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In a rare instance of the judiciary speaking directly to the other branches of government, the 3rd U.S. Circuit Court of Appeals last week urged Congress and the executive branch to remedy what it called a “disturbing trend” in which courts are forced to base decisions in immigration cases on “grossly out of date” information about world affairs. Because asylum cases move through the courts slowly, judges trying to decide whether immigrants deserve protection from a hostile foreign government often find themselves reviewing decisions based on State Department country reports that are up to 4 years old, the 3rd Circuit said in Berishaj v. Ashcroft. In a fast-changing world, that means they can be missing key information about coup d’etats, outbreaks of ethnic violence, and the rise and fall of repressive regimes. “In many cases in which country conditions are at issue, the administrative records are grossly out-of-date, requiring us to engage in the rather artificial exercise of ruling on situations that existed several years in the past, but do not exist today,” Senior 3rd Circuit Judge Edward R. Becker wrote. “As a consequence, we become like astronomers whose telescopes capture light rays that have taken millions of years to traverse the cosmos, revealing things as they once were, but are no longer,” Becker wrote in an opinion joined by 3rd Circuit Judges Thomas L. Ambro and Morton I. Greenberg. Courts can’t simply turn to a newspaper to get the latest information, Becker noted, because immigration law requires appellate judges to base their decisions only on evidence already in the case file when an appeal is filed. Nonetheless, Becker found that the court’s procedural requirements “do not command blindness to the emerging pattern of stale records.” Becker found that Lek Berishaj’s case was a good example of what can go wrong when the system relies on stale information, and he insisted that something be done to fix it. “We call on Congress, the Department of Justice, the Department of Homeland Security and the BIA [Board of Immigration Appeals] to improve the structure and operation of the system, so that all may have the confidence that the ultimate disposition of a removal case bears a meaningful connection to the merits of the petitioner’s claim(s) in light of contemporary world affairs,” Becker wrote. Reform of the system is needed, Becker said, to avoid the “potentially dire consequences of sending such an applicant back to his country of origin to face possible persecution or torture on the basis of such a stale report.” A spokesman for the Justice Department, which litigated the case, declined to comment. The ruling comes in the case of a man who fled Montenegro for the United States in 1997. Berishaj, an ethnic Albanian who deserted the Serbian army, said he left because he feared arrest and torture by a regime led by Slobodan Milosevic, the president later deposed after a NATO bombing campaign. When Berishaj’s request for asylum came before an immigration judge, the most recent State Department country report on Montenegro was from 1999, when Milosevic was still in power. Things changed while the case worked its way through the courts; Milosevic is now on trial for war crimes and conditions for Albanians in Montenegro have improved, but the 3rd Circuit said it was legally obligated to base its 2004 review of Berishaj’s case as if the conditions described in the 1999 country report still existed. In Berishaj’s case, Becker said, the 3rd Circuit’s duty to review the immigration judge’s decision was “no mean task” because the immigration judge’s opinion was “cursory, thinly reasoned, and discusses the case without any reference to the governing legal standards.” Becker found that the immigration judge concluded that Berishaj’s testimony about past persecution was not credible, and that, even if his testimony was true, the “country conditions” in the Federal Republic of Yugoslavia — which embraced Montenegro at the time of the immigration judge’s decision — had changed such that Berishaj could no longer have a well-founded fear of future persecution. The immigration judge also rejected Berishaj’s claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or CAT, because there was no objective evidence that a return to Montenegro would expose him to torture. But Becker concluded that the immigration judge’s rejection of Berishaj’s asylum claim “cannot stand.” The immigration judge’s adverse credibility determination “has no basis in the record,” Becker found, and the immigration judge also “misapplied the law in concluding that changed conditions in Montenegro have obviated any persecution claim that Berishaj might once have had.” When such an asylum claim is presented, Becker said, the burden of showing changed country conditions is on the government. “We hold that the government must rebut the alien’s well founded fear of future persecution with specific evidence, which it did not produce [in Berishaj's case],” Becker said. In his asylum claim, Berishaj recounted his experiences in the years immediately before he fled to the United States. In the summer of 1991, he said he went to Kosovo, a neighboring province of Yugoslavia, to attend a university that conducted classes in his native Albanian tongue. At that time, he said, no university in Montenegro conducted classes in Albanian. Although Serb forces had taken control in Kosovo in 1990 and had officially closed the university, he said it continued to function underground, with classes held in private homes in Pristina, a major city in Kosovo. Berishaj said his uncle was one of the leading organizers of the illegal university and that he recruited Berishaj to find private homes in which to hold classes. He claimed his uncle was arrested in 1991 and again in 1994 for his illegal education efforts and that during his second detention he was beaten over several days. Berishaj said he, too, was arrested in 1992 for his assistance to the illegal university, was beaten with a rifle butt and detained overnight. Soon after returning to Montenegro, Berishaj said he was inducted into the army and was sent to serve in Serbia, where he spent 11 months. He said he was easily recognizable as an ethnic Albanian in a predominantly Serbian army because Berishaj is a well-known Albanian name. While in the army, Berishaj said he served as a tank gunman, taking orders from Serbs in charge of the tank. He said was sometimes beaten at the direction of Serbian officers for singing songs in Albanian, and that he stopped speaking Albanian publicly, relying on the Serbian he learned while in the army. In December 1993, Berishaj said, four policemen came to his parents’ house at midnight and took him to fight in Bosnia. In that tour of duty, he said he was ordered to destroy buildings and houses and to shoot at the army and at Muslim civilians in Bosnia. He said he had no choice but to shoot civilians because his refusal to do so would have meant his own death at the hands of the Serbians. He said he later fled the army and crossed illegally from Montenegro into Albania, where he spent the next 14 months in hiding at his cousin’s home. Berishaj said the Montenegrin police ultimately located him in September 1996 and detained him for two days. He said he was released from custody when an uncle fabricated a story about Berishaj needing to visit an ill family member and posted bail for him. Berishaj said he returned illegally to Albania, where he resided until February 1997, when he was smuggled to Belgrade and from there to France, then Brazil, then the United States. The immigration judge who heard Berishaj’s asylum claim found his story “fantastic and ludicrous.” In his ruling, the immigration judge said “the court was dazzled and astounded by the declaration that although he was in control of the tank he had a Serbian officer behind his back pointing a gun at him at all times!” The immigration judge found his story “ridiculous” and “not supported by one scintilla of evidence.” “A better script could not have been thought about by kings of comedy like Peter Sellers or Mel Brooks,” the immigration judge wrote. Now the 3rd Circuit has ruled that the immigration judge’s decision was seriously flawed since it ignored critical evidence that corroborated Berishaj’s claim. “First, Berishaj’s story about the operation of the illegal university in Kosovo, and police hostility to it, is perfectly corroborated by an Amnesty International Report from 1994, which is in the administrative record,” Becker wrote. And a 1992 article from the English-language Albanian-American newspaper Illyria profiled another young ethnic Albanian “whose experience as a forced inductee into the Serbian army closely parallels Berishaj’s,” Becker noted. Becker concluded that the immigration judge’s comments in his opinion were “not only intemperate but singularly unhelpful.” Although the immigration judge found that Berishaj’s testimony was apparently implausible, Becker found to the contrary that “the testimony appears eminently reasonable.” An immigration judge, Becker said, “is in no position to comment from his own experience on the plausibility of the cruel practices employed in one of the most heinous conflicts of the modern era.” Instead, Becker found that Berishaj’s claims rang true. “If anything, the tactic of forcing one ethnic minority to kill another is entirely consistent with multiparty ethnic warfare, and there is no substantial evidence on which to conclude otherwise,” Becker wrote. “It seems eminently plausible that the Serbians would require the Albanians to be the ones to shoot the Bosnians, and that they would enforce that role in the manner described — by having a gunman behind each Albanian,” Becker wrote. “To describe this as a Mel Brooks scenario seems to us bizarre,” Becker wrote. As a result, Becker found that the immigration judge’s comments were “not tethered to the record, owing what little support they have to hyperbole and appeals to popular culture — two utterly inappropriate bases for an asylum decision.”

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