Niam, Nourain B. v. Ashcroft, John ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-4292, 03-1115
NOURAIN B. NIAM,
Petitioner,
and
PETER BLAGOEV, IORDANKA KISSIOVA, and
IANA KISSIOVA,
Petitioners,
v.
JOHN ASHCROFT, Attorney General of the United States,
Respondent.
____________
Petitions for Review of Orders of the
Board of Immigration Appeals.
Nos. A76-860-107; A75-308-785, -925, -926.
____________
ARGUED NOVEMBER 13, 2003—DECIDED JANUARY 7, 2004
____________
Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for deci-
sion two petitions to review decisions by the Board of
Immigration Appeals denying asylum. The petitions raise
different issues, but are related in suggesting, together with
2 Nos. 02-4292, 03-1115
other recent cases in this and other circuits, see, e.g. Georgis
v. Ashcroft, 328 F.3d 962, 968-70 (7th Cir. 2003); Kerciku v.
INS, 314 F.3d 913, 918-19 (7th Cir. 2003) (per curiam);
Begzatowski v. INS, 278 F.3d 665, 670-71 (7th Cir. 2002);
Mansour v. INS, 230 F.3d 902, 908-09 (7th Cir. 2000); Vujisic
v. INS, 224 F.3d 578, 581 (7th Cir. 2000); Chitay-Pirir v. INS,
169 F.3d 1079, 1081 (7th Cir. 1999); Secaida-Rosales v. INS, 331
F.3d 297, 312 (2d Cir. 2003); Hernandez v. Reno, 258 F.3d 806,
813-14 (8th Cir. 2001); Reyes-Melendez v. INS, 342 F.3d 1001,
1008 (9th Cir. 2003), a pattern of serious misapplications by
the board and the immigration judges of elementary
principles of adjudication. In Galina v. INS, 213 F.3d 955, 958
(7th Cir. 2000), we stated forthrightly: “the Board’s analysis
was woefully inadequate, indicating that it has not taken to
heart previous judicial criticisms of its performance in
asylum cases [citing cases]. 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 begin with Niam, who was an official of the govern-
ment of Sudan when it was controlled by the Umma Party.
The Umma regime was overthrown in 1989 by Omar al-
Bashir. Niam was promptly fired and the following year
was arrested and detained for three and a half weeks,
during which he was questioned to the accompaniment of
death threats, slaps, and kicks. He was released after agree-
ing to tell the authorities if he left town; but without telling
them he fled to Egypt and then to Chad, where Sudanese
exiles had reconstituted the Umma Party. The Party’s lead-
ers persuaded Niam to agree to return to Sudan and act as a
spy for the Party and help members escape. But when he
entered Sudan from Chad he was apprehended by Sudanese
border police. They took his passport and directed him to
follow them to an office where he could retrieve it. He
demurred and they let him return to Chad, but without the
passport. He left Chad for Nigeria, later returned to Chad,
Nos. 02-4292, 03-1115 3
and then went back to Nigeria. But when he learned that a
Sudanese security officer had come to the Nigerian town
where he lived, asking questions about him, he managed
(using a new Chadian passport) to obtain a visa to study in
the United States. Once here, however, he didn’t enroll in
school, and so was ordered removed (deported).
Because he hadn’t requested asylum within a year of
arriving in the United States (missing the deadline by 19
days), he was ineligible for asylum. 8 U.S.C. § 1158(a)(2)(B);
8 C.F.R. § 208.4(a)(2); Castellano-Chacon v. INS, 341 F.3d 533(6th Cir. 2003). But he was eligible to request withholding of
removal. “[T]he Attorney General may not remove an alien
to a country if the Attorney General decides that the alien’s
life or freedom would be threatened in that country because
of the alien’s race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. §
1231(b)(3); see Tarawally v. Ashcroft, 338 F.3d 180, 185-86 (3d
Cir. 2003). But to obtain that relief Niam had to show a
“clear probability” that he would be persecuted if he
returned to Sudan. INS v. Stevic, 467 U.S. 407, 430 (1984);
Tesfu v. Ashcroft, 322 F.3d 477, 481 (7th Cir. 2003). The
immigration judge ruled that Niam hadn’t proved this and
so turned down his request, and the Board of Immigration
Appeals affirmed.
The immigration judge’s analysis was so inadequate
as to raise questions of adjudicative competence. The first
point he made in support of his refusal to grant withholding
of removal was that there had been a regime change since
Niam’s being fired, arrested, detained, and beaten, so Niam
has nothing to fear should he return to Sudan. There has
been no regime change; Omar al-Bashir remains in power.
Next the immigration judge said that “there is no evidence
of recriminations following [Niam’s] attempted reentry to
Sudan.” The choice of the word “recriminations” is peculiar.
4 Nos. 02-4292, 03-1115
If what the immigration judge meant was that the Sudanese
government did not react to Niam’s attempted reentry, it is
another factual error, since it was after the attempted
reentry that Sudanese security was asking questions about
Niam in Nigeria. Maybe what the immigration judge meant
by “no evidence of recriminations” was that the border
police who seized Niam when he reentered the Sudan let
him return to Chad rather than dragging him off to prison,
but the immigration judge didn’t say that; nor is there any
suggestion that the border police had access to a database
listing all members of the Umma Party or all officials of the
former regime.
The immigration judge also latched onto Niam’s state-
ment that the Bashir regime was not interested in him “per-
sonally”—Niam acknowledged that he had been only a
minor official—but rather was targeting all members of
opposition parties. The immigration judge said there was no
evidence of this. He was again wrong. The State
Department’s 1998 Sudan country report stated that the
Bashir regime has a practice of routinely persecuting polit-
ical opponents: “Government forces regularly tortured, beat,
harassed, arbitrarily arrested, and detained opponents or
suspected opponents of the Government with impunity.”
And two members of the Umma Party, both Sudanese who
had been granted asylum in the United States, testified that
Niam would still be targeted by the Bashir regime as a
political opponent even after an 11-year absence—that he
would be “arrested at the airport or on the borders” and
“disappear” for a long time.
The immigration judge stated that “even if it were estab-
lished that the government persecutes all opposition party
members, [Niam] admitted that he has not been active in the
Omma [sic] Party since his arrival in the United States.” This
is a non sequitur. If the regime is after all opposition party
Nos. 02-4292, 03-1115 5
members, it is irrelevant whether a member of an opposition
party is active, especially when he’s in a foreign country.
Moreover, Niam didn’t come to the U.S. until 1996 and for
some and maybe all of the seven preceding years since he
had left Sudan he had been active in the affairs of the Umma
Party. Remember that the Party had sent him back to Sudan
to spy for it. Furthermore, Niam attended graduate school
in Nigeria during this period with financial assistance from
the Party.
Finally, the immigration judge thought it significant that
Niam’s remaining relatives in Sudan had not been perse-
cuted. However, those relatives are women, who were never
active in political affairs. Niam’s two brothers, who were,
also fled the country. The immigration judge did not discuss
the distinction. His analysis flatly failed to engage with the
evidence presented to him.
On Niam’s appeal from the immigration judge’s decision,
the Board of Immigration Appeals noted that the immigra-
tion judge had “incorrectly identified the regime in power
in Sudan during his 1990 arrest.” But the board declared the
error “harmless,” without, however, explanation. So far as
appears, the board did not notice any of the immigration
judge’s other errors.
When the board writes an opinion, the opinion becomes
the basis for judicial review of the decision of which the
alien is complaining. INS v. Ventura, 537 U.S. 12, 15 (2002)
(per curiam); Begzatowski v. INS, supra, 278 F.3d at 669 n. 5.
When as in this case the board’s opinion merely supple-
ments the immigration judge’s opinion, the latter opinion as
supplemented by the board’s opinion becomes the basis for
review. Angoucheva v. INS, 106 F.3d 781, 788-89 (7th Cir.
1997) (per curiam); Krouchevski v. Ashcroft, 344 F.3d 670, 671
(7th Cir. 2003). So it’s as if the immigration judge, after
writing his opinion, had, perhaps in response to a motion
6 Nos. 02-4292, 03-1115
for reconsideration, discovered his error about the regime,
acknowledged it, but pronounced it harmless. Cf. Fed. R.
Civ. P. 59(e); Russell v. Delco Remy Division of General Motors
Corp., 51 F.3d 746, 749 (7th Cir. 1995); Charles v. Daley, 799
F.2d 343, 348 (7th Cir. 1986). The difficulty with applying
the analogy to this case is that the remainder of the im-
migration judge’s opinion is riven with errors as well, as we
have seen, and these were not noticed by the board and so
the board’s conclusion that the one error it did catch was
harmless does not validate the immigration judge’s decision
to deny Niam relief.
Sudan’s terrible human rights record—see, e.g., U.S.
State Department, Report on Human Rights Practices in Sudan
(2002); Human Rights Watch, World Report for Sudan (2003),
http://www.hrw.org/wr2k3/africa12.html; Amnesty
International, Sudan: No Impunity for Torturers, Sept. 2003,
http://web.amnesty.org/library/Index; Sudan Peace Act,
Pub. L. No. 107-245, 116 Stat. 1504 (2002), 50 U.S.C. § 1701(“the acts of the Government of Sudan . . . constitute
genocide . . . [and] Congress hereby condemns . . . the
Government of Sudan’s overall human rights record”)—
which the immigration judge acknowledged, suggests that
Niam is likely to be persecuted should he return to Sudan.
For once the Sudanese authorities discover who he is, they
will realize that he violated the terms of his 1990 release,
they will in all likelihood take him in for questioning, and,
given the methods that Sudanese interrogators use, they will
no doubt elicit a confession that he tried to reenter Sudan to
spy for the Umma Party. One can easily imagine the sequel
to such a confession. Is the probability of persecution
“clear”? That is for the immigration authorities to decide in
the first instance in a proceeding free from the errors of the
immigration judge that, taken as a whole, deprive the order
of removal of a rational basis. The order must be vacated
Nos. 02-4292, 03-1115 7
and the case returned to the immigration service for further
proceedings consistent with this opinion.
Our second case involves Peter Blagoev, a professional
musician in Chicago who, accompanied by his wife and his
stepdaughter, was admitted to the United States from
Bulgaria on a student visa in 1993, the wife and stepdaugh-
ter being admitted as visitors. All three overstayed (and
Blagoev like Niam failed to attend school), concede their
removability, and seek asylum, which was denied by an im-
migration judge in an order that the Board of Immigration
Appeals affirmed without opinion.
Blagoev comes from a prominent anticommunist family.
The communists sentenced his grandfather to death when
they took power in Bulgaria in 1944, although the sentence
was not carried out. Blagoev’s father was also persecuted by
the communist regime, and an attack on his home with
acetone, a powerful corrosive chemical, caused permanent
injury to Blagoev’s mother. As for Blagoev himself, he was
first beaten in the basement of the local police station when
at age 16 he asked a guest lecturer at his school “how
come . . . if it’s so nice here everybody is trying to get out of
here and go West.” For this impertinence he was also
expelled from the communist youth organization (which he
had been required to join) and suspended from school for a
year. Later, when drafted into the Bulgarian army, he was
beaten repeatedly by fellow soldiers because of his family’s
anticommunist reputation. He states rather improbably (but
the immigration accepted as true) that he was discrimina-
torily denied protective clothing when radioactive clouds
from the Chernobyl disaster wafted toward Bulgaria. After
completing his military service he got a series of music jobs
but was fired from each after expressing his political views;
on one occasion he was severely beaten in the communist
party headquarters, losing a tooth. After the collapse of the
8 Nos. 02-4292, 03-1115
communist regime in 1989, Blagoev publicly advocated the
restoration of the monarchy. This was an unpopular stand,
especially among the numerous ex-communists, that gar-
nered death threats against his family. His wife, who was
active in the same causes as he, was assaulted, and her
cousin was murdered after filing a claim to recover land
that had been stolen from him by the communists. When an
attempt was made to abduct Blagoev’s stepdaughter, the
family had had enough and left the country.
Ordinarily a person persecuted by a regime that later col-
lapses does not have a well-founded fear that he will be
persecuted should he return, and so asylum is denied. E.g.,
Useinovic v. INS, 313 F.3d 1025, 1032 (7th Cir. 2002); Bereza
v. INS, 115 F.3d 468, 474 (7th Cir. 1997); Vaduva v. INS, 131
F.3d 689, 692 (7th Cir. 1997); Marcu v. INS, 147 F.3d 1078,
1081-82 (9th Cir. 1998). But there are collapses and then
there are collapses. Though some of our cases speak favor-
ably of the political changes in Bulgaria since the collapse of
the communist regime, see Toptchev v. INS, 295 F.3d 714, 723
(7th Cir. 2002); Gramatikov v. INS, 128 F.3d 619 (7th Cir.
1997); Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995); see
also Kratchmarov v. Heston, 172 F.3d 551, 554 (8th Cir.
1999)—and there has doubtless been improvement—there
is evidence that Bulgaria’s former communist bigwigs,
quickly recycled as socialists and now busy cosying up to
the United States, retain significant power in Bulgaria,
especially and quite relevantly over the security service, and
continue to pursue the old vendettas against anticommu-
nists, such as members of the Blagoev family. Robert D.
Kaplan, “Hoods Against Democrats,” The Atlantic Monthly,
Dec. 1998, p. 32; U.S. State Department, Report on Human
Rights Practices in Bulgaria (1998); “Bulgarian Police Use
Force to Free Legislators Trapped by Protest,” N.Y. Times,
Jan. 12, 1997, p. 9; Jane Perlez, “Looted by Its Own Officials,
Bulgaria Faces the Day of Economic Reckoning,” N.Y. Times,
Nos. 02-4292, 03-1115 9
Oct. 28, 1996, p. A6; “Romania and Bulgaria: Those “South-
Eastern Laggards,” Economist (U.S. ed.), Oct. 19, 1996, p. 54;
Jane Perlez, “Rogue ‘Wrestlers’ Have an Armlock on
Bulgaria,” N.Y. Times, Jan. 12, 1995, p. A4; R.C. Longworth,
“Bulgaria, Romania Resist Pull of the West,” Chi. Trib., Oct.
10, 1994, p. 6. All these are documents in the administrative
record, entitled to some though of course not conclusive
weight.
In nevertheless denying the Blagoevs’ petition for asylum,
the immigration judge relied heavily on U.S. State Depart-
ment, Profile of Asylum Claims and Country Conditions for
Bulgaria 3 (1997), where we read that “political conditions
have so altered in the past eight years as to remove any
presumption that past mistreatment under the Communists
will lead to future difficulties” for people (like the Blagoevs)
who had given the communist regime a hard time. (An
“Asylum Profile” appears to be similar to a country report.)
The immigration judge concluded that the Blagoevs had no
well-founded fear of persecution should they be returned to
Bulgaria. In addition he found that they hadn’t suffered
persecution, just “harassment,” and so their claim didn’t get
to first base.
In Niam’s case we saw the immigration judge com-
mit a series mainly of factual errors. In the Blagoevs’ case
we encounter startling omissions plus a striking non
sequitur. In discussing evidence of past persecution the
immigration judge mentioned only Blagoev’s expulsion
from high school, political discrimination against him in
employment, the clouds from Chernobyl (actually the least
plausible of Blagoev’s allegations, yet believed by the im-
migration judge), and other, but unspecified, “harassment”
by Blagoev’s fellow soldiers—“terrible,” the immigration
judge called it, but, inexplicably, not terrible enough to
amount to persecution. All the other evidence of perse-
cution, which we summarized earlier, simply went unmen-
10 Nos. 02-4292, 03-1115
tioned. Some of the persecution may have been entirely
private, as in such cases as Ghaly v. INS, 58 F.3d 1425, 1430-
31 (9th Cir. 1995), and Adebisi v. INS, 952 F.2d 910, 913-14
(5th Cir. 1992)—that is, neither condoned by the govern-
ment nor enabled to flourish because of the government’s
lack of ability to control private conduct, unlike such cases
as Hengan v. INS, 79 F.3d 60 (7th Cir. 1996); Krastev v. INS,
292 F.3d 1268, 1275 (10th Cir. 2002), and Singh v. INS, 134
F.3d 962, 967 n. 9 (9th Cir. 1998). But this is not argued.
Or maybe the evidence is false; but the immigration judge
did not say that either, and the result is a yawning void in
the opinion. Conceivably the evidence of persecution taken
as a whole is outweighed by other evidence, but the only
other evidence the immigration judge pointed to (besides
the fact that Blagoev’s father receives a tiny pension from
Bulgaria and may have returned there) was that Blagoev
had waited three years after the fall of the communist
regime before he left Bulgaria. That was the non sequitur.
For obviously an anticommunist does not leave his formerly
communist country the day the communist regime falls. He
expects improvement and only after it becomes clear that he
will continue to be persecuted for his political beliefs by
holdovers from the communist regime does he finally
abandon hope of reform and leave.
The immigration judge’s finding that the Blagoevs were
not victims of persecution thus cannot be sustained. But if
he reasonably found that they won’t be persecuted if they
return to Bulgaria, his decision must still be upheld. There
was some evidence of this, namely the country report. We
and other courts have expressed concern about the immigra-
tion service’s chronic overreliance on such reports. The State
Department naturally is reluctant to level harsh criticisms
against regimes with which the United States has friendly
relations. Galina v. INS, supra, 213 F.3d at 958; Gramatikov v.
INS, supra, 128 F.3d at 620; Vaduva v. INS, supra, 131 F.3d at
Nos. 02-4292, 03-1115 11
691; Manzoor v. United States Dept. of Justice, 254 F.3d 342,
348 (1st Cir. 2001); Shah v. INS, 220 F.3d 1062, 1069-70 (9th
Cir. 2000). The United States is not at all friendly to Sudan,
which we bombed in 1998 and continue to designate as one
of seven nations that sponsor terrorism, and the country
report in Niam’s case pulls no punches in describing the
atrocities committed by the Sudanese regime. (For all we
know, it exaggerates those atrocities—but this is not con-
tended.) But we are very friendly with the former commu-
nist states of central and eastern Europe, and so the country
report on Bulgaria can be expected to emphasize the bright
side of Bulgarian politics.
Furthermore, the authors of these reports are anonymous
and there is no opportunity for the asylum-seeker to cross-
examine any of them. Gailius v. INS, 147 F.3d 34, 46 n. 7 (1st
Cir. 1998); Hosseinmardi v. INS, 405 F.2d 25, 27 (9th Cir.
1968). That doesn’t make the reports inadmissible as evi-
dence. They have the status of official reports, which are
admissible in a regular trial even though they are hearsay,
Fed. R. Evid. 803(8)(C); Bridgeway Corp. v. Citibank, 201
F.3d 134, 143 (2d Cir. 2000), and anyway administrative
agencies are not bound by the hearsay rule or any other of
the conventional rules of evidence, but only by the looser
standard of due process of law. Rosendo-Ramirez v. INS, 32
F.3d 1085, 1088 (7th Cir. 1994); Rojas-Garcia v. Ashcroft, 339
F.3d 814, 823 (9th Cir. 2003); Ezeagwuna v. Ashcroft, 325
F.3d 396, 406 (3d Cir. 2003); Felzcerek v. INS, 75 F.3d 112, 116
(2d Cir. 1996); Bustos-Torres v. INS, 898 F.2d 1053, 1056 (5th
Cir. 1990). Nevertheless the evidentiary infirmities of the
country reports are important in placing in perspective a
startling evidentiary ruling of which the Blagoevs complain.
The Blagoevs submitted the curriculum vitae and a sworn
statement of Juliet Ellen Johnson, an assistant professor of
political science at Loyola University in Chicago. Dr.
Johnson (she has a Ph.D. in politics from Princeton) is a
12 Nos. 02-4292, 03-1115
specialist in the politics of Russia and the other formerly
communist countries of central and eastern Europe. Her
affidavit explains that “Bulgaria has undergone much less
political and economic reform than other Eastern European
countries, resulting in correspondingly greater official and
semi-official violations of human rights.” In particular, the
security service is run by mostly the same people who ran
it under the communist regime, and there is no control over
the service by parliament. The service is very wealthy, and
controls a number of firms, and it was employees of one of
these who killed Mrs. Blagoev’s cousin. Arbitrary arrests
and detainment, police torture, and other gross abuses are
common. Dr. Johnson’s affidavit concludes with a summary
of published reports on which she relied.
When the hearing before the immigration judge was held,
Dr. Johnson was in Prague, and the Blagoevs’ lawyer
suggested that she be permitted to testify by phone. The
immigration judge had already ruled that she could testify
by phone from Dartmouth, where she was then teaching, if
she didn’t want to come to Chicago. But when he discov-
ered that she was abroad, he forbade her to testify by
telephone. This is one of the odder rulings in our experi-
ence. Prague does have phone service after all, and in fact
the phone service between Prague and Chicago is quite
comparable in acoustic quality and other relevant quality
dimensions to the phone service between Hanover, New
Hampshire and Chicago; nor did the immigration judge or
anyone else suggest otherwise. So we’re baffled. There was
still Johnson’s affidavit. But the immigration service’s law-
yer, noticing in Johnson’s c.v. that almost all her publi-
cations are about Russia, with specific reference to banking,
moved the immigration judge to exclude the affidavit on the
ground that she was unqualified to give an expert opinion
on Bulgarian politics. The judge granted the motion,
Nos. 02-4292, 03-1115 13
apparently because he couldn’t voir dire Johnson since she
was not present and was deemed unavailable telephoni-
cally.
Although the service’s lawyer was entitled to question Dr.
Johnson’s qualifications, her curriculum vitae did not show
on its face that she was unqualified to give an expert
opinion concerning political conditions in Bulgaria. Ap-
parently both the service’s lawyer and the immigration
judge overlooked the statement in her affidavit that “I
regularly teach a course in Eastern European Politics, in-
cluding a week on Bulgarian politics. I have been following
Bulgarian politics on an almost daily basis since 1993.”
American academic interest in Bulgaria is limited, and it
may be difficult to find competent scholars who make
postcommunist Bulgarian politics the focus of their careers.
There is no ironclad requirement that an academic, to be
qualified as an expert witness, must publish academic books
or articles on the precise subject matter of her testimony.
United States v. Langan, 263 F.3d 613, 623 (6th Cir. 2001).
Johnson is an expert on postcommunist central and eastern
European politics, a field that encompasses the subject of
her testimony, and she obviously is a student of Bulgarian
politics and, judging from her affidavit that the judge
refused to admit into evidence, a knowledgeable one.
The ground rules for qualifying expert witnesses in
federal trials are given by the Daubert decision. But Daubert
interprets Fed. R. Evid. 702, and the federal rules of evi-
dence do not apply to the federal administrative agencies;
so, strictly speaking, neither does Daubert. Consolidation Coal
Co. v. Director, Office of Workers’ Compensation Programs, 294
F.3d 885, 893 (7th Cir. 2002); Donahue v. Barnhart, 279 F.3d
441, 446 (7th Cir. 2002). But the spirit of Daubert, as Donahue
v. Barnhart, supra, 279 F.3d at 446, and other cases, indicate,
does apply to administrative proceedings. Elliott v. Commod-
14 Nos. 02-4292, 03-1115
ity Futures Trading Comm’n, 202 F.3d 926, 933 (7th Cir. 2000);
Libas, Ltd. v. United States, 193 F.3d 1361, 1366 (Fed. Cir.
1999); see Paul S. Miller & Bert W. Rein, “ ‘Gatekeeping’
Agency Reliance on Scientific and Technical Materials After
Daubert: Ensuring Relevance and Reliability in the Adminis-
trative Process,” 17 Touro L. Rev. 297 (2000). “Junk science”
has no more place in administrative proceedings than in
judicial ones. But it would be odd for an agency to adopt an
even more stringent filter for expert testimony than that
used by the courts for judicial proceedings, and there is no
indication that the immigration service has done so. It
would be particularly odd for that service to do so given the
great weight that the immigration judges and the Board of
Immigration Appeals give to the anonymous country and
asylum reports.
And if this were a case governed by Daubert, the judge
could not exclude Johnson on the basis of her affidavit and
curriculum vitae without voir diring her, which could have
been done over the phone. Not that a Daubert hearing is
always required. Kirstein v. Parks Corp., 159 F.3d 1065, 1067
(7th Cir. 1998); Target Market Publishing, Inc. v. ADVO, Inc.,
136 F.3d 1139, 1143 n. 3 (7th Cir. 1998); Nelson v. Tennessee
Gas Pipeline Co., 243 F.3d 244, 249 (6th Cir. 2001). But John-
son’s affidavit was critical evidence and nothing in it or in
her curriculum vitae showed that she was unqualified to
give expert evidence in this case. The summary exclusion of
the affidavit was arbitrary, Elsayed Mukhtar v. California State
University, 299 F.3d 1053, 1064-66 (9th Cir. 2002); In re Air
Crash at Little Rock, 291 F.3d 503, 514 (8th Cir. 2002); Goebel
v. Denver & Rio Grande Western R.R., 215 F.3d 1083, 1088
(10th Cir. 2000), but devastating in its consequences, and a
denial of the Blagoevs’ minimum procedural rights, as in
Kerciku v. INS, supra, 314 F.3d at 917-18, and Podio v. INS,
153 F.3d 506, 509-11 (7th Cir. 1998); cf. Gailius v. INS, supra,
147 F.3d at 46 n. 7. So, like Niam’s case, the Blagoevs’ case
Nos. 02-4292, 03-1115 15
must be returned to the agency for further proceedings
consistent with this opinion.
In view of the performance of these immigration judges
and the criticisms of them that we have felt obligated to
make, we urge the service to refer the cases to different
immigration judges. Georgis v. Ashcroft, supra, 328 F.3d at
970; Kerciku v. INS, supra, 314 F.3d at 919.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-7-04