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

No. 04-1964
ABDELHADI HOR,
                                                      Petitioner,
                               v.

ALBERTO R. GONZALES,
                                                     Respondent.
                        ____________
                Petition to Review an Order of the
                 Board of Immigration Appeals.
                            A79-286-712
                        ____________
      ARGUED JUNE 10, 2005—DECIDED AUGUST 29, 2005
                        ____________


  Before FLAUM, Chief Judge, and POSNER and KANNE, Circuit
Judges.
  POSNER, Circuit Judge. Abdelhadi Hor was ordered
removed from the United States after his claim of asylum
was denied. A motions panel of this court denied his motion
to stay his removal, on the ground that the probability that
he could persuade the merits panel to reverse the order of
removal was low. Hor v. Gonzales, 400 F.3d 482, 485-86 (7th
Cir. 2005). A merits panel, however, is authorized to
reexamine a ruling made by a motions panel. In re
HealthCare Compare Corp. Securities Litigation, 75 F.3d 276,
279-80 (7th Cir. 1996); Johnson v. Burken, 930 F.2d 1202,
1205 (7th Cir. 1991). We don’t know whether Hor has been
2                                                 No. 04-1964

removed from this country as yet, but it makes no differ-
ence; the alien’s departure no longer moots his challenge
to a removal order. Lopez-Chavez v. Ashcroft, 383 F.3d 650,
651 (7th Cir. 2004); Patel v. Ashcroft, 378 F.3d 610, 612 (7th
Cir. 2004); Rife v. Ashcroft, 374 F.3d 606, 615 (8th Cir. 2004).
  Hor is an Algerian with a technical background who
before coming to the United States on a visitor’s visa in 2000
was the chief information officer for a large government-
owned manufacturer. He was also an active member of the
FLN, the ruling political party of Algeria. In March of 2000
he was stopped at a roadblock set up by members of GIA
(Groupe islamique armé), the military wing of the radical
Islamic movement that is engaged in what amounts to a
civil war with the Algerian government. Ahmed v. Ashcroft,
348 F.3d 611, 614 (7th Cir. 2003); Debab v. INS, 163 F.3d 21,
23 (1st Cir. 1998); U.S. State Department, Country Report on
Algeria (2004); U.S. State Department, Report on Human
Rights Practices in Algeria (2005); U.S. State Department, Fact
Sheet on Foreign Terrorist Organizations (2005),
http://www.state.gov/s/ct/rls/fs/37191.htm; U.S. Central
Intelligence Agency, World Fact Book on Algeria (2005),
http://www.cia.gov/cia/publications/
factbook/geos/ag.html; Amnesty International, Algeria:
Asylum-Seekers Fleeing a Continuing Human Rights Crisis, June
2003, http:// web.amnesty.org/library/Index/
ENGMDE280072003. Taken at gunpoint before a leader
of the GIA, Hor was ordered to furnish the organization
with a list of active members of the FLN and with the
security plan of his employer. He was released after promis-
ing to comply. He didn’t comply, but instead reported the
incident forthwith to the Algerian military, which told him
that it couldn’t protect everyone threatened by the
GIA—even an army veteran, as Hor was. It gave him some
advice on how to avoid falling into the GIA’s clutches.
No. 04-1964                                                 3

  Five months later, Hor was stopped at another GIA
roadblock. Armed men ordered him to lie down on the
ground and told him they were going to execute him on
the spot in retaliation for his having failed to supply the
GIA with the promised information. Hor’s uncle, like him
an active member of the FLN, had been killed just this way
a year earlier. But the police had received a tip about the
roadblock, arrived just in time, killed two of the armed men,
and saved Hor. Shortly afterwards, following a visit to a
psychiatrist who diagnosed Hor as suffering from post-
traumatic stress syndrome, and also following the issuance
of a “decision” by an Algerian court that “recommend[ed]
that [Hor] should be extra cautious and keep low profile,”
Hor left Algeria for the United States.
  He claims that he was persecuted in Algeria on account of
his political activity and is at high risk of further persecu-
tion if he returns. His testimony, if believed, established
persecution. Compare INS v. Elias-Zacarias, 502 U.S. 478,
481-83 (1992); Ahmed v. Ashcroft, supra, 348 F.3d at 614-16.
The immigration judge, seconded by the Board of Immigra-
tion Appeals, rejected the claim. The judge believed Hor’s
testimony about “his involvement with the political
party, and his genuine fear of harm,” but not about his
encounters with the GIA. The judge didn’t think the GIA
would have allowed five months to elapse from the first
encounter before trying to kill Hor for breaking his promise
to give the group information: “the Court [i.e., the immigra-
tion judge] believes they would have approached the
respondent or harmed the respondent long before five
months have passed.” The judge also didn’t believe that,
given Hor’s status as a veteran and the sensitive information
he possessed because of his job, the Algerian military would
have refused to protect him against the GIA; or that the GIA
could have known that the second roadblock would inter-
4                                                 No. 04-1964

cept him, because he was traveling to a seminar when he
was stopped rather than to or from work. The judge thought
that if Hor’s story were true, the GIA would have killed
members of Hor’s family in revenge, which it has not done.
  He noted further that Hor had failed to submit newspaper
accounts or other documentary records of the shoot-out at
the second roadblock. He also thought it suspicious that the
psychiatrist’s report did not mention the cause of Hor’s
post-traumatic stress syndrome. He could “not fully
comprehend the purpose of the [Algerian] Court decision
recommending that the respondent be extra cautious and
keep a low profile. The respondent himself was fully aware
that he should keep a low profile and be very cautious,
and he did not need the Court to tell him that he should
be cautious.”
  The judge thought that in any event Hor lacked a well-
founded fear of further persecution should he be returned
to Algeria because he “was not harmed for five months
by the GIA after he had promised them to provide the
information requested,” and “when he needed help, he was
able to go to his Government and seek their assistance”—
assistance that included the killing of the two assailants
at the second roadblock. He was also “able to seek assis-
tance from a Court in Algeria.”
  It is conceivable that the evidence on which the immigra-
tion judge based his determination that Hor was exaggerat-
ing his persecution by the GIA really does show this, but
that would depend on a knowledge of conditions in Algeria
nowhere indicated in the opinion, a common failing in
asylum adjudications. Iao v. Gonzales, 400 F.3d 530, 533-
34 (7th Cir. 2005). It is hardly self-evident that the GIA never
allows five months to elapse before mounting an assault
against someone who has refused to play ball with it. The
group would have needed some time to realize that Hor
No. 04-1964                                                5

was not going to furnish the promised information, and
more time to organize an assault with a fair chance of
success. It would be no surprise, either, if the GIA had
penetrated the company where Hor worked and learned
from its mole where Hor would be on the day they tried
to kill him.
   Algeria has a censored press, and the immigration judge
offered no reason for believing that the incident at the
second roadblock would have been allowed to be reported,
or even that it had been witnessed, other than by the
participants—the police, the GIA thugs, and Hor—all of
whom might well have decided against reporting the
incident to the media. And again one would have to know
a lot about Algeria and the GIA to know whether the failure
to seek revenge against members of Hor’s family, none of
whom was active in the FLN, as he had been, would be out
of character.
  That a psychiatrist would not mention a terrorist inci-
dent in a psychiatric diagnosis seems hardly anomalous;
and the authenticity of the admittedly quite strange judicial
decision is not challenged. In short, there is no rea-
soned basis for the immigration judge’s conclusion, which
was based not on Hor’s demeanor on the stand but on
the unsubstantiated conjectures, summarized above, on
which the judge based his assessment of Hor’s credibility.
Such a decision cannot stand. Mamedov v. Ashcroft, 387 F.3d
918, 919 (7th Cir. 2004); Guchshenkov v. Ashcroft, 366 F.3d
554, 558 (7th Cir. 2004); Cordero-Trejo v. INS, 40 F.3d 482,
485 (1st Cir. 1994); Jara-Navarrete v. INS, 813 F.2d 1340,
1344 (9th Cir. 1986).
  The government points to the recently enacted REAL ID
Act of 2005, which provides that “no court shall reverse
a determination made by a trier of fact [in a removal
case] with respect to the availability of corroborating
6                                                    No. 04-1964

evidence . . . unless the court finds . . . that a reasonable trier
of fact is compelled to conclude that such corroborating
evidence is unavailable.” 8 U.S.C. § 1252(b)(4). All that this
means is that an immigration judge’s determination that if
there were evidence to corroborate the alien’s testimony the
alien could and should have presented it is entitled to
reasonable deference. The precondition to deference is that
the immigration judge explain (unless it is obvious) why he
thinks corroborating evidence, if it existed, would have been
available to the alien. Gontcharova v. Ashcroft, 384 F.3d 873,
877 (7th Cir. 2004); Zheng v. Gonzales, 409 F.3d 804, 810 (7th
Cir. 2005); Eta-Ndu v. Gonzales, 411 F.3d 977, 984 (8th Cir.
2005); Abdulai v. Ashcroft, 239 F.3d 542, 554 (3d Cir. 2001);
Diallo v. INS, 232 F.3d 279, 287 (2d Cir. 2000).
  The judge criticized Hor’s failure to provide newspaper
articles, or affidavits from his co-workers, to corroborate his
story of the roadblock and the gun battle, and also Hor’s
failure to submit the documents he had filed with the
Algerian court in order to obtain that odd court order. The
judge concluded that “some of these incidents which are
central to the respondent’s claim either have been exagger-
ated or have not been supported by corroborating evidence
when it was available and could have been obtained.” But
the immigration judge offered no explanation for thinking
that this documentation had been available to Hor. It seems
unlikely that Hor’s co-workers, who surely have a healthy
respect for the murderous potential of the GIA, would
submit affidavits to the U.S. immigration authorities. Nor is
it obvious that Algeria—a military dictatorship in
2000—would have permitted newspaper articles about
terrorist attacks. Nor is there any apparent reason to doubt
that Hor does not have copies of the documents he filed
with the Algerian court. The notion that documentation is
as regular, multicopied, and ubiquitous in disordered
No. 04-1964                                                  7

nations as in the United States, a notion that crops up
frequently in decisions by immigration judges, see, e.g., Iao
v. Gonzales, supra, 400 F.3d at 534; Gontcharova v. Ashcroft,
supra, 384 F.3d at 877-78; Muhur v. Ashcroft, 355 F.3d 958,
959-60 (7th Cir. 2004); Mulanga v. Ashcroft, 349 F.3d 123,
134 (3d Cir. 2003); Qiu v. Ashcroft, 329 F.3d 140, 153 (2d Cir.
2003), is unrealistic concerning conditions actually prevail-
ing in the Third World. To be entitled to deference, a
determination of availability must rest on more than
implausible assertion backed up by no facts.
  At argument the government’s lawyer told us that if
Hor is entitled to asylum, so is the entire population of
Algeria. For he was a supporter of the government and
presumably the Algerian population consists largely,
though doubtless not entirely, of people who support either
the government, and so on Hor’s account are persecuted by
the GIA, or the Islamic radicals, who maybe are persecuted
by the government. But this is a considerable exaggeration.
Hor was persecuted by the GIA because he was an FLN
activist with access, by virtue of his job as chief information
officer of a large manufacturer, to a security plan that the
GIA could use to destructive ends. We do not know how
many Algerians are in a position similar to Hor’s—an FLN
activist with access to information prized by the GIA.
Perhaps few. Fewer still, presumably, are those who, like
Hor, having information prized by the GIA and having been
coerced into promising to supply it to the GIA, became
marked for death when they break their promise.
  What is true is that nongovernmental persecution is much
less common than governmental persecution. You cannot
even claim asylum on the basis of persecution by a private
group unless the government either condones it or is
helpless to prevent it, but if either of those conditions is
satisfied, the claim is a good one. As explained in Balogun v.
8                                                   No. 04-1964

Ashcroft, 374 F.3d 492, 499 n. 8 (7th Cir. 2004),
“ ‘[P]ersecution cognizable under the Act can emanate
from sections of the population that do not accept the
laws of the country at issue, sections that the government of
that country is either unable or unwilling to control.’ Borja
v. INS, 175 F.3d 732, 735 n. 1 (9th Cir. 1999) (en banc); see also
Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999); Sotelo-
Aquije v. Slattery, 17 F.3d 33, 37 (2d Cir. 1994) (’[T]he statute
protects against persecution not only by government forces
but also by nongovernmental groups that the government
cannot control.’); Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th
Cir. 1993) (‘[I]t is apparently agreed that the possible
persecution to be established by an alien in order for him to
be eligible for asylum may come from a non-government
agency which the government is unwilling or unable to
control.’).” See also Guchshenkov v. Ashcroft, supra, 366 F.3d
at 557; Bace v. Ashcroft, 352 F.3d 1133, 1138-39 (7th Cir. 2003);
Al-Fara v. Gonzales, 404 F.3d 733, 739 (3d Cir. 2005); Lopez-
Soto v. Ashcroft, 383 F.3d 228, 234 (4th Cir. 2004); Andriasian
v. INS, 180 F.3d 1033, 1042-43 (9th Cir. 1999); Rosa v. INS,
440 F.2d 100, 102 (1st Cir. 1971). The Board of Immigration
Appeals so acknowledged more than thirty years ago. In re
Tan, 12 I. & N. Dec. 564, 568 (BIA 1967).
  And here the response of the Algerian military to Hor’s
request for protection, and the curious judicial decision,
play a decisive role in our consideration of Hor’s peti-
tion. The fact that the military was unable to protect a
military veteran, and, even more, the fact that all a court
could offer Hor in the way of protection was advice to
maintain a low profile, is strong evidence that the govern-
ment of Algeria is indeed incapable of protecting Hor.
(There is corroboration in reputable-seeming reports on
conditions in Algeria. U.S. State Department, Patterns of
Global Terrorism, Appendix B, Background Information on
No. 04-1964                                                  9

Designated Foreign Terrorist Organizations (2004), http://
www.state.gov /s/ct/rls/pgtrpt/2003/31711.htm; Human
Rights Watch, World Report: Middle East and Northern Africa
Overview (2003), http://www. hrw.org/wr2k3/
mideast.html; Amnesty International, Report on Algeria
(2002), http://web.amnesty.org/web/ ar2002.nsf/ mde/
algeria; Amnesty International, Algeria—Civilian Popula-
tion Caught in a Spiral of Violence, Nov. 1997, http://
web.amnesty.org/library/Index/engMDE280231997.)
The military and the court told Hor in effect: you’ll have
to protect yourself; we can’t protect you. A person
who cannot obtain official protection against persecution on
account of his politics (as here), or some other recognized
ground for asylum, by a rebel or terrorist group has a solid
claim for asylum. Balogun v. Ashcroft, supra, 374 F.3d at 499
n. 8; Chitay-Pirir v. INS, supra, 169 F.3d at 1081; Ochoa v.
Gonzales, 406 F.3d 1166, 1170 (9th Cir. 2005); Yan Lan Wu v.
Ashcroft, 393 F.3d 418, 423 (3d Cir. 2005); Estrada-Escobar v.
Ashcroft, 376 F.3d 1042, 1046 (10th Cir. 2004). That appears
to be Hor’s situation, though further proceedings may cast
it in a different light. We do not rule that Hor is entitled to
asylum, but only that the Board’s decision is not supported
by substantial evidence. The petition for review is therefore
granted and the case remanded to the Board for further
proceedings consistent with this opinion.
10                                           No. 04-1964

A true Copy:
       Teste:

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




                USCA-02-C-0072—8-29-05
