Galina v. Immigration & Naturl. Serv

Decision Date22 May 2000
Docket NumberNo. 99-3836,99-3836
Citation213 F.3d 955
Parties(7th Cir. 2000) Svetlana Galina and Viatcheslav Galin, Petitioners, v. Immigration and Naturalization Service, Respondent
CourtU.S. Court of Appeals — Seventh Circuit

Petition to Review an Order of the Board of Immigration Appeals.

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, 210 F.3d 967, 971-72 (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...

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