Kakha Mezvrishvili v. U.S. Attorney General , 467 F.3d 1292 ( 2006 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-11668 OCT 17, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
Agency No. A79-443-264
KAKHA MEZVRISHVILI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 17, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
The main issue presented in this petition for review is whether the
Immigration Judge and the Board of Immigration Appeals (BIA) gave reasoned
consideration to the application for asylum of Kakha Mezvrishvili, a citizen of the
Republic of Georgia, who alleged that he had suffered past persecution on account
of his religion. Mezvrishvili credibly testified to instances of abuse on account of
his belief as a Jehovah’s Witness, but the Immigration Judge found that
Mezvrishvili lacked adequate knowledge about or commitment to that faith and
denied Mezvrishvili’s application for asylum. Mezvrishvili petitions for review of
a decision of the BIA, which cryptically discounted the finding of the Immigration
Judge that Mezvrishvili lacked sufficient religious knowledge, but affirmed the
order of the Immigration Judge. Because the BIA and the Immigration Judge
failed to give reasoned consideration to Mezvrishvili’s application and make
adequate findings, we grant the petition for review, vacate the decisions of the BIA
and the Immigration Judge, and remand for proceedings consistent with this
opinion.
I. BACKGROUND
On April 13, 2002, Mezvrishvili arrived at Miami International Airport in
route to Nicaragua from the Republic of Georgia. He requested asylum in the
United States and was found to have a credible fear of persecution. On April 23,
2003, Mezvrishvili filed his application for asylum.
At a hearing before the Immigration Judge on September 20, 2004,
Mezvrishvili testified that he became a Jehovah’s Witness in February 2000 and
had been persecuted in the Republic of Georgia because of his religion.
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Mezvrishvili testified that, in August 2000, an official denied Mezvrishvili’s
application for a job as an investigator with the Georgian police and told
Mezvrishvili that he had been rejected because of his religious affiliation. In
September 2000, Mezvrishvili and a group of Jehovah’s Witnesses were on buses
headed to a large meeting of Jehovah’s Witnesses and were stopped by police in
civilian clothes who broke the windows of the buses and beat and stoned
individuals, including Mezvrishvili. In November 2000, people in civilian clothes
accosted Mezvrishvili and a group of Jehovah’s Witnesses at the entrance to a
Jehovah’s Witness meeting place, seized all the religious literature carried by the
group, and physically and verbally abused the group. In March 2001, two
uniformed Georgian police officers took Mezvrishvili from in front of his
apartment to a location outside of the city and beat him for 15 to 20 minutes. The
officers told Mezvrishvili that he was beaten because he was a Jehovah’s Witness,
instructed him not to report the beating, and left him alone outside the city.
Mezvrishvili testified that, after he arrived in the United States, he attended
Kingdom Hall about 20 times, but had not attended since February 2004, could not
name any of the leaders of his Kingdom Hall, and had not been baptized.
Mezvrishvili provided no documents in support of his application for asylum,
although the Immigration Judge considered a Country Report and a Religious
Freedom Report prepared by the U.S. State Department, both of which described
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persecution of Jehovah’s Witnesses in the Republic of Georgia. The Immigration
Judge asked Mezvrishvili fifty-nine questions about the religious doctrine of
Jehovah’s Witnesses and determined that Mezvrishvili had only “some
rudimentary knowledge of the theology of the Jehovah’s Witnesses.”
The Immigration Judge denied Mezvrishvili’s application for asylum,
withholding of removal, and relief under the Convention Against Torture. The
Immigration Judge found Mezvrishvili to be credible and to have described
“abuse . . . sufficient to be prosecutory [sic] in nature,” but found that Mezvrishvili
“ha[d] not met his burden to present a preponderance of credible probative
evidence to establish that he is in fact an individual who adopted the Jehovah’s
Witness faith in his homeland of Georgia and suffered in that country as a result.”
The Immigration Judge “d[id] not view [Mezvrishvili] as adequately possessed of
fundamental knowledge regarding the denomination to be an individual who for
four and a half years ha[d] been a student of the denomination” and noted
Mezvrishvili’s “failure to provide any corroboration whatsoever regarding his
proclaimed attendance at Kingdom Hall after his arrival in [the United States].”
Mezvrishvili appealed the decision of the Immigration Judge to the BIA, and
the BIA adopted and affirmed the decision of the Immigration Judge, although it
noted that it “agree[d] with [Mezvrishvili’s] argument on appeal that he should not
be held to western standards of religious knowledge.” On June 1, 2006, we denied
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Mezvrishvili’s motion to stay his removal, but this appeal continues unabated. See
Weng v. U.S. Att’y Gen., 287 F.3d 1335, 1337 (11th Cir. 2002).
II. STANDARDS OF REVIEW
We review the decision of the BIA and the decision of the Immigration
Judge, to the extent it has been adopted by the BIA. Najjar v. Ashcroft, 257 F.3d
1262, 1284 (11th Cir. 2001). We review legal issues de novo, Mohammed v.
Ashcroft, 261 F.3d 1244, 1247-48 (11th Cir. 2001), and “administrative fact
findings under the highly deferential substantial evidence test,” Adefemi v.
Ashcroft, 386 F.3d 1022, 1026 (11th Cir. 2004) (en banc), cert. denied, 544 U.S.
1035, 125 S. Ct. 2245 (2005). When the BIA or the Immigration Judge has failed
to “give ‘reasoned consideration’” or “make ‘adequate findings,’” Tan v. U.S.
Att’y Gen., 446 F.3d 1369, 1375 (11th Cir. 2006) (quoting Morales v. INS, 208
F.3d 323, 328 (1st Cir. 2000)), we remand for further proceedings because we are
“unable to review” the decision, id. at 1377.
III. DISCUSSION
Mezvrishvili presents two main arguments in his petition for review. First,
Mezvrishvili argues that the Immigration Judge erroneously found that he failed to
establish past persecution on a statutorily protected ground. Second, Mezvrishvili
argues that the Immigration Judge violated his right to due process because the
Immigration Judge relied on facts not supported by the record and failed to ask
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Mezvrishvili why corroborating documents had not been produced. Because we
conclude that the BIA and the Immigration Judge failed to render a reasoned
decision as to whether Mezvrishvili suffered past persecution on a statutorily
protected ground, and vacate the decisions of the BIA and the Immigration Judge,
we do not reach Mezvrishvili’s due process argument.
“To establish asylum based on past persecution, the applicant must prove (1)
that she was persecuted, and (2) that the persecution was on account of a protected
ground,” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236 (11th Cir. 2006), such as
religion, 8 U.S.C. § 1101(a)(42)(A). Mezvrishvili argues that he established past
persecution on account of his religion through his credible testimony about the
individuals who assaulted him because he was a Jehovah’s Witness. The problem
with our evaluation of this argument comes when we attempt to review the
decisions of the BIA and the Immigration Judge.
The BIA and the Immigration Judge did not give reasoned consideration to
Mezvrishvili’s application or make adequate findings for at least three reasons.
First, the BIA did not coherently explain the extent to which it adopted the decision
of the Immigration Judge. The BIA “agree[d] with [Mezvrishvili’s] argument on
appeal that [Mezvrishvili] should not be held to western standards of religious
knowledge,” but did not articulate whether or how its agreement limited its
adoption of the decision of the Immigration Judge.
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Second, after the Immigration Judge found Mezvrishvili’s testimony about
beatings and other abuse credible, the Immigration Judge failed to offer a
reasonable explanation as to why he found that Mezvrishvili had not “adopted the
Jehovah’s Witness faith in his homeland of Georgia and suffered in that country as
a result.” The Immigration Judge did not make a “clean” adverse credibility
determination, Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir. 2005)
(internal quotation marks omitted), and relied instead on his view that Mezvrishvili
had exhibited insufficient commitment to the faith while in the United States and
had insufficient knowledge of the religious doctrine of Jehovah’s Witnesses. This
explanation is unreasonable.
The issue to be decided in the asylum hearing is whether the applicant
suffered religious persecution, not whether he displays the knowledge of a
seminarian during a “mini-catechism administered at the hearing.” Yan v.
Gonzales, 438 F.3d 1249, 1255 (10th Cir. 2006). “[D]etailed knowledge of
[religious] doctrine may be irrelevant to the sincerity of an applicant’s belief
[because] a recent convert may well lack detailed knowledge of religious custom,”
id. (citing Ahmadshah v. Ashcroft, 396 F.3d 917, 920 n.2 (8th Cir. 2005)), and
“many deeply religious people know very little about the origins, doctrines, or
even observances of their faith,” Iao v. Gonzales, 400 F.3d 530, 534 (7th Cir.
2005). Because an asylum applicant must establish that “the persecution was on
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account of a protected ground,” Silva, 448 F.3d at 1236 (emphasis added), “even
an individual who does not subscribe to a certain religion, but is nonetheless . . .
persecuted on account of others’ perception that he does, may well be able to
establish a religious persecution claim under a theory of ‘imputed religion’
analogous to the ‘imputed political opinion’ theory,” Rizal v. Gonzales, 442 F.3d
84, 90 n.7 (2d Cir. 2006). See Najjar, 257 F.3d at 1289 (discussing imputed
political opinion theory).
Mezvrishvili’s commitment to the Jehovah’s Witness faith while in this
country and whether he adopted that faith in his homeland of Georgia show little
about whether he suffered in Georgia on account of his religion. “Both history and
common sense make amply clear that people can identify with a certain religion,
notwithstanding their lack of detailed knowledge about that religion’s doctrinal
tenets, and that those same people can be persecuted for their religious affiliation.”
Rizal, 442 F.3d at 90; see also Ahmadshah, 396 F.3d at 920 n.2 (“If [petitioner] has
shown that [his would-be persecutors] would believe that he was [of a particular
religion], that is sufficient basis for fear of persecution under the law.”). “This is
not to say that questions about religious doctrine are never relevant in assessing an
asylum applicant’s credibility in claiming religious persecution,” Rizal, 442 F.3d at
90, because “a purported Christian who didn’t know who Jesus Christ was, or a
purported Jew who had never heard of Moses, would be instantly suspect,” Iao,
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400 F.3d at 534, but the Immigration Judge did not make an adverse credibility
finding.
Third, the Immigration Judge assumed facts not in the record when he held
Mezvrishvili to a level of religious devotion that Mezvrishvili did not assert. The
Immigration Judge found that Mezvrishvili’s actions while in the United States
were “inconsistent with a strong commitment to [the Jehovah’s Witness] faith” and
that Mezvrishvili’s “rudimentary knowledge of the theology of the Jehovah’s
Witnesses” was inconsistent with four and a half years of “reading and studying
the denomination’s principals and beliefs.” The record shows that Mezvrishvili
testified that he had been a follower of the Jehovah’s Witness faith for four and a
half years and had read some literature on his own, but contains no evidence that
Mezvrishvili had represented that he had a strong commitment to the faith or that
he had undertaken four and a half years of active study.
IV. CONCLUSION
Because the BIA and the Immigration Judge failed to render a reasoned
decision in consideration of Mezvrishvili’s credible testimony, we are unable to
review the denial of Mezvrishvili’s application for asylum. We GRANT
Mezvrishvili’s petition for review, VACATE the decisions of the BIA and the
Immigration Judge, and REMAND for further proceedings consistent with this
opinion.
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