                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3307

JONATHAN C ASTILHO DE O LIVEIRA,
                                                        Petitioner,
                               v.

E RIC H. H OLDER JR., Attorney General
of the United States,
                                                       Respondent.


              Petition for Review of an Order of the
                 Board of Immigration Appeals.
                         No. A97-336-968



        A RGUED JUNE 5, 2008—D ECIDED M AY 8, 2009




 Before P OSNER, K ANNE, and SYKES, Circuit Judges.
   S YKES, Circuit Judge. Jonathan Castilho de Oliveira, a
citizen of Brazil, sought asylum and withholding of
removal, claiming that Brazilian governmental and bank-
ing officials were involved in the assassination of his
father and are now intent on taking his life. An Immigra-
tion Judge (“IJ”) disbelieved Castilho de Oliveira’s story
and also held in the alternative that even if it were true,
it did not establish eligibility for asylum. The Board of
2                                               No. 07-3307

Immigration Appeals (“BIA”) adopted and affirmed that
decision, and Castilho de Oliveira petitioned this court
for review.
  Without commenting on the merits of Castilho de
Oliveira’s claim, we conclude that he did not receive a
fair hearing before a neutral immigration judge. The IJ
repeatedly interrupted the testimony to ask irrelevant
and sometimes inflammatory questions, refused to con-
sider important evidence, and decided the case without
seriously engaging with the evidence in the record.
Indeed, so troubling are some of these lapses that we are
left with the impression that the IJ “cared little about
the evidence and instead applied whatever rationale he
could muster to justify a predetermined outcome.” See
Bosede v. Mukasey, 512 F.3d 946, 952 (7th Cir. 2008). Accord-
ingly, we grant Castilho de Oliveira’s petition for
review, vacate the decision of the BIA, and remand for
a new hearing.


                      I. Background
  Jonathan Castilho de Oliveira, a 20-year-old native of
Brazil, sought asylum and withholding of removal after
entering the United States illegally through Mexico. At
his asylum hearing, he testified that corrupt govern-
mental and banking officials in Brazil were conspiring
to kill him because of his family ties, that the govern-
ment of Brazil was unwilling or unable to protect him,
and that he would be killed if he returned to Brazil.
  At the center of Castilho de Oliveira’s claim is an illegal
banking scheme organized to fund the campaigns of two
No. 07-3307                                                 3

corrupt politicians. Castilho de Oliveira’s father, a partici-
pant in the scheme, was murdered when Castilho de
Oliveira was only eight years old. The apparent motive
for the killing was that his father had threatened to
expose the scheme. He was found dead in his car, shot
in the head; the car was riddled with bullets, gangland-
style. Castilho de Oliveira’s family believes that the
politicians and banking officials involved in the scheme
ordered the hit to avoid the scandal and accountability
that might have flowed from exposure of their involve-
ment in public corruption.
  Castilho de Oliveira’s mother turned over incriminating
documents and audiotapes to a local prosecutor, who
began an investigation, but because the scheme involved
important political figures and bankers, local law-enforce-
ment officials dragged their feet.1 So Castilho de Oliveira’s
mother began to campaign for justice for her murdered
husband. Her activities enraged her husband’s former
accomplices and led to death threats against the family.
These threats form the basis of Castilho de Oliveira’s
asylum and withholding claims.
  Castilho de Oliveira testified that the harassment of his
family began with threatening phone calls but escalated



1
  Castilho de Oliveira testified that the hitman who actually
shot and killed his father was convicted and sentenced to a
lengthy prison term but served only two years. Accompli-
ces—the high-level banking and political officials involved
in the banking scheme (and also, according to Castilho
de Oliveira and his family, the murder)—continue to escape
responsibility.
4                                               No. 07-3307

into more ominous conduct. According to an affidavit
submitted by Castilho de Oliveira’s mother, she began
to notice strange men following her family everywhere,
sometimes pointing guns at her and Castilho de Oliveira,
and in one incident approaching the family’s home and
knocking on the door. The family went into hiding, moving
frequently. Castilho de Oliveira testified that because of
the threats he was, for much of his childhood, unable to
go outside to play. Although he attended school, he
switched schools frequently to prevent his location from
being discovered. The threats eventually diminished, and
Castilho de Oliveira and his family moved back to the
town where his father had been murdered. There, they
were temporarily able to live a more normal life. Eventu-
ally, though, the threats began anew, and Castilho de
Oliveira’s mother decided to take her children to the
United States.
  The United States was not as welcoming as she had
hoped. Castilho de Oliveira’s mother and sister were
only able to obtain tourist visas, and Castilho de Oliveira’s
application for a visa was denied altogether. His mother
decided to flee anyway, bringing her daughter to this
country (where they now apparently live on expired
visas), leaving Castilho de Oliveira in Brazil in the care
of an aunt. A cousin resumed the family’s quest for an
investigation into Castilho de Oliveira’s father’s murder.
  About two years after his mother and sister left, Castilho
de Oliveira again began to receive death threats from
one of the men involved in his father’s assassination.
Castilho de Oliveira testified that he initially encountered
No. 07-3307                                                 5

this man in an ice-cream store; the man repeatedly de-
manded to know where Castilho de Oliveira lived, where
his mother was, and where he went to school. Castilho de
Oliveira gave evasive responses, but the next day the man
phoned his aunt’s house, warning that Castilho de
Oliveira’s fate would be the same as his father’s. Fearing
that his life was in danger, Castilho de Oliveira fled to
the United States via Mexico but was detained at the
border.2 He then sought asylum and withholding of
removal.
  The claims were heard by Immigration Judge O. John
Brahos, who rejected Castilho de Oliveira’s account as
not credible. In the alternative, the IJ held that even if
Castilho de Oliveira’s story was true, it wasn’t sufficient
to meet the requirements for asylum. The BIA agreed, and
because it adopted and affirmed the IJ’s decision, adding
essentially no analysis of its own, we review the IJ’s
decision directly. Niam v. Ashcroft, 354 F.3d 652, 655-56
(7th Cir. 2004).


                        II. Analysis
  Castilho de Oliveira challenges all aspects of the IJ’s
decision, arguing that the adverse credibility finding
was not sufficiently grounded in the record evidence and
attacking the alternative ruling—that Castilho de Oliveira’s
story was in any event insufficient to establish eligibility



2
  Castilho de Oliveira also has an older half-sister, who came
to the United States from Brazil on her own after he arrived.
6                                               No. 07-3307

for asylum—as similarly unsupported by the record. In
addition, Castilho de Oliveira takes aim at the IJ’s con-
duct during the hearing, arguing that the judge’s
behavior reflected bias or a predetermination to reject
his claim.


A. The Adverse Credibility Determination
  We begin with the IJ’s credibility finding, which is
ordinarily entitled to a high level of deference. See
Apouviepseakoda v. Gonzales, 475 F.3d 881, 888 (7th Cir.
2007). Here, however, we do not defer to the IJ’s credi-
bility determination because it is unsupported by the
evidence in the record. See Oforji v. Ashcroft, 354 F.3d 609,
613 (7th Cir. 2003). The IJ found Castilho de Oliveira’s
claim to be implausible, but his explanation suggests
that he strained to find difficulties with Castilho de
Oliveira’s testimony while ignoring evidence that cor-
roborated it.
  The IJ first doubted Castilho de Oliveira’s claim that
prosecutors in Brazil maintained an open investigation
of his father’s assassination, finding it unlikely that such
an investigation could still be ongoing more than ten
years after a murder. But his skepticism was based on
speculation rather than anything in the record. He
ignored Castilho de Oliveira’s plausible-sounding ex-
planation for the delay—that prosecutors had delib-
erately dragged their feet in order to protect high-level
officials. The IJ also ignored a State Department report
Castilho de Oliveira submitted in support of his claim;
that report concluded that justice in Brazil moves slowly
No. 07-3307                                                    7

and that corrupt justice officials often engage in      dilatory
tactics to protect politically favored criminals.3      To give
only two examples, the report noted that the            average
case involving corrupt police officers takes eight      years to
reach a decision and specifically mentioned a           case in-
volving 85 police officers who are still awaiting       trial for
a 1992 prison massacre. Id.
  Instead of addressing this corroborating evidence
regarding conditions in Brazil, the IJ reasoned by sup-
posed analogy to prosecutorial practices in the United
States, concluding that prosecutors in Brazil must expedi-
tiously pursue all reported allegations of wrongdoing
and therefore the existence of an open investigation was
implausible. The analogy to prosecutorial norms in the
United States was odd; there was no evidence to
support it. To the contrary, the record evidence sug-
gested that the Brazilian justice system suffered from
corruption and politically motivated delay. According to
the State Department report in the record, “[j]ustice
remained slow and unreliable” in Brazil, and in certain
cases “local police often were less diligent in investigating,
prosecutors were reluctant to initiate proceedings,
and judges found reasons to delay.” Id.
  There were a number of other problems with the IJ’s
credibility determination. The judge doubted Castilho
de Oliveira’s account of having been threatened by one


3
  B UREAU OF D EMOCRACY , H UMAN R IGHTS & L ABOR , U.S. D EP ’T
OF S TATE , B RAZIL : C OUNTRY R EPORTS ON H UMAN R IGHTS P RAC -
TICES –2004 (Feb. 28, 2005).
8                                                No. 07-3307

of the men involved in his father’s murder, concluding
that if Castilho de Oliveira actually had been intimidated,
he would have reported the incident to police. This
ignored the evidence that the family’s prior reports to
police had been fruitless—which would plausibly
explain why a frightened teenager would not report a
threat to police—and that Castilho de Oliveira’s aunt
had reported the incident to the police on his behalf.
  The IJ also discredited Castilho de Oliveira’s testimony
as insufficiently corroborated because his mother and
sister had not testified on his behalf. Castilho de Oliveira’s
mother did submit a lengthy affidavit, which the IJ ig-
nored. Instead, the judge speculated that his mother
and sister had declined to testify in person because their
stories could not withstand cross-examination. The IJ did
not consider an equally plausible explanation for their
absence—that Castilho de Oliveira’s mother and sister,
both of whom are apparently in this country illegally,
refrained from appearing to avoid detention based on
their status.
  The IJ’s apparent determination to make an adverse
credibility finding also manifested itself in an outright
refusal to consider relevant documentary evidence.
Castilho de Oliveira tried to submit numerous news-
paper articles—many of them originals—corroborating
the details of his father’s murder. The IJ refused to con-
sider the articles because they had not come directly
from the newspaper’s “morgue” and did not bear any
form of authentication from the newspaper’s publisher.
There is no justification for such a requirement. Under
No. 07-3307                                                9

the Federal Rules of Evidence, documents purporting to be
newspaper articles are self-authenticating, see F ED. R.
E VID. 902(6), and in immigration proceedings—where the
rules of evidence do not apply—evidentiary standards
are generally more lax. Absent evidence of forgery, alter-
ation, or some other reason to doubt their authenticity,
the IJ was not entitled to completely disregard the news-
paper articles. Cf. Shtaro v. Gonzales, 435 F.3d 711, 717
(7th Cir. 2006) (lack of authentication is not evidence of
forgery).
  On the flip side, while refusing to consider this relevant
corroborating evidence, the IJ unjustifiably faulted
Castilho de Oliveira for failing to present other types of
corroboration the IJ thought he ought to have ob-
tained—evidence that would have been marginally rele-
vant at best. In the place of the newspaper articles, for
example, the IJ demanded a letter or affidavit from
Castilho de Oliveira’s priest to corroborate his testi-
mony, reasoning that because Castilho de Oliveira was
Catholic, his priest would know whether his claims were
true. But Castilho de Oliveira’s asylum claim had
nothing to do with religion. Requiring this sort of cor-
roboration was bizarre, to say the least, in the context
of this case.
  In any event, in response to this line of questioning from
the IJ, Castilho de Oliveira testified that he and his family
did not attend church regularly. Disregarding this testi-
mony, the IJ inexplicably rested his adverse credibility
determination in part on Castilho de Oliveira’s failure
to obtain a letter of support from his priest. In short, the
10                                              No. 07-3307

IJ’s stated reasons for disbelieving Castilho de Oliveira’s
story were either speculative or irrelevant, while material
favorable evidence was left unaddressed.


B. Eligibility for Asylum
   The IJ’s alternative holding suffers from similar prob-
lems. The IJ held that even accepting Castilho de Oliveira’s
story as true, “harassment of this nature” does not rise
to the level of past persecution or “establish[] future
persecution under these facts.” To qualify for asylum,
Castilho de Oliveira needed to demonstrate either that
he had suffered past persecution or that he reasonably
feared future persecution on a statutorily protected
ground. See BinRashed v. Gonzales, 502 F.3d 666, 670 (7th
Cir. 2007) (discussing persecution claims based on mem-
bership in a family group). The IJ’s refusal to find past
persecution on this record is probably sustainable;
threats of the type Castilho de Oliveira described usually
aren’t enough, without more, to qualify as past persecu-
tion. Boykov v. INS, 109 F.3d 413, 416-17 (7th Cir. 1997).
But the IJ’s explanation for concluding that Castilho
de Oliveira did not reasonably fear future persecution
is more problematic.
   The IJ’s first reason for rejecting Castilho de Oliveira’s
future persecution claim was that Castilho de Oliveira
posed no real threat to any political figures in Brazil. The
IJ reasoned that unless Castilho de Oliveira had evidence
to implicate the accomplices in his father’s murder at a
future trial, there would be no reason for anyone to
want to harm him. This misconstrues Castilho de
No. 07-3307                                                11

Oliveira’s argument. He testified that political and
banking officials wanted him dead because his mother
and cousin had pressured prosecutors to investigate the
link between his father’s murder and government corrup-
tion. The goal was not to prevent Castilho de Oliveira
from giving evidence (he was, after all, only eight years
old when his father was murdered); it was, instead, to
intimidate his family into silence. Castilho de Oliveira
also presented the testimony of Frutuoso Santana, a
graduate student at the University of Chicago, as an
expert witness on Brazilian society. Santana testified that
in Brazilian culture Castilho de Oliveira would be per-
ceived as a threat because of his status as the only male
child of a murdered father. Castilho de Oliveira’s
claim thus was not that he feared persecution based on
his ability to give evidence against those who were
complicit in his father’s murder. Rather, his claim was
that he would be the target of retaliation against his family.
  The IJ also questioned Castilho de Oliveira’s fear of
future persecution because his cousin had been able to
remain, without incident, in Brazil. The IJ thought that
because the cousin—who continued to pressure prosecu-
tors to pursue the investigation—had not been the victim
of any threats, Castilho de Oliveira would also be safe.
But this reason lacks any basis in the record. There was
no evidence one way or the other about whether Castilho
de Oliveira’s cousin had been threatened.
  Some of the IJ’s other reasons for rejecting Castilho
de Oliveira’s claim were more plausible but not fully
developed. The IJ noted, for example, that Castilho
12                                              No. 07-3307

de Oliveira had lived in Brazil unharmed for eight years
following his father’s murder and that his mother no
longer lived there, both of which reduced the risk that he
would be the target of attack if he returned. These are
legitimate potential problems with Castilho de Oliveira’s
claim and may ultimately mean that he is ineligible for
asylum. That Castilho de Oliveira lived in Brazil
unharmed for eight years suggests that the threats
against him were not as serious as they might otherwise
seem. And because his mother is no longer in the
country, she is presumably unable to continue agitating
for an investigation into government corruption
associated with her husband’s murder. But the IJ didn’t
grapple with other evidence that suggested the opposite
conclusion—that Castilho de Oliveira had spent at least
some of his time in Brazil in hiding and that he might
still be perceived as a target for retaliation in Brazilian
culture because he is the only son of a murdered father.
Castilho de Oliveira’s expert witness bolstered this inter-
pretation of the evidence. Without at least some discus-
sion of this more favorable evidence, and in light of the
other flaws in reasoning we have identified, the IJ’s
analysis of the merits of Castilho de Oliveira’s claim
was not adequately grounded in the record.


C. The IJ’s Irrelevant and Inflammatory Questions
  Castilho de Oliveira finally challenges aspects of the IJ’s
behavior during the hearing, arguing, for example, that the
judge repeatedly and inappropriately interrupted his
testimony and that of his expert with irrelevant and
No. 07-3307                                              13

confrontational questions. An IJ’s cross-examination of
witnesses is not alone cause for concern; under the ap-
plicable statutes, immigration judges are authorized to
“interrogate, examine, and cross-examine the alien and
any witnesses.” 8 U.S.C. § 1229a(b)(1); see also
Apouviepseakoda, 475 F.3d at 885. But the IJ’s frequent
interruptions in this case were highly problematic. Judge
Brahos repeatedly stopped both Castilho de Oliveira
and his expert witness to ask irrelevant—and in some cases
entirely inappropriate—questions. For example, the IJ
demanded to know the witnesses’ religious beliefs—and
pursued this line of questioning at some length with each
witness—even though Castilho de Oliveira’s claims were
not based on religious persecution. The IJ questioned
Castilho de Oliveira about whether his half-sister was
“born out of wedlock,” an utterly irrelevant inquiry. The IJ
derailed the expert’s testimony to discuss the totally
inappropriate and irrelevant topic of whether Castilho
de Oliveira might be infertile—or, as the judge
indelicately put it, whether Castilho de Oliveira might
“shoot blanks.”
  Comments and questions of this nature are wholly
inappropriate, if not enough alone to warrant a new
hearing. While these improper questions did not
ultimately have the effect of preventing Castilho de
Oliveira from putting on his case, see Apouviepseakoda,
475 F.3d at 885-86, they are worth discussing because
they suggest a larger problem of apparent bias on the part
of the IJ.
  Taken individually, any of the flaws we have identified
in this hearing might be viewed as a harmless mistake.
14                                                  No. 07-3307

But the record as a whole—the tone of the IJ’s cross-
examination of Castilho de Oliveira and his expert
witness, the frequent interruptions, the inappropriate
questions and comments, and the IJ’s ultimate failure
to engage with the evidence in the record while resting
his decision on speculation and irrelevancies—leaves
the impression that the IJ entered the hearing with his
mind already made up.
  The problems we have identified are cumulatively
disturbing and convince us that Castilho de Oliveira was
denied a meaningful opportunity to be heard before a
neutral IJ, required by statute and regulation.4 See 8 U.S.C.
§ 1229a(b)(4)(B); 8 C.F.R. § 1240.1(c); Bosede, 512 F.3d at
952. Accordingly, Castilho de Oliveira’s petition for
review is G RANTED ; the decision of the BIA is V ACATED ;
and the case is R EMANDED for a new hearing, preferably
before a new immigration judge.




4
   We have previously called into question similar behavior by
Judge Brahos in other cases: “factual error, bootless speculation,
and errors of logic,” Pramatarov v. Gonzales, 454 F.3d 764, 765-66
(7th Cir. 2006); questioning “so harsh and rude as to suggest
bias,” id.; and conduct that was “unseemly,” “intempera[te],”
and even “mocking,” Apouviepseakoda, 475 F.3d at 886. That
it continues is inexplicable.



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