     14-2238
     Getsadze v. Lynch
                                                                                       BIA
                                                                               A087 415 021
                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   16th day of February, two thousand sixteen.
 5
 6   PRESENT:
 7            ROSEMARY S. POOLER,
 8            DENNY CHIN,
 9            SUSAN L. CARNEY,
10                 Circuit Judges.
11   _____________________________________
12
13   MAMUKA GETSADZE,
14            Petitioner,
15
16                       v.                                          14-2238
17                                                                   NAC
18   LORETTA E. LYNCH,1 UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Berdymurat Berdyev, Woodbridge, New
24                                       Jersey.
25
26   FOR RESPONDENT:                     Joyce C. Branda, Acting Assistant
27                                       Attorney General, Linda S. Wernery,
28                                       Assistant Director, Christina
29                                       Parascandola, Trial Attorney,

              1
           Loretta E. Lynch is automatically substituted as the respondent in
     this case pursuant to Federal Rule of Appellate Procedure 43(c)(2).
1                                Office of Immigration Litigation,
2                                United States Department of Justice,
3                                Washington, D.C.
4
5        UPON DUE CONSIDERATION of this petition for review of a

6    Board of Immigration Appeals (“BIA”) decision, it is hereby

7    ORDERED, ADJUDGED, AND DECREED that the petition for review is

8    DENIED.

9        Petitioner Mamuka Getsadze, a native and citizen of

10   Georgia, seeks review of a May 27, 2014 decision of the BIA

11   denying his motion to reopen to allow him to apply for asylum

12   and withholding of removal.     In re Mamuka Getsadze, No. A087

13   415 021 (B.I.A. May 27, 2014).       He also moves the Court for

14   judicial notice of certain new documents and for a stay of

15   removal.    We   assume   the   parties’   familiarity   with   the

16   underlying facts and procedural history in this case.

17       Getsadze moved the BIA to reopen proceedings so that he

18   could apply for asylum and withholding of removal.       He claimed

19   to have a well-founded fear of future persecution on the ground

20   that in recent elections, his political party, the United

21   National Movement (“UNM”), lost to the Georgian Dream Party,

22   which then launched investigations and prosecutions of UNM

23   party members and officials.


                                      2
1        “We review the denial of motions to reopen immigration

2    proceedings for abuse of discretion, mindful that motions to

3    reopen ‘are disfavored.’”   Ali v. Gonzales, 448 F.3d 515, 517

4    (2d Cir. 2006) (quoting INS v. Doherty, 502 U.S. 314, 322-23

5    (1992)).    An alien seeking to reopen proceedings may move to

6    reopen no later than 90 days after the final administrative

7    decision was rendered.   8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R.

8    § 1003.2(c)(2).    That time limitation does not apply if the

9    motion is “based on changed country conditions arising in the

10   country of nationality . . . if such evidence is material and

11   was not available and would not have been discovered or

12   presented     at   the   previous   hearing.”        8   U.S.C.

13   § 1229a(c)(7)(C)(ii).

14       Getsadze’s motion was untimely, and so he needed to

15   demonstrate that the Georgian Dream party’s ascendancy is

16   material to his claims for asylum and withholding of removal.

17   He could do this by demonstrating either that there exists a

18   pattern or practice of persecution of those similarly situated

19   or that he will be singled out for persecution.     See 8 C.F.R.

20   §§ 1208.13(b)(2)   (asylum),   1208.16(b)(2)    (withholding   of

21   removal).    The BIA had the discretion to find that Getsadze

22   demonstrated neither.
                                    3
1        The background materials Getsadze submitted describe the

2    new Georgian government’s efforts to investigate and prosecute

3    those who led the prior UNM regime, including the former

4    president and various ministers.    But Getsadze does not claim

5    to have been a leader of the UNM; he never held any governmental

6    office or elevated position within the party.     Rather, based

7    on his own submission, his UNM-related conduct was limited to

8    peaceful demonstrations more than a decade ago.   Consequently,

9    the BIA was entitled to find that Getsadze is not similarly

10   situated to the UNM leaders who are being targeted in Georgia.

11       Getsadze contends that the BIA overlooked “evidence of his

12   relentless dedication and participation in the UNM activities,”

13   which puts him in the same posture as UNM leaders.      For this

14   proposition, he cites affidavits from two members of the

15   Georgian-American community.     The BIA was not compelled to

16   credit these affidavits; and even if it did credit them, it was

17   not compelled to equate activism with party leadership.      See

18   Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir. 2008) (“[W]e

19   do not demand that the BIA ‘expressly parse or refute on the

20   record each individual argument or piece of evidence offered

21   by the petitioner.’” (quoting Zhi Yun Gao v. Mukasey, 508 F.3d

22   86, 87 (2d Cir. 2007)); Siewe v. Gonzales, 480 F.3d 160, 168
                                   4
1    (2d Cir. 2007) (“[R]ecord support for a contrary inference—even

2    one more plausible or more natural—does not suggest error.”).

3        Getsadze   also   contends     that   the   country   conditions

4    evidence demonstrates that “regular UNM members and activists

5    are equally being subjected to the current government’s abuse,

6    which   includes   harassment,     detention,   interrogations   and

7    physical abuse.”    Pet. Br. 28.    He cites four documents in the

8    administrative record.    Not one supports this proposition.

9        In his merits brief, Getsadze appears to disavow a claim

10   that the new Georgian regime will single him out for harm.        In

11   any event, the BIA had the discretion to conclude that Getsadze

12   did not show that the Georgian government will target him.       His

13   mother stated that government officials were seeking to recoup

14   $50,000 that the prior administration allotted to Getsadze for

15   his personal use.     But Getsadze’s only evidence of the harm

16   allegedly threatened--the sealing and seizure of his apartment

17   in Georgia--was his mother’s secondhand account from neighbors.

18   His Georgian attorney’s account was third-hand, reliant on the

19   mother’s report of what had transpired and a “government record”

20   of the $50,000 transfer that is absent from the administrative

21   record.   The BIA was entitled to find that these statements did

22   not demonstrate that the Georgian government is interested in
                                   5
 1   harming Getsadze.   Xiao Ji Chen v. U.S. Dep’t of Justice, 471

 2   F.3d 315, 341-42 (2d Cir. 2006).

 3       The BIA suggested that Getsadze could have submitted

 4   documentary evidence that the Georgian government intends to

 5   prosecute him for the $50,000 allotment.   Getsadze argues that

 6   in doing so, the BIA expected his supporters to “dare to ask

 7   the police for a record of Mr. Getsadze’s arrest warrant.”

 8   Getsadze is correct that “‘asylum applicants can not always

 9   reasonably be expected to have an authenticated document from

10   an alleged persecutor.’”   Cao He Lin v. U.S. Dep’t of Justice,

11   428 F.3d 391, 404 (2d Cir. 2005) (quoting Gui Cun Liu v.

12   Ashcroft, 372 F.3d 529, 532 (3d Cir. 2004)).    But the BIA did

13   not suggest that Getsadze needed authenticated documents

14   memorializing the Georgian government’s plans to persecute him.

15   Rather, it wrote that reliable evidence would include “an arrest

16   warrant, summons,” or other documentary evidence that his

17   apartment has been sealed or seized--that is, documents that

18   the government would have issued to Getsadze in the ordinary

19   course.   That suggestion did not run afoul of Cao He Lin,

20   particularly given that the attorney cited, but did not append,

21   a “government record” of the $50,000 allotment that purportedly

22   spurred the search for Getsadze.
                                   6
1        Getsadze moves, pursuant to Federal Rule of Evidence 201,

2    for us to take judicial notice of articles reflecting various

3    political     agencies’   concerns    about    Georgia’s     criminal

4    prosecution     of   former   President     Saakashvili    and   other

5    high-ranking officials of Getsadze’s political party.              To

6    grant the motion would breach our statutory obligation to decide

7    the petition based “only on the administrative record on which

8    the order of removal is based.”           8 U.S.C. § 1252(b)(4)(A).

9    Getsadze’s recourse is another motion to reopen before the BIA.

10   8 U.S.C. § 1229a(c)(7)(C)(ii); Xiao Xing Ni v. Gonzales, 494

11   F.3d 260, 269 (2d Cir. 2007).

12       For the foregoing reasons, the petition for review and the

13   motion for judicial notice are DENIED.             Because we have

14   completed our review, Getsadze’s pending motion for a stay of

15   removal is DENIED as moot.        Any pending request for oral

16   argument in this petition is DENIED in accordance with Federal

17   Rule of Appellate Procedure 34(a)(2), and Second Circuit Local

18   Rule 34.1(b).

19                                   FOR THE COURT:
20                                   Catherine O=Hagan Wolfe, Clerk




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