                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-8-2008

Lapiashvili v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2969




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                                                             NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT


                                  No. 06-2969


                            LEILA LAPIASHVILI;
                            MAIA BATSASHVILI

                                                  Petitioners
                                       v.

            ATTORNEY GENERAL OF THE UNITED STATES

                                                  Respondent


                    Petition for Review of an Order of the
                     United States Department of Justice
                        Board of Immigration Appeals
                   BIA Nos. A96-021-850 and A96-021-888
                  Immigration Judge: Donald Vincent Ferlise


                  Submitted Under Third Circuit LAR 34.1(a)
                            on December 10, 2007

            Before: RENDELL and STAPLETON, Circuit Judges,
                       and IRENAS, District Judge.

                            (Filed January 8, 2008)




* Honorable Joseph E. Irenas, Senior Judge of the United States District Court for
  the District of New Jersey, sitting by designation.
                               OPINION OF THE COURT


RENDELL, Circuit Judge.

       Petitioners Leila Lapiashvili (“Petitioner-Mother”) and Maia Batsashvili

(“Petitioner-Daughter”) appeal from the denial of their application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

Petitioners are ethnic Georgians. However, Petitioner-Mother had moved to Abkhazia in

1981 and, thereafter, upon returning to Georgia, was considered a refugee along with

Petitioner-Daughter.

       Petitioners cite numerous problems they experienced as refugees, including

difficulty in obtaining housing and employment. As a result, Petitioner-Mother became

involved in politics, fighting for the rights of Georgians who were forcibly driven out of

Abkhazia. Specifically, she became a member of the political party “Roundtable-Free

Georgia” and a supporter of Manana Archvadze, the wife of former Georgian President

Zviad Gamsakhurdia. She participated in demonstrations in support of the rights of

refugees and, in March 2002, during one such demonstration, both Petitioners were

thrown into a van and taken to a forest outside of the city where they were kept in the cold

with other demonstrators for several hours. The police took their documentation,

including their refugee papers, and wrote down their addresses. Only after it became dark

did the police let Petitioners go, in a deserted place. They started walking down the road

                                             2
attempting to stop cars for assistance. One of the vehicles traveling in the opposite

direction from the way in which they were walking stopped and turned around.

Unfortunately, it was the very police van that had taken them to the woods earlier.

Petitioners were then harassed by two intoxicated police officers, one of whom grabbed

Petitioner-Daughter and tried to drag her into the van. Petitioners eventually were able to

run away because the assailants were too inebriated to chase them. Petitioners hid in the

forest until it became light. Their clothes were torn and dirty, and they were bruised from

the encounter with the two police officers. They received visits and letters after this

incident warning them not to complain about the police officers’ conduct. Petitioners

then met a man named Shota, who initially indicated that he would help them; however,

once he learned that they were refugees, he refused to be of any assistance. Petitioners

continued to fear that the two policemen would locate them, and they finally obtained

passports and visas to the United States to seek asylum. Based on these facts, Petitioners

have requested relief in the form of asylum, withholding of removal, and relief under

CAT.

       The Immigration Judge (“IJ”) determined that Petitioner-Mother was not credible

and that, that even if she was credible, Petitioners failed to establish that they suffered

past persecution. Specifically, the IJ concluded that the police officers’ conduct that

Petitioners characterized as persecution on account of a protected ground was not severe

enough to constitute persecution and, furthermore, was the result of lust and inebriation.



                                               3
Furthermore, he found that any threatening letters and visits occurring after the incident

were not on account of a protected ground, but, rather, were intimidation efforts.

       The IJ also found that Petitioners had failed to demonstrate a well-founded fear of

future persecution, in part because their family that remains in Georgia has not suffered

any trouble with the police or other harsh consequences. Further, he ruled that, because

Petitioners failed to establish eligibility for asylum, they necessarily failed to meet the

higher standard for withholding of removal. Finally, the IJ found that Petitioners were

not eligible for CAT protection because they had not established that it was more likely

than not that they would be tortured if returned to Georgia.

       The Board of Immigration Appeals (“BIA”) dismissed Petitioners’ appeal. While

disagreeing with the IJ’s adverse credibility determination, the BIA nevertheless agreed

that Petitioners failed to establish harm that rose to the level of persecution on account of

a protected ground.

       We review for substantial evidence the factual findings underpinning a

determination by the IJ or BIA that an alien is not eligible for asylum, withholding of

removal, or protection under CAT. Ahmed v. Ashcroft, 341 F.3d 214, 216 (3d Cir. 2003).

These findings must be upheld “unless the evidence not only supports a contrary

conclusion, but compels it.” Id.

       In order to qualify for asylum, an applicant must demonstrate that she suffered past

persecution, or has a well-founded fear of future persecution, on account of one of the



                                               4
protected grounds — race, religion, nationality, membership in a particular social group,

or political opinion. Gao v. Ashcroft, 299 F.3d 266, 271-72 (3d Cir. 2002). Here, since

the record evidence does not compel us to do so, we will not disturb the agency’s

conclusion that the harm Petitioners suffered did not rise to the level of persecution and

was not on account of a protected ground, or its conclusion that Petitioners did not

demonstrate a well-founded fear of future persecution. Because Petitioners failed to

satisfy the lesser standard of proof required for asylum eligibility, they necessarily have

also failed to demonstrate eligibility for withholding of removal. Lukwago v. Ashcroft,

329 F.3d 157, 182 (3d Cir. 2003)

       Further, in order to obtain protection under CAT, the burden upon an alien is to

establish that she will be tortured by the government, or with the government’s

acquiescence. While no link to a statutorily protected ground is necessary, nonetheless,

there must be a showing of substantial grounds — i.e., that it is more likely than not that

she will be tortured if returned to the designated country. 8 C.F.R. 208.16(c)(2); Auguste

v. Ridge, 395 F.3d 123, 148-49 (3d Cir. 2005). The record is devoid of such a showing.

       Therefore, we conclude that substantial evidence supports the IJ’s and the BIA’s

decision that the Petitioners did not show that they qualified for asylum, withholding of

removal, or relief under CAT.1


  1
   The Petitioners also contend that the IJ erred in not admitting documents as to recent
developments in Georgia supporting Petitioners’ case because these documents were not
                                                                             (continued...)

                                              5
      Accordingly, the Petition for Review must be DENIED.




  1
   (...continued)
submitted in conformance with the applicable ten-day rule. While these documents might
bolster the argument that there is ongoing conflict between Abkhazia and Georgia, they
are not persuasive as to the specific allegations of persecution and torture vis-a-vis
Petitioners, and we therefore conclude that if there was error in this regard, it was
harmless.


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