Guchshenkov v. Ashcroft, No. 03-1392.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPosner
Decision Date29 April 2004
PartiesIvan GUCHSHENKOV, Petitioner, and Kalin Dimitrov and Zdravka Dimitrova, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.
Docket NumberNo. 03-2166.,No. 03-1392.
366 F.3d 554
Ivan GUCHSHENKOV, Petitioner, and
Kalin Dimitrov and Zdravka Dimitrova, Petitioners,
v.
John ASHCROFT, Attorney General of the United States, Respondent.
No. 03-1392.
No. 03-2166.
United States Court of Appeals, Seventh Circuit.
Argued March 3, 2004.
Decided April 29, 2004.

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Scott E. Bratton (argued), Wong & Associates, Cleveland, OH, for Petitioner in 03-1392.

George P. Katsivalis, Dept. of Homeland Security, Chicago, IL, Linda S. Wernery (argued), Dept. of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent in 03-1392.

Richard H. Trais (argued), Chicago, IL, for Petitioners in 03-2166.

George P. Katsivalis, Dept. of Homeland Security, Chicago, IL, Daniel E. Goldman, S. Nicole Nardone (argued), Dept. of Justice, Civil Division, Immigration Litigation, Washington, DC, for Respondent in 03-2166.

Before POSNER, ROVNER, and EVANS, Circuit Judges.

POSNER, Circuit Judge.


We have consolidated for decision two petitions to review decisions by the Board of Immigration Appeals denying asylum. The petitions reflect the continuing difficulty that the board and the immigration judges are having in giving reasoned explanations for their decisions to deny asylum. See, e.g., Niam v. Ashcroft, 354 F.3d 652, 653-54 (7th Cir.2004), and cases cited there, plus such subsequent decisions as Muhur v. Ashcroft, 355 F.3d 958 (7th Cir.2004); Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir.2004), and Mengistu v. Ashcroft, 355 F.3d 1044 (7th Cir.2004).

Guchshenkov, with whom we begin, testified as follows. He is a citizen of Kazakhstan, formerly part of the Soviet Union but now an independent nation with a Kazakh majority which controls the new nation and a Russian minority to which Guchshenkov belongs. There is great enmity between the two groups, in part because of religious differences — the Kazakhs are Muslims, the Russians Christian — and in part because in the Soviet era the Russians were the top dogs and the roles have now been reversed. Guchshenkov married a Kazakh woman, and this provoked three nighttime attacks on him by Kazakh thugs. The first occurred the night of his wedding. The thugs beat him and told him he should leave the country because he was "not supposed to marry somebody from [a] different nationality." He complained to the police (all of whom are Kazakhs), but they told him that "these things happen every day. We have more important things to take care of." In the next attack, a year later, the thugs asked Guchshenkov "what are you doing here with your Russian faith," reminded him that his wife was of a different faith, and told him to "get out of here." They beat and stabbed him. He was afraid to complain to the police.

The third attack was the worst. The attackers told him "we warned you, you knew it, and now your time has come"; "you don't belong here, it's not your place, and you're just spoiling our blood." He was hospitalized with a lacerated liver, and his gall bladder had to be removed. While he was in the hospital, his father went to the police station to file a complaint on his son's behalf and was turned away on the ground that he was not the victim. Released from the hospital after two weeks, Guchshenkov went to the police station — indeed went seven times, never receiving satisfaction, although on one occasion the police gave him a photo album of criminals to look through. A year after the attack, the police wrote Guchshenkov that his case was "lost from the archive," that they had no suspects, and that they were overloaded with other cases.

A year after that, Guchshenkov, leaving his wife and two children in Kazakhstan, went to Russia, where he paid someone $1,000 to smuggle him in a Russian ship to

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the United States. After landing in the U.S. he traveled to Canada and sought asylum there, but was turned down, returned to the U.S., and sought asylum here. (There is nothing in the briefs or record concerning Canada's standards for granting asylum or the basis on which Guchshenkov's application for Canadian asylum was rejected.) The immigration judge rejected Guchshenkov's application for asylum in an oral opinion and ordered him removed (deported) to Kazakhstan. The Board of Immigration Appeals affirmed in a very brief opinion that essentially just summarizes the immigration judge's opinion.

The immigration judge acknowledged that the Kazakh majority, which controls the government of Kazakhstan, is hostile to the Russian minority and that Guchshenkov's description of the attacks was truthful. Much of the opinion is given over to the question whether Guchshenkov was attacked because he is a Russian or because (as he had testified) he is a Russian married to a Kazakh. It is unclear why it should matter, unless he's abandoned his family (we don't know) — in which event it might be critical whether as a Russian not married to a Kazakh he would still face persecution. But in any event the ground on which the immigration judge concluded that the marriage had not been a factor in the beatings makes no sense. It's that if the marriage had been a factor, Guchshenkov's attackers "would know [him] by name ..., would call him by name and would most likely say things during these encounters which indicated that they were aware that [he] had married an ethnic Kazakh woman." Guchshenkov had testified that his attackers "did not know him by name, they did not mention his spouse or family." Guchshenkov of course did not know whether they knew his name or not; all he knew was that they hadn't called him by name. They had referred to the marriage, contrary to the immigration judge, telling Guchshenkov that he was "not supposed to marry somebody from [a] different nationality." It is impossible to follow the immigration judge's reasoning process.

But because his attackers were private individuals rather than state actors, Guchshenkov was not persecuted within the meaning of the law unless the authorities either condoned the attacks or are unable to protect him. E.g., Bace v. Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir.2003). The immigration judge noted that Guchshenkov had complained to the police, had followed up with a number of subsequent visits, the police had shown him the photo album, they "did take [his] complaint and made attempts to investigate the complaints," and his case "was ultimately closed because it was lost and because the police could not devote more time to the investigation because it was overloaded with cases." On the basis of this summary of the evidence, the immigration judge concluded that Guchshenkov had not been persecuted even if the attacks had been motivated by his marriage. But the immigration judge's summary of the evidence is hopelessly incomplete. There is no reference to Guchshenkov's testimony that the police are all Kazakhs (not necessarily the best evidence, but neither contradicted nor disbelieved), that their reaction to his first complaint was that "these things happen every day. We have more important things to take care of," and that his father was turned away by the police after the third assault because he wasn't the victim of the assault (the victim was in the hospital because of the gravity of his injuries). In light of this evidence, the claim made by the police after the third and most serious assault that they had simply lost Guchshenkov's file required more careful scrutiny

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than the immigration judge gave it. If Guchshenkov's testimony that we summarized earlier was truthful — and the immigration judge did not suggest that it wasn't — the natural inference is that Guchshenkov could not expect any police protection from a further, and eventually fatal, assault should he be returned to Kazakhstan.

The immigration judge's conclusion that Guchshenkov's "filing of various complaints and visiting the police station numerous times ... [are] inconsistent with the notion that the government of Kazahkstan had approved of these beatings" manages the difficult trick of being at once truthful and absurd. Guchshenkov's repeated visits to the police station were signs of desperation rather than confidence, cf. Singh v. INS, 94 F.3d 1353, 1358 (9th Cir.1996), and while...

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25 practice notes
  • Mapouya v. Gonzales, No. 06-3042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 18, 2007
    ...and for any further proceedings that may be considered necessary and consistent with this opinion."); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) ("We urge that these two cases be reassigned to other immigration Accordingly, we hereby GRANT the petition for review, V......
  • Zhang v. U.S. I.N.S., No. 02-4252.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 5, 2004
    ...court,' and `that basis must be set forth with such clarity as to be understandable.'") (citations omitted); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) ("The two cases under review, like the other cases in which we have reversed the board of late, are not so difficu......
  • Diallo v. Ashcroft, No. 03-1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 26, 2004
    ...to asylum, but nevertheless warrants a remand to untangle the basis for the immigration judge's decision. See Guchshenkov v. Ashcroft, 366 F.3d 554, 559 (7th Cir.2004) ("A remand is required because the immigration judge's analysis of their application is unreasoned. She `determined th......
  • Sandoval v. Holder, No. 09–3600.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 14, 2011
    ...reasoned, intelligible analysis for its decision. See Hagi–Salad v. Ashcroft, 359 F.3d 1044, 1049 (8th Cir.2004); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004). It is precisely out of respect for the agency role in the statutory scheme, which is “of special importance” in the im......
  • Request a trial to view additional results
25 cases
  • Mapouya v. Gonzales, No. 06-3042.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 18, 2007
    ...and for any further proceedings that may be considered necessary and consistent with this opinion."); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) ("We urge that these two cases be reassigned to other immigration Accordingly, we hereby GRANT the petition for review, VACATE the ......
  • Zhang v. U.S. I.N.S., No. 02-4252.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • October 5, 2004
    ...court,' and `that basis must be set forth with such clarity as to be understandable.'") (citations omitted); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004) ("The two cases under review, like the other cases in which we have reversed the board of late, are not so difficult that it......
  • Diallo v. Ashcroft, No. 03-1876.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 26, 2004
    ...to asylum, but nevertheless warrants a remand to untangle the basis for the immigration judge's decision. See Guchshenkov v. Ashcroft, 366 F.3d 554, 559 (7th Cir.2004) ("A remand is required because the immigration judge's analysis of their application is unreasoned. She `determined that th......
  • Sandoval v. Holder, No. 09–3600.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 14, 2011
    ...reasoned, intelligible analysis for its decision. See Hagi–Salad v. Ashcroft, 359 F.3d 1044, 1049 (8th Cir.2004); Guchshenkov v. Ashcroft, 366 F.3d 554, 560 (7th Cir.2004). It is precisely out of respect for the agency role in the statutory scheme, which is “of special importance” in the im......
  • Request a trial to view additional results

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