Djedovic, Natasa v. Gonzales, Alberto ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1754
NATAŠA DJEDOVI‚, et al.,
Petitioners,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals
____________
ARGUED MARCH 1, 2006—DECIDED MARCH 23, 2006
____________
Before EASTERBROOK, WILLIAMS, and SYKES, Circuit
Judges.
EASTERBROOK, Circuit Judge. Sabrije Slakoviƒ and
Nataša Djedoviƒ are citizens of Serbia and Montenegro
(ED$4" 4 OD>" '@D"), one of the shards into which Yugo-
slavia fractured following the collapse of communism in
eastern Europe. They seek asylum in the United States on
behalf of themselves and their three dependent children.
Slakoviƒ was drafted, went into hiding to avoid military
service, was caught, and deserted after nine days; he
contends that if returned he would be persecuted because of
this desertion and his opposition to the use of force against
fellow Muslims. Djedoviƒ, a Christian, contends that she
would be persecuted because of her marriage to Slakoviƒ;
2 No. 05-1754
many residents of Pe…urice, where they lived together in
Montenegro, adamantly oppose marriage across religious
lines. Slakoviƒ and Djedoviƒ sought other forms of relief, but
because they proposed to enter the United States under a
visa-waiver program only a grant of asylum would entitle
them to remain. See Wigglesworth v. INS, 319 F.3d 951,
955-56 (7th Cir. 2003).
Slakoviƒ was drafted in May 1999, during the Kosovo
War. Serbian forces were removing ethnic Albanians from
Kosovo. The European Union and the United States
opposed this, and in March 1999 NATO began military
activities against Serbia. Hostilities lasted until June 10,
1999, when Slobodan Miloševiƒ gave up the fight and
United Nations peacekeepers separated the Serbian and
Albanian combatants. The conflict had ethnic rather than
religious roots, but about 70% of ethnic Albanians are
Moslem, and Slakoviƒ did not want to take up arms against
his co-religionists. He contends, moreover, that during his
brief period of training he heard some other soldiers relish
the prospect of killing Moslems. He does not maintain,
however, that the military deprived him of weapons or
planned to use him (or other Moslems) as cannon fodder, as
Serbian forces sometimes had done in the Bosnian conflict.
The immigration judge acknowledged that exposing adher-
ents of one religion to greater risks of injury in combat than
members of another would be a form of persecution. See,
e.g., Miljkovic v. INS, 376 F.3d 754 (7th Cir. 2004);
Begzatowski v. INS, 278 F.3d 665 (7th Cir. 2002). Being
trained to engage in atrocities also could be persecution, see
Matter of A- G-, 19 I&N Dec. 502, 506 (BIA 1987), but
Slakoviƒ does not contend that this was his unit’s objective.
The immigration judge, who believed Slakoviƒ ’s testi-
mony, concluded that the events he described do not
amount to persecution; the Board of Immigration Appeals
agreed. Substantial evidence supports that decision. All
Slakoviƒ faced was military conscription, which is not
No. 05-1754 3
a form of persecution, see Tesafu v. Ashcroft, 322 F.3d
477, 482 (7th Cir. 2003); Mojsilovic v. INS, 156 F.3d 743,
747 (7th Cir. 1998), and comments by other soldiers
not directed against him personally. See Mitev v. INS,
67 F.3d 1325, 1330-31 (7th Cir. 1995). Even if we assume
that Slakoviƒ would be imprisoned on return for his deser-
tion, that is not persecution unless the draft and military
service are persecution. Slakoviƒ does not contend that
Moslem deserters are treated worse than Christian desert-
ers. Indeed, Slakoviƒ is unlikely to be punished at all. Ex-
president Miloševiƒ, who had been put on trial in an
international criminal court, died earlier this month; in
2001 his successors announced an amnesty that appears to
cover Slakoviƒ. Cf. Mojsilovic, 156 F.3d at 747.
Djedoviƒ testified that she and her children had been
disowned by her parents and shunned by their neighbors in
Pe…urice. People she met in the street sometimes called her
“ugly words” and spat in her direction. Again the immigra-
tion judge believed this testimony; again he found that this
does not amount to persecution. Shunning is private
activity rather than anything sponsored, approved, or
enforced by the state. Djedoviƒ does not contend that she or
her children were in physical danger; the family lived in
Pe…urice for six years without incident beyond the personal
unpleasantness, and Slakoviƒ was gainfully employed.
(Djedoviƒ, who remained home to care for the children, did
not testify that she was in the job market and had been
unable to find work.) The agency’s decision that these
events do not justify asylum is supported by substantial
evidence and does not rest on any legal error.
Slakoviƒ and Djedoviƒ maintain, however, that the record
is incomplete, and they contend that the immigration judge
violated the Constitution by refusing to accept telephonic
testimony by Bernd Fischer, professor of Balkan history at
Indiana University. Reliance on the due process clause is
not only unnecessary but also inappropriate, as we pointed
4 No. 05-1754
out in Rehman v. Gonzales, No. 05-2846 (7th Cir. Mar. 20,
2006). Statutory arguments take precedence over constitu-
tional ones, and because every alien must have “a reason-
able opportunity . . . to present evidence on the alien’s own
behalf,” 8 U.S.C. §1229a(b)(4)(B), the only question we need
consider is whether that “reasonable opportunity” was
afforded. It is difficult to imagine how an immigration judge
could provide the “reasonable opportunity . . . to present
evidence” required by statute, yet still violate the due pro-
cess clause.
Two business days before the hearing, counsel filed a
motion asking the immigration judge to take Fischer’s
evidence by telephone. The judge denied this motion on
the date set for the hearing, informing the parties that
he preferred either live testimony or written reports
from expert witnesses. The judge also declined to post-
pone the hearing, a step that would have inconvenienced
other participants and disrupted the immigration court’s
schedule (and thus affected the hearing dates for other
aliens). He invited counsel to furnish Professor Fischer’s
evidence in writing after the oral testimony had been
concluded. Counsel did not accept this invitation. Instead of
filing an expert’s report while the record remained open, he
furnished only a three-page statement from Fischer summa-
rizing his qualifications and listing topics he would have
addressed, such as “[t]he development of modern extreme
nationalism in Serbia-Montenegro through the Milosevic
years. The impact of nationalist acculturation
on Moslems[.]”
Counsel asserts that he was surprised when the immigra-
tion judge denied his motion; other judges (and this judge
on other occasions) had accepted evidence by phone, so why
not this judge this time? There is, however, an easy way to
avoid surprise: advance notice. Regulations entitle each
immigration court to establish procedures covering subjects
not addressed by national rules. 8 C.F.R. §1003.40. The
No. 05-1754 5
Immigration Court’s branch in Chicago, where this hearing
occurred, requires motions to precede the hearing by
at least 14 days. See http://www.usdoj.gov/eoir/efoia/ocij/
localop/chilop.pdf. Notice gives the judge a chance to rule in
advance, so that everyone can be prepared when the
hearing begins (or the court can rearrange its own schedule
to make productive use of time should the hearing be
rescheduled). The immigration court gave the aliens eight
months’ notice of the hearing date; the least they could have
done in return was give two weeks’ notice of motions in
limine. Counsel for Djedoviƒ and Slakoviƒ does not offer any
reason for ignoring this rule and therefore is in no position
to complain that, when an adverse decision was made on
the spot, he was unprepared.
This situation is not remotely like that in Niam v.
Ashcroft, 354 F.3d 652 (7th Cir. 2004). The immigration
judge in Niam had promised to accept evidence by phone,
then changed his mind during the hearing after learning
that the expert witness was outside the United States. That
not only surprised the alien’s lawyer, who had relied on the
order allowing telephonic evidence, but also was arbitrary:
the immigration judge did not explain what difference it
could have made that the other end of the line was in
Prague rather than Hanover, New Hampshire. 354 F.3d at
659. (Nor is our situation governed by Rodriguez Galicia v.
Gonzales, 422 F.3d 529 (7th Cir. 2005), which held that a
combination of errors including refusal to accept telephonic
evidence made a hearing inadequate to permit reliable
decision.)
Apart from issues of notice and surprise, there is noth-
ing arbitrary about favoring live over remote testimony
(as every federal court does) or favoring written reports
from experts over phone connections. The norm in federal
civil litigation is an expert’s written report plus live testi-
mony in court, so that counsel can explore logical or
empirical shortcomings in the expert’s analysis. Expert
testimony neither preceded nor followed by a written report
6 No. 05-1754
may end up being little more than ipse dixit, which is
unhelpful to the tribunal. “An expert who supplies nothing
but a bottom line supplies nothing of value to the judicial
process.” Mid-State Fertilizer Co. v. Exchange National
Bank, 877 F.2d 1333, 1339 (7th Cir. 1989). See also, e.g.,
Zenith Electronics Corp. v. WH-TV Broadcasting Corp., 395
F.3d 416 (7th Cir. 2005).
As between oral testimony alone and a written re-
port alone, the latter may be more helpful, because it
facilitates review of the conclusions’ logical and empirical
force. The effect of an expert’s evidence depends on the
quality of its reasoning and the scope of its data, not on the
expert’s bearing. Good scholarly analysis does not become
bad because a professor stutters or fidgets. That’s why
“observable factors like demeanor and tone of voice are less
important when it comes to expert witnesses, whose
reliability is supposed to be based on their expertise rather
than on what they claim to have witnessed.” Hamid v.
Gonzales, 417 F.3d 642, 646 (7th Cir. 2005). Judges often
overestimate their ability to sift true from false testimony
by assessing demeanor, which is a form of lie detector
without the electrodes and graph paper. The comprehen-
siveness and logical consistency of testimony is far more
valuable and can be evaluated on paper as well as, if not
better than, through oral presentations.
That is why the Supreme Court held in Richardson v.
Perales, 402 U.S. 389 (1971), that both the Constitution and
the Administrative Procedure Act permit agencies to receive
expert evidence in written form, without producing the
expert for oral testimony. The opportunity to present
Fischer’s evidence in writing would have served Djedoviƒ
and Slakoviƒ equally well. Yet, as we have noted, they did
not accept the immigration judge’s invitation. The set of
talking points that Fischer provided after the hearing does
not qualify even as an offer of proof, for it does not reveal
the substance of his testimony, as opposed to the topics he
No. 05-1754 7
would have covered. Not having made an offer of proof,
Slakoviƒ and Djedoviƒ cannot contend that the record is
insufficient; we could not tell whether the missing evidence
would have been material and therefore whether the
immigration judge’s decision was prejudicial to the aliens.
See, e.g., Rehman, slip op. 5-6; Capric v. Ashcroft, 355 F.3d
1075, 1087 (7th Cir. 2004); Roman v. INS, 233 F.3d 1027, 1033
(7th Cir. 2000).
Without citing Perales, one court of appeals has held that
limiting an alien to written expert testimony violates
the Constitution. See Lopez-Umanzor v. Gonzales, 405
F.3d 1049, 1056-58 (9th Cir. 2005). It is hard to accept
a decision that fails to engage controlling authority from the
Supreme Court. At all events the immigration judge in our
case did not limit expert witnesses’ presentation to paper
alone, as the judges in Lopez-Umanzor and Rodriguez
Galicia did; he simply insisted that the witness appear in
person. Had counsel made a timely motion, it might have
been possible to reschedule matters (on the expert’s end or
the immigration judge’s) to permit his testimony to be given
in person. The combination of a belated motion with failure
to provide a post-hearing report has made this record
skimpier than it might have been, but we have no basis on
which to say that the shortfall is either material or
prejudicial—and the evidentiary deficiency, if any, rests at
the doorstep of the aliens’ lawyer rather than the agency.
The petition for review is denied.
8 No. 05-1754
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-23-06