Koval, Marina v. Gonzales, Alberto R.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-3652

MARINA KOVAL and VALERIY VAGIL,

Petitioners,

v.

ALBERTO R. GONZALES,

United States Attorney General,

Respondent.

____________

Petition for Review of an Order of

the Board of Immigration Appeals.

Nos. A75-259-237 & A75-259-238

____________

ARGUED APRIL 11, 2005—DECIDED AUGUST 16, 2005

____________

Before POSNER, RIPPLE and SYKES, Circuit Judges.

RIPPLE, Circuit Judge. Petitioners Marina Koval and Valeriy

Vagil seek review of a decision of the Board of Immigration

Appeals (“BIA” or “Board”) that affirmed the Immigration

Judge’s (“IJ”) denial of their request for asylum. For the

reasons set forth in the following opinion, we grant the

petition for review, reverse the judgment of the BIA and

remand the case for further consideration.

2 No. 04-3652

I

BACKGROUND

A. Facts

Mr. Vagil and Ms. Koval, husband and wife, are natives

and citizens of Ukraine. They have at least one child who

was born in the United States. Mr. Vagil entered the

United States on May 17, 1996, with a visitor’s visa that was

valid until November 17, 1996. On July 4, 1996, Ms. Koval

entered the United States with a visitor’s visa that was valid

until July 3, 1997. They both stayed in the United States

longer than permitted, and the Immigration and

Naturalization Service initiated removal proceedings. Both

conceded removability, and Ms. Koval filed an application

for asylum and for withholding of removal on their behalf.

At a September 2003 removal hearing, Ms. Koval and

Mr. Vagil testified that they feared returning to Ukraine

because of their membership in the Church of Jesus Christ

of Latter-Day Saints (the “Mormon Church”).

1.

Ms. Koval presented the following testimony in support

of her application. She was baptized into the Mormon

Church around March 1993. At the time, she was a univer-

sity student in Kiev, Ukraine. One month after her reception

into the Church, she received a summons from the Soviet

Intelligence Service (“KGB”). According to Ms. Koval, at the

KGB office, she was interviewed by a man who stated that

he knew that she had joined the Mormon Church. The agent

also told Ms. Koval that young Americans were visiting

Ukraine in order to obtain secret information about the

country. The agent further said that the “American spies”

were interested in young educated people, and in Ms. Koval

No. 04-3652 3

particularly, because she was a physics student with access

to “scientific research” and “new materials and super

conductivity.” A.R.185. He expressed his concern that, as a

good citizen, Ms. Koval should not be in contact with the

Americans. The agent also requested the addresses of the

Americans and warned that Ms. Koval would be punished

if she failed to comply.

In May 1993, while Ms. Koval was on vacation, her dorm

room was searched; her books about the Mormon faith and

her diary were missing. A week after this incident,

Ms. Koval again was summoned by the KGB. She was

interviewed by the same agent and another man. Ms. Koval

testified that the agents told her that, because she had failed

to provide any information and because she was attending

the Mormon Church, she would not be allowed to continue

her physics studies. The agents also warned that, if she did

not cease her involvement with the Mormon Church, she

“would be in some way isolated from the society because

they did not want me allegedly to influence other people.”

A.R.188.

Despite these threats, Ms. Koval was allowed to graduate

and to receive her master’s degree in physics. However,

according to Ms. Koval, she was denied entrance into the

Ph.D. program because the KGB had denied her residence

(a “propiska”) in Kiev. A.R.188-89. Ms. Koval had earned all

“A” grades and was the only student in her program to

receive a “red diploma,” a mark of distinction. A.R.189.

Without permission to stay in Kiev, Ms. Koval moved to

her parents’ home in Borispol, Ukraine, about twenty-five

kilometers from Kiev. She applied for jobs in various de-

partments at the local airport, at two factories and at a

school, but she received no interviews. Ms. Koval testified

that she believed that her inability to procure employment

was because she had to complete a standardized job ap-

4 No. 04-3652

plication form. The form required her to disclose that she

had a sister living in the United States and that she was a

member of an American church. Ultimately, Ms. Koval’s

father was able to find her work as a ticket checker at the

airport where he was a pilot. She testified that the people

who worked in this job were capable only “of some really

simple jobs.” A.R.194.

After one year and a half, Ms. Koval was hired by an

Israeli airline. About one month later, however, she had to

leave that position because “the KGB did not allow” her to

obtain a passport for business travel outside of the former

communist bloc countries. A.R.195. Ms. Koval was told that

she could not receive the passport because her sister lived

in the United States and because she “was involved with

Americans.” A.R.197. Ms. Koval later was hired by a Polish

airline. At some point thereafter, she was granted a pass-

port. In April 1994, she worked in the United States for

about one month as an interpreter for a group of KGB

agents and airport employees who were attending computer

training. According to Ms. Koval, she was kept under close

surveillance, and the KGB held the group members’ pass-

ports and money in the hotel.

Ms. Koval met Mr. Vagil at a church meeting in 1995. She

testified that, at the time, Mr. Vagil was “twice smaller his

size of now because he was completely nervous, he was a

nervous wreck. He didn’t live at home. He lost his job.”

A.R.199. According to Ms. Koval, Mr. Vagil told her that

sometimes he would not eat for several days and that he

had not seen his parents in months. He told Ms. Koval that

the KGB was calling his parents and had interrogated his

mother. The agents had told Mr. Vagil’s mother that, if they

caught him, they would release him from custody with

tuberculosis. According to Ms. Koval, in January 1996, the

KGB again summoned Mr. Vagil’s parents. Ms. Koval and

No. 04-3652 5

Mr. Vagil decided that he no longer could remain in

Ukraine. Ms. Koval bought him a plane ticket from the air-

line for which she worked and, in an effort to avoid detec-

tion, arranged for him to depart on a day different from the

one listed on his ticket. Ms. Koval married Mr. Vagil two

days before he left in May 1996.

After Mr. Vagil left Ukraine, a friend of Ms. Koval’s

mother called to say that the friend’s husband was in jail

and that the KGB had said they would release him if he

reported about Ms. Koval. Ms. Koval testified that she

began to notice that “every time I was working this specific

flight,” the head of the KGB was present. A.R.204. Also,

“one guy” would be next to her “all the time” allegedly for

training, and he would ask her questions such as how to

pass information from Poland to America. A.R.204. Finally,

on June 25, 1996, Ms. Koval again was summoned to meet

with the KGB. She decided to leave Ukraine at that point.

After Ms. Koval’s departure, the KGB directed her parents

to sign a paper promising to bring her to the KGB if they

saw her again. In August 1996, Ms. Koval’s father was

found dead. The death certificate listed the cause of death as

drowning. Ms. Koval testified that her father was in excel-

lent physical condition and that she did not believe that he

had died of natural causes. Ms. Koval’s sister stated in an

affidavit that she believed their father had passed away

because “he could not handle the stress caused by his

daughter’s persecution.” A.R.559. Ms. Koval testified that

she never was arrested, detained overnight or physically

tortured by the KGB.

2.

Mr. Vagil also testified on his own behalf. He joined the

Mormon Church in 1991. According to Mr. Vagil, he began

receiving rude telephone calls in 1994 from unknown per-

6 No. 04-3652

sons who asked him why he was attending the American

church. He received about ten such calls between October

and December 1994. In January 1995, the KGB interrogated

him and told him that he was expected to provide a list of

the Ukrainian members of his local parish and the names of

the missionaries who worked with that church.

The following March, after Mr. Vagil had failed to provide

such information, KGB agents warned him that, if he did

not cooperate, they “would find the ways to ruin my career,

my health, and they would be able just to simply throw me

into jail.” A.R.225.

In 1996, the KGB came to Mr. Vagil’s parents’ home in

search of him; the KGB also summoned his parents for

questioning and told them that Mr. Vagil would be harmed

if he did not cooperate. Mr. Vagil became frightened and

decided to leave the country. He testified that he never was

arrested, detained or physically abused in Ukraine; his par-

ents still live in Ukraine and are employed.

3.

In support of their application for asylum, Ms. Koval and

Mr. Vagil submitted the testimony of Leonid Stonov, the

international director of the Union of Councils of Jews in the

Former Soviet Union, a human rights monitoring organiza-

tion. He testified that Ms. Koval’s application was consistent

with his knowledge of the treatment of Mormons in

Ukraine. Specifically, he stated that non-traditional religions

such as Mormons are considered sects and face pressure

from the official Russian Orthodox Church. He also testified

that Ukraine society discriminates against all non-tradi-

tional religions in that such churches are not allowed to

register; consequently, they cannot build churches, and their

activities may be classified as illegal.

No. 04-3652 7

Ms. Koval and Mr. Vagil also sought to introduce the

testimony of Yuriy Shvets regarding the activities of the

KGB and its successor organization, the Security Service of

Ukraine (“SBU”), with respect to Mormons. Shvets had

worked as a KGB agent in Ukraine from 1980 until 1990; he

was assigned to a department that monitored the daily ac-

tivities of the churches in the Soviet Union. Shvets stated

that he “was well aware of the real policy of the Soviet

government towards religion and of the KGB methods of

dealing with those church leaders and believers who did not

follow the ‘party line.’ ” A.R.514. Shvets also stated that he

had maintained contacts with the sources he had developed

in the KGB. At the time of the removal hearing, Shvets was

working as a private consultant to the United States Govern-

ment on security issues involving Russia and Ukraine.

Shvets testified that Ms. Koval’s account of harassment

was consistent with his knowledge of the KGB. He found it

“inevitable” that Ms. Koval “immediately” had been in

“serious trouble” for adopting the Mormon faith. A.R.516.

Shvets stated that the growing number of Ukraine citizens

joining other religious groups has become a grave threat to

the influence of the Orthodox Church. He explained that a

young intellectual, such as Ms. Koval, would have drawn

increased attention because she was considered capable of

spreading ideological views. According to Shvets, the KGB

believed that American religious missions were controlled

by the Central Intelligence Agency or the Federal Bureau of

Investigation. The Mormon Church still is perceived to have

close ties with the United States Government. Shvets

testified to his view that the nature of the SBU “essentially

has not changed since the collapse of the Soviet Union.”

A.R. 515-16.

Shvets further testified that he believed that Ms. Koval’s

fear of persecution should she return to Ukraine was “rea-

8 No. 04-3652

sonable and well founded” based on “her religious belief

and her defiant attitude towards the [SBU].” A.R.515. He

explained that the KGB’s failed attempt to recruit Ms. Koval

in order to reach American missionaries was a serious se-

curity lapse and possibly a political embarrassment because

it involved American missionaries. Shvets opined that, once

Ms. Koval left for the United States,

she crossed the point of no return. It is the worst night-

mare for the SBU. Now, they must be sure that she al-

ready has reported to the U.S. authorities about attempts

of the SBU, representing the friendly government of

Ukraine, to target American missionaries who pay taxes

to bring humanitarian aid to Ukraine. Potential ramifi-

cations of such revelations might be personally disas-

trous to those in the SBU who devised, conducted, and

authorized the operation. It represents a great personal

security risk for the applicant. I strongly believe the SBU

would pay dearly to get hold of her and silence her.

A.R.517. Shvets strongly believed that Ms. Koval’s “life

would be in danger should she return to Ukraine.” Id.

In Shvets’ view, Mr. Vagil faces a similar situation as a

Mormon, an intellectual and someone who knows of spe-

cific SBU activity against Mormons and American mission-

aries.

B. Administrative Proceedings

The IJ found Ms. Koval and Mr. Vagil to be credible. The

IJ admitted the testimony of Stonov. The IJ noted, however,

that Stonov had defined “persecution” to mean societal

discrimination that is not government-sponsored and the

refusal of permits for churches. The IJ excluded the testi-

mony of Shvets. Relying on Federal Rule of Evidence 702 for

No. 04-3652 9

guidance, the IJ determined that Shvets was not qualified as

an expert regarding the current treatment of Mormons in

Ukraine. Specifically, the IJ concluded that Shvet’s testi-

mony was not “based on sufficient facts or data,” insofar as

he had not traveled to Ukraine in about twelve years and he

was not working with issues related to Mormons in

Ukraine. A.R.44.

The IJ then concluded that, although Ms. Koval and

Mr. Vagil “suffered hardship and harassment, they did not

suffer persecution.” A.R.48. The IJ relied on the fact that

they had been able to practice their Mormon faith and that

neither was arrested, detained or physically assaulted in

Ukraine. Also, the IJ took the view that Ms. Koval’s inability

to pursue her Ph.D. and her difficulty in obtaining work in

her field did not amount to severe economic deprivation.

With respect to Mr. Vagil, the IJ concluded that no evidence

reflected that the KGB had followed through on its threat to

ruin his health and career. Finally, the IJ gave sizeable

weight to Ms. Koval and Mr. Vagil’s ability to obtain valid

passports and visas to the United States, which undermined

any notion of “strict government control.” Id.

With respect to the well-founded fear of persecution

standard, the IJ concluded that, on the basis of the country

reports prepared by the United States Department of State

and other documentary evidence, “there is harassment and

bureaucratic delays with non-native religions, but generally

there is not severe mistreatment or persecution.” A.R.50. The

IJ again noted that Ms. Koval and Mr. Vagil had been able

to obtain valid passports and visas to leave Ukraine. In ad-

dition, the IJ decided that, although soon after Ms. Koval

and Mr. Vagil fled the country their parents were interro-

gated, nothing indicated that this harassment had contin-

ued.

10 No. 04-3652

The BIA affirmed the IJ’s decision without opinion.

II

ANALYSIS

A. Standard of Review

“Where, as here, the BIA summarily affirms, we review

the immigration judge’s opinion as if it were that of the

BIA.” Huang v. Gonzales, 403 F.3d 945, 948 (7th Cir. 2005).

We limit our review to determining if the IJ’s decision is

supported by substantial evidence. Kharkhan v. Ashcroft, 336

F.3d 601, 604 (7th Cir. 2003). We shall uphold the IJ’s asylum

eligibility finding as long as it is “ ‘supported by reasonable,

substantial, and probative evidence on the record consid-

ered as a whole.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992)).

B. Asylum

Ms. Koval and Mr. Vagil challenge the IJ’s denial of

asylum on three grounds: (1) that past persecution was

established based on Ms. Koval’s economic deprivation; (2)

that a well-founded fear of future persecution was estab-

lished on the fact that Mr. Vagil faces imprisonment in

Ukraine if returned and that Ms. Koval faces severe mis-

treatment through “crushing, economic pressure”; and (3)

that the IJ erroneously excluded the testimony of Shvets.

1

Appellants’ Br. at 29-30. Section 208(a) of the Immigration

1

The Immigration Judge also held that Ms. Koval’s and

Mr. Vagil’s failure to show a well-founded fear of persecution

meant that they could not meet the more stringent standard of a

(continued...)

No. 04-3652 11

and Nationality Act (“INA”), 8 U.S.C. § 1158(b), grants the

Attorney General broad discretion to grant asylum to an

applicant who qualifies as a refugee. A refugee is defined as

“any person who is outside any country of such person’s

nationality . . . and who is unable or unwilling to return

to . . . that country because of persecution or a well-founded

fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1101(a)(42)(A).

A showing of past persecution creates a presumption that

the applicant has a well-founded fear of persecution and

therefore should be granted asylum. See 8 C.F.R.

§ 208.13(b)(1); see Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th

Cir. 2004). This presumption is rebutted, however, if the

Government shows by a preponderance of the evidence that

fundamental changes in the conditions in the applicant’s

country of nationality have occurred such that he no longer

has a well-founded fear of being persecuted if returned. 8

C.F.R. § 208.13(b)(1)(i)(A); see Capric, 355 F.3d at 1084. The

presumption of a well-founded fear of persecution also can

be overcome by a preponderance of the evidence showing

that the applicant could avoid persecution by relocating to

another part of his home country and that it would be

reasonable to expect him to so relocate. 8 C.F.R.

§ 208.13(b)(1)(i)(B); see Capric, 355 F.3d at 1084.

(...continued)

clear probability of persecution, as required for withholding of

removal under 8 U.S.C. § 1231(b)(3) or under the United Nations

Convention Against Torture and Other Forms of Cruel, Inhuman

or Degrading Treatment or Punishment, 8 C.F.R. § 208.13(c)(1).

Ms. Koval and Mr. Vagil do not challenge this determination on

appeal. We shall therefore confine our review to the IJ’s decision

regarding asylum.

12 No. 04-3652

Alternatively, even if the applicant was not subjected

to past persecution, he may put forward evidence that he

possesses a genuine fear of enduring persecution if returned

to his country of origin and that a reasonable person would

fear persecution if returned to that country. 8 C.F.R.

§ 208.13(b)(2); Capric, 355 F.3d at 1085. The objective com-

ponent of the well-founded fear standard requires the asy-

lum applicant to show: (1) that a reasonable possibility exists

that he “would be singled out individually for persecution”;

or (2) that there is “a pattern or practice of persecution of an

identifiable group,” to which the applicant establishes he

belongs, such that his fear is reasonable. Capric, 355 F.3d at

1085 (citing 8 C.F.R. § 208.13(b)(2)).

1. Past Persecution

Ms. Koval submits that the level of economic treatment

she suffered, on account of her membership in the Mormon

Church, before leaving Ukraine amounted to past persecu-

tion. Although the INA does not define “persecution,” this

court repeatedly has explained that the conduct “need not

necessarily threaten the petitioner’s life or freedom,” but

must “rise above the level of mere ‘harassment.’ ” Borca v.

INS, 77 F.3d 210, 214 (7th Cir. 1996); see Naveed Ahmed Sahi

v. Gonzales, No. 04-2828, 2005 WL 1713417, at *1 (7th Cir.

July 25, 2005). Actions that might constitute persecution

include “detention, arrest, interrogation, prosecution, im-

prisonment, illegal searches, confiscation of property, sur-

veillance, beatings or torture,” Begzatowski v. INS, 278 F.3d

665, 669 (7th Cir. 2002) (internal quotation marks and

citation omitted), or threats of such action, Capric, 355 F.3d

at 1084.

Economic hardship also is a “form of persecution and

independent ground for asylum.” Id. at 1092. The IJ con-

cluded that the economic difficulties experienced by

No. 04-3652 13

Ms. Koval were not sufficiently severe to constitute persecu-

tion:

[Ms. Koval’s] testimony that she was refused entrance

to the Ph.D. program for failing to provide the KGB

with information also does not rise to the level of past

persecution. Both she and her husband completed

higher educations and maintained employment in

Ukraine. Although [Ms. Koval] testified that she had

difficulty finding a job after graduating with her M.A.,

she did not suffer severe economic deprivation. Cf.

Matter of Acosta, 19 I&N Dec. 211, 222 (BIA 1985) (rec-

ognizing that “economic deprivation or restrictions so

severe that they constitute a threat to an individual’s life

or freedom” may constitute persecution), overruled on

other grounds by Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987).

A.R.48. Ms. Koval contends that the IJ erred as a matter of

law by requiring her to show that the economic mistreat-

2

ment amounted to a threat to her life or freedom.

We agree that the IJ held Ms. Koval to an impermissibly

2

The Government suggests that the IJ did not apply a standard

that the economic deprivation must have threatened Ms. Koval’s

life or freedom, because, in citing to In re Acosta, 19 I. & N. Dec.

211 (BIA 1985), the IJ used the introductory signal “cf.”

Appellee’s Br. at 32. It is true that “cf.” ordinarily indicates that

the “[c]ited authority supports a proposition different from the

main proposition but sufficiently analogous to lend support.” The

Bluebook: A Uniform System of Citation R. 1.2(a), at 47 (Colum-

bia Law Review Ass’n et al. eds., 18th ed. 2005). However, Acosta

is the only source of authority cited by the IJ. The only reasonable

inference is that the IJ relied on Acosta, and the standard articu-

lated therein, in assessing whether Ms. Koval’s economic

disadvantage rose to the level of persecution.

14 No. 04-3652

high standard for establishing persecution. Although the

conduct in question must rise to more than “harassment” or

“generalized conditions of hardship which affect entire

populations,” Capric, 355 F.3d at 1084, it “need not necessar-

ily threaten the petitioner’s life or freedom,” Borca, 77 F.3d

at 214 (internal quotation marks and citation omitted); see

also Bace v. Ashcroft, 352 F.3d 1133, 1138 (7th Cir. 2003)

(stating that persecution includes “actions less severe than

threats to life or freedom” (internal quotation marks and ci-

tation omitted)). More specifically, this court has established

that, to demonstrate economic persecution, an applicant

does not need to show a “total deprivation of livelihood” on

account of his protected status. See Borca, 77 F.3d at 216.

Rather, a showing of a “probability of deliberate imposition

of substantial economic disadvantage” can be sufficient. Id.

In Borca, for example, we noted that, upon remand to the

BIA, the asylum applicant might be able to establish pers-

ecution because she was fired from her position as a

radiologist and was barred from government employment,

except possibly as a farm laborer. Id. at 215-17; cf. Capric, 355

F.3d at 1092-93 (deciding that loss of job and apartment

based on religion and ethnicity was not economic persecu-

tion when government had provided the applicant eight

months to find a new residence, his wife had remained

employed, applicant had not attempted to find other work

and the regional economic conditions in general were

harsh).

On remand, consideration of the evidence under the ap-

propriate standard might compel a finding that Ms. Koval

suffered economic persecution on account of her religion

and membership in the Mormon Church. Specifically, the

government prevented her from continuing her education

in the Ph.D. physics program, denied her permission to live

in Kiev and reduced her to working in menial jobs that

required no education, training or acuity. Ms. Koval was

No. 04-3652 15

denied employment in her chosen field or indeed in any

allied field. Certainly, Ms. Koval’s advanced education

would have been of some greater use than taking tickets.

The difficulties experienced by Ms. Koval particularly are

troubling when the record is considered as a whole—the

discrimination she experienced, the mistreatment faced by

Mr. Vagil, her father’s death shortly after she fled to the

United States, and the corroborating testimony about the

past and current treatment of Mormons in Ukraine.

2. Fear of Persecution if Returned to Ukraine

Ms. Koval and Mr. Vagil also expressed fear that they will

face persecution in Ukraine on account of their membership

in the Mormon Church. Evaluation of this contention

presented the IJ with several challenges that we believe

required significantly more attention, and circumspection,

than they received if the petitioners were to have had a fair

hearing. First, the petitoners’ claim required the IJ to assess

the infringement of religious liberty in the former

Soviet Union states. Evaluation of this issue requires that the

IJ consider the complex relationship among civil authorities,

the Russian Orthodox Church and non-native religions,

especially those perceived to have connections, historical or

contemporary, with the United States. The record contains

significant evidence that Mormons are considered to be

adherents to an “American religion” and therefore are

considered to pose an especially potent threat to the estab-

lished order. The effect of this perception on the fate of the

petitioners, should they be required to return to that

country, must be evaluated with great care. This particular

human rights situation is a relatively new one, and judges

have a particular obligation to base their judgments only on

factual predicates that are developed fully and carefully as

circumstances permit. It is especially important, in such a

16 No. 04-3652

context, that an IJ take special care to ensure that both parties

have an ample opportunity to present as comprehensive a

picture as possible of the circumstances that precipitated the

petitioners’ departure and that are likely to greet them.

We have serious reservations as to whether the record in

this particular case was developed and evaluated with a

sufficient appreciation of these concerns, especially the need

for even-handedness in evaluating evidentiary submissions.

In making his determination with respect to whether the

petitioners manifested a well-founded fear of persecution,

the IJ refused to consider, as a matter of law, the testimony

of Shvets because he deemed it to lack an adequate factual

predicate. The IJ then proceeded to hold that Ms. Koval and

Mr. Vagil had no valid claim of future persecution, the issue

to which Shvets’ testimony spoke directly. The IJ based his

conclusion substantially on the State Department country

reports that, in his view, did not indicate severe mistreat-

ment of Mormons in Ukraine.

We have noted that immigration courts “reasonably may

rely upon the State Department’s assessment of current

country conditions as they relate to the likelihood of future

persecution, given the Department’s expertise in interna-

tional affairs.” Toptchev v. INS, 295 F.3d 714, 722 (7th Cir.

2002); see Vaduva v. INS, 131 F.3d 689, 691 (7th Cir. 1997).

We also have made clear, however, our concern regarding

“the immigration service’s chronic over reliance on such

reports.” Niam v. Aschroft, 354 F.3d 652, 658 (7th Cir. 2004);

see, e.g., Bace, 352 F.3d at 1139; Galina v. INS, 213 F.3d 955,

959 (7th Cir. 2000). Our concern has been shared by our

sister circuits. One of those circuits has cautioned that “the

determination of whether or not a particular applicant’s fear

is rebutted by general country conditions information

requires an individualized analysis that focuses on the spe-

cific harm suffered and the relationship to it of the particu-

No. 04-3652 17

lar information contained in the relevant country reports.”

Chand v. INS, 222 F.3d 1066, 1079 (9th Cir. 2000); see also

Krastev v. INS, 292 F.3d 1268, 1277 (10th Cir. 2002) (stating

that reliance on a country report “does not substitute for an

analysis of the facts of each applicant’s individual circum-

stances” (internal quotation marks and citation omitted)).

One particular shortcoming of the country reports is of

special concern in the situation we face in this case. State

Department country reports are anonymous in their author-

ship. Decision-makers in the asylum determination process

do not know the identity of the author, the credentials of the

individuals who assemble the reports, or the trustworthi-

ness of the evidence upon which the assessments contained

in these reports are based. Indeed, these reports have a

certain ipse dixit quality to them. As we have noted previ-

ously, the country reports are prepared in general terms and

offer more of a statement on the relationship of the United

States Government to that country than an account of

individual circumstances. See, e.g., Galina, 213 F.3d at 959

(noting that country reports are “brief and general, and may

fail to identify specific, perhaps local, dangers to particular,

perhaps obscure, individuals”); El Moraghy v. Ashcroft, 331

F.3d 195, 204 (1st Cir. 2003) (noting that country reports

should be used for purposes of providing “context and

generalized credibility assessment”). Moreover, the asylum

applicant certainly has no realistic opportunity to verify the

truth of the assertions contained in these reports through

cross-examination or otherwise. Diallo v. Ashcroft, 381 F.3d

687 (7th Cir. 2004) (stating concern that country reports have

“potential for bias” and that asylum-seekers are unable to

question the conclusions contained therein); Niam, 354 F.3d

at 658 (noting that, because the authors of the country

reports are anonymous, the asylum applicant effectively is

denied the right of cross-examination). If we are to continue

18 No. 04-3652

3

to allow reliance on such evidence, basic fairness requires

that the IJ keep in mind both the practical limitations of

these reports and the practical limitations on asylum

applicants to present other expert testimony and other

evidence to rebut the ipse dixit assertions of the reports.

“Asylum applicants are entitled to respond to claims of

changed country conditions.” Gailius v. INS, 147 F.3d 34, 45

(1st Cir. 1998). That opportunity must be a realistic one.

In this case, although Shvets had not been to Ukraine in

about twelve years, he testified that he had contacts with

recently retired agents of the KGB and that, because of his

background and continued contacts, he understood the

dynamics of the religious situation in Ukraine. Shvets also

testified that he serves as a consultant to the United States

Government with respect to security and intelligence issues

in Russia and Ukraine. With this background, Shvets

certainly had information that was relevant to the determi-

nation that the IJ had to make, and we can see no basis for

refusing to admit it while not only admitting, but relying so

heavily on, the State Department’s anonymous country

reports. Notably, Shvets was able to offer significant in-

formation on the Ukraine intelligence office, its attitude

towards Mormons and how its agents were likely to treat an

individual who had rebuffed their solicitations to become

involved in counterintelligence. According to the testimony

of Ms. Koval, which the IJ found credible, the Ukrainian

3

This court has indicated that, although the Federal Rules of

Evidence do not apply to administrative agencies, “the spirit

of” the Supreme Court’s decision in Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), which sets forth the rules

for qualifying an expert witness in federal trials, “does apply to

administrative proceedings.” Niam v. Aschroft, 354 F.3d 652, 660

(7th Cir. 2004).

No. 04-3652 19

officers had attempted but had failed to enlist her assistance

in infiltrating the Mormon Church, a church they regarded

as a tool of American intelligence agencies. Notably, even

the country report admits to some exceptions to its general

assertion that conditions for non-native religions in former

4

Soviet Bloc countries are improving. Ms. Koval and Mr.

Vagil credibly testified to such a situation, but the IJ refused

to permit them to develop the point with testimony that was

clearly relevant. According to the Profile of Asylum Claims

and Country Conditions for Ukraine, although the Ukrai-

nian Government

does not discriminate against, or take measures against,

individual believers on the basis of their faith, Evangeli-

cal Christian missionaries reported some instances of

societal discrimination against members of their

churches, such as salary cuts, layoffs, and public criti-

cism for betraying “native religions.” Asylum appli-

cants frequently describe physical violence directed

against them by nationalist or other groups, but we

have no reporting to indicate that such behavior is

widespread or systematic.

A.R.401. Shvets’ testimony, had it been considered, would

have placed that broad statement in a very different light

than the one in which it was placed by the IJ. He would

have testified that, in essence, the SBU had both the incli-

nation and the resources to make life difficult and danger-

ous for Ms. Koval and Mr. Vagil. The exclusion of his

testimony was improper; it prevented the petitioners from

showing that the broad assertions of the country report

4

The 2002 Country Report focuses largely on some bureaucratic

difficulties that non-native religions had faced in obtaining plots

of land for building churches and some instances of restricted

church activity, unrelated to individuals.

20 No. 04-3652

were indeed subject to qualification—a qualification that

might well have made a difference in this case.

Conclusion

For all of the foregoing reasons, we grant the petition for

review. The judgment of the BIA is reversed. The case is

remanded for proceedings consistent with this opinion.

REVERSED and REMANDED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-16-05