In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 03-1393, 03-1394 & 03-1395

AHMED MAMEDOV, OQULSHEKER MAMEDOV,

and JANNET MAMEDOV,

Petitioners,

v.

JOHN ASHCROFT, Attorney General

of the United States,

Respondent.

____________

On Petitions for Review of an Order of

the Board of Immigration Appeals.

Nos. A 75 319 524–26.

____________

ARGUED OCTOBER 5, 2004—DECIDED NOVEMBER 1, 2004

____________

Before POSNER, KANNE, and WOOD, Circuit Judges.

POSNER, Circuit Judge. The Mamedov family was ordered

removed after its claim for asylum was rejected. The family

comes from Turkmenistan, one of the formerly Soviet

republics in central Asia, like the better known Kazakhstan

and Uzbekistan. The overwhelming majority of its people

are Turkmens of the Muslim faith. Jews are distinctly unpopular, and only about a thousand remain. Ahmed
2 Nos. 03-1393, 03-1394 & 03-1395

Mamedov’s father was a Turkmen, presumably Muslim although this is not certain, but Mamedov’s mother was Jewish

and he was raised as a Jew. He claims that whenever an

employer or coworker discovered that he was a Jew, he was

fired, and likewise his wife because she is a Muslim married

to a Jew and many Muslims disapprove strongly of mixed

marriages. Cf. Guchshenkov v. Ashcroft, 366 F.3d 554, 556 (7th

Cir. 2004); Kuhai v. INS, 199 F.3d 909, 910 (7th Cir. 1999). He

also claims to have been beaten by police officers because of

his being Jewish. At their asylum hearing the Mamedovs

submitted affidavits from seven refugees from Turkmenistan

who are in mixed marriages and who have been granted

asylum in the U.S. The affidavits describe firings and beatings.

One of the seven, a former schoolmate of Mamedov named

Feriants, stated that he was “personally familiar with the

fact that Ahmed is Jewish and that this created a very

substantial problem for him in Turkmenistan.” The record

contains a corroborating affidavit from a political science

professor.

As in a number of recent cases, the opinion by the immigration judge, whose denial of asylum the Board of

Immigration Appeals affirmed without issuing its own

opinion, is unreasoned. See, e.g., Yu-Ti Lian v. Ashcroft, 379

F.3d 457, 459 (7th Cir. 2004); Guchshenkov v. Ashcroft, supra,

366 F.3d at 559; Niam v. Ashcroft, 354 F.3d 652, 654 (7th Cir.

2004). But here we note a further problem that we had not

heretofore been aware of. Immigration judges characteristically issue oral rather than written opinions—that we knew

and while it is not an ideal practice, it is common enough

even among federal district judges and we do not wish to

suggest that it is irregular. The wrinkle is that no copy,

either paper or electronic, of the opinion is given to either

the parties or the immigration judge until and unless the alien

files a notice of appeal to the Board of Immigration Appeals.

The copy of the opinion that appears in the appendix to the
Nos. 03-1393, 03-1394 & 03-1395 3

petitioner’s brief in this court contains handwritten corrections, evidently by the judge. The copy is not dated. The

notice of appeal had to be and was filed within 30 days of

the rendition of the immigration judge’s oral opinion and

order, but we do not know how long after that the judge

edited the opinion. Most of his changes are purely technical,

but where the transcribed opinion states that “it is unclear

that the attack [by the police on Mamedov] was based solely

on the fact that the respondent’s mother possessed a Jewish

nationality,” the immigration judge wrote in, after “solely,”

“or in [sic] even partially.”

That was a substantive change, and there is no indication

that the immigration judge was merely recalling a passage

from his oral opinion that had somehow not been transcribed.

Rewriting an already issued opinion when the author later

discovers that there is going to be an appeal invites criticism

similar to that leveled against the use of nunc pro tunc orders

to rewrite history. See, e.g., Central Laborers’ Pension, Welfare

& Annuity Funds v. Griffee, 198 F.3d 642, 644 (7th Cir. 1999);

Kusay v. United States, 62 F.3d 192, 193 (7th Cir. 1995);

Transamerica Ins. Co. v. South, 975 F.2d 321, 325 (7th Cir.

1992); Sierra Club v. Whitman, 285 F.3d 63, 67 (D.C. Cir.

2002). In the case of appeals from district courts to courts of

appeals, although the district judge can correct a clerical

error at any time, Fed. R. Civ. P. 60(a), he cannot alter his

judgment after the notice of appeal is filed, because the notice

transfers the case from the district court’s jurisdiction to that

of the court of appeals. Griggs v. Provident Consumer Discount

Co., 459 U.S. 56, 58 (1982) (per curiam). The immigration

service has no similar rule; and amending an opinion after

the appeal is taken is not the same as amending the judgment, but in general it is a bad practice for a judge to

continue working on his opinion after the case has entered

the appellate process, except in emergency situations requiring the issuance of the judgment in advance of the prepara-
4 Nos. 03-1393, 03-1394 & 03-1395

tion of the opinion. The practice presents the losing party

with a moving target. A regulation of the immigration service

requires the immigration judge to “review the transcript [of

his oral decision] and approve the decision” only if a “transcription of an oral decision is required,” 8 C.F.R. § 1003.5(a),

which would ordinarily be only if an appeal is taken. But the

regulation does not indicate whether changes to the opinion,

beyond merely the correction of typographical and grammatical or other technical errors, are appropriate.

Reviewing and evaluating the evidence, the immigration

judge stated that Mamedov’s internal passport identified him

as a Turkmen rather than a Jew but that he “considered

himself Jewish because that was his mother’s nationality.”

Jewishness is not a nationality, but an ethnicity and a religion, and Mamedov practiced Judaism. This is important

because if the only respect in which Mamedov is Jewish is

that his mother was (and of course the name he goes by is

his father’s Turkmen name, not a recognizably Jewish name),

it might as the immigration judge thought be unlikely that

Mamedov’s coworkers and employers would know that he

was Jewish.

The immigration judge noted that Mamedov “testified

that someone at his place of employment saw him leaving

a synagogue and then when he was asked about this, he

could not deny his mother’s nationality or that he was

Jewish.” The judge did not quite say that he didn’t believe

that Mamedov had attended a Jewish religious service,

though he seemed skeptical; instead he noted that Mamedov

admitted “that there were no synagogues in Ashgabat [the

capital of and largest city in Turkmenistan, where he lived],

that there was no practicing rabbi’s [sic], and that what he

meant to say [was] that there was a meeting he attended in

someone’s apartment.” Since “he only bumped into his coworker on the street . . . how would this coworker know that
Nos. 03-1393, 03-1394 & 03-1395 5

[Mamedov] was attending a religious meeting in someone’s

private apartment.” However, there is no evidence that the

(informal) synagogue was in an apartment; the word

Mamedov used was “house” (or at least that was the

translation—Mamedov testified in Russian). Nor is there any

evidence that Mamedov merely “bumped into his coworker

on the street.” Mamedov’s testimony was that people knew

that the house was a meeting place for Jews and that the

coworker saw him there (presumably saw him enter or

leave) and drew the obvious conclusion.

The immigration judge also was mistaken when he rejected

Feriants’s affidavit on the ground that the affidavit “indicates . . . that {Mamedov] suffered harm, was fired from a

job, was unable to maintain regular employment, was unable to rely on the protection from the police, and experienced personal and substantial injuries at the hands of

people in Ashgebat who hated Jews,” when “obviously, Lev

Feriants would not be aware of any of these facts [since] he

last saw the [Mamedovs] in the 1980’s in Turkmenistan.”

But the only purpose for which the affidavit was offered was

to prove that Mamedov was Jewish, something the immigration judge may have doubted (he referred for example to

Mamedov’s “imputed religion or his nationality”). When

Feriants said that Mamedov’s religion “created a very substantial problem for him in Turkmenistan” he was drawing

the obvious inference from his own experience and that of

the other refugees.

There are other strange gaps in the immigration judge’s

opinion, as when it states that Mamedov “claims that the

attackers asked [him] his name, [but] this does not seem

reasonable given the fact that they never said anything else

to him, and proceeded to attack him.” We cannot begin to

understand the basis for such a judgment. And what was the

immigration judge thinking when he said that “if, in this
6 Nos. 03-1393, 03-1394 & 03-1395

case, [Mamedov’s] father was a Turkmen and [Mamedov]

also was considered a Turkmen by nationality, it appears

that discrimination that [Mamedov] received in the past was

not as significant as he claims”? If Mamedov’s coworkers,

employers, and the police knew he was Jewish by religion

and hated him for it, how would his or his father’s nationality make discrimination against him on account of his religion less “significant”? It’s like saying that a Jew in Nazi

Germany was okay as long as he was of German nationality.

The judge thought Mamedov’s testimony undermined by

the fact that background materials that he submitted estimated that there are 1000 Jews in Turkmenistan, most of

them in Ashgebat, but that at the hearing he testified that

there are only five or ten Jews in Ashgebat. The judge misunderstood his testimony. When Mamedov said “around 10

people, 8 to 10 people” he was referring to the size of the

Jewish congregation, for he went on to say that “we had a

pretty small place.”

The immigration judge said that even if all the evidence

presented by the petitioners were believed, they had not

demonstrated either that they had been persecuted or that

they would be persecuted if they were sent back to their

country of origin. The judge gave no reason for this alternative holding, however, and the case is not so clear cut that

the omission can be overlooked. Being excluded from all

employment (as opposed to discriminatory exclusion from

some jobs), and being beaten by the police to boot, could

amount to persecution. Borca v. INS, 77 F.3d 210, 215-17 (7th

Cir. 1996); Baballah v. Ashcroft, 367 F.3d 1067, 1075 (9th Cir.

2004).

For these reasons, the Board’s order is set aside and the

case remanded.
Nos. 03-1393, 03-1394 & 03-1395 7

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—11-1-04