USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 97-2283
IRMANTAS GAILIUS,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Stahl, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lynch, Circuit Judge.
____________________
Harvey Kaplan, with whom Maureen O'Sullivan, Jeremiah
Friedman, Kaplan, O'Sullivan & Friedman, LLP, Herbert Epsteinand International Institute of Boston were on brief, for
petitioner.
Timothy P. McIlmail, with whom Frank W. Hunger,
Assistant Attorney General, Civil Division, Norah Ascoli
Schwarz, Senior Litigation Counsel, and Francesco Isgro, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, United States Department of Justice, were on brief,
for respondent.
____________________
June 23, 1998
____________________
LYNCH, Circuit Judge. Irmantas Gailius petitions for
relief from the denial of his claims for asylum and withholding
of deportation. Gailius fled his native Lithuania in 1990,
when that country was part of the Soviet Union, because he
feared the Soviet authorities would persecute him for his
activities in support of democracy and Lithuanian independence.
Lithuania became independent and has held two elections that
international observers have certified as free and fair.
Largely on the basis of these dramatic changed country
conditions, as confirmed in State Department opinion letters,
the Immigration Judge (IJ) denied Gailius' claims, and the
Board of Immigration Appeals (BIA) affirmed.
Gailius, however, put evidence in the record to show
that the former Communist Party has been restored to power in
Lithuania through electoral means, that some former Communists
have engaged in violent reprisals against those who took part
in Lithuania's democracy movement, and that numerous specific
threats have been directed against him. Gailius submitted into
evidence threatening letters, which he said were sent to his
family, warning that he would be murdered if he returned to
Lithuania. He also provided expert testimony casting doubt on
the State Department's positive view of the current regime in
Lithuania.
It is well established that general changes in
country conditions do not render an applicant ineligible for
asylum when, despite those general changes, there is a specific
danger to the applicant. See, e.g., Fergiste v. INS, 138 F.3d
14, 19 (1st Cir. 1998). Therefore, the authenticity of
Gailius' physical evidence and the credibility of the account
of threats against him is a central issue in his case. But the
IJ did not make findings concerning the truthfulness of
Gailius' testimony about these threats or the authenticity of
the threatening letters, and did not offer any adequate
explanation for why these threats, if they had occurred, would
not cause a reasonable person to fear persecution.
In the absence of such findings, coherent review of
the agency decision, which we are required by statute to
perform, is impossible. Accordingly, we vacate the BIA's order
and remand the case for further proceedings consistent with
this opinion.
I. We summarize the evidence that Gailius presented to
the agency, and then describe the agency's assessment of that
evidence.
Irmantas Gailius was born in 1971 in what was then
the Soviet Socialist Republic of Lithuania, U.S.S.R. In 1987,
Gailius entered Vilnius Civil Engineering Institute, the
university where his father Albinas taught. Gailius soon
became active in a variety of political activities opposing the
Soviet regime. In the spring of 1988, Gailius helped to
organize a student chapter of the Lithuanian Freedom League,
then an underground movement, and served as an officer. He
wrote and signed political articles for outlawed newspapers
urging democracy and independence and organized political
rallies and demonstrations. In October 1988, Gailius served in
a security detail guarding a meeting of the Sajudis Congress,
the organization that eventually secured Lithuania's
independence and whose leader oversaw the adoption of
Lithuania's current democratic constitution. Gailius submitted
into the administrative record a photo identification card
noting his status as a student security guard for Sajudis.
Gailius was also a member of the Lithuanian National
Youth Union "Young Lithuania", which encouraged Lithuanian
youth to resist the Soviet draft as a protest against the
Soviet military's presence in Lithuania. Gailius publicly
refused to cooperate with the draft and demanded that the
Soviet army leave Lithuania. In November 1989, he lay in front
of oncoming tanks with other "Young Lithuania" activists in a
Red Army parade, was arrested, and spent a twenty-four hour
period under intense KGB interrogation. During that
interrogation, the KGB threatened to have him expelled from the
university (thus subjecting him to the draft) and to have his
father Albinas Gailius fired.
In February 1990, Irmantas Gailius signed a letter,
put into evidence, refusing conscription into the Soviet
military. He sent the letter and his military passport to
Soviet authorities. That same month, Gailius helped organize
and spoke at a demonstration protesting the visit of a Soviet
minister to the university. Gailius and other students posted
placards -- demanding independence and the withdrawal of the
Red Army from Lithuania -- at the hall in which the minister
was speaking. The placards were removed. Gailius attempted to
give a note to the minister containing the students' demands,
which university faculty intercepted.
In March 1990, the first free elections since World
War II were held in Lithuania. The Sajudis movement, headed by
Vytautas Landsbergis, won the elections, and the Lithuanian
Parliament voted in favor of independence. The Soviet Union
responded by surrounding the Lithuanian Parliament Building
with tanks and by imposing an economic embargo on Lithuania.
Gailius helped build barricades around the Lithuanian
Parliament Building to protect the legislators from Soviet
troops. In May 1990, Gailius joined the outlawed volunteer
army formed by Sajudis.
Because of his role in the February 1990 protest, the
university faculty voted to expel Gailius at the end of the
academic year in June. That order expelling him and other
students "because of their participation in antigovernment
demonstration[s] and [for] using slanderous slogans against the
[Soviet] Deputies" was put into evidence. Having lost his
status as a student, Gailius became subject to the draft.
Gailius feared that he would be drafted into the
Soviet army and placed into a special "punishment unit" for
political dissidents, where he would be brutalized. He decided
to leave Lithuania for a time. He spent the next few months in
Poland, Czechoslovakia, East Germany and West Germany, until he
could travel to the United States. In October 1990, he
received a draft notice from the Soviet authorities. Gailius
obtained a visitor's visa and purchased a round-trip ticket to
Washington, D.C., for a flight in November, intending to stay
with relatives.
In January 1991, Soviet authorities attempted to
overthrow the elected government of Lithuania, and Soviet armed
forces attempted to take control of the central television
tower in Vilnius, killing several civilians. The attempt
failed. The Soviet Union continued the economic embargo and
refused to accept Lithuania's independence. Gailius, in this
country, applied for asylum.
In July 1991, while Gailius was awaiting his asylum
interview, he spoke with his family in Lithuania and learned
that his sister Ingrida, a public school teacher, had been
taken into KGB custody for four hours and interrogated
concerning Gailius' whereabouts. The KGB officials told
Ingrida that if Gailius did not return soon, and face induction
into the military, his family would never see him again.
In August 1991, the Soviet Union's disintegration
accelerated with the failure of a coup attempt in Moscow
against President Gorbachev. The Soviet Union recognized
Lithuania's independence and ended its economic embargo. At
the end of the year, the Soviet Union itself passed into
history.
After Lithuania became independent, there was,
however, considerable evidence that threats personal to Gailius
occurred. That evidence was of a variety of threats against
Gailius and his family after December 1991. Gailius learned of
these threats from telephone conversations with his father and
from documents (including the threatening letters) that his
father mailed to him (either from outside Lithuania or hand-
delivered to him through friends sympathetic to the Lithuanian
democracy movement). It is primarily this evidence which forms
the basis of Gailius' claim that, despite the dramatic overall
changes in Lithuania, there is still a specific threat of
persecution against him.
After Lithuanian independence, on the night of March
12, 1992, while Gailius' parents were sleeping, a flaming
Molotov cocktail was thrown into their bedroom and another into
their living room. Gailius' parents called the police. After
the police learned whose apartment it was, they advised
Gailius' parents not to call the fire department. The next
morning, the police arrived in civilian clothes and warned
Gailius' parents not to mention the incident to anyone.
On April 7, 1992, Gailius' sister Ingrida was fired
from her job as a public school teacher. The director of the
school told her that she was being fired because she had a
troublemaking brother in the United States who had demonstrated
against the government in Lithuania, and that she could look to
him for financial support.
On June 21, 1992, the local public prosecutor
interrogated Gailius' father Albinas concerning Gailius'
whereabouts and when Gailius intended to return to Lithuania.
The prosecutor threatened Albinas that his life would become
very difficult if he did not cooperate and help the authorities
by persuading his son to return. On July 13, 1992, Albinas was
fired from his post as a university professor. The reason
given in the firing notice was that he had "improperly" raised
his son. A copy of that notice was placed into the record.
On July 21, 1992, the Gailius family received the
first of at least nineteen threatening letters directed against
Irmantas Gailius. These were sent to his family over a two-
year period. Each was eventually sent to Gailius and placed
into evidence. The first letter was addressed to "Irmantas"
and stated, "Just as our grandparents fought in 1940 for the
establishment of the Soviet system in Lithuania, so we are now
determined to catch people like you. There were victims then
and there will be now." The letter was signed "Komsomol." The
Komsomol is the Communist Party youth organization. Gailius
had fought with members of that organization in his days at the
university. The next day, three well-dressed men came to the
Gailius family apartment and demanded to see Irmantas Gailius.
Gailius' mother sent them away, saying she did not know where
he was.
On August 1, 1992, the Gailius family received
another threatening letter demanding that Gailius "come forward
show up [sic] and answer for your slander against the Soviet
government and its officials." The letter was signed
"Initiative group for the re-establishment of the Soviet
regime." Id. The same three men who had appeared in July
arrived again at the Gailius apartment on August 6, 1992, again
demanding to know where Irmantas Gailius was, and were again
sent away.
On August 26, 1992, while Gailius' parents were out,
the apartment was vandalized and a fire was set; Gailius'
parents were able to extinguish the fire. On the front door,
one of the perpetrators wrote, "We came looking for Irmantas."
Irmantas Gailius' father Albinas decided not to call the
police, believing the vandals were in complicity with the
authorities. On September 6, 1992, Gailius learned from his
father that his friend and colleague in the movement for
Lithuania's independence, Robertas Gunevicius, had been
murdered. Painted on his body were the words: "You shall not
overcome." After the murder, Albinas Gailius received an
anonymous letter composed of letters cut from a newspaper,
stating "ROBERTAS GUNEVICIUS - 1 / IRMANTAS GAILIUS - NEXT."
In October 1992, elections were held in Lithuania
and, to the surprise of many observers, the former Communists
won. That election was Lithuania's first as an independent
nation. After the victory of the former Communists, the
threats against Gailius and the harassment of his family
continued and intensified. A letter sent to the Gailius family
dated November 27, 1992, one month after the former Communists
were reelected, states "IRAMANTAS . . . YOU WILL BE DESTROYED
. . . YOUR TIME (1989-1990) IS GONE." Another states,
"IRMANTAS GAILIUS, TO ALL . . . YOUNG LITHUANIANS [i.e.,
members of the pro-independence group] INCLUDING YOU -- THE
END!" Another states, "IRMANTAS, SAVE YOUR HIDE SOONER OR
LATER . . . THE RULE OF OUR ORGANIZATION -- DESTROY PHYSICALLYTHOSE WHO GO AGAINST OUR IDEOLOGY!"
This is a small sample; there are many similar
threatening letters in the record. Many are signed "Lithuanian
Youth Forum," which is the successor organization to the
Komsomol or Lenin Young Communist League. This frightened
Irmantas Gailius because he had previously experienced
harassment from this group in his days at the university. One
letter, addressed to Albinas Gailius, states:
Your son Irmantas protested against
the Party and the people who worked for
it. They have now been elected to
positions of authority. For this reason
your son must answer to us for all his
past actions. We are suggesting that you
think very seriously and without delay
convince your son to appear before us.
Sooner or later, we will get him out of
America. Do not force us to take drastic
measures. Do not risk your life.
Lithuanian Youth Forum
There is evidence the Gailius family continued to
experience other threats and harassment. In December 1992,
Albinas Gailius, now unemployed, received a telephone call from
the prosecutor who had him fired. The prosecutor asked Albinas
if he had changed his mind about persuading Irmantas to return
and whether he had enough problems. Soon afterwards, the
Gailius family decided to leave Vilnius to escape further
harassment. They went to stay with Irmantas Gailius'
grandparents in Kaunas, Lithuania, a town outside the capital.
On April 10 or 11, 1993, the Gailius apartment in
Vilnius was again broken into and vandalized. At around that
time, Gailius' sister Ingrida was accosted on the streets while
in Vilnius by an unknown man. That man demanded to know why
the Gailius family had not responded to the threatening
letters, reminded Ingrida that she had children, and threatened
her and the rest of the family with death unless Gailius
returned to Lithuania.
On August 9, 1993, the police came to Gailius'
grandparents' house in Kaunas to inform Gailius' parents and
sister that they could could not live there because they did
not have residence permits for that address. One week later,
Gailius' sister Ingrida received a threatening telephone call
while visiting a friend in Vilnius; the caller told her to
watch her children and that living in Kaunas would not protect
them. Gailius' father Albinas looked for work abroad, hoping
to move his family from Vilnius to escape the threatened
reprisals.
II. On February 21, 1991, months before the expiration of
his visitor's visa, Gailius filed an asylum application pro se,
basing it on his fear of persecution because of his political
views. Gailius' first asylum application was based on his fear
of persecution from the Soviet military, which continued to
occupy Lithuania, not from the civilian authorities, which at
that time supported his views. From March 1990 until October
1992, Sajudis held a majority in parliament and Landsbergis
headed the government. Gailius did not allege that he feared
any extra-governmental group. At the time he filed his first
application, Gailius and his family had not yet experienced any
personal threats. Gailius' primary fear at this time was that
if he were to go back to Lithuania, "I would be arrested
because I refused to go to [sic] the Soviet occupation army,"
and also that he would continue to be associated with the
volunteer Lithuanian independence army which was then
considered illegal by the Soviet military.
An Asylum Officer (AO) interviewed Gailius on August
1, 1991. The AO referred Gailius' case to the State Department
for an opinion on how the disintegration of the Soviet Union
affected Gailius' asylum claims. In an opinion dated December
4, 1991, the State Department responded: "The Soviet Union and
the Soviet Army no longer have any authority within the
territorial confines of Lithuania. We do not find any reason
to believe that the applicant would be harassed or mistreated
if he returned to his native country."
In an opinion dated May 26, 1992, which Gailius says
he did not receive, the AO explained that the INS intended to
deny Gailius' request for political asylum. The opinion
summarized the facts as Gailius had described them (including
the July 1991 interrogation of his sister, but none of the
threats that Gailius had experienced after that incident) and
accepted that Gailius was telling the truth. The AO noted, "In
your interview with the asylum officer you related the facts in
a credible manner. There appears to be no reason to doubt that
these incidents occurred in the way you described them." The
AO nevertheless explained that the INS intended to deny Gailius
asylum on the ground that "[t]he Government of the USSR has the
right to require military service of its citizens, and to
prosecute those who do not comply with its military service
laws." Therefore, the AO reasoned, Gailius' fear of the draft
could only support an asylum claim if the draft were used to
punish him for his political views. Noting that Lithuania had
become independent and enacted laws designed to protect against
such persecution and that the Soviet army no longer had any
authority in Lithuania, the AO regarded the risk of such
punishment as minimal and stated that the INS intended to deny
his asylum application. Gailius' new evidence of personal
threats that had occurred after his asylum interview in August
1991 was not considered as part of his first asylum
application.
Gailius' asylum application was officially denied and
he was served with an Order to Show Cause initiating
deportation proceedings on the ground that his visitor's visa
had expired. At a brief hearing on March 2, 1993, Gailius,
through counsel, conceded deportability and renewed his
application for asylum. Gailius submitted his second asylum
application on April 30, 1993. In this application, Gailius
claimed he would face serious harm, and possibly death, at the
hands of a group of former Communists who had threatened him in
retaliation for his political activities and which the
government was unable or unwilling to control. In support of
his claim, Gailius outlined the threats he and his family had
faced since his first asylum application had been filed.
The IJ again referred Gailius' case file to the State
Department for an advisory opinion concerning then current
country conditions in Lithuania. The record does not reveal
precisely what evidence of threats was given to the State
Department. In a June 7, 1993 opinion, the State Department
responded that Gailius' claims were at odds with its views of
country conditions, noting that "[t]he applicant . . .
initially expressed concern over retribution for his efforts on
behalf of Lithuanian independence, a goal lauded across the
entire political spectrum in Lithuania, including by the
communists." The State Department letter observed, "[s]ince
his departure Lithuanian independence has been strengthened de
facto as well as de jure." The State Department reasoned that
Gailius would not be a target of persecution because, in its
view, he was not a sufficiently prominent opponent of the
former Communists to warrant their attention.
The State Department opinion also questioned the
authenticity of the order dismissing Gailius' father from the
university. The letter said, "A rector, whatever his intent,
would not have issued such a document couched in unveiled and
personal terms." The State Department concluded that Gailius'
"original concern about induction into the then Soviet army is
totally bypassed by events." The letter stated that his
account of specific threats of reprisal for his earlier
political activities "does not comport with the national
consensus and cannot be considered plausible." Finally, the
letter concluded, "much in this case must devolve upon
[Gailius'] credibility. On the basis of the written record, we
must admit to being baffled and skeptical."
The State Department opinion letter did not account
for most of Gailius' specific evidence of threats of reprisals,
and did not comment at all on the threatening letters which
Gailius eventually placed into the record. It also made clear
that the Department was operating from generalized information:
These observations are based on our
analysis of country conditions and other
relevant factors, plus an evaluation of
the specific information provided in the
application. We do not have independent
information about this applicant.
Gailius was provided with a copy of the second State Department
opinion to allow him to submit evidence to rebut it.
A hearing was conducted before the IJ on January 26,
1994, and continued on June 23, 1994 and December 22, 1994.
Gailius testified that he was "very scared" upon hearing of the
threats and warnings contained in the letters, and the other
incidents. In addition to the documentary evidence, Gailius
submitted a sworn affidavit from his father Albinas. The
affidavit confirms Gailius' account of the threats the Gailius
family had received.
On cross-examination, the INS attorney asked Gailius
whether he still feared induction into the Soviet military, as
he had stated in his first asylum application. Gailius claimed
that he did, because he regarded the Lithuanian military, under
the current government, as closely aligned with the Russian
military. Gailius stated that he would have no objection to
serving in a military which was truly independent from Moscow's
influence. Gailius also claimed to fear the reincorporation of
Lithuania into Russia, noting the popularity in Russia of
ultra-nationalist politicians such as Vladimir Zhirinovsky.
Gailius presented three other witnesses, primarily to
rebut the State Department's opinion that changed country
conditions in Lithuania had rendered Gailius' fears of
persecution unfounded. The first witness, Rev. Albert Contons,
the rector of St. Peter Lithuanian Church in South Boston, has
been president of the Lithuanian Priests Legion for twenty
years. Contons' parish is composed primarily of ethnic
Lithuanians, and Contons speaks Lithuanian and travelled to
Lithuania on several occasions in 1991, 1992 and 1993. He
testified that the election of the former Communists to power
in Lithuania in 1992 was the result of enormous economic
pressure from Moscow. He also testified that many of the
people involved in the Soviet regime were still occupying
positions of authority in Lithuania, and that, under the
current regime, Soviet-minded officers continue to dominate the
military.
Gailius' second witness was Professor Olimpiad Ioffe,
a law professor at the University of Connecticut School of Law.
In 1980, Professor Ioffe had been fired from his position as a
law professor at Leningrad State University because he had
supported his daughter's decision to emigrate to the West. The
stated reason for his firing, like that of Gailius' father, was
that he had failed to give his child a proper upbringing.
Ioffe's testimony was offered primarily to rebut the State
Department's opinion questioning the authenticity of the order
dismissing Albinas on grounds that a Soviet university official
"would not have issued such a document couched in unveiled and
personal terms." Professor Ioffe stated that, to the contrary,
Soviet policy was to fire parents from their official positions
if their children defied the Soviet authorities and that this
policy was openly acknowledged in official documents.
Gailius' final witness was an expert on the
contemporary political situation in Lithuania, Lowry Wyman.
Wyman, a Russian area scholar and lawyer, had been a Fellow at
the Russian Research Center at Harvard University since 1988.
Wyman had published numerous articles on legal reform in
Lithuania and other former Soviet republics. At the time of
her testimony in 1994, Wyman was working on a contract with the
United States Agency for International Development (USAID) on
a project for strengthening the rule of law in the newly
independent nations of Central Asia. Wyman had worked in
Lithuania for several months in late 1990 and early 1991
directly for then President Landsbergis, the leader of the
Sajudis movement, and witnessed first-hand the Soviet Union's
attempt to depose President Landsbergis' government. She and
her husband had also drafted, at the request of President
Landsbergis, a model constitution for an independent Lithuania.
Wyman testified that she maintained close contact with former
colleagues and scholars in Lithuania and followed events in
Lithuania closely.
When questioned about current conditions in
Lithuania, Wyman testified that the former Communists had
engaged in "reprisal and intimidation" of those who backed the
Lithuanian independence movement. In Wyman's opinion, assuming
the threats to which Gailius testified had occurred, Gailus'
fears of intimidation, imprisonment and possible death if
forced to return to Lithuania were entirely plausible. She
testified that the State Department's account of conditions in
Lithuania under the former Communists, now elected to power,
"represented . . . wishful thinking" rather than "the actual
conditions of the country." Wyman testified that the
authorities in Lithuania have not come to respect ordinary
citizens' right to dissent from the prevailing government. She
added that, despite the existence of constitutional protections
in theory, ordinary officials did not respect these rights in
practice, particularly now that the former Communists had
regained power through electoral means. She rejected the State
Department's opinion that Gailius would be unlikely to face
such reprisals because he was insufficiently prominent. She
noted that, on the contrary, ordinary citizens who dissented
from the official view, not just prominent leaders, were often
the targets of official harassment by the authorities. Wyman
testified that the threats Gailius had outlined were,
unfortunately, still "quite typical" in Lithuanian political
culture, despite the formal abandonment of the Soviet system.
On December 22, 1994, the IJ determined that Gailius
was not eligible for asylum. The IJ relied heavily on the
State Department's second advisory opinion. She determined
that, while Gailius was "an earnest young man," his claimed
fears were not well founded. As to the threatening letters,
the IJ expressed some skepticism in that the threats had
appeared after the denial of Gailius' first asylum claim.
Nevertheless, she did not make any finding concerning their
authenticity; instead, she found these letters to be
insufficient to support Gailius' asylum claim because the
author was unknown and the threats could have been from a
person or group with a "personal vendetta" against the family.
The IJ also stated that she regarded Gailius' fears as
exaggerated, "at times leading to . . . paranoia," and that,
while he had been active in the protests against Soviet rule,
he overstated his importance in the Lithuanian independence
movement.
On October 9, 1997, the BIA affirmed the IJ's
decision "for the reasons set forth in the Immigration Judge's
decision." The BIA rejected Gailius' challenge to the IJ's
assessment of his testimony, and to the IJ's reliance on the
State Department's second advisory opinion.
Gailius filed a timely petition for review in this
court. Because Gailius challenges a deportation order made
final after October 31, 1996 in a case initiated prior to April
1, 1997, Gailius' case is governed by the "transitional rules"
for judicial review established by the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, Pub. L. No.
104-208, Div. C, 309, 110 Stat. 3009-546, 3009-625 to 627.
Therefore, this court has jurisdiction pursuant to former 106
of the Immigration and Nationality Act (INA). See Meguenine v.
INS, 139 F.3d 25, 26 (1st Cir. 1998).
III.
We review the BIA's determination that Gailius was
ineligible for asylum and withholding of deportation "to
determine if it is supported by 'substantial evidence.'" Id.at 27 (quoting Ipina v. INS, 868 F.2d 511, 513 (1st Cir.
1989)). We review the BIA's legal conclusions de novo, with
appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles. See id.
To establish a "well-founded fear of persecution,"
Gailius must establish that his claimed fear is genuine and
that it is objectively reasonable. See INS v. Cardoza-Fonseca,
480 U.S. 421, 430-31 (1987); Cordero-Trejo v. INS, 40 F.3d 482,
491 (1st Cir. 1994). Because both determinations depend
heavily on the credibility of the applicant and the applicant's
evidence, we have emphasized the need for clarity from the BIA
in assessing an asylum claimant's testimony. See Cordero-
Trejo, 40 F.3d at 491-92; see also Aguilera-Cota v. INS, 914
F.2d 1375, 1381 (9th Cir. 1990) (requiring a "rational and
supportable connection between the reasons cited and the
conclusion that the petitioner is not credible" in order to
facilitate review of the agency's determinations).
The need for clear administrative findings is
implicit in the statute under which we review the BIA's
decision. The statute requires that the agency's conclusions
be "supported by reasonable, substantial, and probative
evidence on the record considered as a whole . . . ." Old INA
106(a)(4), 8 U.S.C. 1105a(a)(4); see Fergiste, 138 F.3d at
17 (citing cases). Although our review is "deferential,"
Meguenine, 139 F.3d at 27, we have rejected the notion that the
INS is "a unique kind of administrative agency entitled to
extreme deference." Cordero-Trejo, 40 F.3d at 487 (internal
quotation marks and citation omitted). Rather, we apply
"normal principles of administrative law governing the role of
courts of appeals when reviewing agency decisions for
substantial evidence . . . ." Id.
Under those principles, "a reviewing court . . . must
judge the propriety of [administrative] action solely by the
grounds invoked by the agency," and "that basis must be set
forth with such clarity as to be understandable." SEC v.
Chenery Corp., 332 U.S. 194, 196 (1947); see generally I K.
Davis & R. Pierce, Administrative Law Treatise, 8.5 (3d ed.
1994) (explaining when agency must make findings and provide
reasons for its decisions). "[T]he agency's decision cannot be
supported on reasoning that the agency has not yet adopted."
Puerto Rico Sun Oil Co. v. EPA, 8 F.3d 73, 79 (1st Cir. 1993)
(citing Chenery, 332 U.S. at 196). No finding regarding the
letters' authenticity was made by the agency, and it is for the
agency, not the courts, to make findings of fact. Thus, the
INS may not seek to have the BIA opinion upheld on the grounds
that there was no reasonable fear of persecution because the
letters were not authentic; the agency simply has not ruled on
the authenticity issue, either implicitly or explicitly.
Nor may we simply ignore the evidence of the
threatening letters, and examine only the evidence that
supports the BIA's determination. The statute admonishes us to
conduct our review on the whole record, and we may not affirm
the BIA's decision "when [we] cannot conscientiously find that
the evidence supporting that decision is substantial, when
viewed in the light that the record in its entirety furnishes,
including the body of evidence opposed to the Board's view."
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); see
also Cordero-Trejo, 40 F.3d at 487 (applying Universal Camerastandard to review of BIA decision). Instead, we must review
the BIA's decision to determine if -- despite the failure to
make specific findings concerning the threats -- the agency
articulated other adequate reasons for denying Gailius' asylum
claim. We examine each reason in turn, and find each
deficient.
The IJ concluded that, even if these threats had
occurred as Gailius described them, a matter on which she did
not rule, Gailius was nevertheless ineligible for asylum
because "a reasonable person in his situation would [not]
necessarily have the same fear." We disagree. Gailius offered
specific testimony outlining a series of very serious threats
and corroborated that testimony with documents. If the threats
are real, and in the absence of some adequate reason to the
contrary, Gailius may well have had a well-founded fear that he
would suffer serious harm at the hands of the former Communists
in retaliation for his political activities and opinions.
In Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA
1987), the BIA outlined a four-part test for determining
whether an applicant has established a well-founded fear.
Under that test, an applicant must present evidence that
establishes that (1) he or she possesses a belief or
characteristic that a persecutor seeks to overcome in others
through some form of punishment, (2) that the persecutor is
aware, or could become aware, that the applicant possesses this
belief or characteristic, (3) that the persecutor has the
capability of punishing the applicant, and (4) that the
persecutor has the inclination to punish the applicant. Seeid. at 446-47 (citation omitted). Gailius presented ample
evidence, if accepted as credible, of specific facts that
satisfies all four elements of the Mogharrabi test.
The IJ noted that, even if the threats had occurred,
it was not apparent who was making the threats and how many
people were behind the threats. The agency's opinion may not
be upheld on that ground. We have rejected any requirement
that asylum applicants identify their persecutors when their
fear is of clandestine groups. See Cordero-Trejo, 40 F.3d at
488 (applicant's failure to identify "unknown armed men" or
"death squads" who threatened him was not a reasonable basis
for doubting his credibility). Persecutors "have [not] been
given adequate notice that our government expects them to sign
their names and reveal their individual identities when they
deliver threatening messages." Aguilera-Cota, 914 F.2d at
1380. The fact that the person or persons who authored the
threatening letters is not specifically identified does not
excuse the agency's failure to specifically rule on their
genuineness. In any event, the record shows that many of the
threatening messages were signed "Lithuanian Youth Forum," the
successor to the Communist Party's youth wing, an organization
with which Gailius had fought in his days at the university.
The IJ also concluded that Gailius' testimony was at
odds with country conditions as described in the State
Department opinions. Of course, asylum applicants are entitled
to respond to claims of changed country conditions. SeeGebremichael v. INS, 10 F.3d 28, 39 (1st Cir. 1993). Given the
evidence Gailius produced, the State Department's view of
country conditions alone does not provide a "rational and
supportable connection between the reasons cited and the
conclusion that the petitioner is not credible." Aguilera-
Cota, 914 F.2d at 1381. Unlike the vast majority of asylum
claimants, Gailius managed to provide corroboration for his
account of these threats and the harassment to his family by
offering the threatening letters themselves into evidence,
complete with certified translations, as well as his father's
sworn testimony.
Such corroborative evidence is not required to
establish an asylum claim; in many cases, the applicant's own
credible testimony is sufficient to support eligibility for
asylum as long as it provides a basis for a well founded fear.
See 8 C.F.R. 208.13(a) (1997); Cordero-Trejo, 40 F.3d at 491.
This is because "refugees rarely are able to offer direct
corroboration of specific threats or specific incidents of
persecution." Turcios v. INS, 821 F.2d 1396, 1402 (9th Cir.
1987) (citation omitted). Therefore, in most asylum cases, the
credibility of the applicant's uncorroborated testimony is the
central issue. In determining credibility, the regulations
contemplate weighing the applicant's account of specific
incidents "in light of general conditions in the applicant's
country of nationality or last habitual residence" to determine
if the applicant's testimony is plausible. 8 C.F.R.
208.13(a) (1997); see Cordero-Trejo, 40 F.3d at 491.
In Gailius' case, however, there is a crucial
difference; his testimony did appear to be corroborated by
specific documentary evidence, including the threatening
letters. It was also corroborated by the affidavit of his
father. Therefore, to reject Gailius' testimony, the IJ must
do more than point to general conditions in Lithuania.
Instead, the IJ must also determine that the other evidence
Gailius produced in corroboration of his testimony is not
genuine, or, for some other adequate reason, not persuasive.
The agency essentially ignores this evidence. Cf. id. at 487
(BIA decision is "not supported by substantial evidence because
it ignores significant documentary evidence pertinent . . . to
the credibility of [the applicant's] claimed fear of
persecution"). The agency's reasoning -- that Gailius was
insufficiently prominent to have received threats -- is
inadequate. Cf. id. at 491 (finding that agency's reasons for
doubting applicant's credibility were inadequate and
"unreasonably eviscerate [applicant's] attempt to establish
both the objective and the subjective elements of his asylum
claim"). The BIA's suggestion that Gailius was not
sufficiently prominent to have a plausible fear of persecution
presupposes that the threatening letters he introduced were not
genuine -- a conclusion that the IJ declined to reach.
In rejecting Gailius' asylum claim, the IJ placed
heavy reliance on the State Department's second advisory
opinion. Given the evidence Gailius produced, that alone does
not excuse the agency's failure to rule on the threats. Even
as to general country conditions, "[t]he advice of the State
Department is not binding, either on the service or on the
courts . . . ." Gramatikov v. INS, 128 F.3d 619, 620 (7th Cir.
1997); cf. Gebremichael, 10 F.3d at 39 (holding that asylum
applicants must be given an opportunity to rebut the State
Department's view of country conditions). This is both because
it is the Attorney General, not the Secretary of State, whom
Congress has entrusted with the authority to grant asylum and
because "there is perennial concern that the [State] Department
softpedals human rights violations by countries that the United
States wants to have good relations with." Gramatikov, 128
F.3d at 620.
While the documentary evidence alone, if genuine,
could well cause us to question the conclusion that there is no
well-founded fear of persecution, Gailius presented more.
Gailius produced the testimony of Lowry Wyman, an expert
witness. The IJ acknowledged that her knowledge of Lithuania
and the situation in the former Soviet republics in general is
quite impressive. State Department opinions receive
considerable weight in the courts because of the State
Department's expertise. Gailius' expert also possessed a high
degree of expertise, including both academic credentials and
practical direct experience working in post-independence
Lithuania for President Landsbergis and elsewhere in the former
Soviet Union for USAID. This gives additional emphasis to why
the agency may not jump over the issue of the threats.
Finally, both the State Department opinion and the IJ
commented that Gailius' new evidence of threats to his family
surfaced only after the initial denial of his asylum claim. To
rely on this timing alone as a basis for ignoring Gailius'
testimony and other evidence is a non sequitur. Such reasoning
ignores the fact that the threats largely appeared beginning in
1992, at about the time the former Communists regained power
through electoral means. This is not a case where an applicant
for asylum materially changes his story by adding testimony
that he could have provided earlier, thus casting doubt on its
veracity. Gailius' account of the threats is entirely
consistent with his earlier claim for asylum based on his
political activities in 1989 and 1990 and his fear of
punishment for resisting the draft. Just as the INS may rely
on changes in country conditions to rebut an asylum claim, an
asylum applicant may submit evidence of new threats to his
safety that occur after applying for asylum and which support
his fears of persecution.
"In order for this court to conduct a proper
substantial evidence review of the BIA's decision, the Board's
opinion must state with sufficient particularity and clarity
the reasons for denial of asylum." Hartooni v. INS, 21 F.3d
336, 343 (9th Cir. 1994) (internal quotation marks and citation
omitted). For this court to review BIA decisions, the agency
must adequately explain why it does not find the evidence of
threats credible or persuasive and the relevant documents
authentic when that evidence goes to the heart of whether there
is a fear of future persecution. While the burden is on the
applicant to establish that he or she is eligible for asylum,
if the applicant produces testimony showing a pattern of
specific threats giving rise to a well-founded fear of
persecution, the IJ must, if he or she chooses to reject that
testimony as lacking credibility, offer a "specific, cogent
reason for [the IJ's] disbelief." Turcios, 821 F.2d at 1399
(citations and internal quotation marks omitted); see also II
Davis, supra, 11.2, at 189-90 (noting that an agency must
provide reasons for its disbelief of uncontradicted testimony
to facilitate judicial review). This is particularly so in the
rare case when an asylum applicant is able to produce
corroboration for his or her testimony.
Because "[b]oth the [IJ] and the Board failed to
address much of [Gailius'] evidence," Cordero-Trejo, 40 F.3d
at 492, and because the IJ did not make a determination of the
credibility and authenticity of Gailius' evidence of threats,
we remand for further consideration. This is the appropriate
remedy when a reviewing court cannot sustain the agency's
decision because it has failed to offer legally sufficient
reasons for its decision. See Pension Benefit Guar. Corp. v.
LTV Corp., 496 U.S. 633, 654 (1990) (noting that, in this
situation, "remanding to the agency is . . . the preferred
course" (citation omitted)); Osorio v. INS, 99 F.3d 928, 932-33
(9th Cir. 1996) (remanding to address an insufficiently
reasoned credibility determination against the applicant);
Brown v. HHS, 46 F.3d 102, 115 (1st Cir. 1995); Cordero-Trejo,
40 F.3d at 492. "At the same time, in all fairness, we apprise
the Board that we have grave doubts whether a reasonable fact-
finder making the full study this record calls for could deny
refugee status to [Gailius]." Cordero-Trejo, 40 F.3d at 492.
Whether Gailius ultimately should be granted asylum is, of
course, a matter for the agency's discretion.
The order of the BIA is vacated, and the case is
remanded to the BIA for further proceedings consistent with
this opinion.