                                                                                                                           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Precedential or Non-Precedential: Precedential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




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004

Recommended Citation
"Ambartsoumian v. Atty Gen USA" (2004). 2004 Decisions. Paper 114.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/114


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.
                                          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
