381 F.3d 187 | 3rd Cir. | 2004
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 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 r a 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, 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 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)). substan tial evid ence stan dar d 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
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 t h e g o v e r n m e n t , 8 C . F . R . for the Ninth Circuit has considered it at any length. [1] In Knezevic v. Ashcroft , 367 § 208.16(b)(1)(ii). In assessing the 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; issue. [2] the couple had demonstrated past questions may be at 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: 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, 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).
NOTES
[1] One other Court of Appeals case, geographical limitations; and social and Hagi-Salad v. Ashcroft , 359 F.3d 1044 cultural constraints, such as age, gender, health, 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 claims and applications for relief under would be reasonable for the applicant to 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.
[2] Courts have undertaken— in full or in If forced to relocate, [the 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., cases decided under Matter of loss of all their possessions means they would have no means of C—A— L— ). See, e.g. , Melkonian v. s u p p o r t i n g t h e m s e l v e s . Ashcroft , 320 F.3d 1061, 1069-71 & n.3 (9th Cir. 2003) (noting new internal- Additionally, their family members 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 r e a s o n a b l e . U n d e r 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).
