Gambashidze v. Atty Gen USA , 381 F.3d 187 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-26-2004
Gambashidze v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-2218
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Gambashidze v. Atty Gen USA" (2004). 2004 Decisions. Paper 348.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/348
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
PRECEDENTIAL The Lafayette Building
Philadelphia, PA 19106
IN THE UNITED STATES COURT OF
APPEALS Attorneys for Petitioners
FOR THE THIRD CIRCUIT
_________________________________
PETER KEISLER
NO. 03-2218 Assistant Attorney General, Civil
____________ Division
EMILY A. RADFORD
BESIK GAMBASHIDZE; Assistant Director
ANNA BZVANELI; LINDA S. WERNERY
ANNA GAMBASHIDZE; ALLEN W. HAUSMAN
NIKOLOZ GAMBASHIDZE; Senior Litigation Counsel
ZURAB GAM BASHIDZE; JOHN D. WILLIAMS
BEKA GAM BASHIDZE, United States Department of Justice
Office of Immigration Litigation
Petitioners Ben Franklin Station
P.O. Box 878
v. Washington, DC 20044
JOHN ASHCROFT, ATTORNEY JONATHAN COHN (ARGUED)
GENERAL OF THE UNITED STATES United States Department of Justice
Civil Division
Petition for Review of Orders of the 950 Pennsylvania Avenue, N.W.
Board of Immigration Appeals Washington, DC 20530
(Board Nos. A78-198-931, A78-198-932,
A78-198-933, A78-198-934, Attorneys for Respondent
A78-198-935, A78-198-936)
_________________________________ ________________________
Argued May 3, 2004 OPINION OF THE COURT
________________________
Before: SLOVITER, FUENTES and
BECKER, Circuit Judges
BECKER, Circuit Judge.
(Filed: August 26, 2004) Besik Gambashidze, a native of the
Republic of Georgia, petitions for review
JON LANDAU (ARGUED) of a decision of the Board of Immigration
ERICA S. GONZALEZ Appeals (BIA) denying him withholding
Baumann, DeSeve & Landau of removal. The applications of his wife,
437 Chestnut Street Anna, and their four children are
dependent on his application. This case therefore entitled to a presumption of a
requires us to address for the first time a likelihood of future persecution. See 8
recently codified regulation, 8 C.F.R. C.F.R. § 208.16(b)(1)(i). The Board
§ 208.16(b)(1)(i)(B), which controls how nonetheless held him ineligible for
the possibility of relocation within the withholding of removal because he had
proposed country of removal affects the “not met his burden of proof in
claim of an alien who seeks withholding of demonstrating that he has a well founded
removal based on past persecution. fear of persecution upon return to Georgia
because he and his family were able to
Gambashidze was politically active in
internally relocate and live unmolested for
Georgia in the 1990s following its
several months prior to entering the United
independence from the Soviet Union in
States.”
1991, ultimately joining a group known as
the Round Table, which opposed Georgian The BIA invoke d 8 C .F.R .
President Eduard Shevardnadze. For this § 208.16(b)(1)(i)(B) to reach this result.
activity, Gambashidze was allegedly The regulation envisions a two-part
persecuted by the police, both in Tbilisi inquiry: whether relocation would be a
(the capital of Georgia) and in his successful means of escaping persecution,
hometown of Rustavi, a city thirty-five and whether relocation would be
kilometers southeast of Tbilisi. The reasonable. While there is ample evidence
persecution lasted from early 1996 to mid- that it would be reasonable for
1997, at which time Gambashidze and his Gambashidze to relocate to Tianeti, the
family moved to another home in Tianeti, record discloses next to nothing about the
a city fifty kilometers north of Tbilisi. true viability of Tianeti as persecution-free
Details of his stay in Tianeti are scant, but zone for Gambashidze. Since the burden
he did not encounter the police in his eight of proof in an internal-relocation rebuttal
months there. is on the government, 8 C.F.R.
§ 208.16(b)(1)(ii), the slim record on this
In early 1998, Gambashidze came to
critical point cannot support the BIA’s
the United States on a tourist visa, and the
decision. Because there is not substantial
rest of his family followed over the next
evidence in the administrative record for
eighteen months. Gambashidze applied
the BIA’s conclusion regarding internal
for various forms of relief to avoid being
relocation, we will grant the petition for
removed to Georgia, but was unsuccessful
review.
on all claims before the immigration judge
(IJ) and on appeal before the BIA. On this
petition for review he challenges only the
I. The Administrative Record and the
BIA’s disposition of his claim for
BIA’s Decision
withholding of removal. The BIA
assumed, arguendo, that Gambashidze had The administrative record consists
demonstrated past persecution, and was principally of G amb ashidze’s live
2
testimony before the IJ, very brief live activity began in 1996. In February 1996,
testimony by his wife, the State he participated as a speaker at a rally in
Department’s 1999 Country Report on Tbilisi, representing his hometown of
Georgia (the “Country Report”), and the Rustavi. A large number of police broke
affidavits and statements submitted by up the demonstration, and Gambashidze
Gambashidze in connection with his was taken to police headquarters. There,
application. Since neither the IJ nor the he was beaten on his feet and stomach and
BIA rested their decisions on information released after five hours. Then, in July of
in the Country Report, we will not discuss 1996, Gambashidze was summoned to
it. As for Gambashidze’s testimony and police headquarters in Rustavi, where he
written submissions, the IJ found him not was warned to cease participating in
credible, but the BIA did not rest its demonstrations. He did not.
decision on credibility grounds; therefore,
In September, four Rustavi policemen
for ease of exposition we will present
came directly to his house at night and
Gambashidze’s testimony as truthful.
took him away; he was beaten on his feet,
A. Gambashidze’s Testimony and again told to stop participating in
R o u n d T a b l e d e m o n s t ra t i o n s.
As we have already noted,
Gambashidze’s wife corroborated his
Gambashidze was politically active as an
account of the police coming to the house,
opponent of Georgian President Eduard
and the foot injury that Gambashidze
Shevardnadze. Gambashidze had been a
sustained. In March of 1997, w hile on a
supporter of Georgia’s first post-Soviet
visit to Tbilisi, Gambashidze was
president, Zviad Gamsakhurdia, who was
apprehended by a police patrol and
removed after less than a year in office in
brought to police headquarters. He was
the coup d’état that resulted in
handcuffed to a pipe and beaten, and again
Shevardnadze’s control of Georgia.
warned to stop participating in political
Gambashidze remained loyal to pro-
demonstrations. Two months later, in May
Gamsakhurdia factions, and opposed
1997, police took him from his house in
Shevardnadze; this political activity
Rustavi to the Rustavi office of the
consisted mainly of his membership and
Ministry of Internal Affairs, where a high-
participation in a group known as the
ranking official tried to force him to
Round Table. He participated in Round
confess to participation in a recent attempt
Table demonstrations and rallies and gave
to assassinate President Shevardnadze.
the group financial assistance.
Gambashidze claimed he had no
Gambashidze’s testimony and written involvement and would not confess; he
submissions do not suggest that he was was severely beaten and the Internal
persecuted for his political activity from Affairs official threatened him and his
1991 to 1995, but a series of encounters family.
with police based on his Round Table
At this point, in Gambashidze’s words,
3
he “had reached the edge. . . . I started him relief on that claim on two grounds:
making ready to get out of Georgia.” The first, that he had not supported his claim
family moved to a summer house owned with credible testimony, and second, that
by Gambashidze’s wife in Tianeti. While even taking his testimony as true,
Gambashidze lived there—from M ay 1997 Gambashidze’s accounts of his life in
until January 1998—he had no incidents Georgia did not establish past persecution
with the police. He was able to make at or any probability of future persecution.
least one trip to Tbilisi (to obtain a visa The BIA affirmed in a one-paragraph per
from the American embassy) without curiam opinion, in which it advanced a
being stopped by the police. While none different ground for denying the claim for
of Gambashidze’s family had trouble with withholding of removal: that Gambashidze
the police in Tianeti, after Gambashidze could avoid any future persecution by
left for the United States in January 1998 relocating within Georgia. Specifically,
police inquired of his mother as to his the BIA stated:
whereabouts. It is not entirely clear
[W]e find that the respondent failed
whether Gambashidze continued his
to meet his burden of proof in
political activity while in Tianeti. He did
demonstrating that he suffered past
not specifically testify that he engaged in
persecution or has a well founded
political demonstrations while he was
fear of persecution upon return to
living in Tianeti, but in response to a
Georgia. Sp ecif ically, the
general question at the beginning of his
respondent has not met his burden
testimony, “For how many years did you
of proof in demonstrating that he
engage in those political demonstrations?”
has a well founded fear of
he answered, “I would say up to ’98.”
persecution upon return to Georgia
Gambashidze and his family came, two because he and his family were able
at a time, to the United States during 1998 to internally relocate and live
and 1999. He applied in late 1999 for unmolested for several months
various forms of relief that would allow prior to entering the United States.
him and his family to remain in the United
We have jurisdiction under 8 U.S.C.
States.
§ 1252 over this timely petition for review
B. The IJ’s Decision and the BIA’s of this final determination of the BIA.
Affirmance
The IJ rejected all of Gambashidze’s
II. Discussion
claims on various and multiple grounds,
most of which do not concern us here A. Standard of Review
since Gambashidze has petitioned for
The BIA concluded that because
review of only the denial of his claim for
Gambashidze and his family “were able to
withholding of removal. The IJ denied
internally relocate and live unmolested for
4
several months,” they could therefore that finding on the administrative
“avoid a future threat to . . . life or record, the finding is not supported
freedom by relocating to another part of by substantial evidence.
the proposed country of removal,” 8
353 F.3d at 249.
C.F.R. § 208.16(b)(1)(i)(B). We review
such a finding of fact under 8 U.S.C. B. Analysis of Gambashidze’s Claim
§ 1252(b)(4)(B), which provides that
Gambashidze petitions for review of
“administrative findings of fact are
the BIA’s denial of his claim for
conclusive un les s any reasonable
withholding of removal. Under 8 U.S.C.
adjudicator would be compelled to
§ 1231(b)(3)(A), “the Attorney General
conclude to the contrary.” As the en banc
may not remove an alien to a country if the
Court explained in Dia v. Ashcroft, we
Attorney General decides that the alien’s
“have read this standard to require that the
life or freedom would be threatened in that
agency support its findings with
country because of the alien’s race,
substantial evidence, as articulated by the
religion, nationality, membership in a
Supreme Court in INS v. Elias-Zacarias,
particular social group, or political
502 U.S. 478, 481-84 [(1992)].” 353 F.3d
opinion.” To qualify for withholding of
228, 247 (3d Cir. 2003) (en banc); see also
removal, an alien “must show a clear
Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d
probability that upon his return to [the
Cir. 2002) (“[The Illegal Immigration
country of removal]” he would be
Reform and Immigrant Responsibility Act]
persecuted. Li Wu Lin v. INS, 238 F.3d
codifies the language the Supreme Court
239, 244 (3d Cir. 2001) (citing Chang v.
used in Elias-Zacarias to describe the
INS, 119 F.3d 1055, 1066 (3d Cir. 1997)).
su b st a n ti al evid ence standard in
“Put differently, the standard is that he
immigration cases.”). We concluded in
must show that it is more likely than not
Dia that
that he will face persecution if he is
the question whether an agency deported.” Id. at 244 (citing INS v.
determination is supported by Cardoza-Fonseca, 480 U.S. 421, 430
substantial evidence is the same as (1987)). As is familiar, an alien who has
the question whether a reasonable demonstrated past persecution is presumed
fact finder could make such a to face future persecution if removed. See
determination based upon the 8 C.F.R. § 208.16(b)(1)(i). The same
administrative record. If a regulation also codifies certain ways in
reasonable fact finder could make a which the government may rebut this
p a r t ic u l a r f i n d i n g o n t h e presumption of future persecution. Here
administrative record, then the we consider one such avenue, 8 C.F.R.
finding is supported by substantial § 208.16(b)(1)(i)(B), which contemplates
evidence. Conversely, if no that it may be reasonable for an alien to
reasonable fact finder could make relocate within the country of removal to
5
avoid future persecution. into its present form until relatively
recently, see 65 Fed. Reg. 76135 (Dec. 6,
The regulation provides that the
2000). The regulation was effective
presumption of future persecution may be
January 5, 2001, which is after the date of
rebutted upon a finding that “[t]he
the IJ’s decision. Nonetheless, the
applicant could avoid a future threat to his
regulation was in effect by the time of the
or her life or freedom by relocating to
BIA’s decision, and the BIA expressly
another part of the proposed country of
cited the new regulation in its decision.
removal and, under all the circumstances,
it would be reasonable to expect the As the internal-relocation regulation is
applicant to do so.” Id. The IJ must make a fairly recent codification, this Court has
such a finding by the preponderance of the not had occasion to address it in any detail.
evidence, 8 C.F.R. § 208.16(b)(1)(i), Indeed, while several Courts of Appeals
and—of some significance for the case have mentioned the regulation in passing,
now before us—the burden of proof is on it appears that only the Court of Appeals
the government, 8 C.F.R. for the Ninth Circuit has considered it at
§ 208.16(b)(1)(ii). In assessing the any length. 1 In Knezevic v. Ashcroft, 367
reasonableness of internal relocation, the F.3d 1206 (9th Cir. 2004), that Court took
regulation directs adjudicators to consider up the case of a septuagenarian ethnic Serb
“among other things, whether the applicant and his ethnic Serb wife, both from
would face other serious harm in the place Bosnia-Herzegovina. The Court
of suggested relocation; any ongoing civil determined, contra the IJ in that case, that
strife within the country; administrative,
economic, or judicial infrastructure;
1
geographical limitations; and social and One other Court of Appeals case,
cultural constraints, such as age, gender, Hagi-Salad v. Ashcroft, 359 F.3d 1044health, and social and familial ties.” 8 (8th Cir. 2004), considers 8 C.F.R.
C.F.R. § 208.16(b)(3). The regulation § 208.13(b)(1)(i)(B), which is the
envisions a totality of the circumstances internal-relocation regulation used in
inquiry, noting that “[t]hese factors may or adjudicating asylum claims. It is
may not be relevant, depending on all the virtually identical to 8 C.F.R.
circumstances of the case, and are not § 208.16(b)(1)(i)(B), which is used in
necessarily determinative of whether it adjudicating withholding of removal
would be reasonable for the applicant to claims and applications for relief under
relocate.” Id. the Convention Against Torture. Hagi-
Salad is not instructive here, though,
The notion of the internal-relocation
because the BIA decision under review
rebuttal has existed for some time in the
in that case wholly misinterpreted the
BIA’s decisions, see, e.g., Matter of
regulation, leaving the Court of Appeals
C—A— L—, 21 I. & N. Dec. 754 (BIA
with little to do but grant the petition and
1997), but the regulation was not codified
remand the case for proper consideration.
6
the couple had demonstrated past questions may be at issue.2 In
persecution at the hands of Croatians in the Gambashidze’s case, for example, it is
region. See id. at 1211-12. It turned undisputed that it would be reasonable for
therefore to the IJ’s alternative basis of him and his family to relocate to their
decision—that the Knezevics could avoid house in Tianeti; after all, the family is
future persecution by relocating within apparently relatively well-to-do, Tianeti is
B osnia-Herzegovina. The Court not a great distance from Rustavi, and the
concluded that “[t]he evidence . . . family did in fact relocate to Tianeti for
indicates that the Knezevics could safely eight months from mid-1997 to early 1998.
relocate to the Serb-held parts of Bosnia- Gambashidze does take issue, however,
Herzegovina without fear of the Croats or with the BIA’s conclusion that he could
Muslims.” Id. at 1214. Nonetheless, the successfu lly avoid persecution by
Court concluded that it would be
unreasonable to require them to do so:
2
If forced to relocate, [the Courts have undertaken— in full or in
Knezevics] would have great part— this same bipartite inquiry even in
difficulty finding employment, and cases decided prior to the codification of
the destruction of their business and the internal-relocation regulation (i.e.,
loss of all their possessions means cases decided under Matter of
they would have no means of C—A— L—). See, e.g., Melkonian v.
supporting themselves. Ashcroft, 320 F.3d 1061, 1069-71 & n.3
Additionally, their family members (9th Cir. 2003) (noting new internal-
no longer reside in Bosnia- relocation regulations and vacating IJ’s
Herzegovina. decision on the ground that while he
assessed whether internal relocation
. . . . To expect the Knezevics to
within the Republic of Georgia would be
start their lives over again in a new
successful, he failed to address whether it
town, with no property, no home,
would be reasonable); Manzoor v. United
no family, and no means of earning
States Dep’t of Justice, 254 F.3d 342,
a living is not only unreasonable,
347-48 (1st Cir. 2001) (overturning BIA
but exceptionally harsh.
decision on the ground that substantial
Id. evidence did not show that relocation
within Pakistan would allow applicant to
Thus the regulation envisions a two-
escape persecution); Singh v. Ilchert, 63
part inquiry: whether relocation would be
F.3d 1501, 1510-12 (9th Cir. 1995)
successful, and whether it would be
(overturning BIA decision on the ground
reaso nab le. Und er 8 C.F .R .
that persecution of applicant by
§ 208.16(b)(1)(ii), the burden of proof on
government actors in India
both issues is on the government. In any
presumptively made his relocation within
given case, of course, only one of these
India futile).
7
relocating to Tianeti. hiding underground. We do not know
whether his persecutors knew that he had
Gambashidze challenges the BIA’s
relocated. There is evidence of only one
conclusion that he “has not met his burden
trip into Tbilisi, where he had been
of proof in demonstrating that he has a
previously seized by police, but one trip to
well founded fear of persecution upon
a large city (Tbilisi had well over one
return to Georgia because he and his
million inhabitants in 1997) is not likely to
family were able to internally relocate and
attract the notice of the authorities.
live unmolested for several months prior to
Moreover, an eight-month period without
entering the United States.” Preliminarily,
p o l i c e p e r s e c u ti o n u n d e r t h e se
we must note that this seems to be a
circumstances is extremely weak evidence
misstatement of the law, for upon
that persecution had ceased entirely.
demonstrating past persecution (which the
While he was living in Rustavi,
BIA must have assumed here, since it
Gambashidze’s encounters with the police
offered no comment on past persecution),
came at intervals of 2 to 7 months, so an 8-
an applicant is presumed to face future
month hiatus while he was in Tianeti,
persecution and the burden shifts to the
perhaps in hiding, is not enough of an
government in rebuttal. See 8 C.F.R.
outlier to suggest that the pattern of
§ 208.16(b)(1)(i)-(ii). The BIA’s decision
persecution had ended.
could be read to have (incorrectly) placed
the burden on Gambashidze. We will, Overall, the record says virtually
however, indulge the view that the BIA’s nothing about whether moving his family
statement is simply a shorthand for saying to Tianeti would be a successful way for
that Gambashidze failed to prevail on his Gambashidze to permanently avoid his
ultimate burden to show a likelihood of persecutors. To be sure, what little
future persecution because the government evidence there is in the record is consistent
carried its burden on its internal-relocation with the government’s position. But the
rebuttal. record is so thin on the very matter that
formed the basis of the BIA’s decision that
Thus the question is whether
no reasonable factfinder could soundly
substantial evidence supports the
reach the conclusion that the BIA did on
conclusion that Gambashidze could avoid
the limited evidence before it. The burden
persecution in Georgia by relocating to
is on the government, and we are
Tianeti. All we know from the record is
compelled to conclude that the government
that Gambashidze was able to live
did not meet that burden.
unmolested in Tianeti for about eight
months, during which time he may have
engaged in some political activity, but we
III. Conclusion
know no other details. The record does
not disclose whether he was able to live For the foregoing reasons, we will
freely in Tianeti, or had to remain in grant the petition for review. On remand,
8
the government is of course free to more
fully develop the factual basis for its
internal-relocation position, or to urge the
BIA to rest its decision on some other
ground. We also note that the
administrative record in this case, like so
many others this Court has recently seen,
is way out of date—both chronologically
and in terms of actual events on the ground
in Georgia. The testimony in this case is
over fifty months old, the most recent State
Department Country Report in the
administrative record is older still, and the
political climate in Georgia seems to have
undergone a sea change since the ouster of
Shevardnadze in late 2003. Perhaps on
remand the parties can heed the concerns
we recently expressed about stale
administrative records in Berishaj v.
Ashcroft, No. 03-1338, 2004 WL 1746299(3d Cir. Aug. 5, 2004).
9