Gailius v. I.N.S.

• Decision Date: 06 May 1998
• Docket Number: No. 97-2283,97-2283
• Citation: 147 F.3d 34
• Parties: Irmantas GAILIUS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 34

147 F.3d 34

Irmantas GAILIUS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-2283.

United States Court of Appeals First Circuit.

Heard May 6, 1998.

Decided June 23, 1998.

Harvey Kaplan, with whom Maureen O'Sullivan, Jeremiah Friedman, Kaplan, O'Sullivan & Friedman, LLP, Herbert Epstein and International Institute of Boston were on brief, for petitioner.

Timothy P. McIlmail, with whom Frank W. Hunger, Assistant Attorney General, Civil Division, Norah Ascoli Schwarz, Senior Litigation Counsel, and Francesco Isgro, Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, United States Department of Justice, were on brief, for respondent.

Before STAHL, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Irmantas Gailius petitions for relief from the denial of his claims for asylum and withholding of deportation. Gailius fled his native Lithuania in 1990, when that country was part of the Soviet Union, because he feared the Soviet authorities would persecute him for his activities in support of democracy and Lithuanian independence. Lithuania became independent and has held two elections that international observers have certified as free and fair. Largely on the basis of these dramatic changed country conditions, as confirmed in State Department opinion letters, the Immigration Judge (IJ) denied Gailius' claims, and the Board of Immigration Appeals (BIA) affirmed.

Gailius, however, put evidence in the record to show that the former Communist Party has been restored to power in Lithuania through electoral means, that some former Communists have engaged in violent reprisals against those who took part in Lithuania's democracy movement, and that numerous specific threats have been directed against him. Gailius submitted into evidence threatening letters, which he said were sent to his family, warning that he would be murdered if he returned to Lithuania. He also provided expert testimony casting doubt on the State Department's positive view of the current regime in Lithuania.

It is well established that general changes in country conditions do not render an applicant ineligible for asylum when, despite those general changes, there is a specific danger to the applicant. See, e.g., Fergiste v. INS, 138 F.3d 14, 19 (1st Cir.1998). Therefore, the authenticity of Gailius' physical evidence and the credibility of the account of threats against him is a central issue in his case. But the IJ did not make findings concerning the truthfulness of Gailius' testimony about these threats or the authenticity of the threatening letters, and did not offer any adequate explanation for why these threats, if they had occurred, would not cause a reasonable person to fear persecution.

In the absence of such findings, coherent review of the agency decision, which we are required by statute to perform, is impossible. Accordingly, we vacate the BIA's order and remand the case for further proceedings consistent with this opinion.

I.

We summarize the evidence that Gailius presented to the agency, and then describe the agency's assessment of that evidence.

Irmantas Gailius was born in 1971 in what was then the Soviet Socialist Republic of Lithuania, U.S.S.R. ¹ In 1987, Gailius entered Vilnius Civil Engineering Institute, the university where his father Albinas taught. Gailius soon became active in a variety of political activities opposing the Soviet regime. In the spring of 1988, Gailius helped to organize a student chapter of the Lithuanian Freedom League, then an underground movement, and served as an officer. He wrote and signed political articles for outlawed newspapers urging democracy and independence and organized political rallies and demonstrations. In October 1988, Gailius served in a security detail guarding a meeting of the Sajudis Congress, the organization that eventually secured Lithuania's independence and whose leader oversaw the adoption of Lithuania's current democratic constitution. Gailius submitted into the administrative record a photo identification card noting his status as a student security guard for Sajudis.

Gailius was also a member of the Lithuanian National Youth Union "Young Lithuania", which encouraged Lithuanian youth to resist the Soviet draft as a protest against the Soviet military's presence in Lithuania. Gailius publicly refused to cooperate with the draft and demanded that the Soviet army leave Lithuania. In November 1989, he lay in front of oncoming tanks with other "Young Lithuania" activists in a Red Army parade, was arrested, and spent a twenty-four hour period under intense KGB interrogation. During that interrogation, the KGB threatened to have him expelled from the university (thus subjecting him to the draft) and to have his father Albinas Gailius fired.

In February 1990, Irmantas Gailius signed a letter, put into evidence, refusing conscription into the Soviet military. He sent the letter and his military passport to Soviet authorities. That same month, Gailius helped organize and spoke at a demonstration protesting the visit of a Soviet minister to the university. Gailius and other students posted placards--demanding independence and the withdrawal of the Red Army from Lithuania--at the hall in which the minister was speaking. The placards were removed. Gailius attempted to give a note to the minister containing the students' demands, which university faculty intercepted.

In March 1990, the first free elections since World War II were held in Lithuania. The Sajudis movement, headed by Vytautas Landsbergis, won the elections, and the Lithuanian Parliament voted in favor of independence. The Soviet Union responded by surrounding the Lithuanian Parliament Building with tanks and by imposing an economic embargo on Lithuania. Gailius helped build barricades around the Lithuanian Parliament Building to protect the legislators from Soviet troops. In May 1990, Gailius joined the outlawed volunteer army formed by Sajudis.

Because of his role in the February 1990 protest, the university faculty voted to expel Gailius at the end of the academic year in June. That order expelling him and other students "because of their participation in antigovernment demonstration[s] and [for] using slanderous slogans against the [Soviet] Deputies" was put into evidence. Having lost his status as a student, Gailius became subject to the draft.

Gailius feared that he would be drafted into the Soviet army and placed into a special "punishment unit" for political dissidents, where he would be brutalized. He decided to leave Lithuania for a time. He spent the next few months in Poland, Czechoslovakia, East Germany and West Germany, until he could travel to the United States. In October 1990, he received a draft notice from the Soviet authorities. Gailius obtained a visitor's visa and purchased a round-trip ticket to Washington, D.C., for a flight in November, intending to stay with relatives.

In January 1991, Soviet authorities attempted to overthrow the elected government of Lithuania, and Soviet armed forces attempted to take control of the central television tower in Vilnius, killing several civilians. The attempt failed. The Soviet Union continued the economic embargo and refused to accept Lithuania's independence. Gailius, in this country, applied for asylum.

In July 1991, while Gailius was awaiting his asylum interview, he spoke with his family in Lithuania and learned that his sister Ingrida, a public school teacher, had been taken into KGB custody for four hours and interrogated concerning Gailius' whereabouts. The KGB officials told Ingrida that if Gailius did not return soon, and face induction into the military, his family would never see him again.

In August 1991, the Soviet Union's disintegration accelerated with the failure of a coup attempt in Moscow against President Gorbachev. The Soviet Union recognized Lithuania's independence and ended its economic embargo. At the end of the year, the Soviet Union itself passed into history.

After Lithuania became independent, there was, however, considerable evidence that threats personal to Gailius occurred. That evidence was of a variety of threats against Gailius and his family after December 1991. Gailius learned of these threats from telephone conversations with his father and from documents (including the threatening letters) that his father mailed to him (either from outside Lithuania or hand-delivered to him through friends sympathetic to the Lithuanian democracy movement). It is primarily this evidence which forms the basis of Gailius' claim that, despite the dramatic overall changes in Lithuania, there is still a specific threat of persecution against him.

After Lithuanian independence, on the night of March 12, 1992, while Gailius' parents were sleeping, a flaming Molotov cocktail was thrown into their bedroom and another into their living room. Gailius' parents called the police. After the police learned whose apartment it was, they advised Gailius' parents not to call the fire department. The next morning, the police arrived in civilian clothes and warned Gailius' parents not to mention the incident to anyone.

On April 7, 1992, Gailius' sister Ingrida was fired from her job as a public school teacher. The director of the school told her that she was being fired because she had a troublemaking brother in the United States who had demonstrated against the government in Lithuania, and that she could look to him for financial support.

On June 21, 1992, the local public prosecutor interrogated Gailius' father Albinas concerning Gailius' whereabouts and when Gailius intended to return to Lithuania. The prosecutor threatened Albinas that his life would become very difficult if he did not cooperate and help the authorities by persuading his son to return. On July 13, 1992, Albinas was fired from his post as a university professor. The reason...