                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-9-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2538




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                                                                    NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2538


                  PAATA GORDEZIANI; KETEVAN GORDEZIANI;
                  JEMAL GORDEZIANI; GVANTSA GORDEZIANI,
                                                   Petitioners

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                   Respondent


                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                        BIA Nos. A96-017-743, A96-017-744,
                              A96-017-745, A96-017-746
             (U.S. Immigration Judge: Honorable Roxanne C. Hladylowycz)


                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 8, 2009
     Before: SCIRICA, Chief Judge, CHAGARES and ALDISERT, Circuit Judges

                                  (Filed: April 9, 2009)


                              OPINION OF THE COURT


PER CURIAM.

       Petitioners seek review of the Board of Immigration Appeals’ (“BIA”) final order

of removal. For the following reasons, we will deny the petition.
                                            I.

       The lead petitioner is Ketevan Gordeziani, and the others are her husband (Paata)

and their two children. All are natives and citizens of Georgia. They arrived in the

United States in December 2002 without valid documents and they concede removability

on that basis. They applied for asylum, withholding of removal and relief under the

Convention Against Torture (“CAT”) on the basis of Ketevan’s involvement with the

Jehovah’s Witnesses. (There is some dispute about whether Ketevan is a full-fledged

member of the Jehovah’s Witnesses, but that dispute is immaterial to the issues on review

and we will assume that she is.)1

       Before the Immigration Judge (“IJ”), petitioners presented testimony and other

evidence regarding civilian harassment of and violence against Jehovah’s Witnesses in

Georgia. Ketevan testified that she became involved with the Jehovah’s Witnesses in

2001. In September 2001, a mob armed with sticks and stones broke up a worship

meeting that she was attending with several other people, but she and the others escaped

unharmed through a back door. She attributed this attack to followers of a radical

Orthodox priest named Basil Magosvili. Shortly thereafter, she began receiving

anonymous death threats over the telephone. She testified that she usually received

multiple threats per day and may have received as many as 1,200 in all, both at the


  1
   Petitioners also applied on the basis of a nebulous claim by her husband, a former
police officer, that he feared harm from forces “inside and outside” the police department,
but they did not raise that claim before the BIA and have not raised it here.

                                            2
family’s house and after the family moved in with her husband’s father, before finally

fleeing Georgia. Her husband testified in substantially the same manner. In addition to

their testimony, petitioners presented, inter alia, articles regarding the treatment of

Jehovah’s Witnesses and the Department of State’s International Religious Freedom

Reports from 2002 through 2006.

       The IJ found petitioners not credible because she thought their testimony

implausible for several reasons, but she explained that she would have denied their claims

even if she believed them. The IJ concluded that petitioners had not suffered past

persecution and had not shown a well-founded fear of future persecution. In particular,

the IJ noted that Basil Magosvili and another of his followers had been arrested,

convicted and imprisoned for fomenting religious-based violence, and that his “followers

have in many ways been demobilized.” The IJ also concluded that petitioners had failed

to meet their higher burden of proof for purposes of withholding of removal and CAT.

       On appeal, the BIA did not address the adverse credibility finding, but stated that it

“adopted” the IJ’s decision “insofar as the [IJ] found that even assuming the credibility of

the testimony presented, the respondents failed to establish eligibility for relief.” The

BIA then explained that petitioners had shown neither past persecution nor a “well-

founded fear of harm rising to the level of persecution by persons the government is

unwilling or unable to control.” The BIA further explained why it believed that the

potential harm mentioned in the most recent country report did not rise to the level of



                                               3
persecution and could not be attributed to the Georgian government. Petitioners seek

review.2

                                             II.

       In their briefs, petitioners have expressly abandoned their CAT claim, have not

addressed their claim for withholding of removal, and have conceded that they did not

suffer past persecution, which would have made them presumptively eligible for asylum.

Thus, we review only their claim that they have a well-founded fear of future persecution

if returned to Georgia.

       In order to succeed on that claim, petitioners bore the burden of establishing that

their fear of mistreatment on return to Georgia is both subjectively genuine and

objectively reasonable—i.e., that mistreatment is a reasonable possibility, such that a

reasonable person in their situation would fear it. See Sioe Tjen Wong, 539 F.3d at 232.

They also bore the burden of establishing that such mistreatment both rises to the level of




  2
    We have jurisdiction to review petitioners’ final order of removal under 8 U.S.C. §
1252(a)(1). Our review extends only to the BIA’s decision but, because the BIA both
adopted a portion of the IJ’s decision and engaged in its own analysis, we review both the
IJ’s and BIA’s reasoning. See Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003).
We review the BIA’s factual findings for substantial evidence and must treat them “as
‘conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.’” Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir. 2008) (citations
omitted). We have plenary review over its conclusions of law, subject to established
principles of deference on agency review. See id. at 231. In conducting our review, we
assume that petitioners’ testimony was credible because the BIA neither adopted the IJ’s
adverse credibility determination nor made one of its own. See Kayembe, 334 F.3d at
234-35.

                                             4
persecution and is attributable either to the Georgian government or to forces that it is

unable or unwilling to control. See id. at 232-33.

       Here, the IJ concluded that petitioners’ fear of persecution is not objectively

reasonable because the imprisonment of Basil Magosvili and the 2006 country report

indicate that petitioners have “nothing to fear” if returned to Georgia.3 The BIA adopted

that conclusion. In addition, it concluded that the harm petitioners fear does not rise to

the level of persecution because the 2006 country report describes only “sporadic

harassment and occasional threats,” and that such actions could not be attributed to the

Georgian government or forces that it is unable or unwilling to control. Either of those

conclusions, if supported by substantial evidence, would be sufficient to support the

BIA’s ruling. Petitioners raise no challenge in their briefs to the first of these

conclusions, so we could deny their petition on that basis alone. In any event, our review

of the record confirms that the BIA’s second conclusion is supported by substantial

evidence.

       The BIA based this conclusion on the 2006 country report, which, as the BIA

noted, states that the Georgian government and Orthodox Church are separate under the


  3
    The IJ also concluded that petitioners failed to prove that they “will be” subjected to
future persecution. As explained above, the relevant standard is whether persecution is
reasonably possible, not whether petitioners have “nothing to fear” or “will be”
persecuted. See Sioe Tjen Wong, 539 F.3d at 232. Earlier in her decision, however, the
IJ recited the correct standard, (IJ Dec. at 9), so there is no basis to conclude that the IJ (or
BIA) applied the wrong legal standard in this regard, as petitioners argue for the first time
in their reply brief.

                                               5
Georgian constitution and indicates that “the government in Georgia has taken steps to

prosecute, convict, and jail religious radicals” who participated in religious-based

violence and harassment. (BIA Dec. at 2.) In particular, as both the IJ and BIA noted,

the 2006 State Department describes the arrest and conviction of Basil Magosvili and

another of his followers, who have been sentenced to six and four years imprisonment,

respectively. The report also describes increasing efforts on the part of the Georgian

government to prevent religious-based violence and a continuing decrease in such

violence. See, e.g., A.288 (noting that “[p]olice were generally more responsive to the

needs of religious minorities”); A.289 (noting that “[t]he criminal code specifically

prohibits interference with worship services [and] persecution of a person based on

religious faith or belief,” and that the governmental agencies “have become more active

in the protection of religious freedom”); A.290 (noting that “Jehovah’s Witnesses no

longer believed it necessary to hold services in private homes for security reasons”).

       Petitioners do not directly argue that the BIA erred in concluding that such

harassment as continues is not attributable to governmental action or acquiescence.

Instead, they argue that the IJ’s fundamental misunderstanding of the facts and the BIA’s

adoption of the IJ’s conclusion effectively denied them meaningful review. Petitioners

raise four specific arguments in this regard, but only the last touches on the issue of




                                              6
whether the mistreatment they fear is attributable to the Georgian government.4

       Petitioners’ fourth argument takes issue with the IJ’s conclusion that they “have

nothing to fear” if returned to Georgia. Petitioners argue that “no reasonable fact finder

reading the State Department reports as well as the other human rights reports in the

record could find that a Jehovah’s Witness returning to Georgia would have nothing to

fear.” In particular, they note that the 2006 report, though stating that attacks on

Jehovah’s Witnesses and other religious minorities continued to decrease, reports several

instances of continuing harassment and attacks. They further note that the report states

that “[o]n some occasions . . . local police were slow to prevent the harassment” of

Jehovah’s Witnesses and describes one incident in a particular town in which “numerous




  4
    Petitioners’ first three arguments are not relevant to any issue on review. Petitioners
argue first that the IJ erred in concluding that they did not have “anything happen to
them” in Georgia when in fact the lead petitioner was driven from a worship service by a
mob and received threatening telephone calls. The IJ, however, expressly made this
statement in ruling that petitioners had not suffered past persecution, as they now concede
(and in any event clearly was aware of petitioners’ claims in that regard). Petitioners’
second argument is that the IJ failed to credit their explanation for not reporting the
telephone calls to police and believed that they “did nothing” in response to the threats,
though they in fact moved to the husband petitioner’s parents’ house. The IJ, however,
expressly relied on these circumstances only for purposes of petitioners’ credibility,
which we assume, and in any event specifically noted the move that petitioners claim she
overlooked. (IJ Dec. at 12.) Finally, petitioners argue that the IJ misunderstood the lead
petitioner’s testimony about when she became involved with the Jehovah’s Witnesses and
wrongly held against them the fact that her children remained without harm in Georgia
during a period before she had become involved with the Jehovah’s Witnesses. Though
this argument is otherwise well-taken, it is irrelevant to the BIA’s conclusion that the
mistreatment petitioners fear cannot be attributed to the Georgian government or forces
that it is unable or unwilling to control.

                                              7
investigations were launched . . . into reports that the police had been slow to respond to

the violence and then themselves threatened the Jehovah’s Witnesses.” (A.293.) Finally,

they point to other articles noting that, although the Georgian government has arrested

and convicted Basil Magosvili, it has not prosecuted others who participated in religious-

based harassment and violence in the past. Thus, petitioners implicitly take issue with the

BIA’s conclusion that any mistreatment they fear is not attributable to the Georgian

government or forces it is unable or unwilling to control.

       As explained above, however, the BIA’s conclusion is supported by substantial

evidence. The fact that some attacks continue despite the Georgian government’s

increasingly-effective efforts to prevent them does not provide a basis to disturb the

BIA’s ruling. Neither does the isolated incident described in the 2006 report in which

police “threatened” Jehovah’s Witnesses—an incident, as the report states, into which

“numerous investigations were launched.” (A.293.) Finally, although the Georgian

government may not have prosecuted others who participated in religious-based

harassment or violence in the past, the reports confirm that the government is actively

attempting to prevent such conduct in the future and that its efforts have been increasingly

successful. In sum, the evidence of record arguably would have supported a conclusion

contrary to the BIA’s for the reasons argued by petitioners, but it does not compel one.

See Kayembe, 334 F.3d at 236-37 (explaining that State Department report that “cuts both

ways” nevertheless constitutes substantial evidence when it would not compel a



                                             8
reasonable adjudicator to draw a contrary conclusion). Accordingly, the petition for

review will be denied.




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