Mamedov v. Ashcroft

• Decision Date: 01 November 2004
• Docket Number: No. 03-1394.,No. 03-1393.,No. 03-1395.,03-1393.,03-1394.,03-1395.
• Citation: 387 F.3d 918
• Parties: Ahmed MAMEDOV, Oqulsheker Mamedov, and Jannet Mamedov, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 918

387 F.3d 918

Ahmed MAMEDOV, Oqulsheker Mamedov, and Jannet Mamedov, Petitioners, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 03-1393.

No. 03-1394.

No. 03-1395.

United States Court of Appeals, Seventh Circuit.

Argued October 5, 2004.

Decided November 1, 2004.

Petition for review from Board of Immigration Appeals'.

Harold D. Block (argued), Milwaukee, WI, for Petitioner.

George P. Katsivalis, Department Of Homeland Security, Office of the District Counsel, Chicago, IL, Norah Ascoli Schwarz (argued), Department of Justice, Washington, DC, for Respondent.

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, Circuit Judge.

The Mamedov family was ordered removed after its claim for asylum was rejected. The family comes from Turkmenistan, one of the formerly Soviet republics in central Asia, like the better known Kazakhstan and Uzbekistan. The overwhelming majority of its people are Turkmens of the Muslim faith. Jews are distinctly unpopular, and only about a thousand remain. Ahmed Mamedov's father was a Turkmen, presumably Muslim although this is not certain, but Mamedov's mother was Jewish and he was raised as a Jew. He claims that whenever an employer or coworker discovered that he was a Jew, he was fired, and likewise his wife because she is a Muslim married to a Jew and many Muslims disapprove strongly of mixed marriages. Cf. Guchshenkov v. Ashcroft, 366 F.3d 554, 556 (7th Cir.2004); Kuhai v. INS, 199 F.3d 909, 910 (7th Cir.1999). He also claims to have been beaten by police officers because of his being Jewish. At their asylum hearing the Mamedovs submitted affidavits from seven refugees from Turkmenistan who are in mixed marriages and who have been granted asylum in the U.S. The affidavits describe firings and beatings. One of the seven, a former schoolmate of Mamedov named Feriants, stated that he was "personally familiar with the fact that Ahmed is Jewish and that this created a very substantial problem for him in Turkmenistan." The record contains a corroborating affidavit from a political science professor.

As in a number of recent cases, the opinion by the immigration judge, whose denial of asylum the Board of Immigration Appeals affirmed without issuing its own opinion, is unreasoned. See, e.g., Yi-Tu Lian v. Ashcroft, 379 F.3d 457, 459 (7th Cir.2004); Guchshenkov v. Ashcroft, supra, 366 F.3d at 559; Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.2004). But here we note a further problem that we had not heretofore been aware of. Immigration judges characteristically issue oral rather than written opinions—that we knew and while it is not an ideal practice, it is common enough even among federal district judges and we do not wish to suggest that it is irregular. The wrinkle is that no copy, either paper or electronic, of the opinion is given to either the parties or the immigration judge until and unless the alien files a notice of appeal to the Board of Immigration Appeals. The copy of the opinion that appears in the appendix to the petitioner's brief in this court contains handwritten corrections, evidently by the judge. The copy is not dated. The notice of appeal had to be and was filed within 30 days of the rendition of the immigration judge's oral opinion and order, but we do not know how long after that the judge edited the opinion. Most of his changes are purely technical, but where the transcribed opinion states that "it is unclear that the attack [by the police on Mamedov] was based solely on the fact that the respondent's mother possessed a Jewish nationality," the immigration judge wrote in, after "solely," "or in [sic] even partially."

That was a substantive change, and there is no indication that the immigration judge was merely recalling a passage from his oral opinion that had somehow not been transcribed. Rewriting an already issued opinion when the author later discovers that there is going to be an appeal invites criticism similar to that leveled against the use of nunc pro tunc orders to rewrite history. See, e.g., Central Laborers' Pension, Welfare & Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir.1999); Kusay v. United States, 62 F.3d 192, 193 (7th Cir.1995); Transamerica Ins. Co. v. South, 975 F.2d 321, 325 (7th Cir. 1992); Sierra Club v. Whitman, 285 F.3d 63, 67 (D.C.Cir.2002). In the case of appeals from district courts to courts of appeals, although the district judge can correct a clerical error at any time, Fed. R.Civ.P. 60(a), he cannot alter his judgment after the notice of appeal is filed, because the notice transfers the case from the district court's jurisdiction to that of the court of appeals. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (per curiam). The immigration service has no similar rule; and amending an opinion after the appeal is taken is not the same as amending the judgment, but in general it is a bad practice for a judge to continue working on his opinion after the case has entered the appellate process, except in emergency situations requiring the issuance of the judgment in advance of the preparation of the opinion. The practice presents the losing party with a moving target. A regulation of the immigration service requires the immigration judge to "review the transcript [of his oral decision] and approve the decision" only if a "transcription of an oral decision is required," 8 C.F.R. § 1003.5(a), which would ordinarily be only if an appeal is taken. But the regulation does not indicate whether changes to the opinion, beyond merely the correction of typographical and grammatical or other technical errors, are appropriate.

Reviewing and evaluating the evidence, the immigration judge stated that Mamedov's internal passport identified him...