                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-5-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2245




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NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-2245

                              GRIGOL A. GOGUADZE,

                                           Petitioner

                                             v.

                                 JOHN ASHCROFT,
                               ATTORNEY GENERAL,

                                        Respondent




                         On petition for review of a final order
                         of the Board of Immigration Appeals
                                File No. A 77 570 753




                     Submitted Pursuant to Third Circuit LAR 34.1
                                    June 18, 2004

              Before: ALITO, SMITH AND W ALLACE, Circuit Judges*

                                 (Filed August 5, 2004)


                              OPINION OF THE COURT


SMITH, Circuit Judge.


*
 The Honorable J. Clifford Wallace, Senior United States Circuit Judge for the Ninth
Circuit Court of Appeals, sitting by designation.
       Grigol A. Goguadze petitioned for review of the decision of the Board of

Immigration Appeals denying his motion for reconsideration and to reopen his claim for

asylum, for withholding of removal and for relief under the United Nations Convention

Against Torture.1 We will deny the petition for review.

       Goguadze, a physician from the Republic of Georgia, filed an application for

asylum in the United States, withholding of removal to the Republic of Georgia, and

relief under the United Nations Convention Against Torture. Goguadze claimed that he

was a political refugee because he had supported President Eduard Shevardnadze’s

former defense minister Tingiz Ketovani. As a result of that support, Goguadze alleged,

he was fired from his position as chairman of the local hospital’s emergency department.

In addition, Goguadze claimed that he was beaten, arrested, detained, and interrogated on

several occasions.

       The Immigration Judge (“IJ”) found that Goguadze’s beliefs were “like most

Georgian citizens,” and that his activities were not so political that they would “draw the

interest of the government.” In addition, the IJ found that the events of which Goguadze

complained did not constitute persecution, explaining that Goguadze’s family was

unharmed and that he later regained his position as the chairman of the local emergency

department. Although Goguadze testified that he had been arrested and detained on two

1
  We do not have jurisdiction over the BIA’s decision to deny Goguadze’s claim for
asylum, withholding, and relief under the Convention Against Torture. Jurisdiction is
lacking because Goguadze did not file a petition for review of that order within the thirty
day period of limitations. See 8 U.S.C. § 1252(b)(1).

                                             2
occasions, the IJ found that Goguadze’s claim of persecution was exaggerated inasmuch

as he remained in Georgia unharmed for more than two years after his arrest in May 1996.

Goguadze’s “primary motivation” for seeking asylum in the United States, according to

the IJ, was to join his childhood friend who had immigrated to America and had been

granted leave to remain through a lottery program.

         The BIA affirmed the IJ’s decision without opinion. Goguadze filed a timely

motion for reconsideration and to reopen his case. After the BIA denied the motion,

Goguadze petitioned for review of that order.

         The BIA had jurisdiction over Goguadze’s motion to reopen and reconsider

pursuant to 8 C.F.R. § 1003.2. We have appellate jurisdiction over the BIA’s denial of

the motion for reconsideration and to reopen because it is a final order of removal for

purposes of 8 U.S.C. § 1252(b)(4)(B). Sevoian v. Ashcroft, 290 F.3d 166, 171 (3d Cir.

2002).

         A motion for reconsideration must “specify the errors of law or fact in the previous

order and shall be supported by pertinent authority.” 8 U.S.C. § 1229a(c)(5)(C); 8 C.F.R.

§ 1003.2(b)(1). Regulation 1003.2(a) provides that the “decision to grant or deny a

motion to . . . reconsider is within the discretion of the Board.” 8 C.F.R. § 1003.2(a).

Accordingly, we review to determine if the BIA abused its discretion. “Discretionary

decisions of the BIA will not be disturbed unless they are found to be ‘arbitrary, irrational

or contrary to law.’” Tipu v. I.N.S., 20 F.3d 580, 582 (3d Cir. 1994) (quoting Chung v.



                                              3
I.N.S., 602 F.2d 608, 612 (3d Cir. 1979)).

       Section 1229a(c)(6) allows an alien to file a motion to reopen which must “state

the new facts that will be proven at a hearing to be held if the motion is granted.” 8

U.S.C. § 1229a(c)(6)(B). Regulation 1003.2(c) provides that a motion to reopen “shall

not be granted unless it appears to the Board that evidence sought to be offered is material

and was not available and could not have been discovered or presented at the former

hearing.” 8 C.F.R. § 1003.2(c)(1). The regulation further provides that granting a

“motion to reopen . . . is within the discretion of the Board.” 8 C.F.R. § 1003.2(a). Thus,

our review is for an abuse of discretion. See I.N.S. v. Abudu, 485 U.S. 94, 105 (1988)

(holding that a motion to reopen under a regulation which was a predecessor of 8 U.S.C. §

1229a(c)(6) and 8 C.F.R. § 1003.2 was subject to review for an abuse of discretion).

       The BIA denied Goguadze’s motion for reconsideration, stating “we find no new

legal argument or particular aspect of the case which was overlooked and no ground upon

which to reconsider our previous decision.” Goguadze contends that the BIA abused its

discretion because it failed to recognize several errors of fact in the IJ’s decision which, if

viewed properly, would have established that he was persecuted. We disagree. Although

some of the facts identified by Goguadze may have strengthened his contention that he

was persecuted, none of those facts would have definitively established that he was

subject to more than the “generally harsh conditions” shared by many other Georgians.

See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (“BIA suggested that generally harsh



                                               4
conditions shared by many other persons do not amount to persecution”) (internal

quotation marks and brackets omitted) (quoting Matter of Acosta, 19 I. & N. Dec. 211,

222 (1985)).

       The BIA denied Goguadze’s motion to reopen, explaining that the newspaper

articles submitted by Goguadze, which described contemporaneous events in Georgia, did

not establish that he “would be placed at risk for persecution on account of a protected

ground or torture.” Goguadze asserts, however, that these articles confirmed the

“continuing war-like situation” where he had lived and that he “could still have been

persecuted if returned to Georgia.” Goguadze fails to recognize that “generalized

conditions of strife do not support a claim for asylum because they do not show that [he]

will be singled out for persecution on account of one of the enumerated grounds.”

Bradvica v. I.N.S., 128 F.3d 1009, 1013 (7th Cir. 1997). Thus, the new evidence

Goguadze offered was not material to his claim that he would be persecuted if returned to

Georgia. Accordingly, the BIA did not abuse its discretion by denying the motion to

reopen.

       We will deny the petition for review.




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