Koval, Marina v. Gonzales, Alberto R. ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-3652
MARINA KOVAL and VALERIY VAGIL,
Petitioners,
v.
ALBERTO R. GONZALES,
United States Attorney General,
Respondent.
____________
Petition for Review of an Order of
the Board of Immigration Appeals.
Nos. A75-259-237 & A75-259-238
____________
ARGUED APRIL 11, 2005—DECIDED AUGUST 16, 2005
____________
Before POSNER, RIPPLE and SYKES, Circuit Judges.
RIPPLE, Circuit Judge. Petitioners Marina Koval and Valeriy
Vagil seek review of a decision of the Board of Immigration
Appeals (“BIA” or “Board”) that affirmed the Immigration
Judge’s (“IJ”) denial of their request for asylum. For the
reasons set forth in the following opinion, we grant the
petition for review, reverse the judgment of the BIA and
remand the case for further consideration.
2 No. 04-3652
I
BACKGROUND
A. Facts
Mr. Vagil and Ms. Koval, husband and wife, are natives
and citizens of Ukraine. They have at least one child who
was born in the United States. Mr. Vagil entered the
United States on May 17, 1996, with a visitor’s visa that was
valid until November 17, 1996. On July 4, 1996, Ms. Koval
entered the United States with a visitor’s visa that was valid
until July 3, 1997. They both stayed in the United States
longer than permitted, and the Immigration and
Naturalization Service initiated removal proceedings. Both
conceded removability, and Ms. Koval filed an application
for asylum and for withholding of removal on their behalf.
At a September 2003 removal hearing, Ms. Koval and
Mr. Vagil testified that they feared returning to Ukraine
because of their membership in the Church of Jesus Christ
of Latter-Day Saints (the “Mormon Church”).
1.
Ms. Koval presented the following testimony in support
of her application. She was baptized into the Mormon
Church around March 1993. At the time, she was a univer-
sity student in Kiev, Ukraine. One month after her reception
into the Church, she received a summons from the Soviet
Intelligence Service (“KGB”). According to Ms. Koval, at the
KGB office, she was interviewed by a man who stated that
he knew that she had joined the Mormon Church. The agent
also told Ms. Koval that young Americans were visiting
Ukraine in order to obtain secret information about the
country. The agent further said that the “American spies”
were interested in young educated people, and in Ms. Koval
No. 04-3652 3
particularly, because she was a physics student with access
to “scientific research” and “new materials and super
conductivity.” A.R.185. He expressed his concern that, as a
good citizen, Ms. Koval should not be in contact with the
Americans. The agent also requested the addresses of the
Americans and warned that Ms. Koval would be punished
if she failed to comply.
In May 1993, while Ms. Koval was on vacation, her dorm
room was searched; her books about the Mormon faith and
her diary were missing. A week after this incident,
Ms. Koval again was summoned by the KGB. She was
interviewed by the same agent and another man. Ms. Koval
testified that the agents told her that, because she had failed
to provide any information and because she was attending
the Mormon Church, she would not be allowed to continue
her physics studies. The agents also warned that, if she did
not cease her involvement with the Mormon Church, she
“would be in some way isolated from the society because
they did not want me allegedly to influence other people.”
A.R.188.
Despite these threats, Ms. Koval was allowed to graduate
and to receive her master’s degree in physics. However,
according to Ms. Koval, she was denied entrance into the
Ph.D. program because the KGB had denied her residence
(a “propiska”) in Kiev. A.R.188-89. Ms. Koval had earned all
“A” grades and was the only student in her program to
receive a “red diploma,” a mark of distinction. A.R.189.
Without permission to stay in Kiev, Ms. Koval moved to
her parents’ home in Borispol, Ukraine, about twenty-five
kilometers from Kiev. She applied for jobs in various de-
partments at the local airport, at two factories and at a
school, but she received no interviews. Ms. Koval testified
that she believed that her inability to procure employment
was because she had to complete a standardized job ap-
4 No. 04-3652
plication form. The form required her to disclose that she
had a sister living in the United States and that she was a
member of an American church. Ultimately, Ms. Koval’s
father was able to find her work as a ticket checker at the
airport where he was a pilot. She testified that the people
who worked in this job were capable only “of some really
simple jobs.” A.R.194.
After one year and a half, Ms. Koval was hired by an
Israeli airline. About one month later, however, she had to
leave that position because “the KGB did not allow” her to
obtain a passport for business travel outside of the former
communist bloc countries. A.R.195. Ms. Koval was told that
she could not receive the passport because her sister lived
in the United States and because she “was involved with
Americans.” A.R.197. Ms. Koval later was hired by a Polish
airline. At some point thereafter, she was granted a pass-
port. In April 1994, she worked in the United States for
about one month as an interpreter for a group of KGB
agents and airport employees who were attending computer
training. According to Ms. Koval, she was kept under close
surveillance, and the KGB held the group members’ pass-
ports and money in the hotel.
Ms. Koval met Mr. Vagil at a church meeting in 1995. She
testified that, at the time, Mr. Vagil was “twice smaller his
size of now because he was completely nervous, he was a
nervous wreck. He didn’t live at home. He lost his job.”
A.R.199. According to Ms. Koval, Mr. Vagil told her that
sometimes he would not eat for several days and that he
had not seen his parents in months. He told Ms. Koval that
the KGB was calling his parents and had interrogated his
mother. The agents had told Mr. Vagil’s mother that, if they
caught him, they would release him from custody with
tuberculosis. According to Ms. Koval, in January 1996, the
KGB again summoned Mr. Vagil’s parents. Ms. Koval and
No. 04-3652 5
Mr. Vagil decided that he no longer could remain in
Ukraine. Ms. Koval bought him a plane ticket from the air-
line for which she worked and, in an effort to avoid detec-
tion, arranged for him to depart on a day different from the
one listed on his ticket. Ms. Koval married Mr. Vagil two
days before he left in May 1996.
After Mr. Vagil left Ukraine, a friend of Ms. Koval’s
mother called to say that the friend’s husband was in jail
and that the KGB had said they would release him if he
reported about Ms. Koval. Ms. Koval testified that she
began to notice that “every time I was working this specific
flight,” the head of the KGB was present. A.R.204. Also,
“one guy” would be next to her “all the time” allegedly for
training, and he would ask her questions such as how to
pass information from Poland to America. A.R.204. Finally,
on June 25, 1996, Ms. Koval again was summoned to meet
with the KGB. She decided to leave Ukraine at that point.
After Ms. Koval’s departure, the KGB directed her parents
to sign a paper promising to bring her to the KGB if they
saw her again. In August 1996, Ms. Koval’s father was
found dead. The death certificate listed the cause of death as
drowning. Ms. Koval testified that her father was in excel-
lent physical condition and that she did not believe that he
had died of natural causes. Ms. Koval’s sister stated in an
affidavit that she believed their father had passed away
because “he could not handle the stress caused by his
daughter’s persecution.” A.R.559. Ms. Koval testified that
she never was arrested, detained overnight or physically
tortured by the KGB.
2.
Mr. Vagil also testified on his own behalf. He joined the
Mormon Church in 1991. According to Mr. Vagil, he began
receiving rude telephone calls in 1994 from unknown per-
6 No. 04-3652
sons who asked him why he was attending the American
church. He received about ten such calls between October
and December 1994. In January 1995, the KGB interrogated
him and told him that he was expected to provide a list of
the Ukrainian members of his local parish and the names of
the missionaries who worked with that church.
The following March, after Mr. Vagil had failed to provide
such information, KGB agents warned him that, if he did
not cooperate, they “would find the ways to ruin my career,
my health, and they would be able just to simply throw me
into jail.” A.R.225.
In 1996, the KGB came to Mr. Vagil’s parents’ home in
search of him; the KGB also summoned his parents for
questioning and told them that Mr. Vagil would be harmed
if he did not cooperate. Mr. Vagil became frightened and
decided to leave the country. He testified that he never was
arrested, detained or physically abused in Ukraine; his par-
ents still live in Ukraine and are employed.
3.
In support of their application for asylum, Ms. Koval and
Mr. Vagil submitted the testimony of Leonid Stonov, the
international director of the Union of Councils of Jews in the
Former Soviet Union, a human rights monitoring organiza-
tion. He testified that Ms. Koval’s application was consistent
with his knowledge of the treatment of Mormons in
Ukraine. Specifically, he stated that non-traditional religions
such as Mormons are considered sects and face pressure
from the official Russian Orthodox Church. He also testified
that Ukraine society discriminates against all non-tradi-
tional religions in that such churches are not allowed to
register; consequently, they cannot build churches, and their
activities may be classified as illegal.
No. 04-3652 7
Ms. Koval and Mr. Vagil also sought to introduce the
testimony of Yuriy Shvets regarding the activities of the
KGB and its successor organization, the Security Service of
Ukraine (“SBU”), with respect to Mormons. Shvets had
worked as a KGB agent in Ukraine from 1980 until 1990; he
was assigned to a department that monitored the daily ac-
tivities of the churches in the Soviet Union. Shvets stated
that he “was well aware of the real policy of the Soviet
government towards religion and of the KGB methods of
dealing with those church leaders and believers who did not
follow the ‘party line.’ ” A.R.514. Shvets also stated that he
had maintained contacts with the sources he had developed
in the KGB. At the time of the removal hearing, Shvets was
working as a private consultant to the United States Govern-
ment on security issues involving Russia and Ukraine.
Shvets testified that Ms. Koval’s account of harassment
was consistent with his knowledge of the KGB. He found it
“inevitable” that Ms. Koval “immediately” had been in
“serious trouble” for adopting the Mormon faith. A.R.516.
Shvets stated that the growing number of Ukraine citizens
joining other religious groups has become a grave threat to
the influence of the Orthodox Church. He explained that a
young intellectual, such as Ms. Koval, would have drawn
increased attention because she was considered capable of
spreading ideological views. According to Shvets, the KGB
believed that American religious missions were controlled
by the Central Intelligence Agency or the Federal Bureau of
Investigation. The Mormon Church still is perceived to have
close ties with the United States Government. Shvets
testified to his view that the nature of the SBU “essentially
has not changed since the collapse of the Soviet Union.”
A.R. 515-16.
Shvets further testified that he believed that Ms. Koval’s
fear of persecution should she return to Ukraine was “rea-
8 No. 04-3652
sonable and well founded” based on “her religious belief
and her defiant attitude towards the [SBU].” A.R.515. He
explained that the KGB’s failed attempt to recruit Ms. Koval
in order to reach American missionaries was a serious se-
curity lapse and possibly a political embarrassment because
it involved American missionaries. Shvets opined that, once
Ms. Koval left for the United States,
she crossed the point of no return. It is the worst night-
mare for the SBU. Now, they must be sure that she al-
ready has reported to the U.S. authorities about attempts
of the SBU, representing the friendly government of
Ukraine, to target American missionaries who pay taxes
to bring humanitarian aid to Ukraine. Potential ramifi-
cations of such revelations might be personally disas-
trous to those in the SBU who devised, conducted, and
authorized the operation. It represents a great personal
security risk for the applicant. I strongly believe the SBU
would pay dearly to get hold of her and silence her.
A.R.517. Shvets strongly believed that Ms. Koval’s “life
would be in danger should she return to Ukraine.” Id.
In Shvets’ view, Mr. Vagil faces a similar situation as a
Mormon, an intellectual and someone who knows of spe-
cific SBU activity against Mormons and American mission-
aries.
B. Administrative Proceedings
The IJ found Ms. Koval and Mr. Vagil to be credible. The
IJ admitted the testimony of Stonov. The IJ noted, however,
that Stonov had defined “persecution” to mean societal
discrimination that is not government-sponsored and the
refusal of permits for churches. The IJ excluded the testi-
mony of Shvets. Relying on Federal Rule of Evidence 702 for
No. 04-3652 9
guidance, the IJ determined that Shvets was not qualified as
an expert regarding the current treatment of Mormons in
Ukraine. Specifically, the IJ concluded that Shvet’s testi-
mony was not “based on sufficient facts or data,” insofar as
he had not traveled to Ukraine in about twelve years and he
was not working with issues related to Mormons in
Ukraine. A.R.44.
The IJ then concluded that, although Ms. Koval and
Mr. Vagil “suffered hardship and harassment, they did not
suffer persecution.” A.R.48. The IJ relied on the fact that
they had been able to practice their Mormon faith and that
neither was arrested, detained or physically assaulted in
Ukraine. Also, the IJ took the view that Ms. Koval’s inability
to pursue her Ph.D. and her difficulty in obtaining work in
her field did not amount to severe economic deprivation.
With respect to Mr. Vagil, the IJ concluded that no evidence
reflected that the KGB had followed through on its threat to
ruin his health and career. Finally, the IJ gave sizeable
weight to Ms. Koval and Mr. Vagil’s ability to obtain valid
passports and visas to the United States, which undermined
any notion of “strict government control.” Id.
With respect to the well-founded fear of persecution
standard, the IJ concluded that, on the basis of the country
reports prepared by the United States Department of State
and other documentary evidence, “there is harassment and
bureaucratic delays with non-native religions, but generally
there is not severe mistreatment or persecution.” A.R.50. The
IJ again noted that Ms. Koval and Mr. Vagil had been able
to obtain valid passports and visas to leave Ukraine. In ad-
dition, the IJ decided that, although soon after Ms. Koval
and Mr. Vagil fled the country their parents were interro-
gated, nothing indicated that this harassment had contin-
ued.
10 No. 04-3652
The BIA affirmed the IJ’s decision without opinion.
II
ANALYSIS
A. Standard of Review
“Where, as here, the BIA summarily affirms, we review
the immigration judge’s opinion as if it were that of the
BIA.” Huang v. Gonzales, 403 F.3d 945, 948 (7th Cir. 2005).
We limit our review to determining if the IJ’s decision is
supported by substantial evidence. Kharkhan v. Ashcroft, 336
F.3d 601, 604 (7th Cir. 2003). We shall uphold the IJ’s asylum
eligibility finding as long as it is “ ‘supported by reasonable,
substantial, and probative evidence on the record consid-
ered as a whole.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)).
B. Asylum
Ms. Koval and Mr. Vagil challenge the IJ’s denial of
asylum on three grounds: (1) that past persecution was
established based on Ms. Koval’s economic deprivation; (2)
that a well-founded fear of future persecution was estab-
lished on the fact that Mr. Vagil faces imprisonment in
Ukraine if returned and that Ms. Koval faces severe mis-
treatment through “crushing, economic pressure”; and (3)
that the IJ erroneously excluded the testimony of Shvets.
1
Appellants’ Br. at 29-30. Section 208(a) of the Immigration
1
The Immigration Judge also held that Ms. Koval’s and
Mr. Vagil’s failure to show a well-founded fear of persecution
meant that they could not meet the more stringent standard of a
(continued...)
No. 04-3652 11
and Nationality Act (“INA”), 8 U.S.C. § 1158(b), grants the
Attorney General broad discretion to grant asylum to an
applicant who qualifies as a refugee. A refugee is defined as
“any person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return
to . . . that country because of persecution or a well-founded
fear of future persecution on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” 8 U.S.C. § 1101(a)(42)(A).
A showing of past persecution creates a presumption that
the applicant has a well-founded fear of persecution and
therefore should be granted asylum. See 8 C.F.R.
§ 208.13(b)(1); see Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th
Cir. 2004). This presumption is rebutted, however, if the
Government shows by a preponderance of the evidence that
fundamental changes in the conditions in the applicant’s
country of nationality have occurred such that he no longer
has a well-founded fear of being persecuted if returned. 8
C.F.R. § 208.13(b)(1)(i)(A); see Capric, 355 F.3d at 1084. The
presumption of a well-founded fear of persecution also can
be overcome by a preponderance of the evidence showing
that the applicant could avoid persecution by relocating to
another part of his home country and that it would be
reasonable to expect him to so relocate. 8 C.F.R.
§ 208.13(b)(1)(i)(B); see Capric, 355 F.3d at 1084.
(...continued)
clear probability of persecution, as required for withholding of
removal under 8 U.S.C. § 1231(b)(3) or under the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment, 8 C.F.R. § 208.13(c)(1).
Ms. Koval and Mr. Vagil do not challenge this determination on
appeal. We shall therefore confine our review to the IJ’s decision
regarding asylum.
12 No. 04-3652
Alternatively, even if the applicant was not subjected
to past persecution, he may put forward evidence that he
possesses a genuine fear of enduring persecution if returned
to his country of origin and that a reasonable person would
fear persecution if returned to that country. 8 C.F.R.
§ 208.13(b)(2); Capric, 355 F.3d at 1085. The objective com-
ponent of the well-founded fear standard requires the asy-
lum applicant to show: (1) that a reasonable possibility exists
that he “would be singled out individually for persecution”;
or (2) that there is “a pattern or practice of persecution of an
identifiable group,” to which the applicant establishes he
belongs, such that his fear is reasonable. Capric, 355 F.3d at1085 (citing 8 C.F.R. § 208.13(b)(2)).
1. Past Persecution
Ms. Koval submits that the level of economic treatment
she suffered, on account of her membership in the Mormon
Church, before leaving Ukraine amounted to past persecu-
tion. Although the INA does not define “persecution,” this
court repeatedly has explained that the conduct “need not
necessarily threaten the petitioner’s life or freedom,” but
must “rise above the level of mere ‘harassment.’ ” Borca v.
INS, 77 F.3d 210, 214 (7th Cir. 1996); see Naveed Ahmed Sahi
v. Gonzales, No. 04-2828, 2005 WL 1713417, at *1 (7th Cir.
July 25, 2005). Actions that might constitute persecution
include “detention, arrest, interrogation, prosecution, im-
prisonment, illegal searches, confiscation of property, sur-
veillance, beatings or torture,” Begzatowski v. INS, 278 F.3d
665, 669 (7th Cir. 2002) (internal quotation marks and
citation omitted), or threats of such action, Capric, 355 F.3d
at 1084.
Economic hardship also is a “form of persecution and
independent ground for asylum.” Id. at 1092. The IJ con-
cluded that the economic difficulties experienced by
No. 04-3652 13
Ms. Koval were not sufficiently severe to constitute persecu-
tion:
[Ms. Koval’s] testimony that she was refused entrance
to the Ph.D. program for failing to provide the KGB
with information also does not rise to the level of past
persecution. Both she and her husband completed
higher educations and maintained employment in
Ukraine. Although [Ms. Koval] testified that she had
difficulty finding a job after graduating with her M.A.,
she did not suffer severe economic deprivation. Cf.
Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985) (rec-
ognizing that “economic deprivation or restrictions so
severe that they constitute a threat to an individual’s life
or freedom” may constitute persecution), overruled on
other grounds by Matter of Mogharrabi, 19 I&N Dec. 439(BIA 1987).
A.R.48. Ms. Koval contends that the IJ erred as a matter of
law by requiring her to show that the economic mistreat-
2
ment amounted to a threat to her life or freedom.
We agree that the IJ held Ms. Koval to an impermissibly
2
The Government suggests that the IJ did not apply a standard
that the economic deprivation must have threatened Ms. Koval’s
life or freedom, because, in citing to In re Acosta, 19 I. & N. Dec.
211 (BIA 1985), the IJ used the introductory signal “cf.”
Appellee’s Br. at 32. It is true that “cf.” ordinarily indicates that
the “[c]ited authority supports a proposition different from the
main proposition but sufficiently analogous to lend support.” The
Bluebook: A Uniform System of Citation R. 1.2(a), at 47 (Colum-
bia Law Review Ass’n et al. eds., 18th ed. 2005). However, Acosta
is the only source of authority cited by the IJ. The only reasonable
inference is that the IJ relied on Acosta, and the standard articu-
lated therein, in assessing whether Ms. Koval’s economic
disadvantage rose to the level of persecution.
14 No. 04-3652
high standard for establishing persecution. Although the
conduct in question must rise to more than “harassment” or
“generalized conditions of hardship which affect entire
populations,” Capric, 355 F.3d at 1084, it “need not necessar-
ily threaten the petitioner’s life or freedom,” Borca, 77 F.3d
at 214 (internal quotation marks and citation omitted); see
also Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003)
(stating that persecution includes “actions less severe than
threats to life or freedom” (internal quotation marks and ci-
tation omitted)). More specifically, this court has established
that, to demonstrate economic persecution, an applicant
does not need to show a “total deprivation of livelihood” on
account of his protected status. See Borca, 77 F.3d at 216.
Rather, a showing of a “probability of deliberate imposition
of substantial economic disadvantage” can be sufficient. Id.In Borca, for example, we noted that, upon remand to the
BIA, the asylum applicant might be able to establish pers-
ecution because she was fired from her position as a
radiologist and was barred from government employment,
except possibly as a farm laborer. Id. at 215-17; cf. Capric, 355
F.3d at 1092-93 (deciding that loss of job and apartment
based on religion and ethnicity was not economic persecu-
tion when government had provided the applicant eight
months to find a new residence, his wife had remained
employed, applicant had not attempted to find other work
and the regional economic conditions in general were
harsh).
On remand, consideration of the evidence under the ap-
propriate standard might compel a finding that Ms. Koval
suffered economic persecution on account of her religion
and membership in the Mormon Church. Specifically, the
government prevented her from continuing her education
in the Ph.D. physics program, denied her permission to live
in Kiev and reduced her to working in menial jobs that
required no education, training or acuity. Ms. Koval was
No. 04-3652 15
denied employment in her chosen field or indeed in any
allied field. Certainly, Ms. Koval’s advanced education
would have been of some greater use than taking tickets.
The difficulties experienced by Ms. Koval particularly are
troubling when the record is considered as a whole—the
discrimination she experienced, the mistreatment faced by
Mr. Vagil, her father’s death shortly after she fled to the
United States, and the corroborating testimony about the
past and current treatment of Mormons in Ukraine.
2. Fear of Persecution if Returned to Ukraine
Ms. Koval and Mr. Vagil also expressed fear that they will
face persecution in Ukraine on account of their membership
in the Mormon Church. Evaluation of this contention
presented the IJ with several challenges that we believe
required significantly more attention, and circumspection,
than they received if the petitioners were to have had a fair
hearing. First, the petitoners’ claim required the IJ to assess
the infringement of religious liberty in the former
Soviet Union states. Evaluation of this issue requires that the
IJ consider the complex relationship among civil authorities,
the Russian Orthodox Church and non-native religions,
especially those perceived to have connections, historical or
contemporary, with the United States. The record contains
significant evidence that Mormons are considered to be
adherents to an “American religion” and therefore are
considered to pose an especially potent threat to the estab-
lished order. The effect of this perception on the fate of the
petitioners, should they be required to return to that
country, must be evaluated with great care. This particular
human rights situation is a relatively new one, and judges
have a particular obligation to base their judgments only on
factual predicates that are developed fully and carefully as
circumstances permit. It is especially important, in such a
16 No. 04-3652
context, that an IJ take special care to ensure that both parties
have an ample opportunity to present as comprehensive a
picture as possible of the circumstances that precipitated the
petitioners’ departure and that are likely to greet them.
We have serious reservations as to whether the record in
this particular case was developed and evaluated with a
sufficient appreciation of these concerns, especially the need
for even-handedness in evaluating evidentiary submissions.
In making his determination with respect to whether the
petitioners manifested a well-founded fear of persecution,
the IJ refused to consider, as a matter of law, the testimony
of Shvets because he deemed it to lack an adequate factual
predicate. The IJ then proceeded to hold that Ms. Koval and
Mr. Vagil had no valid claim of future persecution, the issue
to which Shvets’ testimony spoke directly. The IJ based his
conclusion substantially on the State Department country
reports that, in his view, did not indicate severe mistreat-
ment of Mormons in Ukraine.
We have noted that immigration courts “reasonably may
rely upon the State Department’s assessment of current
country conditions as they relate to the likelihood of future
persecution, given the Department’s expertise in interna-
tional affairs.” Toptchev v. INS, 295 F.3d 714, 722 (7th Cir.
2002); see Vaduva v. INS, 131 F.3d 689, 691 (7th Cir. 1997).
We also have made clear, however, our concern regarding
“the immigration service’s chronic over reliance on such
reports.” Niam v. Aschroft, 354 F.3d 652, 658 (7th Cir. 2004);
see, e.g., Bace, 352 F.3d at 1139; Galina v. INS, 213 F.3d 955,
959 (7th Cir. 2000). Our concern has been shared by our
sister circuits. One of those circuits has cautioned that “the
determination of whether or not a particular applicant’s fear
is rebutted by general country conditions information
requires an individualized analysis that focuses on the spe-
cific harm suffered and the relationship to it of the particu-
No. 04-3652 17
lar information contained in the relevant country reports.”
Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000); see also
Krastev v. INS, 292 F.3d 1268, 1277 (10th Cir. 2002) (stating
that reliance on a country report “does not substitute for an
analysis of the facts of each applicant’s individual circum-
stances” (internal quotation marks and citation omitted)).
One particular shortcoming of the country reports is of
special concern in the situation we face in this case. State
Department country reports are anonymous in their author-
ship. Decision-makers in the asylum determination process
do not know the identity of the author, the credentials of the
individuals who assemble the reports, or the trustworthi-
ness of the evidence upon which the assessments contained
in these reports are based. Indeed, these reports have a
certain ipse dixit quality to them. As we have noted previ-
ously, the country reports are prepared in general terms and
offer more of a statement on the relationship of the United
States Government to that country than an account of
individual circumstances. See, e.g., Galina, 213 F.3d at 959(noting that country reports are “brief and general, and may
fail to identify specific, perhaps local, dangers to particular,
perhaps obscure, individuals”); El Moraghy v. Ashcroft, 331
F.3d 195, 204 (1st Cir. 2003) (noting that country reports
should be used for purposes of providing “context and
generalized credibility assessment”). Moreover, the asylum
applicant certainly has no realistic opportunity to verify the
truth of the assertions contained in these reports through
cross-examination or otherwise. Diallo v. Ashcroft, 381 F.3d
687 (7th Cir. 2004) (stating concern that country reports have
“potential for bias” and that asylum-seekers are unable to
question the conclusions contained therein); Niam, 354 F.3d
at 658 (noting that, because the authors of the country
reports are anonymous, the asylum applicant effectively is
denied the right of cross-examination). If we are to continue
18 No. 04-3652
3
to allow reliance on such evidence, basic fairness requires
that the IJ keep in mind both the practical limitations of
these reports and the practical limitations on asylum
applicants to present other expert testimony and other
evidence to rebut the ipse dixit assertions of the reports.
“Asylum applicants are entitled to respond to claims of
changed country conditions.” Gailius v. INS, 147 F.3d 34, 45
(1st Cir. 1998). That opportunity must be a realistic one.
In this case, although Shvets had not been to Ukraine in
about twelve years, he testified that he had contacts with
recently retired agents of the KGB and that, because of his
background and continued contacts, he understood the
dynamics of the religious situation in Ukraine. Shvets also
testified that he serves as a consultant to the United States
Government with respect to security and intelligence issues
in Russia and Ukraine. With this background, Shvets
certainly had information that was relevant to the determi-
nation that the IJ had to make, and we can see no basis for
refusing to admit it while not only admitting, but relying so
heavily on, the State Department’s anonymous country
reports. Notably, Shvets was able to offer significant in-
formation on the Ukraine intelligence office, its attitude
towards Mormons and how its agents were likely to treat an
individual who had rebuffed their solicitations to become
involved in counterintelligence. According to the testimony
of Ms. Koval, which the IJ found credible, the Ukrainian
3
This court has indicated that, although the Federal Rules of
Evidence do not apply to administrative agencies, “the spirit
of” the Supreme Court’s decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), which sets forth the rules
for qualifying an expert witness in federal trials, “does apply to
administrative proceedings.” Niam v. Aschroft, 354 F.3d 652, 660
(7th Cir. 2004).
No. 04-3652 19
officers had attempted but had failed to enlist her assistance
in infiltrating the Mormon Church, a church they regarded
as a tool of American intelligence agencies. Notably, even
the country report admits to some exceptions to its general
assertion that conditions for non-native religions in former
4
Soviet Bloc countries are improving. Ms. Koval and Mr.
Vagil credibly testified to such a situation, but the IJ refused
to permit them to develop the point with testimony that was
clearly relevant. According to the Profile of Asylum Claims
and Country Conditions for Ukraine, although the Ukrai-
nian Government
does not discriminate against, or take measures against,
individual believers on the basis of their faith, Evangeli-
cal Christian missionaries reported some instances of
societal discrimination against members of their
churches, such as salary cuts, layoffs, and public criti-
cism for betraying “native religions.” Asylum appli-
cants frequently describe physical violence directed
against them by nationalist or other groups, but we
have no reporting to indicate that such behavior is
widespread or systematic.
A.R.401. Shvets’ testimony, had it been considered, would
have placed that broad statement in a very different light
than the one in which it was placed by the IJ. He would
have testified that, in essence, the SBU had both the incli-
nation and the resources to make life difficult and danger-
ous for Ms. Koval and Mr. Vagil. The exclusion of his
testimony was improper; it prevented the petitioners from
showing that the broad assertions of the country report
4
The 2002 Country Report focuses largely on some bureaucratic
difficulties that non-native religions had faced in obtaining plots
of land for building churches and some instances of restricted
church activity, unrelated to individuals.
20 No. 04-3652
were indeed subject to qualification—a qualification that
might well have made a difference in this case.
Conclusion
For all of the foregoing reasons, we grant the petition for
review. The judgment of the BIA is reversed. The case is
remanded for proceedings consistent with this opinion.
REVERSED and REMANDED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-16-05