to
Mamedov’s “imputed religion or his nationality”). When
Feriants said that Mamedov’s religion “created a very sub-
stantial problem for him in Turkmenistan” he was drawing
the obvious inference from his own experience and that of
the other refugees.
There are other strange gaps in the immigration judge’s
opinion, as when it states that Mamedov “claims that the
attackers asked [him] his name, [but] this does not seem
reasonable given the fact that they never said anything else
to him, and proceeded to attack him.” We cannot begin to
understand the basis for such a judgment. And what was the
immigration judge thinking when he said that “if, in this
6 Nos. 03-1393, 03-1394 & 03-1395
case, [Mamedov’s] father was a Turkmen and [Mamedov]
also was considered a Turkmen by nationality, it appears
that discrimination that [Mamedov] received in the past was
not as significant as he claims”? If Mamedov’s coworkers,
employers, and the police knew he was Jewish by religion
and hated him for it, how would his or his father’s national-
ity make discrimination against him on account of his reli-
gion less “significant”? It’s like saying that a Jew in Nazi
Germany was okay as long as he was of German nationality.
The judge thought Mamedov’s testimony undermined by
the fact that background materials that he submitted esti-
mated that there are 1000 Jews in Turkmenistan, most of
them in Ashgebat, but that at the hearing he testified that
there are only five or ten Jews in Ashgebat. The judge mis-
understood his testimony. When Mamedov said “around 10
people, 8 to 10 people” he was referring to the size of the
Jewish congregation, for he went on to say that “we had a
pretty small place.”
The immigration judge said that even if all the evidence
presented by the petitioners were believed, they had not
demonstrated either that they had been persecuted or that
they would be persecuted if they were sent back to their
country of origin. The judge gave no reason for this alter-
native holding, however, and the case is not so clear cut that
the omission can be overlooked. Being excluded from all
employment (as opposed to discriminatory exclusion from
some jobs), and being beaten by the police to boot, could
amount to persecution. Borca v. INS, 77 F.3d 210, 215-17 (7th
Cir. 1996); Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th Cir.
2004).
For these reasons, the Board’s order is set aside and the
case remanded.
Nos. 03-1393, 03-1394 & 03-1395 7
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-1-04