Ambartsoumian v. Atty Gen USA ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
11-1-2004
Ambartsoumian v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-1961
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STEVEN P. BARSAMIAN (ARGUED)
PRECEDENTIAL 2021 Locust Street
Philadelphia, PA 19103
UNITED STATES COURT OF Attorney for Petitioner
APPEALS
FOR THE THIRD CIRCUIT
_____________________ PETER D. KEISLER
Assistant Attorney General, Civil
NO. 03-1961 Division
______________________ ANTHONY W. NORWOOD
Senior Litigation Counsel
GAREGIN AMBARTSOUMIAN; JENNIFER A. LEVINGS (ARGUED)
NADIA AMBARTSOUMIAN; United States Department of Justice
KARINA AMBARTSOUMIAN; Office of Immigration Litigation
RIMMA AMBARTSOUMIAN, Ben Franklin Station
Petitioners P.O. Box 878
Washington, DC 20044
v.
Attorneys for Respondent
JOHN ASHCROFT, ATTORNEY
GENERAL ________________________
OF THE UNITED STATES OF
AMERICA, OPINION OF THE COURT
Respondent ________________________
______________________
BECKER, Circuit Judge.
On Petition for Review of Orders of the
Board of Immigration Appeals This is a petition by Garegin
(Board Nos. A75-006-540; Ambartsoumian (“Garegin”), his wife
A75-006-541; Nadia Ambartsoumian (“Nadia”), and their
A75-006-543; A75-559-426) two children, for review of an order of the
________________________ Board of Immigration Appeals (BIA)
denying them asylum, withholding of
Argued October 5, 2004 removal, and protection under the
Convention Against Torture. It is, in a
Before: SLOVITER, BECKER and way, a tale of two countries—the Ukraine
STAPLETON, Circuit Judges and Georgia. Garegin is a Georgian citizen
of Armenian and Ossetian parentage.
(Filed: November 1, 2004) Nadia is a Ukrainian citizen and a Baptist.
The Ambartsoumians married in the
Ukraine in 1989, and spent much of the
next three years shuttling back and forth Abkhazia and South Ossetia.1 The record
between their two native countries. They contains evidence that in 1989 the
arrived in the United States in 1996, after Ambartsoumians received death threats
a sojourn in Canada, and applied for from Georgian nationalists; that in 1990
asylum, claiming that they had faced both Nadia and Garegin were badly
persecution in both Ukraine and Georgia beaten; and that in 1992, upon his return
and would be persecuted in either country from Ukraine, an attempt was made to
if obliged to return. conscript Garegin into the Georgian army.
However, the Ambartsoumians’ principal
The case for persecution in the
contention before us, supported by an
Ukraine is extremely weak. It is largely
expert witness— a professor specializing in
predicated on events that took place, and
the history and politics of the region—is
on policies and attitudes that existed,
that ethnic hostility toward Armenians and
before the breakup of the Soviet Union
and the establishment of an independent
Ukraine. Except for an alleged beating in
1
1991 and a putative attempt to kidnap the Abkhazia is a region in northwest
Ambartsoumians’ children in 1992, the Georgia, along the coast of the Black Sea
record includes nothing more than and the Russian border. It declared
sporadic veiled threats and a lack of independence in 1992, and was the scene
economic opportunity in the Ukraine. The of a bloody war in 1992-1993. See A
Ambartsoumians did adduce evidence that Matter of Russian Honour—Russia, The
the climate in the Ukraine is inhospitable Economist, Aug. 21, 2004, available at
to Armenians. However, the record, 2004 WL 62019076. South Ossetia is in
including State Department reports on north-central Georgia, bordering on the
country conditions, reflects a total change North Ossetia region of Russia. It
in the governmental policies of the declared independence from Georgia in
Ukraine since 1991, and nothing in the 1990, intending to reunite with North
record suggests that the Ambartsoumians Ossetia; this sparked a war lasting until
would now be persecuted in the Ukraine 1992. See Fact Sheet: Georgia, Dep’t St.
for either their ethnicity or their religious Dispatch, May 9, 1994, at 296, available
beliefs. at 1994 WL 2848944. Currently, Russian
and UN peacekeepers maintain truces in
The case for persecution in Georgia
Abkhazia and South Ossetia, see CIA
seems more complicated in light of the
World Factbook—Georgia, at
fluid political situation in the North
http://www.cia.gov/cia/publications/factb
Caucasus and the continuing tensions in
ook/geos/gg.html, but the government of
Georgia still does not control those areas,
see Putting Out More Flags— Georgia,
The Economist, July 24, 2004, available
at 2004 WL 62018768.
2
religious hostility toward non-Orthodox been pertinent, intervening events in the
Christians would now render the country of removal; and (2) whether the
Ambartsoumians subject to persecution in issues on review are ‘time sensitive’ in that
Georgia. changes in conditions over time may affect
the resolution of the issues.” The full text
The latest State Department
of the procedures are set forth in the
Country Report in the record, for 1998,
Appendix to this opinion. We commend
counters the expert’s opinion. We
the Attorney General and OIL on this
therefore asked the parties to comment on
reform.
the adequacy of the administrative record,
given the current situation in Georgia, in N o t w i t h s ta n d i n g the new
light of our opinions in Berishaj v. procedures, the OIL concluded that the
Ashcroft, 378 F.3d 314, 328-31 (3d Cir. record in this case does not warrant a
2004), and Gambashidze v. Ashcroft, 381 remand to the BIA. Concomitantly, the
F.3d 187, 193-94 (3d Cir. 2004). In these Ambartsoumians’ counsel, at oral
cases, we expressed our concerns about argument, agreed that the record before the
being forced to use stale administrative agency was sufficient for this Court to
records to decide petitions seeking to consider, although he argued that it
avoid deportation to countries of origin compelled us to reject the IJ’s findings.
where asylum applicants might be Since both parties seem to agree that the
persecuted. staleness of the record does not present
any difficulties here, we reach the merits
In response to our request for
of the persecution claims.
comment, the Attorney General reported
that the Department of Justice has The government submits that the
responded to Berishaj by implementing a record does not compel the conclusion that
new procedure pursuant to which the there was past persecution, or that the
Office of Immigration Litigation (OIL), in Ambartsoumians will face persecution if
consultation with its client agencies, now returned to Georgia. For the reasons that
screens out and seeks to remand cases follow, we agree. As will appear,
where records are out of date and not important to this conclusion are the facts
appropriate for judicial review. All OIL that: (1) the Ambartsoumians’ expert, Dr.
attorneys have been instructed to consider Ronald Suny, was too general and broad-
whether the record in each case assigned to brushed to overcome the 1998 Country
them is so out of date as to justify a Report’s account of greatly improved
remand. If the record is stale, the OIL conditions for Armenians in Georgia; (2)
attorney is to bring the case to the attention Suny acknowledged that the situation in
of the Director of OIL, who may seek a Georgia had significantly improved and
remand as a matter of discretion. The that the government was not a likely
factors that OIL will use in assessing old persecutor; and (3) the real problem was
records include “(1) whether there have only that Georgia was a “weak state”
3
where Armenians are not popular. Because we find that the Ambartsoumians
are not eligible for asylum, we need not
For these reasons, the Petition for
consider their eligibility for withholding of
Review will be denied.
removal under this stricter standard. See
I. The Legal Framework Shardar v. Ashcroft, 382 F.3d 318, 324 (3d
Cir. 2004).
The Attorney General may, in his
discretion, grant asylum to any alien if he The standard for CAT protection is
determines that the alien is a refugee. 8 different from that for asylum or
U.S.C. § 1158(b)(1). To demonstrate that withholding of removal; it requires proof
he or she is a refugee, an asylum applicant that the applicant is “more likely than not”
must establish that he or she is unable or to be tortured, 8 C.F.R. § 1208.16(c)(2),
unwilling to return to his or her native but does not require any showing that the
country because of “persecution or a well- torture is on account of any protected
founded fear of persecution on account of ground. See Lukwago v. Ashcroft, 329 F.3d
race, religion, nationality, membership in 157, 183 (3d Cir. 2003).
a particular social group, or political
The Immigration Judge denied the
opinion.” 8 U.S.C. § 1101(a)(42)(A). A
Ambartsoumians’ requests for relief, but
showing of past persecution gives rise to a
granted them voluntary departure. The
rebuttable presumption of a well-founded
Board of Immigration Appeals affirmed
fear of future persecution. 8 C.F.R.
without opinion, pursuant to 8 C.F.R.
§ 1208.13(b)(1). The burden of proving
§ 1003.1(e)(4).2 Therefore, we review only
persecution is on the asylum applicant.
the decision of the Immigration Judge.
8 C.F.R. § 1208.13(a).
Gao v. Ashcroft, 299 F.3d 266, 271 (3d
The Ambartsoumians’ application Cir. 2002). Our review is limited by the
for withholding of removal is based upon “substantial evidence” standard, which
8 U.S.C. § 1231(b)(3)(A), which forbids states that “the administrative findings of
removal if “the alien's life or freedom fact are conclusive unless any reasonable
would be threatened in that country adjudicator would be compelled to
because of the alien’s race, religion, conclude to the contrary.” 8 U.S.C.
nationality, membership in a particular § 1252(b)(4)(B). The determination that an
social group, or political opinion.” To asylum applicant faced past persecution, or
qualify for withholding of removal, the
applicant must show “that it is more likely
than not that he will face persecution if he 2
In his brief, Ambartsoumian suggests
is deported.” Li Wu Lin v. INS, 238 F.3d
that the Board’s policy of affirming
239, 244 (3d Cir. 2001) (citing INS v.
without opinion denies him due process.
Cardoza-Fonseca, 480 U.S. 421, 430
This argument is foreclosed by our recent
(1987)). This standard is stricter than the
decision in Dia v. Ashcroft, 353 F.3d
“well-founded fear” standard for asylum.
228, 238-45 (3d Cir. 2003) (en banc).
4
has a well-founded fear of future Boyko, was a Baptist preacher who was
persecution, is a factual conclusion subject imprisoned and exiled to Siberia during
to this deferential review. Gao, 299 F.3d at the Soviet era. Nadia suffered for her
272. We therefore must uphold the IJ’s father’s beliefs: as a child, she was
findings if they are “supported by interrogated by the KGB and abused by
reasonable, substantial, and probative her classmates, and she lived with her
evidence on the record considered as a father in Siberia for three years. Nikolai
whole.” INS v. Elias-Zacarias, 502 U.S. Boyko was in Siberia until 1993.
478, 481 (1992).
Garegin and Nadia met in 1988 in
The Immigration Judge (IJ) heard Odessa, Ukraine, Nadia’s birthplace, while
testimony from Garegin and Nadia Garegin was on a work assignment. They
Ambartsoumian, and from their expert married in 1989, and returned to Garegin’s
witness, Dr. Suny. He also reviewed the homeland, but soon moved back to
U.S. Department of State Country Reports Ukraine to escape ethnic tensions in
for Georgia and Ukraine for 1998, and the Georgia. Garegin at first found work in
State Department Asylum Profiles for Odessa, but alleges that he was harassed
those countries. He relied heavily on the and eventually fired because of his
“objective evidence” of these reports. This nationality. He claims that the Ukrainian
reliance was justifiable, as we have held courts refused to help him and that he was
that State Department reports may unable to find any other permanent
constitute “substantial evidence” for the employment. Ukraine, too, was suffused
purposes of reviewing immigration with ethnic nationalism, and Garegin
decisions. Kayembe v. Ashcroft, 334 F.3d claims that the family was repeatedly
231, 235 (3d Cir. 2003); cf. Lal v. INS, 255 threatened and insulted. In 1990, Garegin
F.3d 998, 1023 (9th Cir. 2001) (describing was beaten by Ukrainian nationalists, and
State Department country reports as the decided to return to Georgia so as not to
“most appropriate” and “perhaps best put his family at risk.
resource” on country conditions).
He returned to the Ukraine later that
Based on the record, the IJ year. He claims that he stayed in hiding in
determined that the Ambartsoumians had his wife’s house for two months,
failed to establish a well-founded fear of apparently because he was in the Ukraine
persecution in either Georgia or the illegally. Eventually, the police raided his
Ukraine. We examine his decision as to house, arrested him, beat him, and told him
each of these countries in turn. that this treatment would continue unless
he left the Ukraine. He also claims that
II. The Ukraine
someone attempted to kidnap the couple’s
Nadia Ambartsoumian claims that two children, and that Nadia was beaten
she was persecuted in the Ukraine because and threatened because of her non-
of her Baptist faith. Her father, Nikolai Ukrainian husband. He once again
5
returned to Georgia in 1992, but quickly instances of discrimination against
came back to the Ukraine to avoid serving Evangelicals, but nothing that would rise
in the Georgian army. On Garegin’s return, to the level of persecution. Ukraine 1998
neighbors again attacked and threatened Country Report 1589. And Nadia
the Ambartsoumians, and Nadia suffered a Ambartsoumian admitted during the
miscarriage after one such attack. asylum hearing that her parents and four of
her siblings still live in the Ukraine and
The Ambartsoumians left the
practice the Baptist faith, and presented no
Ukraine for Canada in 1992. While in
evidence that they are currently persecuted
Canada, they applied for refugee status.
for their beliefs. In fact, though she said
They left Canada for the United States in
that her father had not received permission
1996, before Canadian officials had taken
to buy a house of prayer, she admitted that
final action on their asylum application.
he currently has a church in Odessa.
They surren dered to imm igratio n
Reading the record as a whole, we find no
authorities in Champlain, NY, and
compelling reason to reverse the IJ’s
requested asylum.
finding that Nadia Ambartsoumian does
The above facts and allegations not have a well-founded fear of
suggest two possible bases for the claim of persecution in the Ukraine.3
persecution in the Ukraine, each of which
Second, Garegin claims that he and
the IJ rejected.
his family suffered persecution because he
First, Nadia claims that she suffered was not a native Ukrainian. The only
persecution because of her religious evid e n c e f o r t h is w a s the
background. The IJ agreed that Nadia’s Ambartsoumians’ own testimony. The IJ
family was persecuted during the Soviet
era. But he found that Nadia herself did
3
not suffer the same degree of persecution The IJ did not clearly state whether he
as her father, and that the post-Communist had found that Nadia had not suffered
Ukraine was much more hospitable to past persecution, or whether he found
Baptists. that she had suffered such past
persecution, but that the presumption of
There is substantial evidence in the
future persecution was rebutted by
record to support this conclusion. The
evidence of a change in country
State Department Asylum Profile states
conditions since the fall of the Soviet
that the Communists repressed Evangelical
Union. See 8 C.F.R. § 1208.13(b)
Christians, but that “[w]ith the overthrow
(1)(i)(A). Such a failure to make specific
of the Communist regime in 1991,
findings generally makes review more
Evangelicals are no longer denied religious
difficult, but in the instant case we find
freedom and they worship without
that either conclusion would be
interference.” Ukraine 1997 Asylum
supported by substantial evidence, so we
Profile 8. The Country Report notes some
do not inquire further.
6
again relied on the State Department reasonably have concluded that Garegin
reports, which indicate that the Ukraine’s was not persecuted for his nationality, but
nationality policy “meet[s] international rather that he had legal difficulties due to
standards required for the protection of his own failure to obtain the proper
minority groups,” Ukraine 1997 Asylum permissions. There is no evidence in the
Profile 3, although they also describe record to suggest that Garegin ever sought
“ [ f ] r e q u ent harassment of rac ial legal status in the Ukraine, as explained in
minorities,” especially dark-skinned Asian the margin, or that he would have been
and African minorities. Ukraine 1998 prevented from doing so because of his
Country Report 1590. While this State nationality. 4 Garegin’s difficulties with his
Department evidence may be equivocal, employers and with the police certainly do
the IJ was entitled to draw from it the not amount to ethnic persecution if they
conclusion that Armenians do not face
persecution in the Ukraine, see Kayembe,
334 F.3d at 236-37, and there is no 4
The Ambartsoumians introduced into
significant evidence in the record to the
the record evidence of the Ukrainian law
contrary.
of citizenship, apparently to prove that
Moreover, the IJ found that Garegin is currently ineligible for
Garegin’s troubles in the Ukraine stemmed Ukrainian citizenship. This, however,
not from his ethnicity but from his lack of does not prove that Garegin is ineligible
official permission to live and work in that for permission to live and work in the
country. This finding, too, is well Ukraine. In fact, the citizenship law
supported. Both Garegin’s and Nadia’s requires that candidates demonstrate
own testimony could be read as indicating “continuous residence on legal grounds
that Garegin was unable to work, and was on the territory of Ukraine throughout the
harassed by the police, mainly because he past five years.” This requirement
had failed to obtain proper legal naturally suggests that non-citizens may
documents and permissions. Garegin live legally in the Ukraine.
testified that he was fired from his job We also note that, even if Garegin
“[b]ecause I’m not [a] permanent resident Ambartsoumian did face difficulties in
of the Ukraine. And plus, I am Armenian.” obtaining the proper work and residency
He later testified that he lived in hiding in permits, this fact alone would not
his wife’s house because people had told necessarily rise to the level of
him that he was in the Ukraine illegally. persecution. Cf. Ahmed v. Ashcroft, 341
Nadia gave several reasons for her F.3d 214, 218 (3d Cir. 2003) (holding
husband’s inability to get a job, including that a stateless Palestinian in Saudi
that he speaks no Ukrainian and that he Arabia did not suffer persecution due to
lacked a propiska, or residency permit. his difficulty in obtaining work and
From this testimony the IJ could residency permits).
7
were due only to his own failure to follow nationality, his family was in hiding,
Ukrainian residency and labor laws. See apparently afraid of anti-Ossetian feeling
Janusiak v. INS, 947 F.2d 46, 48 (3d Cir. among Georgians. Fearful for his own
1991). Thus the evidence as a whole does safety, Garegin returned to the Ukraine.
not compel the conclusion that Garegin Again, his stay in the Ukraine did not last
suffered persecution in the Ukraine. long, and Garegin once again returned to
Georgia early in 1992. This time, when
III. Georgia
he arrived at the Tbilisi airport, he was
To prove that they were conscripted into the Georgian army to
persecuted in Georgia, the fight in the civil war in the Abkhazia
Ambartsoumians presented their own region. He immediately was put on a bus
testimony and that of an expert witness. to the front, but managed to escape that
Their testimony indicates that they faced night, and fled back to the Ukraine.
serious difficulties during the (generally
The Ambartsoumians also
short) periods that they spent in Georgia.
presented the report and testimony of Dr.
Garegin was born in Tbilisi, Ronald Suny, a professor at the
Georgia, and is a Georgian citizen. He is University of Chicago and an expert on
ethnically Armenian and Ossetian, and is modern Georgian and Armenian history
an Armenian Christian, but he has visited and politics. Dr. Suny testified that
Armenia only once, as a child. He claims President Zviad Gamsakhurdia’s policy
that, because of his Armenian heritage, of “Georgia for the Georgians” had led to
he was harassed and beaten while serious problems for Armenians in the
growing up in Georgia, and while early 1990s. 5 He also noted that
serving as a conscript in the Soviet army.
After meeting Nadia in the Ukraine,
5
Garegin returned with her to Tbilisi in Gamsakhurdia, an ethnic nationalist,
1989. With ethnic tensions on the rise in ruled Georgia from 1990 through 1992.
Georgia, the couple claims that they He was overthrown in January 1992, and
received death threats, and that Nadia replaced by the more moderate Eduard
was beaten by neighbors because they Shevardnadze. See Georgia 1995 Asylum
were not ethnic Georgians. As discussed Profile 4. Though it is not in the
above, they left for the Ukraine, but administrative record, we take judicial
Garegin returned to Georgia in 1990 notice of the fact that President
because of difficulties he encountered Shevardnadze stepped down in
during his short time in the Ukraine. November 2003, after the final BIA
action in this case. He was replaced by
When he returned to Georgia,
Mikhail Saakhasvili, the current
Garegin found a nation divided by the
president. See The Comicopera Ends,
civil war in the region of South Ossetia.
The Economist, May 8, 2004, available
As his mother was Ossetian by
at 2004 WL 62017854.
8
Armenians became unpopular during the Gamsakhurdia regime of 1990-1992,
Georgia’s civil conflict in Abkhazia, he concluded that there was no evidence
because they were perceived as having of discrimination against non-Georgians
sided with the Abkhazians. But Dr. Suny since then, and that, under the rule of
acknowledged that conditions in Georgia President Shevardnadze, Armenians no
had improved since the Gamsakhurdia longer faced discrimination or
years, although he noted that the persecution.
Shevardnadze government, see supra
These conclusions are fully
note 5, was too weak to keep order and
supported by the State Department
protect ethnic minorities. He asserted that
reports. While the Asylum Profile for
the central government had effective
Georgia noted that, during the
control only of Tbilisi, the capital city,
Gamsakhurdia era, “acts against
and that even within Tbilisi the
Armenians on a personal basis may have
government had only limited control over
taken place,” it concluded that there was
its citizens, and even over its police
no evidence of “actions taken against
forces. As a result, he represented that
Armenians on the basis of their
there were a number of incidents of
ethnicity” during that period. Georgia
unofficial violence against Armenians
1995 Asylum Profile 5 (emphasis added).
even since Shevardnadze came to power.
More importantly, it noted that “from
However, Dr. Suny confessed that 1993 we have seen no evidence of
he had no real familiarity with the governmental discrimination against the
Ambartsoumians’ situation, but stated non-Georgian population.” Id. at 4.
that Garegin would have difficulty
In evaluating the evidence offered
getting travel documents to return to
by the Ambartsoumians and Dr. Suny,
Georgia, that he would face economic
the IJ found that it did not establish that
troubles upon his return, and that the
the Ambartsoumians experienced past
government and police would not be
persecution in Georgia. He did not
zealous in protecting him from other
explicitly make an adverse credibility
Georgians.
finding, though he concluded that some
Having heard all this testimony, aspects of the Ambartsoumians’
the IJ determined that the testimony were “inaccurate.”
Ambartsoumians had not suffered Importantly, he noted that Dr. Suny had
persecution in Georgia on account of agreed that relations between Georgians
their ethnicity. He relied heavily on the and Armenians had historically been
State Department reports, noting that amicable, and that the Shevardnadze
they showed a “historic amity between government had largely restored those
Armenians and Georgians.” While he relations after the Gamsakhurdia
conceded that there was some troubles. The IJ also found that Suny’s
discrimination against Armenians during concerns about the dangers facing
9
Armenians were not supported by “the civil war against the region of Abkhazia.
weight of objective evidence.” He But conscription by a sovereign nation
determined that, even during the cannot constitute persecution under 8
Gamsakhurdia years, there was little or U.S.C. § 1101(a)(42). Lukwago v.
no government-sponsored persecution of Ashcroft, 329 F.3d 157, 168-69 (3d Cir.
Armenians, and that the Ambartsoumians 2003). Thus the facts that life in Georgia
“avoided the excesses of the was difficult due to a civil war, and that
Gamsakhurdia regime by relocating to Garegin Ambartsoumian was conscripted
Ukraine.” to fight in that war, do not in themselves
establish past persecution.
As noted above, the IJ’s reliance
on “objective evidence” in the form of We do not deny that the
State Department reports was justifiable Ambartsoumians’, and Dr. Suny’s,
under our decision in Kayembe. Upon descriptions of life in Georgia are
reviewing the testimony and affidavits troubling. But we do not believe that
presented by the Ambartsoumians, and these allegations rise to the level of
the State Department reports considered persecution required by § 1101(a)(42)
by the IJ, we are unable to conclude that and by Fatin. Thus, the record does not
the record would compel any reasonable compel us to set aside the IJ’s finding
adjudicator to reject the IJ’s findings. that the Ambartsoumians did not suffer
Even if we accept, as the IJ apparently persecution in Georgia, or his
did, that the Ambartsoumians determination that they had not
encountered difficult conditions in established a well-founded fear of future
Georgia, that would not necessarily persecution there.
support a finding of past persecution.
IV. The State of the Record
Certainly Georgia was, and continues to
be, involved in a number of civil The record in this case consists of
conflicts. In fact, the IJ specifically the Ambartsoumians’ testimony about
found that the Ambartsoumians’ events predating 1992, and of State
principal reason for leaving Georgia was Department reports from 1995 through
the civil war. But we have held that the 1998. Concerned about the long delay
standard for persecution is high, and that between this record and our review of the
“‘generally harsh conditions shared by case, we requested supplemental briefing
many other persons’ do not amount to on the issues raised by this Court in
persecution.” Fatin v. INS, 12 F.3d 1233, Berishaj v. Ashcroft, 378 F.3d 314, 328-
1240 (3d Cir. 1993) (quoting Matter of 31 (3d Cir. 2004), and reiterated in
Acosta, 19 I. & N. Dec. 211, 222 (BIA Gambashidze v. Ashcroft, 381 F.3d 187,
1985)). Ambartsoumian alleges that, on 193-94 (3d Cir. 2004). The government’s
his return to Georgia in 1992, he was submission in response to this request
pressed into military service in Georgia’s informed the Court of the new, and
10
salutary, screening policy described minorities than was the Shevardnadze
above (and set forth fully in the government. Both parties rely on the
Appendix). record before the IJ and the BIA, and we
are therefore satisfied that our concerns
The Department of Justice asserts
in Berishaj and Gambashidze are
that it has followed its screening policy
inapplicable here.
in this case, but has determined that
conditions have not changed significantly V. Conclusion
enough to make the record here obsolete
On reviewing all the evidence in
and require a remand. Mindful of our
the record, we are unable to conclude
obligation to base our review on the
that the evidence as a whole would
contents of the administrative record, see
compel any reasonable adjudicator to
Berishaj, 378 F.3d at 330, we are
find that the Ambartsoumians suffered
unwilling to take judicial notice of the
persecution in either Georgia or the
most recent State Department reports on
Ukraine, or that they have a well-
Georgia and the Ukraine, which are
founded fear of future persecution or
easily available on the Internet, see
torture in either of those countries.
http://www.state.gov/g/drl/rls/hrrpt/2003/
Therefore, we will deny the petition for
. Instead, we simply note that neither of
review.
the parties have provided any evidence or
argument that would counsel a remand to Appendix
open the record in this case. At oral
To clarify the new policy of the
argument, counsel for petitioners
Office of Immigration Litigation (OIL),
specifically disclaimed the argument that
we set forth, in full (including footnotes),
the administrative record in this case was
Part II of the government’s supplemental
insufficient because of staleness; instead,
memorandum in the instant case:
he argued that the evidence in the record
compels reversal. And petitioners have After receiving a copy of
not filed a motion to reopen the record the Court’s decision in
before the BIA, pursuant to 8 C.F.R. Berishaj, the Office of the
§ 1003.2(c). The government submits Attorney General and the
that no material changes have occurred in Civil Division immediately
Georgia or the Ukraine. started to consider how
best to address the Court’s
In short, no serious suggestion has
concerns. The Deputy
been made that conditions in the Ukraine
Assistant Attorney General
have changed, in any respect material to
for OIL consulted with the
asylum, since the BIA’s decision; while
Executive Office of
Georgia has a new president, see supra
Immigration Review
note 5, neither party has suggested that
(EOIR) (which includes the
the new regime is any worse for ethnic
11
Board of Immigration remands would add delay
Appeals (BIA) and the to the adjudication of some
Immigration Judges (IJ)) aliens’ claims, and
and the Department of although it is possible that
Homeland Security (DHS) a remanded case would
(which litigates cases in become stale again after
front of the BIA and IJs) 6 the record is supplemented,
to determine the reasons this proposal appeared to
for the stale records and to be a sound method for
explore possible solutions. improving the quality of
Based on these meetings records in appropriate
and OIL’s own analysis of cases. The Assistant
the issue, he proposed to Attorney General agreed,
the Assistant Attorney and so did the Office of the
General of the Civil Attorney General.
Division that, as a matter of
Accordingly, at the
“prosecutorial discretion,”
direction of the Deputy
the Government should
Assistant Attorney General
screen out and seek to
for OIL, the Director of
remand cases whose
OIL has informed all
records are out-of-date and
attorneys under his
not appropriate for judicial
supervision that, when a
review.7 Although such
case is assigned to them,
they should consider
6
After its creation, DHS assumed the whether the age and quality
responsibilities of the former of the record counsels in
Immigration and Naturalization Service, favor of a remand. If a
including the prosecution of cases before record is old and deficient,
the BIA and IJs. The Civil Division, the attorney should
through OIL, continues to defend the promptly bring it to the
BIA’s decisions in the federal courts. attention of the Director of
7
The decision to seek a remand in a
particular case would, of course, be conditions have improved, weakening
discretionary. The law does not require the alien’s claim). Rather, the prescribed
the Government to screen out and seek regulatory mechanism for responding to
remands in cases in which country stale records is the motion to reopen. See
conditions have gotten worse, 8 C.F.R. § 1003.2(c). If conditions in a
strengthening an alien’s asylum claim country worsen, the alien has the burden
(or, for that matter, cases in which of filing the motion to reopen. Id.12
OIL, who, in consultation the alien was improperly
with the OIL’s client denied the opportunity to
agencies (EOIR and DHS), perfect and preserve the
will exercise his discretion record on his claims.8 OIL
on whether to seek a attorneys will consider
remand in the case. these factors in all
subsequent cases in light of
The Director of OIL
Berishaj.
also notified all OIL
attorneys of the factors that Moreover, EOIR
they should consider in has also taken steps to
assessing whether a record respond to the Court’s
is suitable for judicial concerns. Even before
review. Among these Berishaj, the BIA
factors are: (1) whether remanded cases from
there have been pertinent, countries where conditions
intervening events in the were fluid, thus enabling
country of removal; and (2) the parties to supplement
whether the issues on the record. After meeting
review are “time sensitive” with DHS and the Deputy
in that changes in Assistant Attorney General
conditions over time may for OIL, EOIR agreed to
affect the resolution of the continue to consider
issues. In addition, because additional remands.
OIL’s screening of cases Additionally, EOIR is
should not create a currently contemplating
windfall for aliens who other proposals, including,
have failed to meet their
burdens of proof or to
8
pursue the procedural These factors reflect the fact that an
opportunities available to old record is not necessarily a deficient
them, OIL attorneys should record. For example, country conditions
determine in each case may not have changed despite the
whether the alien bears the passage of time (conversely, a record
burden of proof, whether could be deficient even if not much time
the alien has made efforts has passed). Moreover, even if country
to perfect and preserve the conditions have changed, a remand might
record on his claims not be appropriate, if, say, none of the
through timely motions to issues in the case is time sensitive or if
the agency, and whether the other factors in the analysis counsel
against remand.
13
if an appropriate case
arises, having the BIA
issue a published decision
remanding a case with a
stale record. The Members
of the BIA have already
discussed en banc this
Court’s decision, and are
continuing to do so. The
Respondent will inform the
Court of any proposals that
are adopted.
14