Pramatarov, Hristo v. Gonzales, Alberto

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2138
HRISTO PRAMATAROV, et al.,
Petitioners,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
Nos. A78-817-544 & A78-817-538
____________
ARGUED MAY 4, 2006—DECIDED JULY 27, 2006
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Before POSNER, MANION, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. The petitioner is a Bulgarian
who has been ordered removed from this country and seeks
judicial review, complaining about the denial by the Board
of Immigration Appeals of his application for asylum. He is
a Roma (that is, a gypsy) and contends that he was perse-
cuted in Bulgaria on account of his ethnicity. He testified
that he had been beaten as a school child because of his
ethnicity, and again in the army, where he was subjected to
additional indignities such as being forced to sleep in
latrines. When he reported the beatings to officers, he was
subjected to additional beatings, culminating in a beating in
2 No. 05-2138
which he sustained multiple blood clots and lost six teeth.
After leaving the army, he sought employment but had only
limited success because of discrimination against gypsies,
and he was beaten by “skinheads” at a labor exchange.
Later, when he complained about the refusal of a restaurant
to serve him and his wife, members of the restaurant’s staff
beat the two of them. They were treated at a hospital, she for
a blood clot “the size of an apple” and he for a fractured
jaw. When they tried to file a police report, they were told
that gypsies have to protect themselves. After this incident
they left Bulgaria and eventually came to the United States.
The immigration judge (O. John Brahos, whose decision
was affirmed in a one-sentence per curiam order by the
Board of Immigration Appeals) doubted the applicant’s
credibility on grounds that, because of factual error, bootless
speculation, and errors of logic, lack a rational basis. These
have been common failings in recent decisions by immigra-
tion judges and the Board. Hanaj v. Gonzales, 446 F.3d 694,
700 (7th Cir. 2006); Tabaku v. Gonzales, 425 F.3d 417, 423 (7th
Cir. 2005); Hor v. Gonzales, 421 F.3d 497, 500 (7th Cir. 2005);
Lin v. Ashcroft, 385 F.3d 748, 755-56 (7th Cir. 2004); Cao He
Lin v. United States Dep't of Justice, 428 F.3d 391, 403 (2d Cir.
2005); Elzour v. Ashcroft, 378 F.3d 1143, 1153-54 (10th Cir.
2004); Dia v. Ashcroft, 353 F.3d 228, 249, 250 (3d Cir. 2003)
(en banc); Gao v. Ashcroft, 299 F.3d 266, 278-79 (3d Cir. 2002).
Judge Brahos doubted that Pramatarov is a gypsy. He
gave several reasons, none plausible. He said that
Pramatarov does not know “the name of the ethnic group
that gypsies are aligned with”; in a confused exchange,
conducted through a translator, Pramatarov at first said
he didn’t know “the other name” for gypsies, but later
indicated correctly that it was “Roma.” The judge said that
an unspecified country report for Bulgaria warns of “non-
No. 05-2138 3
gypsies who seek to pass themselves off as gypsies in order
to obtain relief in filing applications in the United States.”
He said that Pramatarov has no documentary evidence
of being a gypsy, though Pramatarov’s baptismal certificate,
admitted in evidence without objection, so identified him.
The judge (whose questioning of Pramatarov was so harsh
and rude as to suggest bias) thought that Pramatarov’s
injuries during his military service might have been caused
by accidents rather than beatings; there is no evidence of
that. He said that Pramatarov couldn’t have been locked in
latrines because “the authorities” would have discovered
his absences by means of bed checks and conducted “an
immediate search for him”; but the record contains no
evidence about bed checks. He said the couple would not
have gone to a restaurant at the “time of day” they did
(midnight) without “the proper clothing or toiletries,”
because it must have been a nightclub; but in the same
sentence he said that maybe they were refused service
because they weren’t wearing proper clothing. He said that
Pramatarov must have been lying about his inability to
obtain gainful employment in Bulgaria, because he got
married and “one does not marry unless one is able to
support his spouse.”
The immigration judge’s credibility findings in their
weirdness gave the Board of Immigration Appeals pause;
for the Board’s one-sentence opinion states that “even
assuming [Pramatarov’s] credibility, [he] has not met the
burden of proving eligibility for asylum.” The Board did not
explain why, if Pramatarov’s testimony was believed, he
nevertheless was ineligible. The reason could be that
the evidence that the Bulgarian government condones
or acquiesces in persecution of gypsies in general or
Pramatarov and his wife in particular was weak, though not
so weak that we can affirm the Board even if the immigra-
4 No. 05-2138
tion judge’s credibility findings are rejected, as they must
be, and if we assume therefore that Pramatarov’s testimony
was truthful and accurate.
It is true that beatings by schoolchildren, fellow enlisted
men in the army, “skinheads,” and restaurant employees
are not persecution, which requires either the government’s
complicity or its inability to prevent the (private) persecu-
tion. E.g., Hor v. Gonzales, supra, 400 F.3d at 485. There is
some evidence of governmental complicity, however, in the
reaction of military officers to Pramatarov’s complaints
about being beaten and humiliated because of his ethnicity
and in the refusal of the police to take action after he and his
wife were beaten outside the restaurant. We cannot say,
without benefit of analysis by the Board, that the evidence
of governmental complicity was so weak that the errors of
the immigration judge, coupled with the Board’s error of
failing to indicate the ground for its decision, are harmless.
The petition for review is therefore granted and the case
remanded to the Board for further proceedings consistent
with this opinion.
No. 05-2138 5
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-27-06