                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

Nos. 03-1392, 03-2166
IVAN GUCHSHENKOV,
                                                          Petitioner,
                              and

KALIN DIMITROV and ZDRAVKA DIMITROVA,
                                                         Petitioners,
                               v.

JOHN ASHCROFT, Attorney General of the United States,
                                            Respondent.

                        ____________
                 Petitions for Review of Orders of
                the Board of Immigration Appeals.
           Nos. A73-427-543, A73-427-544, A76-023-111.
                        ____________
      ARGUED MARCH 3, 2004—DECIDED APRIL 29, 2004
                        ____________


  Before POSNER, ROVNER, and EVANS, Circuit Judges.
  POSNER, Circuit Judge. We have consolidated for decision
two petitions to review decisions by the Board of
Immigration Appeals denying asylum. The petitions reflect
the continuing difficulty that the board and the immigration
judges are having in giving reasoned explanations for their
decisions to deny asylum. See, e.g., Niam v. Ashcroft, 354
F.3d 652, 653-54 (7th Cir. 2004), and cases cited there, plus
2                                       Nos. 03-1392, 03-2166

such subsequent decisions as Muhur v. Ashcroft, 355 F.3d 958
(7th Cir. 2004); Kourski v. Ashcroft, 355 F.3d 1038 (7th Cir.
2004), and Mengistu v. Ashcroft, 355 F.3d 1044 (7th Cir. 2004).
  Guchshenkov, with whom we begin, testified as follows.
He is a citizen of Kazakhstan, formerly part of the Soviet
Union but now an independent nation with a Kazakh
majority which controls the new nation and a Russian
minority to which Guchshenkov belongs. There is great en-
mity between the two groups, in part because of religious
differences—the Kazakhs are Muslims, the Russians
Christian—and in part because in the Soviet era the Rus-
sians were the top dogs and the roles have now been
reversed. Guchshenkov married a Kazakh woman, and this
provoked three nighttime attacks on him by Kazakh thugs.
The first occurred the night of his wedding. The thugs beat
him and told him he should leave the country because he
was “not supposed to marry somebody from [a] different
nationality.” He complained to the police (all of whom are
Kazakhs), but they told him that “these things happen every
day. We have more important things to take care of.” In the
next attack, a year later, the thugs asked Guchshenkov
“what are you doing here with your Russian faith,” re-
minded him that his wife was of a different faith, and told
him to “get out of here.” They beat and stabbed him. He
was afraid to complain to the police.
   The third attack was the worst. The attackers told him “we
warned you, you knew it, and now your time has come”;
“you don’t belong here, it’s not your place, and you’re just
spoiling our blood.” He was hospitalized with a lacerated
liver, and his gall bladder had to be removed. While he was
in the hospital, his father went to the police station to file a
complaint on his son’s behalf and was turned away on the
ground that he was not the victim. Released from the
hospital after two weeks, Guchshenkov went to the police
Nos. 03-1392, 03-2166                                       3

station—indeed went seven times, never receiving satisfac-
tion, although on one occasion the police gave him a photo
album of criminals to look through. A year after the attack,
the police wrote Guchshenkov that his case was “lost from
the archive,” that they had no suspects, and that they were
overloaded with other cases.
  A year after that, Guchshenkov, leaving his wife and two
children in Kazakhstan, went to Russia, where he paid
someone $1,000 to smuggle him in a Russian ship to the
United States. After landing in the U.S. he traveled to
Canada and sought asylum there, but was turned down, re-
turned to the U.S., and sought asylum here. (There is noth-
ing in the briefs or record concerning Canada’s standards
for granting asylum or the basis on which Guchshenkov’s
application for Canadian asylum was rejected.) The immi-
gration judge rejected Guchshenkov’s application
for asylum in an oral opinion and ordered him removed
(deported) to Kazakhstan. The Board of Immigration
Appeals affirmed in a very brief opinion that essentially just
summarizes the immigration judge’s opinion.
   The immigration judge acknowledged that the Kazakh
majority, which controls the government of Kazakhstan, is
hostile to the Russian minority and that Guchshenkov’s
description of the attacks was truthful. Much of the opinion
is given over to the question whether Guchshenkov was at-
tacked because he is a Russian or because (as he had testi-
fied) he is a Russian married to a Kazakh. It is unclear why
it should matter, unless he’s abandoned his family (we don’t
know)—in which event it might be critical whether as a
Russian not married to a Kazakh he would still face perse-
cution. But in any event the ground on which the immigra-
tion judge concluded that the marriage had not been a factor
in the beatings makes no sense. It’s that if the marriage had
been a factor, Guchshenkov’s attackers “would know [him]
4                                     Nos. 03-1392, 03-2166

by name . . ., would call him by name and would most
likely say things during these encounters which indicated
that they were aware that [he] had married an ethnic
Kazakh woman.” Guchshenkov had testified that his
attackers “did not know him by name, they did not mention
his spouse or family.” Guchshenkov of course did not know
whether they knew his name or not; all he knew was that
they hadn’t called him by name. They had referred to the
marriage, contrary to the immigration judge, telling
Guchshenkov that he was “not supposed to marry some-
body from [a] different nationality.” It is impossible to
follow the immigration judge’s reasoning process.
  But because his attackers were private individuals rather
than state actors, Guchshenkov was not persecuted within
the meaning of the law unless the authorities either con-
doned the attacks or are unable to protect him. E.g., Bace v.
Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir. 2003). The immi-
gration judge noted that Guchshenkov had complained to
the police, had followed up with a number of subsequent
visits, the police had shown him the photo album, they “did
take [his] complaint and made attempts to investigate the
complaints,” and his case “was ultimately closed because it
was lost and because the police could not devote more time
to the investigation because it was overloaded with cases.”
On the basis of this summary of the evidence, the immi-
gration judge concluded that Guchshenkov had not been
persecuted even if the attacks had been motivated by his
marriage. But the immigration judge’s summary of the
evidence is hopelessly incomplete. There is no reference to
Guchshenkov’s testimony that the police are all Kazakhs
(not necessarily the best evidence, but neither contradicted
nor disbelieved), that their reaction to his first complaint
was that “these things happen every day. We have more
important things to take care of,” and that his father was
turned away by the police after the third assault because he
Nos. 03-1392, 03-2166                                      5

wasn’t the victim of the assault (the victim was in the
hospital because of the gravity of his injuries). In light of
this evidence, the claim made by the police after the third
and most serious assault that they had simply lost
Guchshenkov’s file required more careful scrutiny than the
immigration judge gave it. If Guchshenkov’s testimony that
we summarized earlier was truthful—and the immigration
judge did not suggest that it wasn’t—the natural inference
is that Guchshenkov could not expect any police protection
from a further, and eventually fatal, assault should he be
returned to Kazakhstan.
  The immigration judge’s conclusion that Guchshenkov’s
“filing of various complaints and visiting the police station
numerous times . . . [are] inconsistent with the notion that
the government of Kazahkstan had approved of these beat-
ings” manages the difficult trick of being at once truthful
and absurd. Guchshenkov’s repeated visits to the police
station were signs of desperation rather than confidence, cf.
Singh v. INS, 94 F.3d 1353, 1358 (9th Cir. 1996), and while
doubtless the government did not know of the beatings and
so could not have approved of them, the question is
whether it either can or wants to rein in the police when
they deny Russians the elementary protections of the law;
Guchshenkov’s testimony suggests not, as in id.; Andriasian
v. INS, 180 F.3d 1033, 1036-38 (9th Cir. 1999), and Surita v.
INS, 95 F.3d 814, 817-19 (9th Cir. 1996).
  The Board of Immigration Appeals in its characteristically
perfunctory opinion affirming the immigration judge added
that Guchshenkov’s claim for asylum was further under-
mined by the fact that his wife and children had remained
in Kazakhstan without encountering persecution. But it was
Guchshenkov whom the thugs were after. His wife is a
Kazakh and, for all we know, his children are being brought
up as Muslims. Once he left the country, therefore, there
was no reason for his family to be persecuted.
6                                      Nos. 03-1392, 03-2166

  Guchshenkov may or may not have a meritorious claim
for asylum. As noted earlier, this may turn on his family
status, which the record does not illuminate. All we know
at this stage is that the decision denying him asylum was
unreasoned.
   We move on to the Dimitrovs’ claim. They are Bulgarian
citizens of Macedonian descent (“Macedonian” in the sense
of the people who live in the nation of Macedonia, rather
than of the people of the part of Greece known as
Macedonia, which gave the world Alexander the Great).
Before coming to the United States they belonged to an
organization called OM-ILENDEN (also known as UMO-
Ilinden or VMRO-Ilinden), which seeks to remind such
citizens of their Macedonian ethnicity. According to Mr.
Dimitrov’s testimony, he was arrested and beaten because
he had OM-ILENDEN circulars in his possession, police
came to his house and confiscated Macedonian books and
records, he was told by the authorities that there is no place
for Macedonians in Bulgaria, both he and his wife were
fired from their jobs because of their membership in the
organization, and for the same reason his brother was im-
prisoned and beaten and his daughter was expelled from
medical school. A letter in the record from a U.S. professor
named Robert Hayden, a specialist in the politics of the
Balkans, establishes, what should anyway be well known to
our immigration authorities, that there is a long history of
enmity between Bulgaria and the Macedonian people.
(Bulgaria sought to conquer Macedonia during the Balkan
Wars and occupied it during both World War I and World
War II.) According to Professor Hayden, Bulgaria has
steadfastly denied that there is a Macedonian entity and has
outlawed OM-ILENDEN, brutally oppressed Bulgarian
Macedonians who identify themselves as Macedonians, and
would persecute the Dimitrovs if they were returned to
Bulgaria.
Nos. 03-1392, 03-2166                                         7

  Just as in the case of Guchshenkov, the record does not
compel a conclusion that the Dimitrovs are entitled to asy-
lum but a remand is required because the immigration
judge’s analysis of their application is unreasoned. She
“determined that the respondent is basically credible; how-
ever, his testimony is not inherently persuasive.” We do not
understand what this means. The judge went on to say that
“the Bulgarian government, right or wrong, must have
determined that the Om-Illinden [sic] . . . organization’s
purpose was contrary to the constitution of Bulgaria and
therefore, refused to register such organization.” The judge
did not reject Dimitrov’s testimony that he had been ar-
rested and beaten, but she denied that this was a basis
for asylum because “the government of Bulgaria felt that
the purpose of the organization was contrary to law . . . .
While the beating was unfortunate, if it occurred, the Court
is of the opinion that it was police brutality and was not
specific to [Dimitrov] personally.” She further observed that
“Bulgaria is a parliamentary republic ruled by [a] democrat-
ically elected government.”
  There is very deep confusion here. The Nuremberg
Laws, which subjected the Jews in Nazi Germany to per-
secution, were laws, but that doesn’t mean that Jews were
not persecuted. Persecution normally is undertaken either
pursuant to law or by a government that can get away with
acting supralegally; private oppression rises to the level
of persecution only, as we noted earlier, when the gov-
ernment either condones or is helpless to prevent it. Of
the different forms of persecution, that which is expressly
authorized by the nation’s laws is the one most likely to
be carried out systematically. See Bucur v. INS, 109 F.3d 399,
403 (7th Cir. 1997); Li Wu Lin v. INS, 238 F.3d 239, 244 (3d
Cir. 2001). What is true is that prosecution for activities that
would be illegal under our own laws is not grounds for
asylum; so if the Dimitrovs had committed theft or assassi-
8                                      Nos. 03-1392, 03-2166

nation or other violence, or had fomented rebellion or civil
war, and faced punishment for such acts if they were
returned to Bulgaria, they could not contend that such
punishment would be persecution within the meaning of
our asylum law. Sharif v. INS, 87 F.3d 932, 935 (7th Cir.
1996); Lukwago v. Ashcroft, 329 F.3d 157, 168-69 (3d Cir.
2003); Chanco v. INS, 82 F.3d 298, 302 (9th Cir. 1996).
But there is no indication that they did anything beyond
associating with an organization concerned with preserving
their ethnic identity, which Bulgaria seeks to extirpate. If
that is all they did—it is all the record indicates they
did—the response of the Bulgarian government is the
equivalent of our government’s suppressing the Knights
of Columbus or the St. Patrick’s Day parade. Cf. Singh
v. Ilchert, 63 F.3d 1501, 1508 (9th Cir. 1995); Perkovic v.
INS, 33 F.3d 615, 622 (6th Cir. 1994) (“Yugoslavia outlaws
and punishes peaceful expression of dissenting political
opinion, the mere possession of Albanian cultural artifacts,
the exercise of citizens’ rights to petition their government,
and the association of individuals in political groups with
objectives of which the government does not approve.
Although international law allows sovereign countries to
protect themselves from criminals and revolutionaries,
it does not permit the prohibition and punishment of
peaceful political expression and activity, the very sort of
conduct in which the petitioners engaged here”). The fact
that a democratically elected government might persecute
a minority is not a paradox, since democracy implies
majority rule.
  The immigration judge doubted that the arrest and dis-
employment of Dimitrov were severe enough measures to
amount to persecution, but she failed to mention either the
measures taken against Dimitrov’s wife and daughter or the
evidence of Professor Hayden. Her analysis fell far below
the minimum required to support an administrative
Nos. 03-1392, 03-2166                                       9

decision. It is one more indication of systemic failure by the
judicial officers of the immigration service to provide rea-
soned analysis for the denial of applications for asylum. We
are mindful that immigration judges, and the members of
the Board of Immigration Appeals, have heavy caseloads.
The same is true, however, of federal district judges, and we
have never heard it argued that busy judges should be
excused from having to deliver reasoned judgments because
they are too busy to think. The two cases under review, like
the other cases in which we have reversed the board of late,
are not so difficult that it is unreasonable for a reviewing
court to expect and require reasoned judgments at the
administrative level. The errors that have compelled us to
reverse in these cases despite the deferential standard of
judicial review of agency action are not subtle. Asylum
seekers should not bear the entire burden of adjudicative
inadequacy at the administrative level.
  The petitions for review are granted, the orders of re-
moval vacated, and the cases returned to the immigration
service for further proceedings consistent with this opinion.
We urge that these two cases be reassigned to other immi-
gration judges in view of the striking inadequacy of the
analysis by the immigration judges whose decisions we are
vacating. Niam v. Ashcroft, supra, 354 F.3d at 660-61; Kerciku
v. INS, 314 F.3d 913, 919 (7th Cir. 2003) (per curiam);
Arulampalam v. Ashcroft, 353 F.3d 679, 689-90 (9th Cir. 2003).
10                                      Nos. 03-1392, 03-2166

  EVANS, Circuit Judge, concurring. Although I join the ma-
jority in voting to remand these two consolidated asylum
petitions for further proceedings, I write separately to ex-
press my concern, and growing unease, with what I see as
a recent trend by this court to be unnecessarily critical of the
work product produced by immigration judges who have
the unenviable duty of adjudicating these difficult cases in
the first instance.
  We are seeing a growing number of appeals in asylum
cases every year. Just 4 years ago, in 2000, we resolved only
10 cases (in both published opinions and unpublished
orders) involving appeals from orders denying asylum.
We found substantial evidence supporting the decisions
of the immigration judges (technically the BIA, but we can
skip that detail) in 7 of these cases. In 2003 and the first 3
months of 2004, we have resolved 51 appeals in asylum
cases. With today’s consolidated cases, we will have vacated
and remanded 7 of these cases in a row. The countries for
which the petitioners in the 51 cases have sought asylum
read like the parade of nations in the opening ceremonies
for the Olympic games:
     Albania           Montenegro
     Algeria           Nigeria
     Bangladesh        Pakistan
     Bulgaria          Peru
     Cameroon          Poland
     Columbia          Romania
     Eritrea           Russia
     Ethiopia          Rwanda
     India           Sudan
Nos. 03-1392, 03-2166                                    11

    Kazakhstan          Thailand
    Lebanon             Uganda
    Macedonia       Ukraine
    Mexico
  Recently, in failing to find substantial evidence in the
record sufficient to affirm the decisions of the immigration
judges, we have made disparaging comments about the
quality of their work:
    • The immigration judge “took over the questioning
      so that in the end the judge, rather than the attor-
      ney, had elicited whatever testimony [the peti-
      tioner] was able to give.”
    • The immigration judge “made up his mind about
      the case and was subsequently unwilling to lis-
      ten . . . .”
    • “There is a gaping hole in the reasoning of the . . .
      immigration judge.”
    • These cases show “a pattern of serious misapplica-
      tions by the . . . immigration judges of elementary
      principles of adjudication.”
    • The immigration judge’s “analysis was so inadequate
      as to raise questions of adjudicative competence.”
    • The immigration judge “ignored the evidence.”
    • The immigration judge’s analysis of the evidence
      “was woefully inadequate.”
    • The immigration judge displayed an “astounding
      lapse of logic.”
    • The immigration judge’s opinion “is riven with errors
      . . . .”
12                                     Nos. 03-1392, 03-2166

   I wonder, after reading comments like this, if we have a
fair appreciation of the work load and conditions under
which immigration judges must work. For one thing, what
we see is less than the tip of the iceberg of an immigration
judge’s work load. In the Seventh Circuit, only 6 immigra-
tion judges hear roughly 1,000 contested asylum cases a
year. That’s an average of 166 cases per judge per year.
Some of these cases moot out (for instance, an applicant
drops his request for asylum because he gets relief—that
is, the right to stay in this country—on some other basis),
and many end with a grant of relief. But we only see the
cases where relief is denied which leaves, I suggest, the false
impression that the immigration judges are simply denying
asylum petitions willy-nilly.
  Asylum cases nationally are on the rise. According to
the Department of Homeland Security, 63,400 asylum
cases were filed (covering 86,597 principals, spouses, and
children) in 2002—a whopping 10,522 asylum applications
alone have come from petitioners wanting to get away from
the People’s Republic of China. In addition to China, the
2002 asylum applications came for petitioners trying
to avoid returning to 33 other Asian countries. The 2002
asylum petitioners also came from 36 European countries,
44 African countries, and 19 countries in Central and South
America and the Caribbean.
  Many of these applications are resolved (some are
granted—I’m told 35 percent—while others are denied) by
asylum officers. Only the unresolved cases reach the hearing
rooms of immigration judges. And the number, as we have
seen, is staggering.
  Contested asylum hearings themselves are not the sedate,
high-tech proceedings one often sees in the courtroom of a
United States district judge. Immigration judges have no
court reporters—they record the proceedings on 30-minute
Nos. 03-1392, 03-2166                                       13

cassette tapes which they themselves mark and flip over
when one side of a tape is filled. Much of the testimony they
hear comes through interpreters. Imagine conducting
hearings involving asylum applicants from Kazakhstan,
Bangladesh, Sri Lanka, Yemen, and Mauritania over a 2-
week period when none of the petitioners have a meaning-
ful grasp of English.
  To win a grant of asylum, a petitioner must establish that
he is unable or unwilling to return to his home country
because of past persecution or a well-founded fear of future
persecution on account of race, religion, nationality, mem-
bership in a particular social group, or political opinion. INS
v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Because 100
percent of asylum petitioners want to stay in this country,
but less than 100 percent are entitled to asylum, an immigra-
tion judge must be alert to the fact that some petitioners will
embellish their claims to increase their chances of success.
On the other hand, an immigration judge must be sensitive
to the suffering and fears of petitioners who are genuinely
entitled to asylum in this country. A healthy balance of
sympathy and skepticism is a job requirement for a good
immigration judge. Attaining that balance is what makes the
job of an immigration judge, in my view, excruciatingly
difficult.
  All in all, considering the difficult cases they hear day in
and day out, I am of the view that immigration judges do a
fairly good job. Are they perfect? No. Should we expect
their decisions to be airtight? No. Perfection, I think, is
simply impossible given their heavy work load, lack of
resources, and the complexities involved in the cases they
hear. In our two cases today, the immigration judges
(Cuevas in Guchshenkov and Smith in Dimitrov) give us
oral opinions that when transcribed run 10 and 16 pages
long, respectively. The decisions demonstrate, as far as I’m
14                                     Nos. 03-1392, 03-2166

concerned, that these judges have tried to discharge their
responsibilities in a fair and professional manner. This court
should not be so quick to criticize their efforts.

A true Copy:
        Teste:

                           _____________________________
                            Clerk of the United States Court of
                              Appeals for the Seventh Circuit




                    USCA-02-C-0072—4-29-04
