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


6-21-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2217




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                                                                NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      No. 03-2217

                                 VIKTOR DARCHIA,

                                                Petitioner

                                           v.

                                 JOHN ASHCROFT,
                         Attorney General of the United States,

                                                Respondent

                                 __________________

                           On petition for review of a final order
                           of the Board of Immigration Appeals
                                    File No: A77-440-861
                                  __________________

                                Argued: March 24, 2004
                                ___________________

              Before: FUENTES, SMITH, and GIBSON,* Circuit Judges

                                 (Filed: June 21, 2004)

                                                       Jon Landau (Argued)
                                                       Erica S. Gonzalez
                                                       Baumann, DeSeve & Landau
                                                       437 Chestnut Street
                                                       The Lafayette Building
                                                       Philadelphia, Pennsylvania 19106


      *
       The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
                                                         Counsel for Petitioner

                                                         Anthony P. Nicastro (Argued)
                                                         United States Department of
                                                                Justice
                                                         Office of Immigration Litigation
                                                         1331 Pennsylvania Avenue, N.W.
                                                         Washington, DC 20530

                                                         David V. Bernal
                                                         Ernesto H. Molina
                                                         Douglas E. Ginsburg
                                                         Lyle D. Jentzer
                                                         United States Department of
                                                                Justice
                                                         Office of Immigration Litigation
                                                         P.O. Box 878
                                                         Ben Franklin Station
                                                         Washington, DC 20044

                                                         Counsel for Respondent


                               _______________________

                               OPINION OF THE COURT
                               _______________________

JOHN R. GIBSON, Circuit Judge.

       Viktor Darchia, a native and citizen of Georgia, petitions for review of the decision

of the Board of Immigration Appeals denying his application for withholding of removal

and for relief under the Convention Against Torture. Darchia contends that substantial

evidence does not support the Immigration Judge's findings (1) that Darchia's testimony

was not credible, (2) that Darchia has not suffered past persecution, and (3) that there is

                                              2
no clear probability that Darchia would be persecuted or tortured if he were deported to

Georgia. We deny review.

       Darchia was admitted to this country in 1998 as a visitor from Georgia with a

three-month visa. He overstayed his visa and was placed in removal proceedings. He

conceded deportability, but applied for asylum, withholding of removal, and relief under

the Convention Against Torture. Darchia failed to apply for asylum within a year of

arriving in the United States, so he is ineligible for asylum, see 8 U.S.C. § 1158(a)(2)(B),

as he now concedes. Consequently, this petition for review is limited to the question of

whether Darchia is eligible for withholding of removal because of the likelihood of

persecution or torture.

       At his hearing, Darchia testified that he has degrees in both history and mechanical

engineering. He served as head of the government housing office from 1982 to 1987 and

then as head of the Management Board of Technical Inventory for the Housing

Department from 1987 until he left voluntarily in 1998. In 1989 he became a member of

a political party, the Popular Front, which was in opposition to the government. Darchia

served as a regional-level board member for the party. He testified that on several

occasions he was beaten by police while he was attending Popular Front public meetings

or rallies. At a meeting on September 15, 1992, police hit him with a rubber baton,

splitting open his hand and leading to a two-day hospitalization. He was again beaten

with a rubber baton at a meeting on October 8, 1993, and again on May 2, 1994. On



                                             3
February 4, 1996, there was a fight between the Popular Front and the party in control of

the government; the police allowed the government's party to start a brawl, and Darchia

was beaten. He testified that police beat him again at another rally, on April 10, 1997,

and that he had to go to a hospital to have his shoulder relocated.

       Darchia also testified that he was beaten on another occasion, when men came to

his office and took him to the KGB headquarters, where they tried to get him to confess to

participating in an attempt to assassinate then-Georgian President Edward Shevardnadze.

He said he did not go to a hospital after that beating because it would have only made his

situation worse. He said that he received threatening phone calls and that he believed he

was under surveillance.

       Finally, Darchia testified that when he was leaving the U.S. Consulate in Tbilisi on

February 17, 1998, after applying for a visa, he was attacked and beaten.

       Darchia is married to his second wife. He has two grown children from his first

marriage and two minor children from his second marriage. He and his wife applied for

visas to go to the United States. He received a visa, though his wife did not. In 1998 he

left Georgia and came to the United States after a short stay in Moscow. Darchia's visa

expired in December 1998, but he did not go home or obtain permission to remain in this

country. His wife obtained a visa to visit Mexico; once there, she crossed into the United

States illegally and joined Darchia in Tennessee in April 1999. Darchia and his wife were

picked up at a roadblock in 1999, while on vacation in Arizona. He was given an asylum



                                              4
application form by an Immigration Judge in Arizona, but failed to complete the form.

He consulted two different attorneys about applying for asylum, but one attorney was

given permission to withdraw from representing Darchia on the ground that Darchia did

not cooperate with counsel. Darchia did not file an asylum application until November 9,

2000.

        Darchia said he did not know whether Georgian government officials are currently

investigating him, but he said that his children, who were left behind in Georgia, continue

to receive telephone calls warning Darchia to stop his activities with the Popular Front

and threatening him with death. Darchia's evidence consisted principally of his own

testimony and asylum application, State Department reports on Georgia, the testimony of

his wife, and the testimony of a Georgian asylee who had no independent knowledge of

the facts of Darchia's case.

        The Immigration Judge did not find Darchia's testimony or that of his witnesses to

be credible. Additionally, the Immigration Judge found that Darchia's testimony, even if

believed, did not prove that he had been subjected to persecution. Instead, he found

Darchia only showed that the police behaved aggressively or even cruelly in keeping

order at public demonstrations. Nor did the Immigration Judge find it likely that Darchia

would be persecuted if he were to return to Georgia, since he was allowed to retain a

lucrative position of authority within the government throughout the time he was involved

in political opposition to the government. Finally, the Immigration Judge found that



                                             5
Darchia did not show he would more likely than not be tortured if he returned to Georgia.

         The Board of Immigration Appeals affirmed without opinion, pursuant to 8 C.F.R.

§ 1003.1(e)(4). Darchia filed a timely petition for review, and we therefore have

jurisdiction under 8 U.S.C. § 1252 (2000).

         Under 8 U.S.C. § 1231(b)(3)(A) (2000), the Attorney General may not remove an

alien to a country if the alien's life or freedom would be threatened in that country

because of the alien's race, religion, nationality, membership in a particular social group,

or political opinion. The alien bears the burden of proving a "clear probability" that his

life or freedom would be threatened in the proposed country of deportation. INS v.

Stevic, 467 U.S. 407, 429-30 (1984); Tarrawally v. Ashcroft, 338 F.3d 180, 186 (3d Cir.

2003).

         Under the regulations implementing the Convention Against Torture, 8 C.F.R. §§

208.16-208.18, to establish a right to protection, an alien must prove that it is more likely

than not that the alien would be tortured if deported to the country proposed. 8 C.F.R. §

208.16(c).

         When the Board of Immigration Appeals summarily affirms the decision of the

Immigration Judge, we review the Immigration Judge's decision. Tarrawally, 338 F.3d at

184. We review the Immigration Judge's findings of fact, including credibility

determinations, under the substantial evidence standard. Id. Under the substantial

evidence standard, we must uphold the Immigration Judge's factual determinations unless



                                              6
"any reasonable adjudicator would be compelled to conclude to the contrary." Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002) (quoting 8 U.S.C. § 1252(b)(4)(B) and INS v.

Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). Adverse credibility determinations must be

based on evidence in the record, rather than speculation or conjecture. Id.

       We conclude that the Immigration Judge's adverse credibility findings are

supported by substantial evidence. The Immigration Judge rejected Darchia's various

explanations for why he failed to apply for asylum promptly instead of waiting for more

than two years. Even though Darchia concedes that his asylum claim is time-barred, the

findings are still relevant since the Immigration Judge viewed Darchia's lack of diligence

in pursuing his asylum claim as evidence that Darchia was not in fear for his life. The

record supports the Immigration Judge's finding of lack of diligence, for example, in

Darchia's choice to go on vacation to Arizona rather than attending to his asylum

application. See Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir. 2003)

(Immigration Judge's credibility determinations should be upheld if they are grounded in

the record and supported by "specific cogent reasons").

       The Immigration Judge also found implausible Darchia's story that, although the

KGB agents beat him, Darchia did not seek medical help because it would have made his

situation worse if he was asked how he came to be injured and had to reveal that it was

the KGB who beat him. Darchia does not explain satisfactorily why he could not have

simply declined to tell the doctors who beat him. The Immigration Judge found this



                                             7
explanation made "absolutely no sense." This was a permissible assessment of the record

evidence.

       The Immigration Judge also based his assessment of Darchia's credibility on

Darchia's statement that his children, whom he left in Georgia, continue to receive threats

by telephone, whereas Darchia did not mention this in the forty-six paragraph affidavit

filed with his asylum application. The Immigration Judge could infer that something as

serious as threats to one's minor children, left behind on the other side of the world,

would have made its way into an affidavit detailing the applicant's fears. The inference of

fabrication was a permissible one.

       We have reviewed Darchia's various other attacks on the Immigration Judge's

credibility findings, and we conclude that the findings were based on substantial evidence

in the record.

       Next, Darchia attacks the Immigration Judge's findings that Darchia's testimony

did not establish a clear probability that his life or freedom would be endangered upon

return to Georgia or that he would be tortured. The Immigration Judge held that the past

incidents in which Darchia was beaten during public demonstrations showed over-

aggressive police crowd control measures, rather than persecution. The Immigration

Judge found the possibility of future persecution remote because

       all the while [Darchia] was involved with his political party and during the
       period of time that he had confrontations with the police and was arrested
       by the police, [Darchia] continued in his important positions with the
       government of Georgia. He was never dismissed from those jobs. If,

                                              8
       indeed, the government wished to harm him in some fashion, this, I believe,
       would have been done by removing him from his positions of authority
       within the government itself.

Darchia's wife, a lawyer, testified that the Georgian government could not establish a tie

between Darchia and the assassination attempt that would support a prosecution and

therefore the government did not pursue Darchia further than questioning him on the one

occasion. Her testimony confirms that Darchia was not in continued danger because of

the allegation that he participated in the assassination plot. The Immigration Judge's

conclusions were supported by substantial evidence in the record.

       We deny review.
