Tsiklauri v. Atty Gen USA

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
12-21-2006
Tsiklauri v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3332
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-3332
____________
AVTANDIL TSIKLAURI,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________
On Petition for Review from an
Order of the Board of Immigration Appeals
(Board No. A78 817 461)
Immigration Judge Charles M. Honeyman
____________
Submitted Under Third Circuit LAR 34.1(a)
December 11, 2006
Before: FISHER and CHAGARES, Circuit Judges,
and BUCKWALTER,* District Judge.
(Filed December 21, 2006)
____________
OPINION OF THE COURT
____________
*
The Honorable Ronald L. Buckwalter, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
FISHER, Circuit Judge.
Avtandil Tsiklauri filed a petition for review from a denial of withholding of
removal by the Immigration Judge (“IJ”), which was affirmed by the Board of
Immigration Appeals (“BIA”). For the reasons that follow, we will deny the petition for
review.
I.
As we write only for the parties, who are familiar with the factual context and the
procedural history of the case, we will set forth only those facts necessary to our analysis.
Tsiklauri is a native and citizen of the Republic of Georgia. He arrived in the
United States in July 1998 on a visitor’s visa. After overstaying the visa and being placed
in removal proceedings, Tsiklauri submitted an application for asylum. Tsiklauri sought
asylum, withholding of removal, relief under the Convention Against Torture, and in the
alternative, voluntary departure.
Tsiklauri’s asylum application was based on his political activities as a supporter
of Georgia’s first president, Zviad Gamsakhurdia. Supporters of Gamsakhurdia, who
died in 1993, are called Zviadists. Zviadists apparently were viewed as a threat to the
government even after the death of their leader. Tsiklauri was arrested twice for his
political activities, and was beaten and starved while in prison. After being released for
the second time, Tsiklauri fled to the United States. In his application for asylum,
2
Tsiklauri stated that he would return to Georgia if the president of Georgia, Eduard
Shevardnadze, was not reelected in 1999.1
Shortly before Tsiklauri’s final removal hearing before the IJ in 2004,
Shevardnadze, resigned and a new president, Mikheil Saakashvili, was elected. The
government presented the IJ with three newspaper articles that described the election of
the new president, and his relationship with Shevardnadze. Tsiklauri provided the IJ with
an article from “internews” that described an attack on a popular television station in
Georgia the week before the election, and a report on the election from EurasiaNet. He
also testified that he heard from other Zviadists that the group opposed the new president.
The IJ denied all of Tsiklauri’s requests for relief, except for voluntary departure.
Tsiklauri only appeals the denial of withholding of removal. The IJ denied the
withholding of removal on the basis of the changed circumstances in Georgia, even
though Tsiklauri had proved past persecution, because Tsiklauri had failed to show it was
likely that he would be persecuted under the new president. The BIA affirmed the IJ’s
decision in 2005.
II.
We have jurisdiction over this petition for review pursuant to 8 U.S.C.
§ 1252(a)(1). See Berishaj v. Ashcroft, 378 F.3d 314, 322 (3d Cir. 2004). Because the
1
At the hearing before the IJ, Tsiklauri explained that even though he had made
that statement he was still afraid to return even with Shevardnadze no longer in power.
3
BIA adopted the IJ’s decision, we review the IJ’s decision to determine if there was
substantial evidence to support the conclusion. See Abdulai v. Ashcroft, 239 F.3d 542,
549 n.2 (3d Cir. 2001). Substantial evidence means that there is more than “a mere
scintilla [of evidence] and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir. 1998)
(citation omitted).
Tsiklauri claims that the IJ’s decision to deny withholding of removal was not
supported by substantial evidence because the government failed to meet its burden of
proving changed circumstances by a preponderance of the evidence. The Attorney
General may not “remove an alien to a country if the Attorney General decides that the
alien’s life or freedom would be threatened in that country because of the alien’s race,
religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). To be eligible for withholding of removal, Tsiklauri had to
prove that his life or freedom would be threatened if he returned to Georgia. See 8 C.F.R.
§ 208.16(b). In this case, Tsiklauri met this original burden because the IJ determined
that he proved past persecution. See 8 C.F.R. § 208.16(b)(1)(i). A finding of past
persecution creates a rebuttable presumption of future persecution, and the burden is
placed on the government to rebut the presumption. See 8 C.F.R. § 208.16(b)(1)(ii). The
presumption can be rebutted if the IJ finds by a preponderance of the evidence that
“[t]here has been a fundamental change in circumstances such that the applicant’s life or
4
freedom would not be threatened on account of any of the five grounds mentioned in this
paragraph upon the applicant’s removal to that country.” 8 C.F.R. § 208.16(b)(1)(i)(A).
The question on appeal is whether the government met its burden.
We find that the three articles presented by the government were sufficient to
prove by a preponderance of the evidence that there had been a fundamental change in
Georgia such that Tsiklauri’s life or freedom would no longer be threatened.2 The articles
explained that a new president was elected in January 2004. The newly elected president,
Saakashvili, led a bloodless revolution that overthrew Shevardnadze who had been in
power for twelve years. See, e.g., Peter Baker, Opposition Leader Sweeps Georgia’s
Presidential Vote, Wash. Post., Jan. 5, 2004, at A11; Seth Mydans, With the Vote in
Georgia, A Dynamic Young Leader and a New Era, N.Y. Times, Jan. 5, 2004, at A3.
Additionally, the articles noted that Saakashvili won more than eighty-five percent of the
vote. Mydans, With the Vote in Georgia, A Dynamic Young Leader and a New Era, at
A3. Most importantly, the articles explained that after Shevardnadze resigned in
November 2003, the acting president replaced all of the country’s governors and key
ministers. Baker, Opposition Leader Sweeps Georgia’s Presidential Vote, at A11.
“Many allies of the old order have slipped away.” Id.
2
Tsiklauri points out on appeal that the copies of the articles presented to the IJ
were actually cut-off and therefore missing words. After reviewing the copies of the
articles that were provided to the IJ, we determine that the articles are still readable and
the point of the articles is still clear.
5
We agree with the IJ and the BIA that this evidence was sufficient to rebut the
presumption of future persecution by a preponderance of the evidence.3 Although we
recognize that every leadership change will not constitute changed circumstances, this
was not a mere change of leadership. See, e.g., Waweru v. Gonzales, 437 F.3d 199,
204-05 (1st Cir. 2006); In re N-M-A, 22 I. & N. Dec. 312, 320-21 (B.I.A. 1998). The
forced resignation of Shevardnadze through a bloodless revolution followed by a
democratic election is sufficient evidence of changed country conditions in this context.
This is especially true in light of the fact that Tsiklauri’s asylum application stated that he
would consider returning if Shevardnadze was not reelected in 1999. The additional
evidence provided by Tsiklauri regarding the bombing of the television station and that he
was told that the Zviadists still had problems with the new government was not sufficient
to prove the likelihood of future persecution. Therefore, we will deny the petition for
review.
3
The fact that the hearing before the IJ occurred only ten days after the election
does not impact our decision. Although we recognize that this short period of time may
not be sufficient in other contexts, we find the evidence was sufficient in this case. The
articles demonstrated that changes in the government began to occur immediately after
Shevardnadze was forced to resign as key ministers and governors were replaced. We
note that we are limited to the record and therefore cannot consider any subsequent
changes since the time of the hearing before the IJ. See Berishaj, 378 F.3d at 330-31.
6