Pramatarov, Hristo v. Gonzales, Alberto ( 2006 )


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  •                            In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 05-2138
    HRISTO PRAMATAROV, et al.,
    Petitioners,
    v.
    ALBERTO R. GONZALES,
    Respondent.
    ____________
    Petition to Review an Order of the
    Board of Immigration Appeals.
    Nos. A78-817-544 & A78-817-538
    ____________
    ARGUED MAY 4, 2006—DECIDED JULY 27, 2006
    ____________
    Before POSNER, MANION, and ROVNER, Circuit Judges.
    POSNER, Circuit Judge. The petitioner is a Bulgarian
    who has been ordered removed from this country and seeks
    judicial review, complaining about the denial by the Board
    of Immigration Appeals of his application for asylum. He is
    a Roma (that is, a gypsy) and contends that he was perse-
    cuted in Bulgaria on account of his ethnicity. He testified
    that he had been beaten as a school child because of his
    ethnicity, and again in the army, where he was subjected to
    additional indignities such as being forced to sleep in
    latrines. When he reported the beatings to officers, he was
    subjected to additional beatings, culminating in a beating in
    2                                                  No. 05-2138
    which he sustained multiple blood clots and lost six teeth.
    After leaving the army, he sought employment but had only
    limited success because of discrimination against gypsies,
    and he was beaten by “skinheads” at a labor exchange.
    Later, when he complained about the refusal of a restaurant
    to serve him and his wife, members of the restaurant’s staff
    beat the two of them. They were treated at a hospital, she for
    a blood clot “the size of an apple” and he for a fractured
    jaw. When they tried to file a police report, they were told
    that gypsies have to protect themselves. After this incident
    they left Bulgaria and eventually came to the United States.
    The immigration judge (O. John Brahos, whose decision
    was affirmed in a one-sentence per curiam order by the
    Board of Immigration Appeals) doubted the applicant’s
    credibility on grounds that, because of factual error, bootless
    speculation, and errors of logic, lack a rational basis. These
    have been common failings in recent decisions by immigra-
    tion judges and the Board. Hanaj v. Gonzales, 
    446 F.3d 694
    ,
    700 (7th Cir. 2006); Tabaku v. Gonzales, 
    425 F.3d 417
    , 423 (7th
    Cir. 2005); Hor v. Gonzales, 
    421 F.3d 497
    , 500 (7th Cir. 2005);
    Lin v. Ashcroft, 
    385 F.3d 748
    , 755-56 (7th Cir. 2004); Cao He
    Lin v. United States Dep't of Justice, 
    428 F.3d 391
    , 403 (2d Cir.
    2005); Elzour v. Ashcroft, 
    378 F.3d 1143
    , 1153-54 (10th Cir.
    2004); Dia v. Ashcroft, 
    353 F.3d 228
    , 249, 250 (3d Cir. 2003)
    (en banc); Gao v. Ashcroft, 
    299 F.3d 266
    , 278-79 (3d Cir. 2002).
    Judge Brahos doubted that Pramatarov is a gypsy. He
    gave several reasons, none plausible. He said that
    Pramatarov does not know “the name of the ethnic group
    that gypsies are aligned with”; in a confused exchange,
    conducted through a translator, Pramatarov at first said
    he didn’t know “the other name” for gypsies, but later
    indicated correctly that it was “Roma.” The judge said that
    an unspecified country report for Bulgaria warns of “non-
    No. 05-2138                                                 3
    gypsies who seek to pass themselves off as gypsies in order
    to obtain relief in filing applications in the United States.”
    He said that Pramatarov has no documentary evidence
    of being a gypsy, though Pramatarov’s baptismal certificate,
    admitted in evidence without objection, so identified him.
    The judge (whose questioning of Pramatarov was so harsh
    and rude as to suggest bias) thought that Pramatarov’s
    injuries during his military service might have been caused
    by accidents rather than beatings; there is no evidence of
    that. He said that Pramatarov couldn’t have been locked in
    latrines because “the authorities” would have discovered
    his absences by means of bed checks and conducted “an
    immediate search for him”; but the record contains no
    evidence about bed checks. He said the couple would not
    have gone to a restaurant at the “time of day” they did
    (midnight) without “the proper clothing or toiletries,”
    because it must have been a nightclub; but in the same
    sentence he said that maybe they were refused service
    because they weren’t wearing proper clothing. He said that
    Pramatarov must have been lying about his inability to
    obtain gainful employment in Bulgaria, because he got
    married and “one does not marry unless one is able to
    support his spouse.”
    The immigration judge’s credibility findings in their
    weirdness gave the Board of Immigration Appeals pause;
    for the Board’s one-sentence opinion states that “even
    assuming [Pramatarov’s] credibility, [he] has not met the
    burden of proving eligibility for asylum.” The Board did not
    explain why, if Pramatarov’s testimony was believed, he
    nevertheless was ineligible. The reason could be that
    the evidence that the Bulgarian government condones
    or acquiesces in persecution of gypsies in general or
    Pramatarov and his wife in particular was weak, though not
    so weak that we can affirm the Board even if the immigra-
    4                                                 No. 05-2138
    tion judge’s credibility findings are rejected, as they must
    be, and if we assume therefore that Pramatarov’s testimony
    was truthful and accurate.
    It is true that beatings by schoolchildren, fellow enlisted
    men in the army, “skinheads,” and restaurant employees
    are not persecution, which requires either the government’s
    complicity or its inability to prevent the (private) persecu-
    tion. E.g., Hor v. Gonzales, supra, 400 F.3d at 485. There is
    some evidence of governmental complicity, however, in the
    reaction of military officers to Pramatarov’s complaints
    about being beaten and humiliated because of his ethnicity
    and in the refusal of the police to take action after he and his
    wife were beaten outside the restaurant. We cannot say,
    without benefit of analysis by the Board, that the evidence
    of governmental complicity was so weak that the errors of
    the immigration judge, coupled with the Board’s error of
    failing to indicate the ground for its decision, are harmless.
    The petition for review is therefore granted and the case
    remanded to the Board for further proceedings consistent
    with this opinion.
    No. 05-2138                                             5
    A true Copy:
    Teste:
    _____________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    USCA-02-C-0072—7-27-06