                                                                                                                           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Precedential or Non-Precedential: Precedential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




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                   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 1044
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
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
