Banks, Theresa B. v. Gonzales, Alberto R. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3873
THERESA BROWNE BANKS,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney General
of the United States,
Respondent.
____________
Petition for Review of a Decision of the
Board of Immigration Appeals
____________
ARGUED JUNE 2, 2006—DECIDED JULY 5, 2006
____________
Before POSNER, EASTERBROOK, and ROVNER, Circuit
Judges.
EASTERBROOK, Circuit Judge. A citizen of Liberia,
Theresa Banks sought asylum on the ground that she had
been persecuted on account of her ethnicity (the Krahn
tribe) and her support of the Unity Party. (These groups
overlap: most members of the Unity Party are ethnic
Krahns.) When Banks made her application, Charles Taylor
was President of Liberia, and it is undisputed that he had
it in for both the Krahns and the Unity Party. Before the
immigration judge held a hearing on Banks’s application,
however, Taylor fled the country after losing a long and
bloody civil war.
2 No. 05-3873
Today Taylor is awaiting trial in the International
Criminal Court at The Hague and Ellen Johnson Sirleaf,
the Unity Party’s leader, is the country’s President. It is
unlikely that people of Banks’s background would be at
significant risk in Liberia, now that the new government
has had time to clean out any pockets of Taylor’s partisans.
Yet the immigration judge’s opinion, issued in March 2004
(seven months after Taylor went into exile) mentions
Taylor’s departure only in passing, and the Board of
Immigration Appeals, which affirmed in September 2005,
did not mention these events at all. The reasons that the IJ
and the BIA did give are deficient, so we must remand—for
judges cannot resolve administrative litigation on grounds
that the agency ignored, see SEC v. Chenery Corp., 318 U.S.
80 (1943)—even though the current political situation in
Liberia means that Banks is unlikely to benefit.
Banks’s claim rests on two principal episodes. To simplify
the exposition we omit unnecessary detail.
The first episode is the “Camp Johnson Road incident.”
On September 18, 1998, Taylor’s forces descended on a
settlement that was populated predominantly by ethnic
Krahns and political opponents of his government. Resi-
dents were raped or murdered; homes were ransacked or
destroyed. Banks was away when this raid occurred and
returned to discover her home in shambles, her cousin dead,
and her children missing. The children turned up the next
day at a friend’s home. Banks and her husband had to find
a new place to live and hide from Taylor’s forces. The
occurrence of the Camp Johnson Road incident is conceded,
and the immigration judge accepted Banks’s story about
what happened to her cousin and her home, as well as other
residents of the neighborhood. Still, the IJ concluded, this
did not amount to persecution because Banks, fortuitously
absent, had not suffered injury.
The second episode is a series of incidents in 2001 during
which, Banks maintains, she was beaten and raped by
No. 05-3873 3
Taylor’s forces, once being dragged to the Executive Man-
sion for interrogation, rape, and torture by one of Taylor’s
top lieutenants. Immigration Judge Vinikoor disbelieved
this aspect of Banks’s narrative because, he wrote, Banks
had not been active politically in 2001, and it was unlikely
that Taylor’s forces, stretched thin by the civil war, would
tarry over someone who was not an immediate threat.
Moreover, the IJ wrote, a letter from the Unity Party
describing Banks’s political activities appeared to be a fake,
because it placed Monrovia (the capital) in the wrong
county. The apparent fabrication of this document was
especially important to the BIA, whose opinion mentioned
scarcely anything else.
The agency’s handling of the Camp Johnson Road inci-
dent is hard to fathom. Banks did not suffer rape or a
beating, but her home was destroyed—and, more to the
point, the raid illustrates something that the agency
concedes: all ethnic Krahns, and all supporters of the Unity
Party, were unsafe in Liberia while Taylor was in charge.
One would not say that a Jew was free of persecution by the
Nazi government until the SS placed him in a boxcar bound
for a concentration camp. That persecution may affect
entire groups is the subject of a regulation, 8 C.F.R.
§1208.13(b)(2)(iii):
In evaluating whether the applicant has sus-
tained the burden of proving that he or she has a
well-founded fear of persecution, the asylum officer
or immigration judge shall not require the appli-
cant to provide evidence that there is a reasonable
possibility he or she would be singled out individu-
ally for persecution if:
(A) The applicant establishes that there is
a pattern or practice in his or her
country . . . of persecution of a group of
persons similarly situated to the applicant
4 No. 05-3873
on account of race, religion, nationality,
membership in a particular social group, or
political opinion; and
(B) The applicant establishes his or her own
inclusion in, and identification with, such
group of persons such that his or her fear of
persecution upon return is reasonable.
Immigration Judge Vinikoor did what this regulation says
that an IJ “shall not” do: he required Banks to show that
she had been singled out during the Camp Johnson Road
incident, as opposed to being a member of two groups that
were exposed to a pattern or practice of persecution. The IJ
did not doubt that Taylor’s government persecuted support-
ers of the Unity Party and persons of Krahn ethnicity; this
meant that Banks’s “fear of persecution upon return [was]
reasonable” as long as Taylor remained in power.
Banks’s lawyer did not rely on 8 C.F.R. §1208.13(b)(2)(iii)
or its predecessor 8 C.F.R. §208.13(b)(2)(iii) before either
the IJ or the BIA. That would be a forfeiture if the regula-
tion were one that imposed on the alien a burden of produc-
tion, burden of persuasion, or need to object. But it is not
expressed as a rule of conduct for the alien. It is addressed,
rather, to “the asylum officer or immigration judge” and
says that these public officials “shall not require the appli-
cant” to provide certain evidence. That rule governs not
only the proofs at the hearing but also an IJ’s process of
reasoning, and it must be followed whether or not an alien
draws it to the agency’s attention. A litigant’s failure to
remind an IJ of some rule assuredly does not entitle the IJ
to contradict that rule and require the very sort of proof
that the regulation says he “shall not require”. Banks and
her lawyer preserved the contention (the claim for asylum
on account of the Taylor government’s treatment of its
enemies); they did not need to cite each source of author-
ity supporting their position. See Elder v. Holloway, 510
U.S. 510 (1994).
No. 05-3873 5
As for the events that Banks says occurred in 2001: here
the IJ’s view is stronger, for some of her documentation is
suspect. If the Unity Party’s letter was phony, Banks had to
know it; the error is equivalent to putting Chicago in
the Bronx rather than Cook County. But the IJ did not
rest on documentary foibles. His principal reason for
disbelieving Banks was his confidence that Taylor’s forces
would not have singled out someone who was by then no
longer politically active and certainly would not have
dragged such a person to the Executive Mansion for the
personal attention of a top operative.
Doubt about Banks’s veracity cannot be labeled irrational.
All governments have limited manpower, and Taylor’s was
stretched thin by the ongoing civil war. Why devote scarce
resources to terrorizing retired opponents when the time
could be dedicated to active adversaries who are more
dangerous to the regime? Yet Taylor’s operatives may have
had outdated lists of enemies; the goons he used to keep the
populace in check did not receive daily updates via Black-
berry! Or perhaps Taylor’s regime had adopted a program
of brutalizing anyone who was, or ever had been, among its
enemies, all the better to dissuade citizens from going into
opposition in the first place. English kings subjected
opponents to a punishment known as corruption of blood
(which deprived the opponents’ children of inheritance) and
Kim Il Sung imprisoned both children and grandchildren of
his enemies; the possibility that Taylor made opposition the
basis of arbitrary terror for the opponent’s lifetime cannot
be dismissed out of hand.
How Taylor’s forces behaved is a question of fact and not
of first principles; it cannot be resolved just by observing
that, when resources are tight, even dictators may allow
former enemies a peaceful retirement. So does substantial
evidence support the IJ’s (implicit) resolution of this factual
question? Not remotely. William S. Reno, a professor at
Northwestern University who specializes in Liberian
6 No. 05-3873
politics, testified as an expert on Banks’s behalf that her
account was entirely plausible, that the Taylor regime
indeed persecuted ethnic Krahns who had withdrawn from
active politics. The agency did not offer any evidence to the
contrary, and the State Department’s country reports for
2001 and 2002 are silent on the stance that Taylor’s forces
took toward persons in Banks’s situation. The IJ summa-
rized Reno’s testimony at page 6 of his decision but then
ignored it when analyzing Banks’s claims and articulated
his own contrary view, which rests on no evidence at all.
Because the State Department’s country reports are so
general—they may reveal which groups are at greatest risk,
but not how much risk and not how the country’s forces
operate day-to-day—the administrative record
needs concrete, case-specific evidence, the equivalent of
what physicians and vocational experts supply in a Social
Security disability case. An IJ is not an expert on conditions
in any given country, and a priori views about how authori-
tarian regimes conduct themselves are no substitute for
evidence—a point that we have made repeatedly, but which
has yet to sink in. See, e.g., Kllokoqi v. Gonzales, 439 F.3d
336, 344 (7th Cir. 2005); Shtaro v. Gonzales, 435 F.3d 711,
715 (7th Cir. 2006); Huang v. Gonzales, 403 F.3d 945, 949-
51 (7th Cir. 2005); Uwase v. Ashcroft, 349 F.3d 1039, 1042
(7th Cir. 2003).
What the immigration bureaucracy needs is a counterpart
to Professor Reno for each country, someone who knows
local conditions at a level of detail that would permit him to
opine on the question whether a given alien’s assertions are
plausible, and what level of risk that alien would face if
returned home. The Social Security Administration would
not dream of omitting medical and vocational evidence
when responding to a disability claim; the SSA knows, as
many decisions hold, that ALJs cannot play doctor but must
have evidence; why do immigration officials so often stand
silent at asylum hearings and leave the IJ to play the role
No. 05-3873 7
of country specialist, a role for which an overworked lawyer
who spends his life in the Midwest is so poorly suited?
Social Security officials introduced the vocational expert
in 1962, after Kerner v. Flemming, 283 F.2d 916 (2d Cir.
1960), concluded that concrete evidence, rather than a
priori reasoning by the hearing examiner, was essential.
The agency initially responded by citing published studies
and reports (just as immigration officials often rely on the
State Department’s country reports); when appellate courts
concluded that these were too general to resolve specific
claims, the agency turned to vocational experts who could
apply their knowledge to each claimant’s circumstances. See
the SSA’s house explanation at
http://www.ssa.gov/history/ssa/lbjoper5.html. See also
Steven Babitsky, The Vocational Expert in Social Security
Disability Cases, 15 Trial 44 (Jan. 1979); cf. Jerry L.
Mashaw, Conflict and Compromise Among Models of
Administrative Justice, 1981 Duke L.J. 181, 182 & n.4
(1981). Twenty years later the SSA reduced many of its
doctrines to rules (“the Grid”). See Heckler v. Campbell, 461
U.S. 458 (1983). Vocational experts remain in use, however,
when the regulations—including those that classify some
conditions as automatically disabling—don’t provide a
definite resolution.
The immigration system’s consideration of asylum claims
today is in much the situation as the Social Security
disability system before the introduction of vocational
experts. It relies on hearing officers to do the work of both
creating rules (for there is no equivalent to the Grid) and
supplying analysis (for there is no equivalent to the voca-
tional expert). That requires entirely too much of a lawyer
who should be a neutral adjudicator rather than a
rulemaker and expert rolled together.
Many disputes about asylum are recurring and could be
resolved once and for all by the Secretary of Homeland
8 No. 05-3873
Security, the Attorney General, and their delegates.
Regulation 1208.13(b)(2)(iii) cries out for systemic decisions.
While Taylor ruled Liberia, all ethnic Krahns (and Unity
Party supporters) should have been treated the same way.
Similarly, adherents to the Ahmadi sect either are or are
not persecuted in Pakistan. We remanded in Sahi v.
Gonzales, 416 F.3d 587 (7th Cir. 2005), because the agency
had failed to confront that recurring question. Many asylum
claims similarly could be handled by the sort of detailed
regulations that the Social Security Administration uses.
Others, of the kind that arise less frequently, could be
resolved with the assistance of country specialists along the
lines of vocational experts. What cannot continue, however,
is administrative refusal to take a stand on recurring
questions, coupled with the reliance on IJs to fill in for the
expertise missing from the record. The immigration bureau-
cracy has much to learn from the experience of other federal
agencies that handle large numbers of comparable claims
with individual variations.
The petition for review is granted, and this case is
remanded to the agency.
No. 05-3873 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-5-06